Impellizerri v. Jamesville Federated Church - 104 Misc. 2d 620, 428 N.Y.S.2d 550 (Sup. Ct. 1979)

Rule:

There must be a material interference with the physical comfort and financial injury before there can be a nuisance. Stated another way, the test should be the "common care of persons of ordinary prudence" and not as to those with "peculiar conditions." The alleged nuisance must be such as would cause an unwanted effect on the health and comfort of an ordinary person in the same or a similar situation.

Facts:

Anthony and Luana Impellizerri sought an injunction to restrain the Jamesville Federated Church from playing its carillon. They contended that the playing of the carillon was an invasion of privacy and a nuisance. The carillon is a series of bells which are played in various musical arrangements. It was played three times a day and four times on Sundays at regular hours for a period of approximately four minutes each time. Many attempts have been made to compromise. The speakers have been moved, playing time curtailed and the sound intensity reduced to no avail: the Impellizerris wanted it stopped. The Impellizerris contended that the volume of the bells effects their son who has a neurological disease and was kept awake. Luana Impellizerri claimed she has migraine headaches and muscle spasms as the result of an accident which are aggravated by the bells. Generally, the claim was that conversation is disrupted, and the sounds cause severe anxiety and emotional stress to plaintiffs.

Issue:

Should the Impellizerris’ motion for injunction be granted?

Answer:

No.

Conclusion:

It seemed that the Impellizerris have a special problem because of their own special condition. There were no other complainants, although there are several neighbors who live closer to the church than them. Thus, it could not be said that the ringing of the bell was such that would produce an unwanted effect on the ordinary person in the same circumstances.