The following papers were read on Defendants’ motion for summary judgment: NOTICE OF MOTION AFFIRMATION IN SUPPORT EXHIBITS 1-19 CURRY AFFIDAVIT IN SUPPORT EXHIBITS 1-4 DUQUETTE AFFIDAVIT ANDERSEN AFFIDAVIT EXHIBITS 1-5 HYATT AFFIDAVIT EXHIBITS 1-4 STATEMENT OF MATERIAL FACTS MEMORANDUM OF LAW IN SUPPORT AFFIRMATION IN OPPOSITION EXHIBITS 1-3 MEMORANDUM OF LAW IN OPPOSITION RESPONSE TO STATEMENT OF MATERIAL FACTS REPLY AFFIRMATION IN FURTHER SUPPORT OF MOTION EXHIBITS 20-23 REPLY MEMORANDUM OF LAW IN FURTHER SUPPORT DECISION AND ORDER Plaintiffs commenced this action by the filing of a summons and verified complaint on March 13, 2020 seeking damages and to enjoin operation of the Cricket Valley Energy Center, LLC (“CVEC”) electric generation facility (“the facility”) located at 2241 Route 22, in the Hamlet of Dover Plains, Town of Dover, New York (“the Town”). Plaintiffs filed an amended complaint on November 19, 2020 and simultaneously moved by order to show cause for an injunction enjoining CVEC from operating during the pendency of this action. Defendants filed a cross-motion to dismiss. By Decision and Order of this Court dated February 22, 2021, Plaintiffs’ motion for an injunction was denied and Defendants’ motion to dismiss was granted in part such that the sole remaining cause of action is for private nuisance based upon alleged noise pollution. Following the filing of the note of issue, Defendants timely moved for summary judgment on the grounds that the alleged noise emanating from CVEC does not constitute a private nuisance and that Plaintiffs cannot establish damages because there has been no diminution of value of their respective properties. The proponent of a motion for summary judgment carries the initial burden of tendering sufficient admissible evidence to demonstrate the absence of a material issue of fact as a matter of law (see Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]). If a movant has met this threshold burden, to defeat the motion the opposing party must present the existence of a triable issue of fact (see Zuckerman v. New York, 49 NY2d 557, 562 [1980]). In deciding a motion for summary judgment, “the trial court must afford the party opposing the motion every inference which may be properly drawn from the facts presented, and the facts must be considered favorable to the nonmovant” (Szczerbiak v. Pilat, 90 NY2d 553 [1997]). “The elements of a private nuisance cause of action 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” (Massaro v. Jaina Network Sys., Inc., 106 AD3d 701, 703 [2d Dept 2013]). “As to what constitutes a reasonable use of one’s property depends on the circumstances of each case” (Benjamin v. Nelstad Materials Corp., 214 AD2d 632, 633 [2d Dept 1995]). In addition, “the plaintiffs must demonstrate their entitlement to monetary damages or injunctive relief” (Guzzardi v. Perry’s Boats, Inc., 92 AD2d 250, 254 [2d Dept 1983]). “Where the injury is permanent, the measure of damages for private nuisance is the diminution of the market value of the property, or where the injury is temporary, the reduction of the rental or usable value of the property” (Behar v. Friedman, 180 AD3d 671, 676 [2d Dept 2020] citing Guzzardi, 92 AD2d at 254 [internal citations omitted]; see also Volunteer Fire Ass’n of Tappan, Inc. v. County of Rockland, 101 AD3d 853, 857 [2d Dept 2012]). “Insofar as injunctive relief is concerned, such relief is available only if plaintiffs demonstrate that damage resulting from the alleged nuisance is not insubstantial” (Guzzardi, 92 AD2d at 254). “[E]xcept for the issue of whether the plaintiff has the requisite property interest, each of the other elements is a question for the jury, unless the evidence is undisputed” (Broxmeyer v. United Capital Corp., 79 AD3d 780, 782-83 [2d Dept 2010]). In support of their motion, Defendants submit the pleadings, excerpts from the deposition testimony of the plaintiffs; the deposition testimony and affidavit of Scott Curry, Project Director for the construction and commission of the facility; the affidavit of Marc Duquette, Director of Environment, Health and Safety for Advanced Power Services (NA) Inc. (“Advanced Power”), a part owner and manager of CVEC; the affidavit of Donn Andersen, Building Inspector for the Town of Dover, and the affidavit of Judy Hyatt, the Tax Assessor for the Town of Dover, as well as other documents and materials. CVEC is a 1,100-megawatt natural gas-fired combined cycle power plant located in Dover Plains, New York which generates electricity for the State’s electric grid. CVEC is situated in the Industrial/Manufacturing (M) Zoning Districts