The following e-filed documents, listed by NYSCEF document number (Motion 013) 682, 683, 684, 685, 686, 687, 688, 689, 690, 691, 692, 693, 694, 695, 696, 697, 698, 699, 700, 701, 702, 703, 704, 705, 706, 707, 708, 709, 710, 711, 712, 713, 714, 715, 716, 717, 718, 719, 720, 721, 722, 723, 724, 725, 726, 727, 728, 729, 730, 731, 732, 733, 734, 735, 736, 737, 738, 739, 740, 741, 742, 743, 744, 745, 746, 747, 748, 749, 750, 751, 752, 753, 754, 755, 756, 757, 758, 759, 760, 761, 762, 763, 764, 765, 766, 767, 768, 769, 770, 771, 772, 773, 774, 775, 776, 777, 778, 779, 780, 781, 782, 783, 784, 785, 786, 787, 788, 789, 790, 791, 792, 793, 794, 795, 796, 797, 798, 799, 800, 801, 802, 803, 804, 805, 806, 807, 808, 809, 810, 811, 812, 813, 814, 815, 816, 817, 818, 819, 820, 821, 822, 823, 824, 825, 826, 827, 828, 829, 830, 831, 832, 833, 834, 835, 836, 837, 838, 839, 840, 841, 842, 843, 845, 1034, 1035, 1036, 1037, 1038, 1039, 1040, 1041, 1042, 1043, 1044, 1045, 1046, 1047, 1048, 1049, 1050, 1051, 1052, 1053, 1054, 1055, 1056, 1057, 1058, 1059, 1060, 1061, 1062, 1063, 1064, 1065, 1066, 1067, 1068, 1069, 1070, 1071, 1072, 1073, 1074, 1075, 1076, 1077, 1078, 1079, 1083, 1086, 1087, 1117, 1118, 1119, 1120, 1121, 1122, 1123, 1124, 1125, 1126 were read on this motion for PARTIAL SUMMARY JUDGMENT. The following e-filed documents, listed by NYSCEF document number (Motion 014) 541, 542, 543, 544, 545, 546, 547, 548, 549, 550, 551, 552, 553, 554, 555, 556, 557, 558, 559, 560, 561, 562, 563, 564, 565, 566, 567, 568, 569, 570, 571, 572, 573, 574, 575, 576, 577, 578, 579, 580, 581, 582, 583, 584, 585, 586, 587, 588, 589, 590, 591, 592, 593, 594, 595, 596, 597, 598, 599, 600, 601, 602, 603, 604, 605, 606, 607, 608, 609, 610, 611, 612, 613, 614, 615, 616, 617, 618, 619, 620, 621, 622, 623, 624, 625, 626, 627, 628, 629, 630, 631, 632, 633, 634, 635, 636, 637, 638, 639, 640, 641, 642, 643, 644, 645, 646, 647, 648, 649, 650, 651, 652, 653, 654, 655, 656, 657, 658, 659, 660, 661, 662, 663, 664, 665, 666, 667, 668, 669, 670, 671, 672, 673, 674, 675, 676, 677, 678, 679, 680, 681, 844, 846, 858, 859, 860, 861, 862, 863, 864, 865, 866, 867, 868, 869, 870, 871, 872, 873, 874, 875, 876, 877, 878, 879, 880, 881, 882, 883, 884, 885, 886, 887, 888, 889, 890, 891, 892, 893, 894, 895, 896, 897, 898, 899, 900, 901, 902, 903, 904, 905, 906, 907, 908, 909, 910, 911, 912, 913, 914, 915, 916, 917, 918, 919, 920, 921, 922, 923, 924, 925, 926, 927, 928, 929, 930, 931, 932, 933, 934, 935, 936, 937, 938, 939, 940, 941, 942, 943, 944, 945, 946, 947, 948, 949, 950, 951, 952, 953, 954, 955, 956, 957, 958, 959, 960, 961, 962, 963, 964, 965, 966, 967, 968, 969, 970, 971, 972, 973, 974, 975, 976, 977, 978, 979, 980, 981, 982, 983, 984, 985, 986, 987, 988, 989, 990, 991, 992, 993, 994, 995, 996, 997, 998, 999, 1000, 1001, 1002, 1003, 1004, 1005, 1006, 1007, 1008, 1009, 1010, 1011, 1012, 1013, 1014, 1015, 1016, 1017, 1018, 1019, 1020, 1021, 1022, 1023, 1024, 1025, 1026, 1027, 1028, 1029, 1030, 1031, 1032, 1033, 1080, 1082, 1088, 1089, 1090, 1091, 1092, 1093, 1094, 1095, 1096, 1097, 1098, 1099, 1100, 1101, 1102, 1103, 1104, 1105, 1106, 1107, 1108, 1109, 1110, 1111, 1112, 1113, 1114, 1115, 1127 were read on this motion for SUMMARY JUDGMENT. The following e-filed documents, listed by NYSCEF document number (Motion 015) 538, 539, 540, 853, 854, 855, 856, 857, 1081, 1116, 1128 were read on this motion to STRIKE JURY DEMAND. DECISION ORDER ON MOTION Plaintiff, Justin Theroux, and defendants, Norman Resnicow and Barbara Resnicow, are neighbors in a co-op apartment building. Theroux and the Resnicows have been engaged since 2015 in a bitter, ongoing series of quarrels that led to this action. Theroux’s amended complaint, as supplemented by leave of court during the action, asserts claims for trespass (and an accompanying request for declaratory relief) and for private nuisance, and seeks an award of both compensatory and punitive damages. In 2019, this court granted Theroux’s motion for partial summary judgment on liability with respect to his claims for trespass and a declaratory judgment. (See Theroux v. Resnicow, 2019 NY Slip Op 31819[U] [Sup Ct, NY County June 25, 2019].) The Appellate