Fitzgibbons v. City of Oswego et al

Filing 40

MEMORANDUM-DECISION & ORDER: It is ordered that the County Defendant's # 19 Motion to Dismiss, is GRANTED with respect to plaintiff's third, fifth, sixth, seventh, tenth, and eleventh causes of action and DENIED in all other respects. Pla intiff's third cause of action, pursuant to New York ECL Article 37 and sixth cause of action, alleging public nuisance, are sua sponte DISMISSED as to the City Defendant and the John Doe Defendants. Plaintiff's # 26 Motion to Amend the C omplaint is GRANTED. Plaintiff shall file and serve his amended complaint within 10 days of this Memorandum-Decision & Order. This matter is referred to Magistrate Judge Andrew T. Baxter for all further pretrial matters. Signed by Senior Judge Frederick J. Scullin, Jr on 12/13/2011. (jmb)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
______________________________________________
JOHN E. FITZGIBBONS,
Plaintiff,
v.

5:10-CV-1038
(FJS/ATB)

CITY OF OSWEGO, COUNTY OF
OSWEGO, JOHN DOE CORPORATIONS,
JOHN DOE INSURANCE COMPANIES,
and JOHN DOES,
Defendants.
______________________________________________
APPEARANCES

OF COUNSEL

KNAUF, SHAW LLP
1125 Crossroads Building
2 State Street
Rochester, New York 14614
Attorneys for Plaintiff

ALAN J. KNAUF, ESQ.
AMY L. REICHHART, ESQ.

LAW OFFICE OF GARY S. BOWITCH
119 Washington Avenue
Albany, New York 12210
Attorneys for Defendant City of Oswego

GARY S. BOWITCH, ESQ.

PETRONE & PETRONE P.C.
1624 Genesee Street
Utica, New York 13502
Attorneys for Defendant County of Oswego

LORI E. PETRONE, ESQ.

SCULLIN, Senior Judge

MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Plaintiff John E. Fitzgibbons seeks past and future environmental investigation and
remedial costs and an injunction requiring further investigation and cleanup of his property,
which he claims Defendants have contaminated. Plaintiff filed his initial complaint on August
26, 2010. In lieu of filing an answer, Defendant County of Oswego (the "County Defendant")
moved to dismiss the complaint in its entirety on January 18, 2011.1 On March 22, 2011,
Plaintiff filed papers in opposition thereto, which included a motion to amend the complaint.2
Plaintiff brings eleven causes of action against the County Defendant,3 pursuant to (1) the
Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA") § 107,
(2) the Resource Conservation and Recovery Act ("RCRA") § 7002(a)(1)(B), (3) New York
Environmental Conservation Law ("ECL") Article 37, (4) negligence, (5) strict liability for
ultrahazardous activity, (6) public nuisance, (7) restitution, (8) trespass, (9) private nuisance, (10)
New York State Navigation Law § 181(5), and (11) New York State Navigation Law § 176(8).

1

Since this motion is based on the sufficiency of the pleadings, the Court has drawn the
following factual allegations from Plaintiff's proposed amended complaint.
2

For reasons discussed infra, the Court grants Plaintiff leave to file and serve an amended
complaint.
3

Unless indicated otherwise, Plaintiff has made the same claims against the City of
Oswego and the Doe Defendants. Plaintiff also asserted a twelfth cause of action, pursuant to
New York State Navigation Law § 190, solely against the John Doe Insurance Companies.
Defendant City of Oswego (the "City Defendant") filed an answer and cross-claim against the
County Defendant on January 17, 2011. See Dkt. 17, City Defendant's Answer and Cross-Claim.
In its cross-claim, the City Defendant alleges, among other things, that Plaintiff's injuries or
damages were sustained, in whole or in part, as a result of the County Defendant's and/or the Doe
Defendants' acts or omissions and that these damages are in no way attributable to the City
Defendant. See id. at ¶¶ 122-124.
-2-

Upon identification of any John Does, John Doe Corporations, or John Doe Insurance
Companies, Plaintiff intends to seek to amend his complaint accordingly. See Dkt. No. 26, Exh.
A attached thereto, "Amended Complaint," at ¶ 13.

II. BACKGROUND
Plaintiff is the owner of the allegedly contaminated property at issue, located on George
Street, in the City of Oswego, County of Oswego, and State of New York (the "George Street
Property"). See Amended Complaint at ¶¶ 1, 15. A landfill (the "Landfill") located adjacent to
the George Street Property, which the County Defendant acquired from Niagara Mohawk Power
Corporation ("NiMo") in or around 1975, has been used as a waste disposal facility since the
1940s. See id. at ¶¶ 16, 18.
According to Plaintiff, approximately 1.22 acres of the northeast portion of the George
Street Property (the "Trespass Area") were used as a portion of the Landfill during the 1960s and
1970s and hazardous wastes were dumped there. See id. at ¶¶ 2-3, 19. Plaintiff became aware of
this dumping of hazardous wastes in May of 2009.4 See id. at ¶ 20. The Landfill, which the
County Defendant still owns and/or operates, continues to function as a transfer station (the
"Transfer Station") for municipal waste materials and construction and demolition debris and is
currently accepting metals, used oil, and dried paint. See id. at ¶¶ 21-22.
As a result of the dumping, the releases, and the contamination, the value of the George
4

In his initial complaint, Plaintiff alleged that he had no knowledge of any dumping on
the George Street Property "until recently." See Dkt. 1, Complaint, at ¶ 18. The alleged
hazardous wastes and substances at issue include polychlorinated biphenyls, polynuclear
aromatic hydrocarbons, volatile organic compounds, semi-volatile organic compounds, metals,
pesticides, and other hazardous substances contained in municipal solid waste, and petroleum
and petroleum-based hydrocarbons. See Amended Complaint at ¶¶ 3, 23.
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Street Property has diminished; furthermore, Plaintiff has undertaken environmental
investigation and response actions and it will be necessary for Plaintiff to continue to incur
additional costs to investigate, remove, remediate, clean up and respond to the contamination and
wastes on the Property. See id. at ¶¶ 3, 23, 30.
Currently before the Court are two motions: Defendant County of Oswego's motion to
dismiss the complaint in its entirety and Plaintiff's cross-motion to amend the complaint and to
strike the affidavits that Defendant County of Oswego submitted.

