D'AMICO -v- WASTE MANAGEMENT OF NEW YORK, LLC

Filing 49

DECISION AND ORDER granting in part and denying in part 39 Defendant's Motion to Dismiss. Signed by Hon. Elizabeth A. Wolford on 9/9/2019. (KAC)

DlSWi^
FILED

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

SEP 0 9 2019

DISTWQ

JAMES W. D'AMICO, on behalf of himself and
all others similarly situated,
Plaintiff

DECISION AND ORDER
V.

6:18-CV-06080 EAW
WASTE MANAGEMENT OF

NEW YORK,EEC,
Defendant.

INTRODUCTION

Plaintiff James W.D'Amico ("Plaintiff) brings this putative class action, on behalf
of himself and all others similarly situated, against Defendant Waste Management of New
York,LLC("Defendant"), alleging common law claims for public nuisance and negligence
arising from Defendant's operation of the High Acres Landfdl and Recycling Center (the
"Landfill") in Perinton, New York. (Dkt. 38).

Speeifieally, Plaintiff alleges that

Defendant's operation of the Landfill has caused noxious odors to be emitted into the

surrounding environment, resulting in property damage to himself and the
owner/occupants and renters in the surrounding area. {Id. at 2-5).
Presently before the Court is Defendant's motion to dismiss Plaintiffs Second

Amended Complaint (the "SAC"). (Dkt. 39). For the following reasons. Defendant's
motion is granted in part and denied in part.

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BACKGROUND'

Defendant operates the Landfill on a 1,100-acre site and "accepts municipal solid
waste, industrial and special waste, construction and demolition debris, and other waste for

disposal." (Dkt. 38 at

4,6). As the waste decomposes at the Landfill, it creates "odorous

landfill gas, leachate, and other byproducts." {Id. at ^ 7). Defendant is obligated to control
these odorous emissions by, among other things, "following proper landfilling practices,

utilizing adequate landfill cover, and installing, operating, and maintaining a sufficient
landfill gas collection system to capture and destroy landfill gas." {Id. at ^ 10). In order
to maintain an effective landfill gas collection system (the "Collection System"),
Defendant must prevent "excess liquid" from entering the system and interfering with its
operation. {Id. at^ 11).

Defendant has allegedly failed to satisfactorily control the odors emitted from the
Landfill. {Id. at T| 12). Specifically, Plaintiff claims that Defendant has failed to properly
operate the Collection System and has allowed it to become "watered in." {Id.). This

alleged operating failure is due to inadequate drainage systems. Defendant's reliance upon

vertical gas wells, insufficient preparation for wet weather conditions, an "inadequate
wellhead vacuum,"the failure to properly monitor the system and use a proper "cover and
covering practices," and the "inadequate use of odor neutralizing systems and products."
{Id.).

The following facts are taken from the SAC unless otherwise indicated. (Dkt. 38).
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As a result, Defendant has allegedly released "odorous emissions . . . onto the

property ofPlaintiff and the class on occasions too numerous to recount individually." {Id.
at ^ 13). The odors are "offensive" and have interfered with Plaintiffs and the putative
class members' use and enjoyment of their property. {Id. at ^ 14). Plaintiff claims that
"Defendant's emissions are especially injurious to the Class as compared with the public
at large, given the impacts to their homes." {Id. at ^ 15). In particular, these emissions
have caused a diminution in the value of Plaintiffs and the putative class members'
property. {Id. at^ 16).

Numerous individuals have filed complaints with the New York State Department

ofEnvironmental Conservation(the"DEC")detailing the noxious odors in the community.
{Id. at^ 17). "[M]ore than 180 households have contacted Plaintiffs' counsel documenting
the odors they attribute to" the Landfill. {Id. at ^ 18).