Division, First Department, affirmed this court’s trespass-related liability rulings in 2020. (See Theroux v. Resnicow, 187 AD3d 654 [1st Dept 2020].) On motion sequence 013, Theroux now moves for partial summary judgment on liability with respect to his claims for private nuisance against Norman Resnicow — the first and fifth causes of action in the combined amended/supplemental complaint. These claims arise from what Theroux alleges to be a “targeted and malicious years-long harassment campaign” to deprive him of “his right to use and enjoy his property,” in response to his refusal to install soundproofing in the floor of his apartment, which is directly above the Resnicows’ apartment. (NYSCEF No. 855 at 1.) Theroux also moves for summary judgment dismissing the Resnicows’ affirmative defenses and counterclaims. In addition to opposing Theroux’s motion, the Resnicows cross-move for summary judgment dismissing Theroux’s private-nuisance claims. On motion sequence 014, the Resnicows move for summary judgment dismissing Theroux’s claims for various forms of damages on his trespass and nuisance claims. The Resnicows also move, in the alternative, to preclude Theroux from submitting evidence at trial with respect to one aspect of his nuisance claims: Fees that Theroux claims he paid his business manager to help him deal with some of Norman Resnicow’s alleged nuisance behavior. On motion sequence 015, the Resnicows moves to dismiss Theroux’s demand for a jury trial. Motion sequences 013, 014, and 015 are consolidated here for disposition. Theroux’s partial-summary-judgment motion (mot seq 013) is granted in part and denied in part. Theroux has established as a matter of law that various aspects of Norman Resnicow’s behavior toward him constitute a private nuisance — an intentional, unreasonable, interference with Theroux’s use and enjoyment of his apartment. Resnicow’s principal argument, that he cannot be held liable for nuisance because all of his conduct at issue was legally permissible, is without merit. The Resnicows’ cross-motion to dismiss Theroux’s private-nuisance claims is denied. This court also concludes that Theroux has established as a matter of law that the Resnicows’ affirmative defenses should be dismissed. The court reaches a different conclusion, however, with respect to Theroux’s request to dismiss the Resnicows’ eight remaining counterclaims. Theroux has shown that the Resnicows’ claims for damages on two of the counterclaims (each sounding in trespass) should be dismissed in part — compensatory and punitive damages on the third counterclaim, and punitive damages on the fifth counterclaim. Otherwise, the Resnicows have shown that a jury must resolve factual issues remaining on their counterclaims. The Resnicows’ summary-judgment motion (mot seq 014) is largely denied. The Resnicows raise legitimate questions about the extent and basis of Theroux’s claimed compensatory damages in trespass and nuisance. But, with one exception, the Resnicows have not established as a matter of law that Theroux is not entitled to any compensatory damages on these claims, as required to obtain summary judgment. (The exception is the amount Theroux paid design professionals with respect to the repair of an exterior balcony and staircase, which this court concludes is not a cognizable form of damages in nuisance on the facts in this case.) That exception aside, a jury must decide the amount of compensatory damages to which Theroux is entitled. The Resnicows also do not show that Theroux’s claims for punitive damages, and his claim for attorney fees under 22 NYCRR 130-1.1, fail as a matter of law. And this court is not persuaded that Theroux should be subject to a discovery sanction precluding him from submitting for damages purposes evidence of the fees he paid his business manager, as the Resnicows request. The Resnicows’ motion to strike Theroux’s jury demand (mot seq 015) is denied. The Resnicows contend that Theroux waived his right to a jury trial by combining damages claims with a request for a declaratory judgment, which they assert to be equitable relief. But Appellate Division precedent makes clear that whether declaratory relief is legal