ILNews

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

Back to TopCommentsE-mailPrint

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
ADVERTISEMENT