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Ely
Ely, Counselor at Law
Category: Legal
Satisfied Customers: 88122
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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I have a next door neighbor directly adjacent to my home and

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I have a next door neighbor directly adjacent to my home and property who is harrasing us by playing very loud outdoor radio all day every day from dawn till dusk then at night the harrasment continues when hi shines and directs very bright flood light on our house and prorperty... These light shine inside the residence through many of our windows preventing us fro sleeping well... Tjis situation is continuous day and night for many months... The village police in Chatham NY - my village - will not do anything because there is no specific zoning laws agaisnt this behavior... My question is this... Can I use the the arguement of Constructive Eviction ? against this harrasing neighbor in a lawsuit to get him to stop... We need help we are under constant siege here...
Submitted: 2 years ago.
Category: Legal
Expert:  Ely replied 2 years ago.
Hello and thank you for the opportunity to assist you. Please remember that there might be a delay between your follow ups and my replies because I am typing out my answer, or taking a quick break.

I am sorry for your situation. In order so I can answer your question, can you please first tell me if you have called the police, and if so, what did they say? Or by this, you mean that the "village would not do anything," i.e. the police are not help?

This not an answer, but an Information Request. I need this information to answer your question. Please reply, so I can answer your question. I look forward to helping you.
Customer: replied 2 years ago.
Yes I have called the village police many times they say they can't do anything since there is no Village of Chatham NY noise pollution or light tresspass regulations on the books... But this situation is constant and continious - is clearly deliberate harrasment and is depriving us the rights to live and enjoy our property and home in peace... If he was a landlord and we were tenents it clearly would be a case of constructive eviction can I apply this standard if we are both seperate home owners ?
Expert:  Ely replied 2 years ago.
Thank you.

The issue here is that they are not going to be criminally charged. Ergo, you are left with the civil option.

Constructive eviction is a cause of action for a landlord/tenant matter only, as exemplified in Barash v. PA. TERM. REAL ESTATE CORP., 26 NY 2d 77 - NY: Court of Appeals 1970

However, you still have another cause of action here - possibly - nuisance. Nuisance is defined one may be liable for a private nuisance where the wrongful invasion of the use and enjoyment of another's land is intentional and unreasonable. The elements of such a private nuisance, as charged in effect by the Trial Justice, are: (1) an interference substantial in nature, (2) intentional in origin, (3) unreasonable in character, (4) with a person's property right to use and enjoy land, (5) caused by another's conduct in acting or failure to act (Restatement, Torts, § 822); Copart Inds. v. Con Ed, 41 NY 2d 564 - NY: Court of Appeals 1977.

If you feel that this is the case here, you can pursue litigation. If you win, you can get an injunction, and also ask for punitive damages. Punitive damages are available in New York if you can prove "conscious or reckless disregard." Welch v. Mr Christmas Inc., 440 N.E.2d 1317 (1982).

I hope you found my answer helpful, and if so please do not forget to click ACCEPT. This is the only way for me to get credit for my work – I receive no credit for my time with you unless you actually press ACCEPT, even if you already have a subscription. If you need more information, please use the REPLY button and I’d be more than happy to answer to your satisfaction. There is no fee for follow up questions before or after accepting, if we continue the conversation. If you feel that I went an extra step to help you, a bonus in the form of another accept or an “add on” (available after you accept) is truly appreciated. You can always link to my profile for another question at a later time:

http://www.justanswer.com/law/expert-elyJD/
Customer: replied 2 years ago.
Hi sorry lost internet for awhile - are you still there ?
Expert:  Ely replied 2 years ago.
Yes. I will re-post my answer in case you did not have a chance to read it. Let me know please if you need anything else:

The issue here is that they are not going to be criminally charged. Ergo, you are left with the civil option.

Constructive eviction is a cause of action for a landlord/tenant matter only, as exemplified in Barash v. PA. TERM. REAL ESTATE CORP., 26 NY 2d 77 - NY: Court of Appeals 1970.