Plaintiff defines the putative class as follows: "All (a) owner/occupants and (b)
renters of residential property residing within two and one-half (2.5) miles of the
Defendant's Landfill." {Id. at ^ 20). Plaintiff also claims that "there are over three

thousand (3,000) households within the 2.5-mile radius that are being impacted." {Id. at
1(21).
PROCEDURAL HISTORY

On January 26, 2018, Plaintiff commenced this putative class action, on behalf of

himself and all others similarly situated, seeking compensatory and punitive damages as
well as injunctive relief under theories of common law nuisance, negligence, and gross
negligence. (Dkt. 1). On April 27, 2018, Plaintiff filed an Amended Complaint, which
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removed Waste Management, Inc. as a defendant. (Dkt. 4). On July 23, 2018, Defendant
filed a motion to dismiss. (Dkt. 13). This Court held oral argument on Defendant's motion
on December 7, 2018, and reserved decision. (Dkt. 27).

On March 25, 2019, the Court issued a Decision and Order granting Defendant's
motion to dismiss in part and denying it in part. (Dkt. 33). The Court dismissed Plaintiffs

claims for public nuisance and gross negligence without prejudice for failure to state a

claim and denied Defendant's motion on all other grounds. (Id.). On April 4, 2019,

Plaintiff filed the SAC,^ which remains the operative pleading in this matter. (Dkt. 38).
On April 25, 2019, Defendant filed a motion to dismiss the SAC. (Dkt. 39). Plaintiff
opposes Defendant's motion. (Dkt. 41). On August 7,2019,the Court held oral argument
on Defendant's motion as well as the pending motions in the related litigation in Fresh Air
for the Eastside, Inc. v. Waste Mgmt. ofN.Y., LLC., Case No. 6:18-cv-06588-EAW, and

reserved decision. (Dkt. 42; Dkt. 44; Dkt. 46; Dkt. 47).
DISCUSSION

I.

Motion to Dismiss Standard

"In considering a motion to dismiss for failure to state a claim pursuant to Rule

12(b)(6), a district court may consider the facts alleged in the complaint, documents
attached to the complaint as exhibits, and documents incorporated by reference in the

complaint." DiFolco v. MSNBC Cable LLC.,622 F.3d 104, 111 (2d Cir. 2010). A court

^

Plaintiff filed an unopposed motion for leave to file a second amended complaint

on March 29, 2019(Dkt. 34), and the parties filed a stipulation consenting to the filing of
a second amended complaint on April 2, 2019 (Dkt. 36). The Court granted Plaintiffs
motion on April 3, 2019. (Dkt. 37).
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should consider the motion by "accepting all factual allegations as true and drawing all
reasonable inferences in favor ofthe plaintiff." Trs. of Upstate N.Y. Eng'rs Pension Fund
V. Ivy Asset Mgmt.,843 F.3d 561, 566(2d Cir. 2016), cert, denied, 137 S. Ct. 2279(2017).
To withstand dismissal, a plaintiff must set forth "enough facts to state a claim to reliefthat

is plausible on its face." BellAtl. Corp. v. Twombly, 550 U.S. 544, 570(2007). "A claim
has facial plausibility when the plaintiff pleads factual content that allows the court to draw

the reasonable inference that the defendant is liable for the misconduct alleged." Turkmen
V. Ashcroft, 589 F.3d 542,546(2d Cir. 2009){(\\xo\.\ngAshcroftv. Iqbal, 556 U.S. 662,678
(2009)).

"While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need

detailed factual allegations, a plaintiffs obligation to provide the grounds of his
entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation

of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (internal

quotations and citations omitted). "To state a plausible claim, the complaint's '[f]actual
allegations must be enough to raise a right to relief above the speculative level.'" Nielsen
V. AECOMTech. Corp., 762 F.3d 214, 218(2d Cir. 2014)(quoting Twombly, 550 U.S. at
555).
II.

Ordinary Negligence^

Under New York law, "a plaintiff must establish three elements to prevail on a
negligence claim:'(1)the existence ofa duty on defendant's part as to plaintiff;(2)a breach

^

During oral argument. Plaintiffs counsel confirmed that the SAC does not include

a claim for gross negligence.

of this duty; and (3)injury to the plaintiff as a result thereof" Alfaro v. Wal-Mart Stores,

Inc., 210 F.3d 111, 114 (2d Cir. 2000){(\\xoimg Akins v. Glens Falls City Sch. Dist., 53
N.Y.2d 325,333 (1981)).