of the Town of Dover. Construction of CVEC commenced on or about January 24, 2017. The Town of Dover (“the Town”) issued a Certificate of Occupancy on September 25, 2020. Plaintiffs allege that beginning in November 2019 and continuing for a four-month period, Defendants began testing their facility, including during evening, nighttime and weekend hours. Plaintiffs characterize the noise emanating from the facility during testing as “explosive and roaring sounds.” In the amended complaint, Plaintiffs allege that the noise from the facility has persisted through March 13, 2020, waking Plaintiffs up after midnight. In their bill of particulars, Plaintiffs further alleged that they experienced loud noises emanating from CVEC on the following dates and registered the below listed decibel levels: Saturday, November 2, 2019 — 80.9 decibels1 Wednesday, January 29, 2020 at 6:06 a.m. — 80 decibels Saturday, February 15, 2020 — 84.5 decibels Sunday, March 22, 2020 at 2:32 a.m. — 90 decibels Friday, March 27, 2020 — 90 decibels Saturday May 16, 2020 at 7:05 a.m. — 78 decibels Monday, November 2, 2020 at 6:34 a.m. 80.9 decibels Thursday, April 8, 2021 at 1:26 a.m. — 85 decibels Saturday, April 10, 2021 at 5:30 p.m. — 85 decibels The bill of particulars alleges that Plaintiffs used a Gain Express sound level meter to measure the decibel level of sounds emanating from the facility, which was acquired in November 2019. Plaintiffs allege in their bill of particulars that the noises emanating from the facility are on-going and have been noted to last between 34 seconds and as long as 3-4 minutes. They further alleged that they have lost the full value of their property, which they contend is a permanent injury. Plaintiff Joseph McEntee resides at 7 Cricket Hill Road in Dover Plains, approximately 1/8 of a mile from CVEC. At his deposition he testified to complaints of steam blasts “popping off” and the humming sound of the facility’s fan. He testified that he has recorded the noise emanating from the facility’s steam blasts on his phone, and that he purchased the Gain Express sound meter from Amazon.com. He testified that he is not trained in using the sound level meter and is not familiar with how to calibrate a sound level machine. He testified that the loudest decibel he was able to record was 93-94 decibels, which occurred prior to April 2020. He testified that the noise from the facility, namely the steam blasts, would wake him up at night, but that it has been quite some time since that has happened. He estimated that the noise has not woken him up or disrupted his sleep since “right around the time of COVID.” He further testified that now that the facility is operational, the steam blasts are much less frequent and he mainly hears the noise during the afternoon. He further testified that there are periods of time, a month or more, where he does not hear the loud steam blasts, and that he has gotten to the point where he does not pay attention to it anymore. He testified that the longest amount of time he heard a steam blast from the facility was five or six minutes. Mr. McEntee further testified that the noise from the facility has not changed his daily routine. He further testified that he lives approximately 1,500 feet from the Metro North rail line. He testified that he can hear the train at night, but he has become accustomed to it. He equated the sound of the humming from the fans to the sound of traffic on Route 22. He described the fan humming as irritating and annoying. He also testified that there are times when there is no noise coming from the facility. Mr. McEntee purchased his home in or about 2010 for $235,000.00. He estimates that he made $40,000 to $45,000 worth of repairs and improvements to the property while he has lived there. He has not obtained an appraisal and is unaware of the current fair market value of his property, other than what is listed on Zillow.com, a real estate website. He testified that representatives from CVEC offered to purchase the property for $50,000 in or about 2012. Plaintiff Leslie Russ owns the property located at 2277-2279 Route 22 in Dover Plains, less than ¼ of a mile from CVEC. The property has a barn, as well as a house with an attached apartment. She testified that she gutted the downstairs apartment and spent approximately $40,000 to renovate the apartment and transition it into a healing center. Ms. Russ testified that once the blasting began at the facility in or about late 2017, she had to close the healing center and began renting it out as an apartment. There has not been a prolonged gap in time where the apartment has