However, you still have another cause of action here - possibly - nuisance. Nuisance is defined one may be liable for a private nuisance where the wrongful invasion of the use and enjoyment of another's land is intentional and unreasonable. The elements of such a private nuisance, as charged in effect by the Trial Justice, are: (1) an interference substantial in nature, (2) intentional in origin, (3) unreasonable in character, (4) with a person's property right to use and enjoy land, (5) caused by another's conduct in acting or failure to act (Restatement, Torts, § 822); Copart Inds. v. Con Ed, 41 NY 2d 564 - NY: Court of Appeals 1977.

If you feel that this is the case here, you can pursue litigation. If you win, you can get an injunction, and also ask for punitive damages. Punitive damages are available in New York if you can prove "conscious or reckless disregard." Welch v. Mr Christmas Inc., 440 N.E.2d 1317 (1982).

I hope you found my answer helpful, and if so please do not forget to click ACCEPT. This is the only way for me to get credit for my work – I receive no credit for my time with you unless you actually press ACCEPT, even if you already have a subscription. If you need more information, please use the REPLY button and I’d be more than happy to answer to your satisfaction. There is no fee for follow up questions before or after accepting, if we continue the conversation. If you feel that I went an extra step to help you, a bonus in the form of another accept or an “add on” (available after you accept) is truly appreciated. You can always link to my profile for another question at a later time:

http://www.justanswer.com/law/expert-elyJD/
Customer: replied 2 years ago.
Hi sorry - having some internet issues... Could you clarify specifically how I myself - as a private individual - can pursue nuisance litigation in this matter ? Should I file in small claims court or the county or both - can I ? How do I file ? In reality to a really need to hire a lawyer to file and argue this case ? Is there any more elements - precidents you could cite - I should bring up when arguing this case...? If you could further clarify - I will definitely accept your answers so you can get credit... Thanks
Expert:  Ely replied 2 years ago.
Should I file in small claims court or the county or both - can I ? How do I file ? In reality to a really need to hire a lawyer to file and argue this case ?

This really depends on subjective criteria. If not very versed with litigation, it is highly advisable to use counsel. The attorney may begin by a demand letter of cease and desist, which may do the trick without having to litigate. Filing a suit is a very complicated procedure. It would be hard to give you an overview as much as it would be to give an overview of a medical procedure.

You do not need more elements, or precedent. The elements is what is required - no more, and no less. As for precedent - there is plenty:

Weinberg v. Lombardi, 217 AD 2d 579 - NY: Appellate Div., 2nd Dept. 1995

People v. Sturm, Ruger & Co., 309 AD 2d 91 - NY: Appellate Div., 1st Dept. 2003.

Etc.

I hope you found my answer helpful, and if so please do not forget to click ACCEPT. This is the only way for me to get credit for my work – I receive no credit for my time with you unless you actually press ACCEPT, even if you already have a subscription. If you need more information, please use the REPLY button and I’d be more than happy to answer to your satisfaction. There is no fee for follow up questions before or after accepting, if we continue the conversation. If you feel that I went an extra step to help you, a bonus in the form of another accept or an “add on” (available after you accept) is truly appreciated. You can always link to my profile for another question at a later time:

http://www.justanswer.com/law/expert-elyJD/
Customer: replied 2 years ago.
Ok great - one final follow up... If I have tenants in my house and they have the same complaints - feel the way I do - does this change anything - can any elements of constructive eviction be argued or do there statements just add to my case regarding private nuisance... ?
Expert:  Ely replied 2 years ago.
No problem.

If I have tenants in my house and they have the same complaints - feel the way I do - does this change anything - can any elements of constructive eviction be argued or do there statements just add to my case regarding private nuisance... ?

No. The constructive eviction cause of action is only between landlord and tenant. So it does not apply here, although this is a good question.

So far, you have nuisance. You may be able to add intentional infliction of emotional distress if you can show that they are doing so on purpose: The tort has four elements: (i) extreme and outrageous conduct; (ii) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (iii) a causal connection between the conduct and injury; and (iv) severe emotional distress. Howell v. New York Post Co., 81 NY 2d 115 - NY: Court of Appeals 1993.