While "acknowledg[ing] that this Court declined to dismiss Plaintiffs negligence
count" in its March 25, 2019, Decision and Order, Defendant seeks to relitigate that issue
"[sjhould the Court wish to revisit the negligence issue." (Dkt. 39-1 at 21). This Court's

previous determination that the Amended Complaint sufficiently stated an ordinary
negligence claim remains controlling here under the law of the case doctrine because the

SAC sets forth almost the exact same allegations as the Amended Complaint. See Johnson
V. Holder, 564 F.3d 95, 99(2d Cir. 2009)("The law of the case doctrine commands that

when a court has ruled on an issue, that decision should generally be adhered to by that
court in subsequent stages in the same case unless cogent and compelling reasons militate
otherwise." (quotation omitted)). Accordingly, to the extent Defendant's motion is
directed to the negligence claim, it is denied.
III.

Public Nuisance

In its March 25, 2019, Decision and Order, the Court dismissed Plaintiffs public
nuisance cause of action without prejudice for the failure to plausibly allege that
Defendant's actions substantially interfered with a right held in common by the general
public. (Dkt. 33 at 9). As the Court previously found: "A review of the allegations
contained in the Amended Complaint reveals that it does not once specifically allege that

Defendant's operation of the Landfill has interfered with a right held in common by the

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public." {Id. at 7). Accordingly, the claim was dismissed without prejudice and the Court
did not reach Defendant's other challenges to the public nuisance claim. {Id. at 9).

With its present motion, Defendant contends that Plaintiff failed to remedy the
deficiencies identified by the Court in its March 25, 2019, Decision and Order(Dkt. 39-1

at 7-10), and continues to inadequately set forth factual allegations demonstrating the
existence of a "special injury" as required for a private litigant to bring a public nuisance

claim {id. at 11-20). Plaintiff opposes Defendant's motion, arguing that he has specifically
alleged that "Defendant's emissions have substantially interfered with rights common to

the general public, including the right to uncontaminated and/or unpolluted air." (Dkt. 41
at 4 (quoting Dkt. 38 at 35)). Plaintiff also contends that he has alleged facts
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demonstrating that the putative class members have suffered a "special injury" beyond the
harm sustained by the public at large. {Id. at 5-10). Plaintiff argues that because
Defendant's alleged nuisance activities impact individuals in the community outside those
who compose the putative class,the diminution in property values sustained by the putative

class members constitutes an injury distinct from that suffered by the general public. {Id.).
A.

Legal Standard

"There are two types of nuisance actions in New York State, public nuisance and
private nuisance." Hicksville Water Dist. v. Philips Elecs. N. Am. Corp., No. 2:17-CV04442 (ADS)(ARL), 2018 WL 1542670, at *7 (E.D.N.Y. Mar. 29, 2018). "Public and

private nuisance bear little relationship to each other. Although some rules apply to both,
other rules apply to one but not the other." New York v. Shore Realty Corp.,759 F.2d 1032,
1050 (2d Cir. 1985). "A public nuisance under New York law exists when there is a
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substantial interference with a public right." Johnson v. Bryco Arms,304 F. Supp. 2d 383,
390 (E.D.N.Y. 2004). By contrast, "[a] private nuisance threatens one person or a

relatively few,an essential feature being an interference with the use or enjoyment ofland."
CopartIndus., Inc. v. Consol. Edison Co. ofN.Y.,A \ N.Y.2d 564, 568(1977);see Scribner
V. Summers,84 F.3d 554, 559(2d Cir. 1996)(same). "A nuisance is the actual invasion of

interests in land, and it may arise from varying types of conduct." 532 Madison Ave.

Gourmet Foods, Inc. v. Finlandia Ctr., Inc., 96 N.Y.2d 280, 292 (2001). Generally
speaking, a landowner "is subject to liability for either a public or private nuisance on its
property upon learning of the nuisance and having a reasonable opportunity to abate it."
Shore Realty Corp., 759 F.2d at 1050(footnote omitted).
The New York Court of Appeals has explained:
"A public nuisance exists for conduct that amounts to a substantial

interference with the exercise of a common right of the public, thereby
offending public morals, interfering with the use by the public of a public
place or endangering or injuring the property, health, safety or comfort of a
considerable number of persons."

