Argued May 14, 2014.
Approved for Publication May 30, 2014.
On appeal from Superior Court of New Jersey, Chancery Division, Morris County, Docket No. C-129-12.
Jay B. Bohn argued the cause for appellant ( Schiller & Pittenger, PC, attorneys; Joseph E. Murray, of counsel and on the brief).
Mark J. Brancato argued the cause for respondents ( McHugh & Brancato, LLP, attorneys; Mr. Brancato, on the brief).
Before Judges FUENTES, SIMONELLI and HAAS. The opinion of the court is delivered by HAAS, J.A.D.
[436 N.J.Super. 9] HAAS, J.A.D.
Plaintiff Joanne Traetto appeals from the Chancery Division's July 22, 2013 order granting summary judgment to defendants James and Sandra Palazzo and dismissing plaintiff's complaint that sought to enjoin defendants from permitting their son to play drums in their detached garage. Because we find that material disputed issues of fact existed, we reverse and remand for further proceedings.
Plaintiff is employed by a pharmaceutical company as a computer analyst and she works in her home on a " 24 hour per day basis" answering calls from the company's business offices. Defendants live next door. In addition to their home, defendants have a detached two-story garage that is located approximately fifteen feet from plaintiff's house. The garage is separated from defendants' home by a swimming pool. Defendants' son, who was fifteen years old at the time this litigation was commenced, uses the second floor of the garage as a place to practice playing a drum kit, which includes cymbals.
On December 11, 2012, plaintiff filed a verified complaint in which she sought to enjoin defendants' son from playing the drums. Plaintiff alleged " the drum and cymbal playing noises have continued at various lengthy periods at intermittent hours, both day and night, both with the windows open and shut in the [defendants'] garage[.]" Plaintiff further asserted that " [a]s a result of such drum and cymbal playing, [she] has been substantially interrupted in her capacity to competently perform her work duties as well as her attempts to enjoy some personal peace and quiet in her home during daylight and late night hours." Plaintiff also claimed that, due to the " noise, its duration and inconsistent timing, [she] has been previously and currently unable to schedule the performance of her daily work obligations as well
as obtain a [436 N.J.Super. 10] routine of nighttime sleep[, which] has resulted in plaintiff being subjected to daily unnecessary stress and anxiety." Defendants filed an answer denying all of the allegations set forth in ...