Queens County Business Alliance, Inc. v. New York Racing Ass'n

98 A.D.2d 743, 469 N.Y.S.2d 448, 1983 N.Y. App. Div. LEXIS 21058

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 12, 1983
• Status: Published

Opinion

—• In an action for a permanent injunction, plaintiffs appeal from an order and judgment (one paper) of the Supreme Court, Queens County (Durante, J.), dated January 25, 1983, which, inter alia, granted the defendants’ cross motions to dismiss their complaint. Order and judgment affirmed, without costs or disbursements. The instant action for a permanent injunction is the result of a prior conversion by this court of plaintiffs’ proceeding commenced pursuant to CPLR article 78 (Queens County Business Alliance v New York State Racing Assn., 89 AD2d 46). There we stated that the proper procedure for obtaining the relief sought by plaintiffs was a private action to enjoin alleged violations of the New York City Zoning Resolution or to enjoin a public or private nuisance. We noted, however, that our determination was without prejudice to respondents’ raising the question of standing. Plaintiffs have failed to establish the special damages necessary for a private party to enjoin a zoning violation. Damage from competition is insufficient (Cord Meyer Dev. Co. v Bell Bay Drugs, 20 NY2d 211; Kempner v Bello Nurseries, 31 AD2d 748). Plaintiffs further state no cause of action in either private or public nuisance. Plaintiffs fail to allege an essential element of a private nuisance, an “interference with the use or enjoyment of land” (Copart Inds. v Consolidated Edison Co., 41 NY2d 564, 568). A cause of action alleging public nuisance, which interferes with or causes damage to the public in the exercise of rights common to all, cannot be maintained by a private individual absent special damages (Copart Inds. v Consolidated Edison Co., supra, p 568). Plaintiffs allege no injury different from that suffered by other residents and merchants of Queens County (see Graceland Corp. v Consolidated Laundries, 7 AD2d 89, affd 6 NY2d 900; Prosser, Torts [4th ed], pp 586-590). Accordingly, the complaint was properly dismissed. Gibbons, J. P., Thompson, Bracken and Brown, JJ., concur.