532 Madison Ave., 96 N.Y.2d at 292. "It is uncontested that the historical purpose of the
doctrine of public nuisance was primarily to protect the public from harm or danger; the

same is equally true ofthe modem tort of public nuisance." N.A.A.C.P. v. AcuSport, Inc.,
271 F. Supp.2d 435,481 (E.D.N.Y. 2003). For this reason, a public nuisance is considered

"an offense against the State and is subject to abatement or prosecution on application of
the proper govemmental agency." Copart Indus., Inc., 41 N.Y.2d at 568. "The State has

standing to bring actions for public nuisance as a matter of course in its role as 'guardian

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ofthe environment.'" Chase Manhattan Bank, N.A. v. T&NPLC,905 F. Supp. 107, 125
(S.D.N.Y. 1995)(quoting Shore Realty Corp., 759 F.2d at 1051).

"Generally, [a] public nuisance is actionable by a private person only if it is shown
'

that the person suffered special injury beyond that suffered by the community at large.'"
JankiBaiSahu v. Union Carbide Corp., 528 F. App'x 96, 101 n.4(2d Cir. 2013)(alteration

in original)(quoting 532 Madison Ave., 96 N.Y.2d at 292); see Johnson, 304 F. Supp. 2d
at 392("A private plaintiff does not have standing to bring a public nuisance cause ofaction

unless he or she shows some harm different from that suffered by the public generally.").

"In this way, a private wrong may be distinguished from a common injury to the public,
and a private right of action is restored." Baker v. Saint-Gobain Performance Plastics
Corp., 232 F. Supp. 3d 233, 248 (N.D.N.Y. 2017)(citing Kavanagh v. Barber, 131 N.Y.
211, 214(1892)("The public nuisance as to the person who is specially injured thereby in
the enjoyment or value of his lands becomes a private nuisance also.")); see also 81 N.Y.

Jur. 2d Nuisances § 6(2018)("[A] public nuisance becomes also a private nuisance as to
any person who is specially injured by it to any extent beyond the injury to the public."

{oiXmg Ackerman v. True, 175 N.Y. 353, 360-61 (1903))). "This principle recognizes the
necessity of guarding against the multiplicity of lawsuits that would follow if everyone
were permitted to seek redress for a wrong common to the public." 532 Madison Ave., 96
N.Y.2d at 292.

B,

A Special Injury Distinct from that Suffered by the Public at Large

Plaintiff has added just one new allegation in the SAC, which provides as follows:
"Apart from the property damage incurred by Plaintiff and the Class, Defendant's
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emissions have substantially interfered with rights common to the general public, including
the right to uncontaminated and/or unpolluted air." (Dkt. 38 at 35). Defendant contends
that Plaintiffs public nuisance cause of action should be dismissed because Plaintiff has

failed to set forth sufficient factual allegations demonstrating a substantial interference with
a public right or that the putative class has suffered a "special injury" that is different in

kind from the harm sustained by the general community. (Dkt. 39-1 at 7-20).
The Court is underwhelmed by Plaintiffs efforts to rectify the pleading deficiencies
outlined in its March 25, 2019, Decision and Order. Aside from adding a conclusory

phrase that Defendant's emissions have interfered with rights common to the general
public. Plaintiff has made no effort to set forth facts plausibly alleging that his claim
satisfies the standard for a public nuisance by substantially interfering with rights held in
common by the public. Moreover, even if Plaintiff has alleged sufficient facts to satisfy
the substantial interference with public right element of the claim. Plaintiff has failed to

plausibly allege a "special injury" that is distinct from any harm suffered by the public at
large.