III. DISCUSSION
A.

Plaintiff's motion for leave to amend the complaint
Plaintiff's proposed amended complaint is substantively nearly identical to his initial

complaint, except that it addresses two alleged deficiencies that the County Defendant raised: (1)
Plaintiff's failure to join a necessary party, NiMo, in his initial complaint and (2) Plaintiff's
nonexistent or deficient notice of claim ("Notice of Claim").
Pursuant to Federal Rule of Civil Procedure 15(a), which governs a party's ability to
amend its pleadings after responsive pleadings have been served, a court should liberally grant a
party leave to amend its pleadings "when justice so requires." Fed. R. Civ. P. 15(a). A court
should only deny leave to amend "for such reasons as 'undue delay, bad faith, futility of the
amendment, and perhaps most important, the resulting prejudice to the opposing party.'"
Richardson Greenshields Sec., Inc. v. Lau, 825 F.2d 647, 653 n.6 (2d Cir. 1987) (quoting State
Teachers Retirement Bd. v. Fluor Corp., 654 F.2d 843, 856 (2d Cir. 1981)). Further, "'[t]he rule
in this Circuit . . . [is] to allow a party to amend its pleadings in the absence of a showing by the

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[non-movant] of prejudice or bad faith.'" State v. Panex Indus., Inc., No. 94-CV-0400E(H), 1997
WL 128369, *2 (W.D.N.Y. Mar. 14, 1997) (quoting Block v. First Blood Associates, 988 F.2d
344, 350 (2nd Cir. 1993)). The party opposing the requested relief has the burden of establishing
that granting leave to amend would be unduly prejudicial. See id. (citing Saxholm AS v. Dynal,
Inc., 938 F. Supp. 120, 123 (E.D.N.Y. 1996)).
Given the early stage of this litigation and the fact that neither bad faith nor undue
prejudice can be shown, the Court grants Plaintiff leave to amend his complaint to add NiMo as a
defendant. Next, with regard to the sufficiency of the Notice of Claim, Plaintiff attached a copy
of a purportedly timely and sufficient Notice of Claim to his proposed amended complaint. See
Dkt. 26-3, Amended Complaint, Exh. B attached thereto, ("Notice of Claim").5
County Law § 52 provides, in part, that
[a]ny claim or notice of claim against a county for damage, injury
or death, or for invasion of personal or property rights, of every
name and nature . . . arising at law or in equity . . . alleged to have
been caused or sustained in whole or in part by or because of any
misfeasance, omission of duty, negligence or wrongful act on the
part of the county . . . must be made and served in compliance with
section fifty-e of the general municipal law. . . .
N.Y. County Law § 52. A plaintiff is required to serve such Notice "within ninety days after the
claim arises[.]" N.Y. Gen. Mun. Law § 50-e(1)(a). Among other things, the Notice of Claim
must state the nature of the claim and "the time when, the place where and the manner in which
the claim arose[.]" N.Y. Gen. Mun. Law § 50-e(2); Phillipps v. N.Y. City Transit Auth., 68
A.D.3d 461, 462 (1st Dep't 2009) (quotation omitted). The Notice need not provide that
information with "'literal nicety or exactness'"; rather, the test is whether the Notice provides
5

The Notice is dated August 25, 2009. See Notice of Claim.
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facts sufficient to enable the defendant to investigate. Phillips, 68 A.D.3d at 462 (quotations
omitted). Further, the municipal defendant has "'an obligation to obtain the missing information
if that can be done with a modicum of effort rather than rejecting a notice of claim outright[.]'"
Id. (quotation omitted).
Here, Plaintiff's Notice of Claim identified the nature of the claim as, among other things,
negligence, public nuisance, private nuisance, trespass and de facto
taking and deprivation of property . . . as a result of . . . actions,
omissions, and/or knowledge of . . . the County [Defendant],
including utilizing Claimant's property . . . at Tax Parcel ID #
128.27-02-03, in the City of Oswego, County of Oswego and State
of New York as a municipal landfill without a permit or the
permission of Claimant, interfering with the use and/or value of the
[George Street] Property, and causing contamination. Upon
information and belief, the waste could include hazardous wastes.
See Notice of Claim. Furthermore, Plaintiff sufficiently provided the time, place, and manner in
which the claim arose:
[A]pproximately 1.22 acres in the northeast portion of the [George
Street] Property was historically utilized as a municipal dump, first
by the City in about the 1960s and early 1970s, and then by the
County in the 1970s . . . in conjunction with operations of the
adjacent dump. The claims continue to accrue, since municipal
waste is still currently located on the [George Street Property].
See id.
In his proposed amended complaint, Plaintiff alleges that he served the Notice within 90
days after the claim arose, as § 50-e requires. See Amended Complaint at ¶ 32. Although
Plaintiff must ultimately show that he did not have knowledge of contaminants on the George
Street Property prior to May 28, 2009, i.e., 90 days before he served the Notice of Claim, this
timeliness determination requires a more developed record. As alleged, Plaintiff timely served a

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Notice of Claim on the County Defendant.6
Although it was not improper for Plaintiff to leave out his federal statutory claims in his
Notice of Claim, Plaintiff failed to sufficiently notify the County Defendant of several of his
state-law claims. "[I]n a federal court, state notice-of-claim statutes apply to state-law claims."
Hardy v. N.Y.C. Health & Hosps. Corp., 164 F.3d 789, 793 (2d Cir. 1999) (citations omitted).
The state-law claims to which Plaintiff did not specifically refer in the Notice were (1) ECL
Article 37, (2) strict liability for ultrahazardous activity, (3) restitution, (4) New York Navigation
Law § 181(5), and (5) New York Navigation Law § 176(8). New York County Law § 52 applies
to any claim for damages against a county, not just tort claims; thus, Plaintiff was required to
notify the County Defendant of each of his state-law claims.7 See Rice v. Wayne Cnty., No. 09CV-6391T, 2010 WL 4861556, *4-*5 (W.D.N.Y. Nov. 30, 2010); Crippen v. Town of
Hempstead, No. 07-CV-3478, 2009 WL 803117, *15 (E.D.N.Y. Mar. 25, 2009). "Notice of
claim requirements 'are construed strictly by New York state courts,'" and a "[f]ailure to comply
with these requirements ordinally requires a dismissal for failure to state a cause of action."
Hardy, 164 F.3d at 793-94 (quotation and other citations omitted).
Accordingly, the County Defendant's motion to dismiss Plaintiff's third (ECL Article 37),

6

Of course, if discovery reveals that this Notice of Claim was untimely or otherwise
deficient, the County Defendant is free to reassert this defense.
7

Unlike § 52 of the New York County Law, § 50-e of the New York General Municipal
Law provides that only state-law causes of action sounding in tort are subject to the Notice of
Claim requirements. See, e.g., Rowe v. NYCPD, 85 A.D.3d 1001, 1002 (2d Dep't 2011) (citing
N.Y. Gen. Mun. Law § 50-e(1)(a)); Brennan v. Albany Cnty., No. 00-CV-01985, 2005 WL
2437026, *6 (N.D.N.Y. Sept. 30, 2005) (citations omitted). Accordingly, as to the City
Defendant, the only state-law cause of action sounding in tort not specifically identified in
Plaintiff's Notice of Claim is Plaintiff's common law claim for strict liability for ultrahazardous
activity.
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fifth (strict liability), seventh (restitution), tenth (Navigation Law § 181(5)), and eleventh
(Navigation Law § 176(8)) causes of action is granted for failure to include these state-law
claims in Plaintiff's Notice of Claim.8 Finally, for the above-stated reasons, the Court grants
Plaintiff's motion for leave to file and serve an amended complaint consistent with this
Memorandum-Decision and Order.

B.

