The Lawletter Vol 44 No 5
Dogs barking incessantly can result in a nuisance lawsuit between neighbors. For example, in Allen v. Powers, 64 Misc. 3d 171, 97 N.Y.S.3d 837 (City Ct. 2019), the plaintiff sued her neighbors claiming that their two German Shepherds barked incessantly and the dogs' constant barking at all hours interfered with the plaintiff’s right to quiet use and enjoyment of her property. This was a classic private nuisance claim.
However, the interesting twist in that case was that the defendant dog owners counterclaimed, contending that the plaintiff had repeatedly called the municipal authorities with specious complaints. As alleged in the counterclaim, the plaintiff’s efforts were an attempt to make the defendants move or have their landlord evict them. The plaintiff responded, asking the court to dismiss the counterclaim for failure to state a cause of action. The plaintiff argued that the counterclaim sounded like a claim for harassment, and New York does not recognize such a cause of action. In refusing to dismiss the counterclaim, however, the court treated the counterclaim as a private nuisance claim. In the counterclaim, the defendants specifically alleged that the plaintiff fabricated complaints or made frivolous complaints to various city officials to prevent the defendants from the use and quiet enjoyment of their property. The court opined that “[t]his is classic nuisance language and the court, thus, feels the obligation to consider a cause of action sounding in private nuisance.” Id. at 173, 97 N.Y.S.3d at 838. The court, focusing on the fact that each complaint made to the authorities would result in a visit from the police or other municipal officers, recognized that the defendants’ efforts could possibly result in an actionable nuisance. The court explained that “[s]uch repeatedly intrusions, when they are unjustified because of a neighbor's specious claims, violated the homeowners' right to the quiet enjoyment of their home—and correspondingly, give rise to a private cause of action for nuisance.” Id. at 175, 97 N.Y.S.3d at 839.
As illustrated in the New York case, a neighbor, even if annoyed by the actions of a fellow neighbor (or their animals), should be careful when complaining to the authorities. If these complaints are constant and have no legitimacy, the complaining neighbors could expose themselves to a viable nuisance claim.