ILNews

COA: Food odors don’t support granting preliminary injunctive relief

Back to TopCommentsE-mailPrintBookmark and Share

In a dispute over smells from a produce business drifting into neighboring businesses, the Indiana Court of Appeals affirmed that the manager of the shopping plaza is not entitled to preliminary injunctive relief for cooking foods without proper ventilation.

In The Novogroder Companies, Inc., v. Michael J. Massaro, 45A03-1303-PL-98, Dyer Plaza manager George Novogroder filed a complaint for injunctive relief against Michael J. Massaro, who leased commercial space in the plaza for his business The Produce Depot. The fruit and vegetable market also baked bread and served soup on the premises. Novogroder alleged that the smells created a nuisance and annoyed the neighboring businesses.

Michael Sena, owner of exercise studio Pro Fit; and Christie Gill, owner of Posh Paws, complained to Novogroder about the cooking smells. Novogroder and Massaro discussed installing ventilation but couldn’t agree as to who had the responsibility for finding a contractor.

In addition to seeking to enjoin Massaro from cooking until he added ventilation, Novogroder’s complaint also sought ejectment for breach of contract.

After hearing testimony from Sena, Gill, Novogroder and others, the trial court decided that the smells from The Produce Depot did not unreasonably annoy the neighboring owners and occupants. The judge pointed out that the smells from Massaro’s business paled in comparison to those of dog waste and urine that came from the pet grooming facility.

The appellate judges noted that no witness claimed to have perceived a foul odor coming from the business; the complaints were more that they could smell the food, which could produce nausea during exercise. In addition, the testimony of Novogroder and Massaro shows the actual dispute is more of a contract issue than a nuisance issue: who should bear the primary responsibility for installing ventilation.




 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Oh my lordy Therapist Oniha of the winexbackspell@gmail.com I GOT Briggs BACK. Im so excited, It only took 2days for him to come home. bless divinity and bless god. i must be dreaming as i never thoughts he would be back to me after all this time. I am so much shock and just cant believe my eyes. thank you thank you thank you from the bottom of my heart,he always kiss and hug me now at all times,am so happy my heart is back to me with your help Therapist Oniha.

  2. Hail to our Constitutional Law Expert in the Executive Office! “What you’re not paying attention to is the fact that I just took an action to change the law,” Obama said.

  3. What is this, the Ind Supreme Court thinking that there is a separation of powers and limited enumerated powers as delegated by a dusty old document? Such eighteen century thinking, so rare and unwanted by the elites in this modern age. Dictate to us, dictate over us, the massess are chanting! George Soros agrees. Time to change with times Ind Supreme Court, says all President Snows. Rule by executive decree is the new black.

  4. I made the same argument before a commission of the Indiana Supreme Court and then to the fedeal district and federal appellate courts. Fell flat. So very glad to read that some judges still beleive that evidentiary foundations matter.

  5. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

ADVERTISEMENT