Francis J. Marrano v. Karen Dusza and Joseph Dusza, Jr.
Attorneys and Parties
Brief Summary
Real property—prescriptive easement and private nuisance (light trespass) between residential neighbors.
Granted defendants’ motion for summary judgment dismissing the amended complaint in full.
Dismissal of the nuisance claim to the extent it is based on defendants’ installation of a flood light.
Defendants’ showing on summary judgment was conclusory and did not establish as a matter of law that the motion-activated lights could not constitute a nuisance; they failed to specify placement or address whether light shone onto plaintiff’s property, so the motion should have been denied regardless of the sufficiency of plaintiff’s opposition.
Background
Plaintiff used a path across defendants’ backyard for decades to access nearby wetlands for fishing and recreation. After purchasing their property in 2016, defendants initially permitted plaintiff to continue traversing the path but revoked permission in 2020 and erected a fence. Plaintiff sued seeking a prescriptive easement, alleging private nuisance (including light trespass from backyard flood lights), and claiming the fence violated zoning height limits.
Lower Court Decision
Supreme Court, Erie County granted defendants summary judgment dismissing all claims, finding no prescriptive easement and rejecting the nuisance and zoning claims.
Appellate Division Reversal
The order is modified: the court denies summary judgment on the nuisance cause of action insofar as it alleges a nuisance from the installation of a flood light and reinstates that portion of the claim. The court otherwise affirms dismissal, including the prescriptive easement claim (use was permissive, defeating hostility; plaintiff failed to raise a triable issue) and deems the zoning claim abandoned on appeal. Plaintiff also abandoned any other nuisance theories.
Legal Significance
Confirms that permissive neighborly accommodation defeats the hostility element for a prescriptive easement and that conclusory assertions are insufficient to obtain summary judgment against a private nuisance claim alleging light trespass; defendants must provide competent, nonconclusory proof about the nature, placement, and effect of the lighting.
Permission defeats a prescriptive easement; and on summary judgment, a defendant cannot defeat a light-trespass nuisance claim with conclusory statements—specific facts about the lighting’s placement and impact are required.