not been rented. She charged approximately $700.00 a month in 2017 and now charges $900.00 a month. Ms. Russ moved to Poughkeepsie in 2019 and no longer resides at the Route 22 property. She rented the house originally for $1,800.00 a month, and after renovating the property now charges $2,200.00 a month. Ms. Russ testified that she has not made any effort to sell the property. She testified that since August 2017, she made approximately five complaints to the Town, however, the complaints did not relate to the noise coming from the facility. She testified that she stopped making complaints in 2018 because she felt it was pointless. She testified that the noise during the construction of the facility was “24/7″ and did not stop on the weekends. Ms. Russ testified that she also complained to Scott Curry, the CVEC project director about the construction blasting and force of the blasts. She did not make any complaints about the noise from the facility operating because she moved. She confirmed that she was not present or living in the house during the specific dates listed in the bill of particulars. Plaintiff Robert Hudson is the owner of 10 Vincent Road, Dover Plains, about ½ mile from CVEC. He purchased the property approximately 30 years ago for $75,000.00. He has not made any improvements to the property. He listed the property for sale several years ago, but took it off the market. He could not recall why he took it off the market. He believes the property is worth $150,000.00 but has not obtained an appraisal. He testified to hearing loud noise during the construction phase of the project. He worked during the day, so the sound did not disrupt his daily routine. He testified that the construction noise would only occasionally wake him up. Generally, he did not have an issue with the construction noise; instead, his issue was with the sounds after the facility started testing. He testified that when testing started at the facility it would sound like a rocket going off. His main complaint is with the “rocket ship” noises that he hears approximately once or twice a week. He testified that the noise from the facility has not had an impact on his daily routine but has affected his relaxation time and his ability to sit outside. He testified to hearing what he believed to be pressure releases, but it has been about a year since he has heard that noise. Mr. Hudson testified to using an app on his iPhone to measure the decibel sound level but stated “it wasn’t substantial enough for me to really think much of it.” Plaintiffs Daryn and Diana Gast are owners of 87 Dover Furnace Road, Dover Plains, about ¾ of a mile from CVEC. They purchased this property in 2000 for $115,000.00. Mr. Gast testified at his deposition that he has not obtained an appraisal and has not listed the property for sale in more than 10 years. Mr. Gast testified that he has not been trained in the operation of machinery that tests decibel levels or how to calibrate such sounds. He testified that he and his wife used an app on his wife’s phone to record the decibel sounds emanating from the facility. He testified that the continuous running noises that he hears registered at approximately 50 decibels when recorded from his house. He also testified to “blow-off noise” which was a super high level of noise. He testified that the blow-off noise is much less frequent now but sounds off at random times of day. He also described a “jet airplane” noise coming from the facility. He testified that this sound registered at 52 decibels at his property and 54 decibels at the CVEC property line on a Gain Express decibel reader. He testified that the app and decibel reader matched in their recordings when he’s used them together. He testified that the “blow-off” noise is louder than the “jet airplane” noise, but they only last a few seconds to a minute, where the “jet airplane” noise tends to last longer. Mr. Gast further testified to a period during March 2020 and April 2020 (“the COVID period”) when he did not hear any sound coming from the facility. He further testified that there are periods of time where he does not hear any noise coming from the facility. Mr. Gast testified that he contacted Scott Curry on a number of occasions to complain about the noise. He also testified that CVEC set up meters in his yard to measure the sound, but he was not given the results. He testified that he is not able to enjoy his yard or play outdoors with his children. He testified to losing sleep, being startled awake, and being stressed out and angry because there has not been anything he could do to stop or lessen the noise. Scott