Defendant's motion to dismiss the complaint for lack of subject matter jurisdiction
As stated, the County Defendant has moved to dismiss Plaintiff's claims pursuant to Rule

12(b)(1). Plaintiff bears the burden of establishing subject matter jurisdiction by a preponderance
of the evidence; and, "before a federal court can consider the merits of a legal claim, the person
seeking to invoke the jurisdiction of the court must establish the requisite standing to sue."
Whitmore v. Arkansas, 495 U.S. 149, 154 (1990); see also Makarova v. United States, 201 F.3d
110, 113 (2d Cir. 2000). Unlike a Rule 12(b)(6) motion, when considering a Rule 12(b)(1)
motion to dismiss, the court "may consider affidavits and other materials beyond the pleadings to
resolve the jurisdictional issue, but [it] may not rely on conclusory or hearsay statements
contained in the affidavits." J.S. ex rel. N.S. v. Attica Cent. Schs., 386 F.3d 107, 110 (2d Cir.
2004) (citations omitted); see also Makarova, 201 F.3d at 113 (citation omitted).
Although courts are free to treat a motion to dismiss for lack of subject matter jurisdiction
8

With regard to Plaintiff's fifth cause of action for strict liability for ultrahazardous
activity, even if the Court were to find that Plaintiff's Notice of Claim provided facts sufficient to
enable the County Defendant to investigate this claim (which it does not), the Court would
dismiss this cause of action on independent grounds because Plaintiff failed to state a plausible
claim for common law strict liability. Likewise, with regard to Plaintiff's restitution claim, even
if the Court were to find that Plaintiff's Notice of Claim provided facts sufficient to enable the
County Defendant to investigate this claim (which it does not), this claim too would fail on
independent grounds.
-8-

as solely a motion to dismiss for failure to state a claim, thereby precluding the court's
consideration of affidavits and other materials outside the pleadings, the Court need not do so in
this case because the County Defendant's lack-of-subject-matter-jurisdiction argument is not
unreasonable. The County Defendant has submitted affidavits to support its argument that
Plaintiff lacks standing to sue.
To establish standing, a plaintiff must show that (1) he has suffered an injury-in-fact, (2)
the defendant's complained-of conduct caused the injury-in-fact, and (3) it is likely that the relief
requested will redress his injury. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 102-03
(1998) (quotations and other citations omitted). Taking the affidavits into consideration for
purposes of the County Defendant's jurisdictional challenge, the affidavits9 assert that Plaintiff
cannot show any causal connection between the County Defendant's ownership of the Landfill
and his alleged injury.10

9

The affidavits assert that the County Defendant acquired ownership of the Landfill in
1975, after which it built a Transfer Station on the premises to accept construction and
demolition debris. See Affidavit of Mark Powell dated January 13, 2011, at ¶¶ 5-6. Further,
"[t]he Transfer Station does not, and never has, accepted industrial waste, medical wastes,
pesticides and/or other hazardous wastes, knowingly or willingly." See id. at ¶ 8. The Transfer
Station "is a solid waste management facility where solid waste is received for the purpose of
subsequent transfer to another off-site solid waste management facility for further processing,
treatment, transfer or disposal." See id. at ¶ 10. Waste is not stored on the premises or at the
Transfer Station, except for the used oil which is put into a storage tank and removed from the
premises once to twice a month, and "to [the affiant's] knowledge, during the County[]
[Defendant's] operation of the Transfer Station, there have been no spills of petroleum or
discharges of hazardous waste into or on the premises and/or the Landfill." See id. at ¶ 13.
10

"Under CERCLA, traditional causation principles are 'relaxed' such that the party
seeking costs need not show that a specific [potentially responsible party's] waste caused the
incurrence of cleanup costs." DVL, Inc. v. Gen. Elec. Co., No. 1:07-CV-1075, 2010 WL
5067620, *12 (N.D.N.Y. Dec. 6, 2010) (citing Niagara Mohawk, 596 F.3d at 130). Indeed,
"'"[w]hat is not required is that the [moving party] . . . show that a specific defendant's waste
(continued...)
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Contrary to the County Defendant's affidavits, Plaintiff alleges that the County Defendant
is the current owner of the Landfill, which it acquired from NiMo in or around 1975, and that
approximately 1.22 acres of the George Street Property had been used as a portion of the Landfill
"during the 1960s and 1970s and wastes were dumped there." See Amended Complaint at ¶¶ 1822, 44-45. Plaintiff further alleges that discharges, spills, releases, and the disposal of various
contaminants at the Landfill caused the contamination of the George Street Property. See id. at
¶¶ 3, 23-28.
Given "the liberal threshold applied to standing challenges in the context of
environmental citizen suits," Solvent Chem. Co. v. E.I. Dupont De Nemours & Co., 242 F. Supp.
2d 196, 218 (W.D.N.Y. 2002) (citations omitted), the Court finds that there is a sufficient nexus
for causation purposes between the County Defendant's ownership of the Landfill and Plaintiff's
alleged injury to withstand a motion to dismiss.11 Whether Plaintiff's claims may ultimately be
fairly attributed to the County Defendant is better reserved for a motion for summary judgment
should such a motion prove to be appropriate following discovery.
For these reasons, the Court denies the County Defendant's motion to dismiss on the basis
of a lack of subject matter jurisdiction.

10

(...continued)
caused incurrence of cleanup costs."'" Id. (quotation omitted). "CERCLA thus 'relaxes' but does
not eliminate the causation requirement: a plaintiff need not show a causal link between that
particular waste and the response costs the plaintiff incurred, but it must demonstrate that a
defendant deposited hazardous waste at the site in question." Id. (citations omitted).
11

As is further discussed below, potentially responsible parties under CERCLA include
(1) present owners and operators of facilities with hazardous substances, (2) past owners and
operators of facilities with hazardous substances, (3) generators of hazardous substances, and (4)
transporters of hazardous substances. See 42 U.S.C. § 9607(a).
-10-

C.

Defendant's motion to dismiss for failure to state a claim
Rule 8(a)(2) requires that a pleading contain "a short and plain statement of the claim

showing that the pleader is entitled to relief[.]" Fed. R. Civ. P. 8(a)(2). This pleading standard
does not require "detailed factual allegations," but it does require "more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action . . . ." Bell Atl. Corp.
v. Twombly, 550 U.S 544, 555 (2007) (citation omitted). The complaint must tender more than
mere "'naked assertion[s]' devoid of 'further factual enhancement.'" Ashcroft v. Iqbal, 556 U.S.
662, ---, 129 S. Ct. 1937, 1949 (2009) (quoting [Twombly, 550 U.S.] at 557, 127 S. Ct. 1955).
To survive a motion to dismiss pursuant to Rule 12(b)(6), "a complaint must contain
sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'"
Id. (quotation omitted). A court must draw all reasonable inferences in favor of the nonmoving
party. See Gorman v. Consol. Edison Corp., 488 F.3d 586, 591-92 (2d Cir. 2007) (citation
omitted).
Finally, "on a motion to dismiss unrelated to subject matter jurisdiction, the court may
only consider the pleading itself, documents that are referenced in the complaint, documents that
the plaintiff relied on in bringing suit . . . and matters of which judicial notice may be taken."
New York v. West Side Corp., 790 F. Supp. 2d 13, 18 (E.D.N.Y. 2011) (citations omitted).

