Traetto v. Palazzo, 436 N.J. Super. 6 (App. Div. 2014). Plaintiff sought to enjoin defendants, her next-door neighbors, from allowing their son to play the drums in defendants’ detached garage. Pleading a common law nuisance claim, plaintiff’s Verified Complaint alleged that the drum-playing had been occurring “at various lengthy periods, at intermittent hours, both day and night.” Plaintiff, who works from home, also asserted in the Verified Complaint that the drumming affected her ability to do her work at home and also substantially interrupted her “peace and quiet in her home during during daylight and late night hours,” including making her unable “to obtain a routine of nighttime sleep.”
When plaintiff moved for an order permitting her to inspect defendants’ garage and the drum set, defendants resisted and filed a motion for summary judgment. Defendants certified that their son played the drums only from 4-7 P.M. and on weekend afternoons. Defendants also swore that their son was not allowed to play the drums in the evening.
The Chancery Division granted summary judgment, finding that the drumming did not occur after 7 P.M. and noting that the municipal health administrator had stated that no violation of the local noise ordinance had occurred. The judge also denied the motion to inspect, finding it “an unwarranted invasion of private property.” Plaintiff appealed and won a reversal. Judge Haas wrote the Appellate Division’s opinion.
Judge Haas began by restating the familiar tests for summary judgment. Summary judgment is permissible under Rule 4:46 only where “there is no genuine issue as to any material fact challenged.” The standard of review on summary judgment motions is “whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.”
Here, there was a genuine dispute as to whether the drumming had occurred at night, as plaintiff swore in her Verified Complaint, though defendants denied that in their own sworn certification. This was a “plainly material” issue on which the sworn evidence squarely disagreed. The Chancery Division was wrong “to weigh the evidence and determine the outcome” on summary judgment, rather than leaving the issue for trial. Additionally, the municipal health administrator’s opinion that the town’s noise ordinance had not been violated did not remove the need for the court to determine whether “the character, volume, frequency, duration, time, and locality of the noises … unreasonably interfere[d] with plaintiff’s health or comfort,” for purposes of a common law nuisance claim, whose elements Judge Haas discussed in some detail.
The Chancery Division’s rejection of plaintiff’s demand to inspect the detached garage was also error. Rule 4:18 expressly permits inspections of property “or any designated object or operation thereon.” There was no privacy issue, since this was a detached garage, not defendants’ home. And an inspection could unquestionably have led to relevant evidence, including as to the size of the drum set, the presence or absence of any sound amplification, and whether steps had been or could be taken to muffle the sound of the drums. Accordingly, the panel reversed the summary judgment and remanded the case on all issues.