legal right to sue?

[whittibo]

Hello!
I have a new neighbor who we were having problems with his dog (and later dogS) coming onto our property. we asked several times for the problem to be fixed, but never was, finally we had to call Animal Control and upon being verbally accosted by the man, had to call the sheriff as well.

about 3 weeks later, (dog problem was solved) the man shows up on the property where his mom was building a house, and he disturbs us for 4 hours. extremely foul language, shooting guns, driving a quad runner etc. finally at 9pm, after putting our kids to bed at 8:30, my husband hollered out "could you keep it down now, we are putting our kids to bed" to which the defendant replied "F*** YOU.. you blew it last time you called the sheriff's on me, now I am coming over to take care of this once and for all"..

we called the sheriff's again, who came out and after a LOT of yelling and fighting, finally arrested him for public intoxication and resisting arrest.

we filed for a restraining order and were granted one, but we had also asked for our costs to be reimbursed by the defendant (we purchased additional security equipment for our home because we were terrified of this man.. ) the judge granted the restraining order, but lowered it to 50 yards so the man can live in his mom's house. he also denied our costs.

I want to know if I would have a case in small claims?! I want to recover the $1000+ that we are physically out for money we spent.. plus time involved in doing all the legal stuff for the restraining order.. and also for emotional distress. I have 3 young girls who are now being locked inside the house daily with me since we are in such fear of this man... who not only resisted arrest that night, threatened us TWICE that night.. but has previous arrests for battery on a peace officer and Grand Theft.. not your "ordinary run of the mill neighbor" we got here. and since he had no problem scuffling with two sheriffs on the night he threatened us.. I have tremendous fear that he will come after us if given a chance!

Hope someone can help.. I don't know where else to turn.. I have tried these type of boards before, but they don't seem to have any activity on them.. and if I am going to do this, I want to act fast..

oh... I should also mention, we are now in the process of trying to find a new home. since we have been threatened, we no longer feel safe here and feel in order to provide a family home where our 3 girls don't have to hide inside, then now we must move from our house of 13 years.. which, all of these problems occurred PRIOR to this man even moving IN! he wasn't even living here before he did all this to us!!

 

[NYClex]

Hm, I am sorry to hear about your problems. Bad neighbors can really be a pain in the ...

What can you do?

You did the right thing in calling the cops and getting a restraining order. That was good.

Now any time he touches your land you should immediately call the cops again and file charges for violation of the restraining order and criminal trespass.

In civil proceedings you have the following options:

You can file an action for "trespass to land", that is a civil tort. If you can prove that your neighbor intentionally entered your land he committed a tort. The problem here of course is to claim damages. To be convicted of trespass to land there don't need to be actual damages, but of course your interest is to get the money back for your security installations.

I have not researched this further, this would be the job of your attorney, but you might be able to convince a judge, that your costs are "damages" of this tort.


You also can file a civil action for nuisance. A "nuisance" is an "unreasonable interference with the use and enjoyment of your land". There also might be damages recoverable, and also an injunction (which is something similar to the restraining order).

Depending on your local laws and rules you might be able to bring both of these actions in small claims court. But you should not do this unprepared or without legal help. If you want to do this without an attorney you should read a lot about it first.

Also keep in mind, if your neighbor doesn't have much money, it might be hard to collect any judgment.

I wish you that you soon can find a better place to live.

 

[whittibo]

Hello!
well, it's been awhile, I never received notification that this post was answered!

I am actually doing some follow-up research on my neighbor problems. Things have not gotten any better. We did list our house, but had some issues with selling it, we resolved those issues, but by then the market had slowed way down. so.. we're still here.

on Sept. 4, we had additional problems with our neighbors. this time, the whole family! (63 year old mom/property owner, her son who will be 40 soon, his son who is 18 and a daughter whom we think is about 12/13.) they came looking for their escaped goat this time.. and my husband ran out to take pictures of the 40 year old son, who has crossed the adjoining property line (violation of the restraining order) as he was taking pictures, there were more threats and cussing and even throwing rocks. we have a picture of the mom picking up a rock, and another picture of the son throwing a rock.