Curry was the CVEC project manager from March 2017 to September 2020. He testified that during construction a noise management plan was approved by the Town. He testified that Bechtel Power Infrastructure and Power Corporation (“Bechtel”) had an engineering, procurement and construction agreement with CVEC, which contained noise guarantees that were to be achieved by CVEC to ensure that the facility met the noise requirements of the Town’s noise ordinances. Bechtel oversaw the implementation of the noise mitigation plan. Initially, a sound curtain was installed, but it did not function as intended. He testified that between April and September 2020 a concrete masonry unit sound wall was erected and extended; adjustments were made to the air-cooled condenser units to correct some of the sound levels; and sound attenuation insulation was installed on different components. In his affidavit, he attests that construction on the facility commenced on or about January 24, 2017. Bechtel performed a Far Field Noise Test on April 22-23, 2020 to ensure that final operating noise levels were within the Town’s noise ordinance. Bechtel performed a Final Far Field Noise Test on September 18, 2020. In accordance with their SEQRA approval, the test was witnessed by a third-party engineering firm, Burns & McDonnell Engineering Company (“BMcD”) which confirmed that CVEC met all of its requirements under the EPC agreement and the Town’s noise ordinance. BMcD also performed additional testing at Plaintiff Gast’s property. BMcD generated a report which indicated that noise levels at Plaintiff Gast’s property were 40 decibels. Mr. Curry attests that any alleged noise exceedances that occurred during his tenure on the project were the result of construction activities, which were exempt under the Town noise ordinance or were emergency pressure-relief valve releases, which are also exempt under the noise ordinance. He attests that these sounds were a customary part of the commissioning process of the facility. Mr. Curry further attests that based upon computerized data from the facility, CVEC was not operating on May 16, 2020 and could not have emitted any noise from plant operations. He further attests that on November 2, 2020, based upon computerized data from the facility, CVEC did not begin operations until approximately 10:30 a.m. He further attests that no construction was occurring on those two dates. He further attests that the Town issued a Certificate of Compliance on September 25, 2020 signifying the completion of construction and the start of operation of the facility. He contends that issuance of the Certificate of Compliance indicates that CVEC was in compliance with all Town ordinances, including the noise ordinance. Marc Duquette, Director of Environment, Health and Safety Advanced Power, attests that Advanced Power’s management responsibilities included managing the construction and operation of the facility, obtaining all federal, state and local permits and authorizations needed to construct, operate, and maintain the facility in accordance with its permits and the applicable federal, state and local laws and regulations. He attests that “Defendants spent several years working with third-party regulatory agencies to analyze and incorporate ways to best mitigate an[y] potential noise concerns that may affect the surrounding community. Throughout the construction of CVEC and into its operation, I have managed and ensured that CVEC has met and continues to meet its compliance obligations under the approximately 78 permits and approvals it has duly received from New York State, the Federal Government, Dutchess County, and the Town of Dover.” Donn Andersen, the Building Inspector of the Town of Dover, attests that his responsibilities include monitoring for compliance with and enforcement of the Town Code. He attests that on November 5, 2019, he received a letter from counsel on behalf of Plaintiff McEntee and his family complaining of noise emanating from CVEC’s facility. The letter alleged that the noise had reached 93 decibels and could be heard in the early morning and in the evening. Mr. Andersen attests that he responded to counsel by letter dated November 19, 2019. Mr. Andersen explained that the facility was under construction and that the Town Code §107-3B(5) specifically exempts noise caused by construction activity between the hours of 7:00 a.m. and 9:00 p.m. any day of the week. Mr. Andersen further explained that the facility recently experienced steam pressure releases during start-up and testing. He further explained that these types of safety signals are exempt