1. First cause of action: Strict liability under CERCLA § 107
The County Defendant contends that Plaintiff cannot maintain a CERCLA cause of action
against it because it is not a covered person and it is exempt. See County Defendant's
Memorandum of Law at 10-12. It further contends that Plaintiff's CERCLA claim is barred by

-11-

the applicable statute of limitations, conditions precedent,12 (i.e., filing a Notice of Claim), and
the doctrine of laches. Pursuant to CERCLA § 107(a), 42 U.S.C. § 9607, Plaintiff, on the other
hand, contends that the County Defendant is strictly liable for the investigation, cleanup,
remediation, and removal of the contamination of the George Street Property. See Amended
Complaint at ¶¶ 43-48.

a. Statute of Limitations/Timeliness
CERCLA § 309, 42 U.S.C. § 9658, provides that a plaintiff's claim accrues when "the
plaintiff knew (or reasonably should have known) that the personal injury or property damages
. . . were caused or contributed to by the hazardous substance or pollutant or contaminant
concerned." 42 U.S.C. § 9658(b)(4)(A). The statute of limitation begins to run upon accrual.
"The applicable statute of limitations under CERCLA varies depending on whether
response costs were incurred in connection with a removal or remedial action." Syms v. Olin
Corp., 408 F.3d 95, 101-02 (2d Cir. 2005). Generally, "removal includes efforts to clean up a
site, prevent the threatened release of hazardous substances, and dispose of removed material,"
while a remedial action involves "more permanent efforts to store, confine, recycle, or destroy
hazardous substances." Id. at 101 (citations and footnotes omitted). The limitations period for
"the recovery of costs related to 'removal actions' is three years after the completion of the
removal action, CERCLA § 113(g)(2)(A), while the limitations period for the recovery of costs
related to 'remedial actions' is six years after the initiation of physical on-site construction of the
remediation, id. § 113(g)(2)(B)." Schaefer v. Town of Victor, 457 F.3d 188, 195 (2d Cir. 2006)

12

As discussed supra, Plaintiff was not required to include his federal statutory claims in
the Notice of Claim he served on the County Defendant; thus, this defense fails.
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(footnote omitted).
Here, Plaintiff's response costs appear to involve both removal and remedial actions.
Regardless, Plaintiff alleges that he did not know about the wastes on his property or incur any
response costs until 2009; accordingly, assuming discovery of the harm "caused or contributed to
by the hazardous substance or pollutant or contaminant" in 2009, Plaintiff's claim is timely under
the three- or six-year statute of limitations. In addition, the date on which Plaintiff knew or
should have known that the hazardous substances damaged his property is an issue of fact.
Therefore, the Court denies the County Defendant's motion to dismiss Plaintiff's CERCLA claim
on statute-of-limitations grounds.
The County Defendant also argues that Plaintiff's CERCLA claim is barred by the
doctrine of laches. A party asserting the equitable defense of laches must establish that "'(1) the
plaintiff knew of defendant's misconduct; (2) the plaintiff inexcusably delayed in taking action;
and (3) the defendant was prejudiced by the delay.'" Natural Res. Def. Council, Inc. v. U.S. Army
Corps of Eng'rs, 399 F. Supp. 2d 386, 402 (S.D.N.Y. 2005) (quoting Ikelionwu v. United States,
150 F.3d 233, 237 (2d Cir. 1998)).
In its laches defense, the County Defendant argues that Plaintiff knew about the alleged
dumping of wastes and/or contamination of the George Street Property as early as the 1950s and
unreasonably delayed in bringing suit. See County Defendant's Memorandum of Law at 7-8.
However, even assuming that Plaintiff knew of the County Defendant's alleged misconduct and
inexcusably delayed in taking action, the record does not establish that the County Defendant was
prejudiced by any such delay. In addition, any determination of prejudice to the County
Defendant as a result of Plaintiff's delay in bringing suit is a fact-based inquiry, which is
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inappropriate for judgment on a motion to dismiss. Finally, "laches is 'only rarely invoked in
environmental cases.'" City of Newburgh v. Sarna, 690 F. Supp. 2d 136, 172 (S.D.N.Y. 2010)
(quotation omitted). Accordingly, the County Defendant's laches defense is similarly unavailing.
In sum, therefore, accepting the facts pled as true and drawing all reasonable inferences in
Plaintiff's favor, the Court concludes that the County Defendant's statute-of-limitations,
conditions precedent, and laches defenses do not support dismissal at this stage. Accordingly,
the Court denies the County Defendant's motion to dismiss on these grounds.

b. CERCLA liability
CERCLA is a broad remedial statute that should be construed liberally to give effect to its
purposes. See B.F. Goodrich v. Betkoski, 99 F.3d 505, 514 (2d Cir. 1996) (quotation and other
citations omitted). It establishes "'a regime of broad-ranging liability, permitting the government
to recover its remediation expenses directly from parties responsible for pollution and
authorizing private parties to pursue contribution or indemnification from potentially responsible
parties for expenses incurred responding to environmental threats.'" Schaefer, 457 F.3d at 194
(quotation omitted). Section 107 permits government agencies and certain private parties "to
seek reimbursement for all removal and remedial costs associated with the hazardous materials
on the property . . . ." Niagara Mohawk Power Corp. v. Chevron U.S.A., Inc., 596 F.3d 112, 121
(2d Cir. 2010) (citation and footnote omitted).
A prima facie CERCLA claim requires the plaintiff to show that
(1) [the] defendant fits one of the four classes of responsible parties
outlined in § 9607(a); (2) the site is a facility; (3) there is a release
or threatened release of hazardous substances at the facility; (4) the
plaintiff incurred costs responding to the release or threatened
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release; and (5) the costs and response actions conform to the
National Contingency Plan set up under the Act and administered
by the EPA in order to prioritize hazardous substance release sites
throughout the nation.
B.F. Goodrich Co. v. Murtha, 958 F.2d 1192, 1198 (2d Cir. 1992) (citation omitted).

(1). Potentially responsible party
With regard to the first element, potentially responsible parties ("PRPs") include (1)
present owners and operators of facilities with hazardous substances, (2) past owners and
operators of facilities with hazardous substances, (3) generators of hazardous substances, and (4)
transporters of hazardous substances. See 42 U.S.C. § 9607(a). CERCLA's "broad reach extends
liability to all those contributing to – from generation through disposal – the problems caused by
hazardous substances." Murtha, 958 F.2d at 1198. These PRPs may be held strictly liable for a
broad range of remediation expenses, including the removal costs, response costs, damages for
injury to natural resources, and health assessment costs. See Betkoski, 99 F.3d at 514 (citing 42
U.S.C. § 9607(a)(4)). Plaintiff contends that the County Defendant qualifies as a PRP under any
of the first three categories set forth above.
Since Plaintiff alleges that the County Defendant is the current owner of the Landfill, see
Amended Complaint at ¶ 44, it is a PRP under § 9607(a), even if it did not own the Landfill at
the time of the alleged disposal of hazardous substances on the George Street Property.13
Accordingly, as alleged, the County Defendant may be held strictly liable unless it can satisfy a
defense precluding liability, of which the County Defendant has raised three: (1) it is a sovereign
13

In addition, Plaintiff alleges that the County Defendant was an operator of the Facility
at the time of the release of hazardous substances onto the George Street Property. See Amended
Complaint at ¶ 45. This would also qualify it is a PRP.
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municipality; (2) it is entitled to a third-party defense; and (3) it is entitled to a contiguous
ownership defense.

