STATE OF NEW YORK

SUPREME COURT : COUNTY OF CHAUTAUQUA

_______________________________________________

WILLIAM AND SHIRLEY YAEGER,


Plaintiffs,


-vs- Index #H04290


JOHN LLOYD AND JEANNE LLOYD;

JACK MCALLISTER AND SUSAN MCALLISTER;

RODNEY NEWHOUSE; DONALD L. BLOOMQUIST, JR.

d/b/a BLOOMQUIST LANDSCAPING; AND

KINGSVIEW LANDSCAPING AND PAVING, INC.,


Defendants.


_______________________________________________



C. ROBERT VAHL, ESQ.

for Plaintiffs


SPOTO & SLATER

(Richard V. Slater,

Esq. of Counsel)

for Defendants Lloyd


O'SHEA, REYNOLDS &

CUMMINGS (Nelson E.

Schule, Jr., Esq.



DECISION AND ORDER



GERACE, J.



Plaintiffs and defendants have moved for summary judgment on he complaints and counterclaims.


The motions have been adjourned all this time because the parties have been involved in negotiations.

Unfortunately, their efforts have been sporadic. As a result, the case is now beyond standards and goals. However, according to the latest submissions, their differences are substantially settled, but, every exchange prolongs finality.


It is time to bring this case to an end. The Court has re-examined the motions, read all the pleadings, correspondence and affidavits, personally visited the property; observed the conditions; spoken to both sides.


Plaintiff's first and fourth cause of action allege negligence; the second and fifth complain of creation of a nuisance by way of water runoff caused by excavation and landscaping project prohibited by the North Harmony Zoning Ordinance; the first, second, third causes of action focus on activities on the side and roadside areas of Defendant's property, and the fourth, fifth, sixth allege the same theories but concern the lakeside area of defendant's property. In effect, the complaint alleges

three different causes of action and theories of law.


This is a neighbor vs neighbor dispute. Yeagers complain

that Lloyd-McAllister (through contractors) negligently conducted construction operations involving a driveway, wall, landscaping, causing surface water, silt, mud, debris to accumulate onto the Yeager property that "may cause a deterioration of the foundation", and in winter any accumulation of water "will freeze and may cause damage to the foundation."


There was no affidavit from an expert as to potential damage to the foundation; or diminution of property value. There is an affidavit by an engineer as to runoff and his opinion that unless Lloyd/McAllister "complete work" on their property, water will continue to flow onto the Yeager land.


Lloyd/McAllister counterclaimed to the tune of $150,000 for the emotional trauma they claim was intentionally inflicted by Yeagers.


The case has obviously created an emotional strain on all

parties. It doesn't take a modern day Freud to appreciate that

neighbors involved in lawsuits against each other will suffer

anxiety, stress, loss of sleep, apprehension, unhappiness and

other emotional and physiological experiences before, during and post litigation.


It is equally obvious that Yeagers have experienced some

slight invasion of property, considerable apprehension,

inconvenience, and expenditure of funds. However, their property

has experienced two winters since the action was commenced, and, no damage has been reported to this Court to date.


The irony -as in many lawsuits- is that the expenditure of dollars by both parties for attorneys and experts may far exceed the cost to alleviate the problem; and, the incredible emotional cost will far exceed the give and take that a little more communication and cooperation at the outset would have cost both sides.


There is no doubt that Yeagers, Lloyds and McAllisters have enjoyed their properties far less because of their differences, and, that no matter how the litigation ends, that all will experience the "bricks in your stomach" syndrome mentioned in the case.


There appear to be questions of fact on both sides. While

the parties appear to be close to settlement, the Court has

determined the best way to bring the case to a head is to set the case down for trial.


The motion to dismiss the complaint is denied, without

prejudice. The motion to dismiss the counterclaims is denied,

without prejudice.


The parties are directed to draw a jury Friday, APRIL 7,

1995 AT 9:00 A.M.


THIS IS THE DECISION AND ORDER OF THIS COURT. NO FURTHER

ORDER SHALL BE NECESSARY.


DATED: February 6, 1995

Mayville, New York


___________________________

JOSEPH GERACE

Justice of Supreme Court