under Town Code §145-40(c)(4) with no time or day restrictions. Mr. Andersen further explained that elevated, intermittent noise levels during construction were anticipated and evaluated by the New York State Department of Environmental Conservation. He further explained that CVEC was being constructed under a Town approved Construction/Commissioning Noise Management Plan which was developed with the requirements of the Town Code and approved by the Town Board. Mr. Andersen further attests that the Town received a complaint from Plaintiff Daryn Gast alleging excessive noise emanating from CVEC “all day” on June 27, 2021. Mr. Andersen visited Plaintiff Gast’s property the following day and did not hear any excessive noise. He also spoke with a neighbor who denied hearing excessive noise the day before. He attests that no violation was issued. On or about August 13, 2021, the Town received verbal complaints from Plaintiff Gast and non-party Wayne Vincent that they heard a jet-engine like noise measuring over 54 decibels. Mr. Andersen attests that no violation was issued as a result of this complaint. He further attests that Plaintiff Gast filed a third complaint indicating that a “loud blow off” was heard on November 26, 2021 at 8:00 a.m. which lasted for a few minutes. Plaintiff Gast’s voice message stated that he had contacted the facility and was told there had been a unit malfunction. No violation was issued as a result of this complaint. Mr. Andersen attests that to his knowledge, the Town has not received any other complaints regarding the noise emanating from the facility. He attests that CVEC has never been issued any violations as the result of excessive noise. Mr. Andersen further attests that Plaintiff Gast’s property abuts the Harlem line of the Metro North Railroad and that Plaintiff Hudson’s property is also within close proximity to the rail line, which is a considerable source of noise as trains travel past their homes. Judy Hyatt, the Town of Dover Tax Assessor, explained how the fair market value (“FMV”) of real property is ascertained for assessment purposes within the Town. She attests that Dover, unlike some assessing towns, does not engage in an annual reassessment program. Consequently, assessments remain fixed from year-to-year and are translated into FMV through an application of the annual equalization rate established by the New York State Office of Real Property Tax Services (“ORPTS”) for each assessing municipality. FMV is determined by taking the assessed value of a tax parcel and dividing it by the ORPTS-determined equalization rate. She attests that the current equalization rate is 42 percent. She further attests to the Plaintiffs’ property assessments and FMV for purposes of the 2022 assessments and that these assessments have remained unchanged since prior to the construction of the facility: Joseph McEntee — 7 Cricket Hill Road. The Property was purchased in 2009 for $243,800.00. The current assessment is $116,300.00 with a FMV of $276,000.00 Leslie Russ — 2277-2279 Route 22. The property was purchased in 2000 for $120,000.00 and was inherited by Russ in 2019. The current assessment is $93,000.00 with a FMV of $221,400.00. Robert Hudson — 10 Vincent Rd. The property is a mobile home affixed to the property, which was purchased in 1993 for $75,000. The current assessment is $56,900.00 with a FMV of $135,500.00. Plaintiffs Daryn Gast and Diana Gast — 87 Dover Furnace Rd. The property was purchased in 2001 for $115,000.00. The current assessment is $116,800.00 with a FMV of $278,100.00. She further attests that none of the Plaintiffs has filed a grievance to reduce their respective assessments. She further attests that no adjustments have been made because of the presence or operation of the facility, and the Plaintiffs have not disputed their assessments following the construction which commenced in January 2017. The Town of Dover Town Code §145-40(C) states, in relevant part: Noise. No noises shall be emitted in violation of Chapter 107 of the Dover Town Code. In addition, the following specific standards apply to noise: (2) No person, firm or corporation shall allow the emission of sound which, as measured at the property lines, have a sound level in excess of: (a) Sixty decibels on the A-weighted scale between the hours of 7:00 a.m. and 8:00 p.m. unless the property line is abutting a rail line in an M Zoning District in which case no sound level measured at the boundary of the property abutting the M Zoning District and rail line shall exceed 65 decibels on the A-weighted scale; and (b) Fifty decibels on the A-weighted scale between