we called the sheriff's - it took them over an hour to respond.. and they came out, took our report.. then went and talked to the neighbor.. WHOM proceeded to admit to everything.. he was asked if he was involved in an altercation with my husband.. and his reply was, "yeah.. the F-er deserved it".. he was asked if he threw rocks at my husband and he said, "yeah, two.. but they weren't very good throws because my shoulder is bad".. then he told the sheriff's.. "it was all I could to do not go over there and attack him".. the sheriff's asked him if he was aware of the restraining order and it's restrictions and he said he did, but that he just gets so angry at Darren he doesn't care.

the sheriff's came back and told us there was nothing they could do. they would file the report and forward it to the D.A.

that didn't sit well with us because here we had a violation of a restraining order, and nothing was being done. we have since found out they should have taken him in.. or at the VERY least offered for us to do a citizens arrest.

ANYWAY.. our house hasn't sold.. we're still being harassed by these people.. I was even stalked and harassed in a grocery store by this man! my 3 girls.. ages 11/9/5 are just scared to death and so are we. we have had our civil rights violated time and time again.. first with the dogs.. we asked for 8 months for them to restrain their dogs.. and now this son that has repeatedly threatened us (while our kids could hear!) we want to take action against the property owner for maintaining a nuisance on her property (her son AND the dogs) but I can't seem to find the right "kind" of attorney.

could someone offer any advice.. who should I call? are there any "civil rights groups" that might help us? the D.A.s office is pressing charges.. the Sept 4th offense will be arraigned on October 14th and the June 19th arrangement will be Oct 19th.. and they are reviewing my case for the stalking and harassing/violating restraining order to see if there's enough evidence to prosecute.

I have since purchased a camera phone, and have it open most of the time so that if this man is anywhere near me or my family again, I will have evidence. this is just sick that we have to live this way. we need someone to help us do something. we are a quiet law abiding family that is being forced out of our home by this horrible man and his family.. and nobody is willing to help!!! why on earth do people like this get away with it?!

 

[NYClex]

I am sorry to hear that this has not gotten better.

You have these possibilities:

-press the D.A.'s office to prosecute. The decision about this, though, is the D.A's.
-press the issue with the Sherriff's office that you feel threatened, that you have the R.O. and that you want arrests to be made in the future.

-sue the neighbors. From what you told here you seem to have numerous reasons for tort actions: trespass, nuisance, assault, possibly intentional infliction of emotional distress etc.
I doubt that there are any associations out there handling these things, you would need to find a private attorney who handles civil disputes.

This is not exactly a violation of civil rights because this term usually is understood to cover actions by a government entity.

 

[whittibo]

thanks for your reply! (I got my email notification this time)
I have been trying to find attorneys.. but nothing so far.

I was told by insurance agent that I can put in a claim against their insurance since what they have done, is resulting in a loss of property value and inability to sell our house. (we have to disclose the nuisance problems) we also have 2 other houses on our street that haven't sold either.. and were I am.. usually houses sell in a couple days!

we also have the emotional distress brought on by all this.. and she is liable for that too.. so now I am researching the property and trying to find the lender or insurance company.. I think I can work with a paralegal to file a claim against their insurance. it would appear to have more "weight" if it comes from someone other then 'me'.

we have pressed the sheriff's.. and have gotten some additional information as to how to proceed with them in the future.. we have also been in contact with the D.A.s office and our case went from a very inexperienced 'newbie' deputy D.A. all the way up to the Asst. D.A. (one step down from the D.A. himself) arraignment dates have been set for October 14th and 19th.. the stalking/harassing issues are still being reviewed.

so at least we're making progress. but the financial side of it is disappointing as well as the emotional issues with ourselves and our children! so hopefully I'll be able to find some resolve with their insurance company.. (which would directly effect them since their rates would probably increase, or their policy canceled.. you can't maintain a nuisance on your property and continue to be covered under your policy.. they will make the owner get rid of the nuisance!)

I still await any other advice anyone can give us. we're just not sure what our rights are anymore!