I hope you found my answer helpful, and if so please do not forget to click ACCEPT. This is the only way for me to get credit for my work – I receive no credit for my time with you unless you actually press ACCEPT, even if you already have a subscription. If you need more information, please use the REPLY button and I’d be more than happy to answer to your satisfaction. There is no fee for follow up questions before or after accepting, if we continue the conversation. If you feel that I went an extra step to help you, a bonus in the form of another accept or an “add on” (available after you accept) is truly appreciated. You can always link to my profile for another question at a later time:

http://www.justanswer.com/law/expert-elyJD/

Customer: replied 2 years ago.
Ok great - if I accept - all these answers - in total - will be emailed to me so Ican have a record for referance right ?
Expert:  Ely replied 2 years ago.
Hello,

I am afraid I do not have that ability. However, I will re-paste this and you can copy and paste in Wordpad, etc:

Constructive eviction is a cause of action for a landlord/tenant matter only, as exemplified in Barash v. PA. TERM. REAL ESTATE CORP., 26 NY 2d 77 - NY: Court of Appeals 1970

However, you still have another cause of action here - possibly - nuisance. Nuisance is defined one may be liable for a private nuisance where the wrongful invasion of the use and enjoyment of another's land is intentional and unreasonable. The elements of such a private nuisance, as charged in effect by the Trial Justice, are: (1) an interference substantial in nature, (2) intentional in origin, (3) unreasonable in character, (4) with a person's property right to use and enjoy land, (5) caused by another's conduct in acting or failure to act (Restatement, Torts, § 822); Copart Inds. v. Con Ed, 41 NY 2d 564 - NY: Court of Appeals 1977.

If you feel that this is the case here, you can pursue litigation. If you win, you can get an injunction, and also ask for punitive damages. Punitive damages are available in New York if you can prove "conscious or reckless disregard." Welch v. Mr Christmas Inc., 440 N.E.2d 1317 (1982).


Should I file in small claims court or the county or both - can I ? How do I file ? In reality to a really need to hire a lawyer to file and argue this case ?

This really depends on subjective criteria. If not very versed with litigation, it is highly advisable to use counsel. The attorney may begin by a demand letter of cease and desist, which may do the trick without having to litigate. Filing a suit is a very complicated procedure. It would be hard to give you an overview as much as it would be to give an overview of a medical procedure.

You do not need more elements, or precedent. The elements is what is required - no more, and no less. As for precedent - there is plenty:

Weinberg v. Lombardi, 217 AD 2d 579 - NY: Appellate Div., 2nd Dept. 1995

People v. Sturm, Ruger & Co., 309 AD 2d 91 - NY: Appellate Div., 1st Dept. 2003.

Etc.

If I have tenants in my house and they have the same complaints - feel the way I do - does this change anything - can any elements of constructive eviction be argued or do there statements just add to my case regarding private nuisance... ?

No. The constructive eviction cause of action is only between landlord and tenant. So it does not apply here, although this is a good question.

So far, you have nuisance. You may be able to add intentional infliction of emotional distress if you can show that they are doing so on purpose: The tort has four elements: (i) extreme and outrageous conduct; (ii) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (iii) a causal connection between the conduct and injury; and (iv) severe emotional distress. Howell v. New York Post Co., 81 NY 2d 115 - NY: Court of Appeals 1993.

I hope you found my answer helpful, and if so please do not forget to click ACCEPT. This is the only way for me to get credit for my work – I receive no credit for my time with you unless you actually press ACCEPT, even if you already have a subscription. If you need more information, please use the REPLY button and I’d be more than happy to answer to your satisfaction. There is no fee for follow up questions before or after accepting, if we continue the conversation. If you feel that I went an extra step to help you, a bonus in the form of another accept or an “add on” (available after you accept) is truly appreciated. You can always link to my profile for another question at a later time:

http://www.justanswer.com/law/expert-elyJD/
Ely, Counselor at Law
Category: Legal
Satisfied Customers: 88122
Experience: Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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