the hours of 8:00 p.m. and 7:00 a.m., unless the property line is abutting a rail line in an M Zoning District in which case no sound level measured at the boundary of the property abutting M Zoning District shall exceed 65 decibels on the A-weighted scale. (3) Sounds emitted at levels lower than those prohibited by Subsection C(2) above shall not be permitted, if, because of the type of frequency of the noise emitted, such sounds are offensive, disruptive or in continual disharmony with the character of an adjoining or nearby residential neighborhood. (4) Exemptions. The following shall be exempt from the noise level regulations: (b) Noises emanating from construction and maintenance activities between 8:00 a.m. and sunset, Monday through Friday. (c) The noises of safety signals, warning devices, emergency pressure-relief valves or other emergency warning signals. Here, Defendants have established their prima facie entitlement to judgment that CVEC’s operation of its facility and the noise generated therefrom is not unreasonable or substantial. CVEC is operating an electric generation facility in an Industrial/Manufacturing zoning district within the Town. The various noises testified to by Plaintiffs, including construction noise, pressure release valves (described as “blow-offs” or “jet engines”), and noise from the normal operation of the facility (described as “humming”) are customary and incidental to the normal occupancy and use of the facility (see Brown v. Blennerhasset Corp., 113 AD3d 454, 454 [1st Dept 2014]; Benjamin v. Nelstad Materials Corp., 214 AD2d at 633). Defendants further demonstrated that much of the noise coming from the facility during the construction phase was exempt under Town Code §§107-3B(5), and the noise from pressure release valves is exempt under Town Code §145-40(4)(c). Plaintiffs themselves testified that the noise was infrequent, and they had grown accustomed to it. It is also significant that Plaintiff Russ has not resided at her property since 2019, and thus, cannot be said to have experienced the noise from the specific four-month time period alleged in the complaint, nor the specific dates alleged in the bill of particulars. In addition, Defendants have demonstrated that on at least two of the dates identified by Plaintiffs, the facility was not operating and thus could not have generated the alleged noises recorded. As Defendants have demonstrated that the noise intrusions are insubstantial and not unreasonable, Plaintiffs are not entitled to injunctive relief (see Guzzardi, 92 AD2d at 254). Finally, Defendants have demonstrated that Plaintiffs have not suffered a diminution of the market value of their properties. Notably, for example, Plaintiff Russ was able to rent her property during the time period alleged and was able to raise the amount of rent charged during that time period. As Defendants have met their prima facie entitlement to judgment, the burden shifted to Plaintiffs to raise a triable issue of fact. In opposition to the motion, Plaintiffs submit the affirmation of counsel, to which he appends over 400 pages of materials constituting Defendants’ responses to Plaintiffs’ demands for discovery. Counsel does not articulate in what way any of these documents raises a triable issue of fact in this case. It is not the role of the Court to cull through Plaintiffs’ materials to identify an issue of fact on Plaintiffs’ behalf. Plaintiffs also submit the affidavit of David Carpenter, the Director of the Institute of Health and the Environment at the State University of New York at Albany. Dr. Carpenter’s affidavit is irrelevant and of no probative value as it does not discuss noise pollution, generally, or Plaintiffs’ noise allegations, specifically. Plaintiffs have failed to raise a triable issue of fact that the construction noises they experienced, as well as the pressure release valve sounds and general operating noises of the facility are substantial and unreasonable. Based upon the foregoing, it is hereby ORDERED that Defendants’ motion for summary judgment is granted and the amended verified complaint is dismissed. The court’s file is closed. The foregoing constitutes the decision and order of the Court. Scanned to the E-File System only Pursuant to CPLR §5513, an appeal as of right must be taken within thirty days after service by a party upon the appellant of a copy of the judgment or order appealed from and written notice of its entry, except that when the appellant has served a copy of the judgment or order and written notice of its entry, the appeal must be taken within thirty days thereof. Dated: November 16, 2022