(i). Sovereign municipality defense
The County Defendant contends that it cannot be held liable as a sovereign municipality.
Although a municipality may generally be a PRP, CERCLA has carved out a limited exception
where, as an owner or operator, the municipality "acquires ownership or control of a facility
involuntarily as a result of its sovereign function" or "acts in response to an emergency
caused by the release of hazardous substances from a facility owned by another party and does
not act with gross negligence or willful misconduct . . . ." Murtha, 958 F.2d at 1199 (citations
omitted). Plaintiff alleges that the County Defendant "acquired" the Landfill from NiMo in or
around 1975; it continues to own and/or operate the Landfill as a transfer station for municipal
waste materials and construction and demolition debris; and it is currently accepting metals, used
oil, and dried paint. See Amended Complaint at ¶¶ 16-22. Construed in the light most favorable
to Plaintiff, these allegations tend to show that the County Defendant did not obtain title to the
Landfill involuntarily. In addition, as an affirmative defense, the County Defendant will have the
burden of proof. Accordingly, since discovery is needed to determine whether the County
Defendant is entitled to this defense, the Court Denies the County Defendant's motion to dismiss
on the basis of a sovereign municipality defense at this time.

(ii). Third-party defense
CERCLA's "third-party defense" essentially provides that a PRP is not liable if the release
or threatened release of hazardous substances was caused solely by an act or omission of a third
-16-

party. See 42 U.S.C. § 9607(b)(3). At this stage of the litigation, the County Defendant is not
entitled to a third-party defense because, in the absence of discovery, it cannot affirmatively show
(1) that the injury was caused solely by the act or omission of a third party, or that (2) its
acquisition of the Landfill does not constitute a contractual relationship with the third party, or
that (3) it exercised due care with respect to the hazardous substances concerned and that it took
precautions against foreseeable acts or omissions of any such third party. See id.

(iii). Contiguous property ownership defense
Finally, in a single sentence, "for the same reasons" as the prior defenses raised, the
County Defendant attempts to assert a defense concerning contiguous property ownership
pursuant to CERCLA § 107(q), 42 U.S.C. § 9607(q). Section § 107(q) provides an exemption
from PRP-status for
[a] person that owns real property that is contiguous to or
otherwise similarly situated with respect to, and that is or may be
contaminated by a release or threatened release of a hazardous
substance from, real property that is not owned by that person shall
not be considered to be an owner or operator . . . .
42 U.S.C. § 9607(q). However, given the facts of the instant case, § 107(q) is inapposite simply
because this case does not involve a contiguous owner situation. Regardless, discovery is needed
to determine whether this defense is warranted, and the Court has not found any cases in which it
has been used to preclude liability. Thus, this defense also fails to preclude liability.
For these reasons, at this juncture, the Court concludes that Plaintiff has alleged sufficient
facts, which, taken as true, would indicate that the County Defendant is a PRP under CERCLA
§ 107(a)(1).

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(2). Facility
The second necessary element of a prima facie case of CERCLA liability is that
the site must be a "facility." CERCLA § 101(9), 42 U.S.C. § 9601(9), defines a facility to
include "(A) any building, structure, installation, equipment, pipe or pipeline . . . , well, pit, pond,
lagoon, impoundment, ditch, landfill . . . or (B) any site or area where a hazardous substance has
been deposited, stored, disposed of, or placed, or otherwise came to be located . . . ." 42 U.S.C.
§ 9601(9). Given this broad definition, both the Landfill and the George Street Property appear
to be facilities for purposes of the statute.

(3). Release or threatened release of hazardous substances
Third, there must be a release or threatened release of "hazardous substances" at the
facility. See 42 U.S.C. § 9607(a)(4). CERCLA defines a hazardous substance as "any substance
so designated by the EPA pursuant to § 9602 or by any of four other environmental statutes."
Murtha, 958 F.2d at 1199. Non-hazardous wastes may contain hazardous substances, as
defined in CERCLA. Ultimately, Plaintiff must prove that the construction and demolition
material at issue contains hazardous substances to succeed on the merits of his CERCLA claim;
however, at this stage, it is sufficient that Plaintiff has pled that the County Defendant disposed
of wastes containing hazardous substances while the County Defendant owned the Landfill. The
actual quantity or concentration of the hazardous substances is not important. Accordingly, the
Court shall allow Plaintiff the opportunity to discover the potential presence of "hazardous
substances" within the construction and demolition material. In any event, what this material
actually consists of and whether or not it constitutes a hazardous substance involves questions of

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fact that cannot be decided at this early stage of the proceedings.

(4). Plaintiff incurred costs
Fourth, the plaintiff must have incurred costs in responding to the release or threatened
release. See 42 U.S.C. 9607(a)(4). Here, Plaintiff alleges in his proposed amended complaint
that the contamination occurred as a direct, proximate, and natural consequence of the releases;
as a result, the value of the George Street Property has diminished, Plaintiff has undertaken
environmental investigation and response actions, and it will be necessary for Plaintiff to incur
additional costs due to the contamination and the presence of wastes on the Property. See
Amended Complaint at ¶¶ 28, 30, 47. As stated, these allegations are sufficient to withstand a
motion to dismiss.

(5). The costs conform to the National Contingency Plan
The fifth and final element necessary for a prima facie case of CERCLA liability is that
the costs incurred conform to the National Contingency Plan ("NCP"). 42 U.S.C.
§ 9607(a)(4)(A) & (B). Whether Plaintiff's spending conforms to the NCP requires a more
developed record; it is sufficient that Plaintiff has alleged in his proposed amended complaint
that he "has incurred response costs in connection with the Contamination, all of which have
been consistent with the National Contingency Plan, and are recoverable pursuant to
CERCLA . . . ." See Amended Complaint at ¶ 47; see also Commerce Holding Co., Inc. v.
Buckstone, 749 F. Supp. 441, 444 (E.D.N.Y. 1990).
In sum, Plaintiff has alleged facts plausibly suggesting a prima facie case of CERCLA
liability. Moreover, the issue of whether response costs were actually caused by hazardous
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substances released from the Landfill as a result of the County Defendant's actions, as well as the
issue of whether the costs were necessary and consistent with the NCP, involves questions of fact
that cannot be decided at this early stage of the proceedings. Therefore, the Court denies the
County Defendant's motion to dismiss Plaintiff's first cause of action under CERCLA.