or equitable for jury-trial purposes depends on the nature of the claims lying behind the request for a declaration: I.e., the claims plaintiff would have asserted absent the availability of the declaratory-judgment device. Here, this court concludes, those claims would seek money damages in trespass and nuisance — classic forms of legal relief that a plaintiff has a right to have determined by a jury. DISCUSSION I. Motion Sequence 013 A. The Branch of Theroux’s Summary-Judgment Motion Seeking to Hold Norman Resnicow Liable in Private Nuisance On motion sequence 013, Theroux seeks summary judgment in his favor on liability on his private-nuisance claims against Norman Resnicow (the first and fifth causes of action in the combined amended/supplemental complaint). The Resnicows cross-move for summary judgment dismissing these claims. This branch of Theroux’s motion is granted. The Resnicows’ crossmotion is denied. A party moving for summary judgment “must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact.” (Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986].) Once a party has satisfied its prima facie burden, the burden shifts to the party opposing the summary judgment motion to “produce evidentiary proof in admissible form” to establish the existence of one or more material issues of fact requiring a trial of the action. (Id.) To make out a private-nuisance claim, a plaintiff must establish “(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.” (Copart Indust., Inc. v. Consol. Edison Co. of New York, Inc., 41 NY2d 564, 570 [1977].) Acts interfering with a person’s property right to use and enjoy land are substantial enough to sustain a claim for private nuisance when they are not only “tangible and appreciable” but also “especially uncomfortable or inconvenient.” (Nussbaum v. Lacopo, 27 NY2d 311, 315 [1970].) That interference must be the product of “a pattern of continuity or recurrence of objectionable conduct.” (Domen Holding Co. v. Aranovich, 1 NY3d 117, 124 [2003] [internal quotation marks omitted].) Interference is intentional when one acts to cause such interference, one knows that the interference will result from one’s conduct, or one is substantially certain that the interference will result from that conduct. (Copart Indust., 41 NY2d at 571.) To ascertain whether an interference with others’ property rights to use and enjoy their land is unreasonable, a court should balance the “the gravity of harm to a plaintiff” against “the social usefulness of a defendant’s activity.” (Id. at 572.) Theroux’s affidavit in support of this motion identifies eight instances of allegedly retaliatory behavior by Resnicow constituting a nuisance: (1) withdrawing permission for Theroux’s renovation contractor to start work at 8:30 a.m.; (2) threatening to cut off access to water on Theroux’s roof deck; (3) threatening to invoke the house rule that 80 percent of floors in the building are covered in carpet; (4) disputing the location of boundary on the shared roof terrace; (5) threatening Theroux with negative public attention; (6) threatening to kill the ivy growing on Theroux’s section of the roof; (7) demanding that Theroux replace his vintage radiators because of an alleged history of gas leaks into Resnicow’s apartment; and (8) threatening to cut off electrical service to the terrace. (See NYSCEF No. 683 at 27-36.) Theroux further alleges other, later acts by Resnicow that allegedly constitute a nuisance: Pressing the boundary dispute and starting another dispute over Theroux’s outdoor balcony and stairs, thereby delaying Theroux’s deck construction. (See NYSCEF No. 683 at 46.) In Theroux’s supplemental amended complaint (filed in December 2021), he alleges five categories of Resnicow’s conduct since the start of this action that also allegedly constitute a nuisance: (i) Continuing to press the boundary dispute; (ii) using the media to harass Theroux and infringe on his privacy; (iii) engaging in “repeated instances of obsessive, peeping-Tom like conduct”; (iv) making “repeated baseless accusations” against Theroux to the co-op board and others; and (v) subjecting Theroux to “the recurring sounds of domestic abuse emanating