Regardless if the business is lawful, pursuant to the local municipal code (i.e., zoning code), New York's highest court has said that "no one may make an unreasonable use of his own premises to the material injury of his neighbor's premises". Meaning, that there are no hard and fast rules in this field of law, which is called a private nuisance cause of action, but, instead, a trier of fact (i.e., judge or jury) must determine if a given business activity is unreasonable at the location where it is being conducted.
In determining if an activity is unreasonable, the following factors should be analyzed to assess the totality of the circumstances under which the activity is being conducted:
- The location of the property at issue;
- Who was at the location first, the complainant or the business operator;
- The nature of the business' use of the property;
- An overall character assessment of the neighborhood where the activity is occurring;
- With respect to the injury claimed, how frequent is it occurring and to what extent or level is it occurring; and
- How, specifically, the business is effecting the complainant's enjoyment of life, health and property.
A private nuisance cause of action has been used to shutter the following types of business operations: raising and keeping of pigs, quarry operations, nightclubs, auto racetrack and open air concerts. In fact, the Courts of New York have held that a business cannot defend such an action by arguing that "the defendant's business or works is lawful, and is a great benefit, utility, and convenience to the public, and is rightfully carried on in a proper, suitable, and convenient place, and in a careful and orderly manner, and in the best and most improved manner". Such a defense is irrelevant.
So, if you wish to shutter the business, exercise your rights and make a claim that the business is a private nuisance to your use of your property, you can let a court decide if the activity should be stopped. Further, let a court decide if you should be compensated for your lost use and enjoyment during the time that the business operated. To establish your lost value, look to the diminished rental value of your property during the time that the business operated from what that value would have been if there was no such business existing during that time. Now, go live in peace and quiet.