2. Second cause of action: RCRA § 7002(a)(1)(B)
RCRA contains three citizen suit provisions, under which an individual may commence a
civil action on his own behalf. See 42 U.S.C. §§ 6972(a)(1)(A), 6972(a)(1)(B), 6972(a)(2).
Here, Plaintiff is relying on § 6972(a)(1)(B), which allows him to bring a civil action against
any person, including the United States and any other
governmental instrumentality or agency, to the extent permitted by
the eleventh amendment to the Constitution, and including any past
or present generator, past or present transporter, or past or present
owner or operator of a treatment, storage, or disposal facility, who
has contributed or who is contributing to the past or present
handling, storage, treatment, transportation, or disposal of any solid
or hazardous waste which may present an imminent and substantial
endangerment to health or the environment . . . .
42 U.S.C. § 6972(a)(1)(B).
As a preliminary matter, similar to the notice provision contained in CERCLA, prior to
bringing a RCRA citizen suit, the moving party must first notify the Administrator of the citizen's
intent to initiate the litigation. See 42 U.S.C. §§ 6972(b)(1), (b)(2), (c). In suits under
§ 6972(a)(1)(B), as in this case, notice must be given to "the State in which the alleged
endangerment may occur," and to "any person alleged to have contributed or to be contributing to
the past or present handling, storage, treatment, transportation, or disposal of any solid or
hazardous waste referred to in subsection (a)(1)(B)[.]" 42 U.S.C. §§ 6972(b)(2)(A)(ii), (iii). In

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addition to the notice requirement, citizen plaintiffs must satisfy a delay requirement by waiting
ninety days after they provide such notice before commencing suit under this section.
In the instant case, on March 17, 2010, Plaintiff notified the County Defendant of his
intent to bring a citizen's suit under RCRA by way of registered mail; and he also sent copies to
the DEC Commissioner, the EPA Administrator, and the EPA Region 2 Administrator. See Dkt.
19-2, Motion to Dismiss, Exh. C letter attached thereto. Further, Plaintiff waited more than 90
days after he gave notice before commencing this action. See id. Therefore, Plaintiff has
satisfied both the notice and delay requirements.
A prima facie cause of action under 42 U.S.C. § 6972(a)(1)(B) requires a RCRA plaintiff
to establish the following:
"(1) the defendant was or is a generator or transporter of solid or
hazardous waste or owner or operator of a solid or hazardous waste
treatment, storage or disposal facility, (2) the defendant has
contributed or is contributing to the handling, storage, treatment,
transportation, or disposal of solid or hazardous waste, as defined
by RCRA, and (3) [] the solid or hazardous waste in question may
pose an imminent and substantial endangerment to health or the
environment."
Murtaugh v. New York, No. 5:08-CV-1168, 2011 WL 3607180, *17 (N.D.N.Y. Aug. 16, 2011)
(quoting Prisco v. A & D Carting Corp., 168 F.3d 593, 608 (2d Cir. 1999)).

a. The defendant was or is a generator or transporter of solid or hazardous
waste or owner or operator of a solid or hazardous waste treatment, storage or
disposal facility
With regard to the first prima facie element that a RCRA plaintiff must ultimately prove
to prevail under § 6972(a)(1)(B), a "citizen suit seeking to abate an imminent and substantial
hazard may be predicated either upon 'solid or hazardous' waste." Aiello v. Town of Brookhaven,
-21-

136 F. Supp. 2d 81, 103 (E.D.N.Y. 2001) (quoting 42 U.S.C. § 6972(a)(1)(B)). This is
significant because hazardous wastes are a subset of solid wastes; thus, all hazardous wastes are
solid wastes, but not all solid wastes are hazardous wastes. See id. (quotation and other citations
omitted). RCRA defines "solid waste" as "any garbage, refuse, sludge . . . and other discarded
material, including solid, liquid, semisolid, or contained gaseous material resulting from
industrial, commercial, mining, and agricultural operations, and from community activities[.]"
42 U.S.C. § 6903(27). "Hazardous waste" is defined as
a solid waste, or combination of solid wastes, which because of its
quantity, concentration, or physical, chemical, or infections
characteristics may–
(A) cause, or significantly contribute to an increase in mortality or
an increase in serious irreversible, or incapacitating reversible,
illness; or
(B) pose a substantial present or potential hazard to human health
or the environment when improperly treated, stored, transported, or
disposed of, or otherwise managed.
42 U.S.C. § 6903(5); see also Aiello, 136 F. Supp. 2d at 103 (quotation omitted).
In this case, Plaintiff alleges that the County Defendant "contributed to the past handling"
of "hazardous or solid waste" and that the contaminants released at the George Street Property
included hazardous substances. See Amended Complaint at ¶¶ 50-51. Here, the construction and
demolition material at issue is almost certainly a "solid waste" under RCRA, and it may or may
not constitute a "hazardous waste." As stated, however, a citizen suit seeking to abate an
imminent and substantial endangerment may be predicated either upon solid or hazardous waste.
Accordingly, Plaintiff has sufficiently pled that the material at issue constitutes "solid or
hazardous waste" for purposes of the motion to dismiss.
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Plaintiff further alleges that the County Defendant is the past and/or present owner or
operator of a solid waste management facility (namely, the Transfer Station at the Landfill) since
it acquired the Facility in approximately 1975, and that it continues to own the George Street
Property. See Amended Complaint at ¶¶ 18-22, 44, 51. Accordingly, Plaintiff has sufficiently
pled the first prima facie element of his RCRA claim.

b. The defendant has contributed or is contributing to the handling, storage,
treatment, transportation, or disposal of solid or hazardous waste, as defined by
RCRA
Although RCRA does not define "contributed to," courts in this Circuit "resort to the
basic principle that an undefined statutory phrase must be given its 'ordinary and natural
meaning.'" Aiello, 136 F. Supp. 2d at 111 (quotation omitted). In keeping with the liberal
construction afforded to RCRA as a remedial statute, "'relevant legislative history supports a
broad, rather than a narrow, construction of the phrase "contributed to."'" Id. at 112 (quotation
and other citations omitted). Other courts have held that it requires some degree of active human
involvement. See, e.g., Interfaith Cmty. Org. v. Honeywell Int'l, Inc., 263 F. Supp. 2d 796, 844
(D.N.J. 2003) (citations omitted). Liberally construed, whether the County Defendant's conduct
actually constituted active human involvement with the disposal of waste is a question of fact,
and discovery is required to make this determination.

c. The solid or hazardous waste in question may pose an imminent and
substantial endangerment to health or the environment
The third and final prima facie element that a RCRA plaintiff must show is that the solid
or hazardous waste in question may pose an imminent and substantial endangerment to health or
the environment. 42 U.S.C. § 6972(a)(1)(B)(3). To constitute an "imminent and substantial
-23-

endangerment," there need not be "a showing that actual harm will occur immediately so long as
the risk of threatened harm is present" and such a finding does not require "actual harm." Dague
v. City of Burlington, 935 F.2d 1343, 1356 (2d Cir. 1991) (citations omitted).
Here, the County Defendant argues that there is no ongoing violation due to the fact that
contaminants allegedly infiltrating the George Street Property between 1975 and 1993 simply
amount to a past activity; as such, it falls outside the scope of RCRA liability. This argument,
however, is misguided. The County Defendant is apparently relying solely on RCRA
§ 6972(a)(1)(A), which allows for the private enforcement of ongoing violations, whereas
Plaintiff is bringing suit pursuant to § 6972(a)(1)(B). Unlike RCRA § 6972(a)(1)(A),
§ 6972(a)(1)(B) allows a plaintiff to bring a civil action against any "past or present owner or
operator . . . who has contributed or who is contributing to the past or present handling,
storage, treatment, transportation, or disposal of any solid or hazardous waste which may present
an imminent and substantial endangerment to health or the environment . . . ." 42 U.S.C.
§ 6972(a)(1)(B) (emphasis added). The statutory language is clear in that "the endangerment
must be ongoing, but the conduct that created the endangerment need not be." Connecticut
Coastal Fishermen's Ass'n v. Remington Arms Co., Inc., 989 F.2d 1305, 1316 (2d Cir. 1993).
Indeed, Plaintiff has alleged that the endangerment is ongoing, even if the conduct that created
the endangerment is not. See Amended Complaint at ¶¶ 24-26, 50-51.
Accordingly, Plaintiff has adequately alleged the existence of contaminants and
potentially hazardous substances emanating from the George Street Property and the Landfill,
which very well may pose an imminent and substantial endangerment to health and the
environment.
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For all of these reasons, the Court denies the County Defendant's motion to dismiss
Plaintiff's RCRA claim.