from Apartment 1A.”1 (NYSCEF No. 802 at 197.) Resnicow asserts that these various actions, taken together, do not support a privatenuisance claim, because each one is insufficient on its own to constitute a nuisance: “An admixture of inadequate accuations does not by some alchemy coalesce then anneal into an adequate nuisance claim.”2 (NYSCEF No. 1039 at 7, citing Tzifil Realty Corp. v. Rodriguez, 2019 NY Slip Op 52144[U], at *1 [Civ Ct, Kings County Dec. 3, 2019], affd 2021 NY Slip Op 51162[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists].) Resnicow’s use of Tzifil Realty is unpersuasive. The motion court in that case cites no authority for the proposition on which Resnicow relies. And that proposition, taken at face value, runs contrary to the basic character of a nuisance claim as based on a “pattern of continuity or recurrence of objectionable conduct.”3 (Domen Holding Co. v. Aranovich, 1 NY3d 117, 124 [2003] [emphasis added; internal quotation marks omitted]; accord Chelsea 18 Partners, LP v. Sheck Yee Mak, 90 AD3d 38, 38 [1st Dept 2011] [holding that plaintiff had stated a private-nuisance cause of action based on allegations of the defendants' "campaign of premeditated and malicious harassment"]; CHI-AM Realty, Inc. v. Guddahl, 7 Misc 3d 54, 55-56 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2005] [considering "totality of circumstances" in evaluating whether landlord was permitted to evict tenant for causing a nuisance], affd 33 AD2d 911 [2d Dept 2006].) Resnicow is incorrect in asserting that each act of which Theroux complains must on its own support a nuisance cause of action. This court concludes that the conduct by Resnicow at issue, considered as a whole, constitutes a private nuisance as a matter of law. As a corollary, there is no merit to Resnicow’s argument that summary judgment should be granted dismissing Theroux’s private-nuisance claims. 1. Whether Resnicow’s course of conduct was intentional Theroux’s motion papers establish, prima facie, that Resnicow acted with the knowledge, or substantial certainty, that his actions would interfere with Theroux’s use and enjoyment of his property, as required to satisfy the intentionality requirement for private-nuisance claims. For instance, Resnicow wrote in an email that when Theroux calculated the “out-ofpocket hard costs” of their dispute combined with the “value of all the soft costs” Theroux suffered, Theroux would come to realize that it would likely have ended up costing him less simply to install the soundproofing. (NYSCEF No. 696 at 1.) Resnicow specifically highlighted several costs to Theroux, including the cost of installing new water and electrical lines, paying Theroux’s professionals, and buying rugs. He also mentioned the cost of lost terrace square footage to Theroux, the cost of Theroux’s contractor’s lost half hour of work each morning, and Theroux’s loss of enjoyment of his wood floors from Resnicow’s enforcement of the co-op’s 80 percent — carpeting rule. (Id.) In another email Resnicow wrote, responding to a letter from one of Theroux’s lawyers, he predicted that his dispute with Theroux will “further penetrate into [Theroux's] family, his quality of life with his wife, and his apartment value and whatever use they make of their apartment.” (NYSCEF No. 693 at 3.) And in an email about the boundary dispute between the parties, he wrote that after being “motivated by this mistreatment” (by Theroux) “to bother to check” the location of the boundary line, “the results are not happy for the 2A/B owner couple.” (NYSCEF No. 692 at 1.) Theroux has also introduced evidence of Resnicow’s repeated trespasses and related intrusions on Theroux’s side of the shared roof terrace (including after dark), supported by photographs and videos. (See NYSCEF No. 683 at
101-110, 113-119.) With respect to the domestic disturbances on which Theroux relies, he has introduced evidence supporting a conclusion that Norman Resnicow’s verbal outbursts toward Barbara Resnicow are intentional for private-nuisance purposes because they continued after Resnicow was put on notice that his actions were disturbing Theroux and other building residents. (NYSCEF No. 683 at