3. Third cause of action: ECL Article 37
As discussed, the Court grants the County Defendant's motion to dismiss this claim as
against the County Defendant because Plaintiff failed to include this state-law cause of action in
his Notice of Claim. In addition, the Court sua sponte dismisses this cause of action with respect
to the City Defendant and the John Doe Defendants because the weight of authority in New York
supports a determination that no such private cause of action exists. See Coon v. Willet Dairy,
LP, Nos. 5:02-CV-1195, 5:04-CV-917, 2007 WL 2071746, *7 (N.D.N.Y. July 17, 2007) (citing
Johnson v. Monsanto Chem. Co., 129 F. Supp. 2d 189, 195 n.1 (N.D.N.Y. 2001); Nowak v.
Madura, 304 A.D.2d 733, 733 (2d Dep't 2003)).
In Coon, this Court previously held that ECL Article 71 governs the statute's enforcement
and reserves enforcement rights to the New York State Department of Environmental
Conservation and the State Attorney General; and, therefore, the ECL does not confer a private
cause of action. See Coon, 2007 WL 2071746, at *7 (citations omitted). Accordingly, because
Plaintiff cannot maintain a private cause of action under the ECL, the Court dismisses Plaintiff's
third cause of action against all Defendants in its entirety.

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4. Fourth, Sixth, Eighth, and Ninth causes of action: Negligence, Public Nuisance,
Trespass, and Private Nuisance14
As to each of these causes of action, the County Defendant contends that the claims are
untimely, preempted, duplicative, and insufficiently pled.

a. Timeliness of the common law claims
Pursuant to New York Civil Practice Law and Rules ("C.P.L.R.") § 214-c(2), claims
brought under common law theories of negligence, trespass, and public and private nuisance are
time-barred if filed more than three years after the "date of discovery of the injury by the plaintiff
or . . . the date when through the exercise of reasonable diligence such injury should have been
discovered by the plaintiff, whichever is earlier." N.Y. C.P.L.R. § 214-c(2). This date of
discovery rule applies only to claims for damages, which means it is inapplicable to claims
seeking injunctive relief. See Bano v. Union Carbide Corp., 361 F.3d 696, 710 (2d Cir. 2004)
(citations omitted).
In this case, Plaintiff contends that he did not know about the wastes on his property or
incur any response costs until 2009; accordingly, his common law tort claims are timely
assuming discovery of the harm in 2009. Even if Plaintiff knew or should have known about the
County Defendant's alleged wrongdoing earlier, this is an issue of fact about which the Court
would benefit from discovery. Indeed, "it is well-established that a statute of limitations defense
may only be resolved on a pre-answer motion to dismiss where the complaint alleges specific

14

In the County Defendant's memorandum of law in support of its motion to dismiss, it
combines these causes of action based on negligence, public nuisance, trespass, and private
nuisance into one section. Thus, the majority of its arguments in support of its motion to dismiss
applies equally to each of these claims.
-26-

information to permit such a finding." West Side Corp., 790 F. Supp. 2d at 28 (citing Ghartey v.
St. John's Queens Hosp., 869 F.2d 160, 162 (2d Cir. 1989)). Accordingly, construing the
allegations in the amended complaint in the light most favorable to Plaintiff, the Court denies the
County Defendant's motion to dismiss the common law tort claims as untimely.

b. Preemption and the bar to double recovery
A plaintiff is expressly preempted from bringing supplemental state-law claims along
with his CERCLA claim if doing so would permit him to recover twice under CERCLA and
other state or federal laws. See CERCLA § 114(b), 42 U.S.C. § 9614(b); see also Bedford
Affiliates v. Sills, 156 F.3d 416, 426 (2d Cir. 1998) (citation omitted). Accordingly, the County
Defendant contends that the Court should dismiss Plaintiff's state-law claims as duplicative.
However, Plaintiff concedes that he cannot recover twice for the same response costs under
CERCLA and New York State law. It is conceivable that discovery will reveal that Plaintiff's
potential for recovery under CERCLA is unavailable because of, for instance, his failure to
comply with the statute of limitations. Furthermore, by his own concession, Plaintiff is not
hoping for a windfall, but only a single recovery under CERCLA or, if unavailable, New York
State law. The record does not establish that recovery would be identical under Plaintiff's
CERCLA and state-law claims; and, even assuming arguendo that the recovery would be
identical, the possibility still exists that Plaintiff would ultimately be unable to recover under
CERCLA. Accordingly, "it would seem imprudent to dismiss state law claims outright on Rule
12 because of a mere potential for double recovery." West Side Corp.,790 F. Supp. 2d at 26
(citing [Hickey's Carting, 380 F. Supp. 2d] at 115).

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Therefore, at this juncture, the mere potential for double recovery is insufficient to trigger
preemption of Plaintiff's state-law claims; accordingly, the Court denies the County Defendant's
motion to dismiss on this ground.

c. Fourth cause of action: Negligence
Under New York law, a prima facie negligence claim requires a plaintiff to establish (1) a
duty that the defendant owes to the plaintiff, (2) a breach of that duty, and (3) injury proximately
resulting therefrom. See S-P Assocs., LP v. United Cleaners & Launderers, Inc., No. 07-CV6515, 2011 WL 4344058, *6 (W.D.N.Y. Sept. 14, 2011) (quotation and other citation omitted).
In addition, "a plaintiff must show that the defendant either created a dangerous condition, or had
actual or constructive notice of a dangerous condition." Id. (citing Samuels v. Marriott Int'l, Inc.,
86 Fed. Appx. 453, 455 (2d Cir. 2004)). In S-P Associates, the court held that the defendants
created a dangerous condition when they released hazardous waste onto the plaintiff's property.
See id.
In the instant case, Plaintiff alleges that the County Defendant owed him a duty of care
with regard to its operation of the Landfill. See Amended Complaint at ¶ 58. Plaintiff further
alleges that the County Defendant breached that duty by "causing the Releases, the
Contamination and the dumping of Wastes on the Trespass Area, or failing to take reasonable
precautions necessary to avoid the Releases . . . and those acts and omissions were the direct and
proximate cause of the damages to plaintiff." See id. at ¶ 59.
Therefore, the Court denies the County Defendant's motion to dismiss Plaintiff's fourth
cause of action for negligence because the facts, as alleged, support a plausible negligence claim.

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d. Sixth cause of action: Public Nuisance
A public nuisance "'is an offense against the State' . . . and 'consists of conduct or
omissions which offend, interfere with or cause damage to the public in the exercise of rights
common to all . . . in a manner such as to . . . endanger or injure the property, health, safety or
comfort of a considerable number of persons.'" State of N.Y. v. Shore Realty Corp., 759 F.2d
1032, 1050 (2d Cir. 1985) (quotation and other citation omitted). The release or threatened
release of hazardous waste into the environment constitutes an unreasonable interference with a
public right, thereby making it a public nuisance as a matter of New York law. See West Side
Corp., 790 F. Supp. 2d at 29 (quotation and other citation omitted). Further, a private party may
bring a public nuisance claim only if it is shown that he has suffered a "special injury beyond that
suffered by the community at large . . . ." 532 Madison Ave. Gourmet Foods, Inc. v. Finlandia
Ctr., Inc., 96 N.Y.2d 280, 292 (2001) (citation omitted).
Here, Plaintiff simply alleges that, by causing the contamination, the County Defendant
interfered with the rights common to all, "including ground and surface waters," and that he has
sustained special damages as a result of this public nuisance. See Amended Complaint at ¶¶ 6667. Even construed in the light most favorable to Plaintiff, there is nothing in the amended
complaint that would allow the Court to make a determination that enough people were affected
by this groundwater contamination for it to qualify as a public nuisance. In addition, the Court
sua sponte dismisses this cause of action with respect to the City Defendant and the John Doe
Defendants because Plaintiff has not plausibly pled a public nuisance cause of action.
Accordingly, the Court dismisses Plaintiff's sixth cause of action against all Defendants in its
entirety.
-29-

e. Eighth cause of action: Trespass
A trespass is "the intentional invasion of another's property." Scribner v. Summers, 84
F.3d 554, 557 (2d Cir. 1996) (citations omitted). To be liable for intentional trespass to land, the
alleged trespasser must (1) intend the act which amounts to or produces the unlawful invasion,
and (2) the intrusion must be the immediate or inevitable consequence of that act. See Phillips v.
Sun Oil Co., 307 N.Y. 328, 331 (1954) (citations omitted). "To constitute such a trespass, the act
done must be such as 'will to a substantial certainty result in the entry of the foreign matter.'" Id.
(quotation omitted).
Plaintiff alleges that the County Defendant "intentionally placed the Wastes on the
Trespass Area on the [George Street] Property . . . [and] interfered with the rights of plaintiff to
exclusive possession of the property, and threaten[s] to do so in the future." See Amended
Complaint at ¶¶ 73-74. The County Defendant apparently argues that this invasion constitutes a
continuing trespass, stating: "A continuing trespass may ripen into a prescriptive right and
deprive a property owner of title to his or her land . . . where there was adverse, open and
notorious, and continued and uninterrupted use of the area for a period of 10 years and such use
need not be exclusive." See County Defendant's Memorandum of Law at 18.
Whether the County Defendant intended the act which amounts to or produces the alleged
unlawful invasion (here, the ownership and maintenance of a waste management facility) appears
clear; however, whether this amounts to willful behavior substantially certain to result in the
entry of contaminants onto the George Street Property presents a material issue of fact. In
addition, the County Defendant's passing reference that it obtained a prescriptive easement in the
George Street Property by virtue of the continuing trespass of contaminants on the Property — a
-30-

curious argument for someone in the County Defendant's position to make — is another issue of
fact best left for discovery.
"[W]hen 'polluting material has been deliberately put onto, or into, defendant's land,' the
defendant is liable for damage to his neighbor's land if the defendant 'had good reason to know or
expect that subterranean and other conditions were such that there would be passage from
defendant's to plaintiff's land.'" Abbatiello v. Monsanto Co., 522 F. Supp. 2d 524, 542 (S.D.N.Y.
2007) (quoting Phillips, 121 N.E.2d at 251). Here, Plaintiff alleges that the County Defendant is
liable for trespass both to the extent it dumped waste directly onto the George Street Property and
because the migration of the contaminants from the Landfill to the Property was inevitable and
foreseeable. See Amended Complaint at ¶¶ 24-26. This allegation is sufficient to withstand a
motion to dismiss; and, accordingly, the Court denies the County Defendant's motion to dismiss
Plaintiff's trespass claim.

f. Ninth cause of action: Private Nuisance
To make out a private nuisance claim under New York law, a plaintiff must establish that
the conduct at issue "is a legal cause of the invasion of the interest in the private use and
enjoyment of land and such invasion is (1) intentional and unreasonable, (2) negligent or
reckless, or (3) actionable under the rules governing liability for abnormally dangerous
conditions or activities[.]" Copart Indus., Inc. v. Consol. Edison Co. of New York, Inc., 41
N.Y.2d 564, 569 (1977) (citations omitted). Next, relevant here, "[t]he elements of a private
nuisance cause of action, premised on an intentional and unreasonable invasion, are: '(1) an
interference substantial in nature, (2) intentional in origin, (3) unreasonable in character, (4) with

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a person's property right to use and enjoy land, (5) caused by another's conduct in acting or
failure to act.'" Scribner, 84 F.3d at 559 (quoting [Copart Indus., 41 N.Y.2d] at 570, 394 N.Y.S.
2d 169, 362 N.E.2d 968).
In this case, Plaintiff alleges that the County Defendant caused an unreasonable and
substantial interference with his right to use and enjoy the George Street Property. See Amended
Complaint at ¶ 77. If true, the allegations in the amended complaint regarding the County
Defendant's alleged conduct and its effects plausibly amounts to a private nuisance. Again,
however, without discovery, it is not possible to ascertain the extent of the interference to
Plaintiff's property rights; and, thus, since any determination regarding the extent of interference
is a fact-based inquiry, it is inappropriate for judgment on a motion to dismiss. Therefore, the
Court denies the County Defendant's motion to dismiss Plaintiff's ninth cause of action for
private nuisance.

IV. CONCLUSION
Accordingly, having reviewed the entire record in this matter, the parties' submissions
and the applicable law, and for the above-stated reasons, the Court hereby
ORDERS that the County Defendant's motion to dismiss is GRANTED with respect to
Plaintiff's third, fifth, sixth, seventh, tenth, and eleventh causes of action and DENIED in all
other respects; and the Court further
ORDERS that Plaintiff's third cause of action, pursuant to New York ECL Article 37,
and sixth cause of action, alleging public nuisance, are sua sponte DISMISSED as to the City
Defendant and the John Doe Defendants; and the Court further

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ORDERS that Plaintiff's motion for leave to file an amended complaint is GRANTED;15
and the Court further
ORDERS that Plaintiff shall file and serve his amended complaint within ten (10) days
of the date of this Memorandum-Decision and Order; and the Court further
ORDERS that this matter is referred to Magistrate Judge Baxter for all further pretrial
matters.
IT IS SO ORDERED.

Dated: December 13, 2011
Syracuse, New York

15

Any amended complaint that Plaintiff files must be consistent with this MemorandumDecision and Order.
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