Only two paragraphs in the SAC set forth allegations pertaining to a "special injury"
sustained by the putative class. Plaintiff attempts to satisfy this element of a public

On September 4, 2019, Plaintiffs counsel filed a post-argument letter attaching a
recent decision from the District Court of Nebraska denying a motion to dismiss directed
to a public nuisance complaint apparently filed by Plaintiffs counsel in that district. (Dkt.
48). The fact that Plaintiffs counsel was able to convince the District Court of Nebraska

that its conclusory allegations passed muster and withstood a motion to dismiss challenge,
does not persuade this Court that it should overlook Plaintiffs insufficient efforts to
plausibly allege a public nuisance claim under New York law.
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nuisance claim by alleging that"Defendant's emissions are especially injurious to the Class
as compared with the public at large, given the impacts to their homes," and that
"Defendant's odorous emissions have reduced the value of the homes of Plaintiff and the

Class." (Dkt. 38 at

15-16). During oral argument Plaintiffs counsel claimed that the

emissions also impact other individuals who work, recreate, or travel in the vicinity of the
Landfill, but Defendant's counsel cogently observed that no such facts were alleged in the
SAC. In other words. Plaintiff has alleged no facts plausibly suggesting that the relevant
community extends beyond the putative class at issue.

Diminished property values may constitute a "special injury" under New York law.
See, e.g., Agoglia v. Benepe, 84 A.D.Sd 1072, 1077 (2d Dep't 2011)(finding that "the
petitioner adequately stated a cause of action to abate a public nuisance" where, "in
addition to the alleged environmental injuries, the petition alleged that the dunes adversely
affected property values on the subject streets, a harm not suffered by the community at

large"); Scheg v. Agway, Inc., 229 A.D.2d 963,964 (4th Dep't 1996)("[Tjheir complaint,
insofar as it alleges that the value of their property was diminished as a result of its
proximity to the landfill, does state a cause of action."); Ass'n for Cmty. Reform Now
("Acorn") v. Bloomberg, 13 Misc. 3d 1209(A), 2006 WL 2686520, at *17(Sup. Ct., N.Y.
Cty. 2006)("The alleged depreciation in plaintiffs' property values, if proven, would
constitute special injury resulting from the air pollution, noise pollution, odor and traffic
that allegedly would arise out of the proposed [Marine Transfer Station]."), aff'd, 52

A.D.3d 426(1st Dep't 2008). However,"when the class harmed in the same way becomes
so large and general as to include all members of the public who come in contact with the
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nuisance ...the private action will fail." AcuSport, Inc., 271 F. Supp. 2d at 498(alteration
in original)(quotation omitted). Stated differently, "[a]negations of pecuniary injury may

be sufficient to satisfy the peculiar injury test so long as the injuries involved are not
common to the entire community exercising the same public right." Leo v. Gen. Elec. Co.,
145 A.D.2d 291, 294(2d Dep't 1989)(citation omitted); see AcuSport, Inc., 271 F. Supp.

2d at 498("[Pjecuniary loss ... suffered by a private plaintiff may satisfy this requirement,
but not when they are so widespread as to affect a whole community, or a very wide area
within it."(quotation omitted)).
Plaintiff states in a conclusory manner that Defendant's operation of the Landfill
has substantially interfered with the public's right to uncontaminated air and that the
putative class has suffered diminished property values as a result. However, Plaintiff has

set forth no facts to plausibly support a conclusion that this alleged pecuniary loss does not
affect the entire community under consideration. If the "economic loss was 'common to

[the] entire community . . ., it is not a different kind of harm and the plaintiffs cannot
recover for the invasion ofthe public right.'" 532 Madison^ve.,96 N.Y.2d at 294(original
alteration omitted) (quoting Restatement (Second) of Torts § 82IC, comment h).

Plaintiffs allegation that the noxious emissions are "especially injurious to the Class as
compared with the public at large, given the impacts to their homes"(Dkt. 38 at ^ 15) is
insufficient—it constitutes a mere "recitation of the elements of [the] claim [and] is not

enough to satisfy federal pleading requirements," Read v. Corning Inc., 351 F. Supp. 3d
342, 359(W.D.N.Y. 2018). Like the Read plaintiffs. Plaintiff has "not alleged anyfacts to

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support a finding of special injury or damages." Id. Accordingly, Plaintiffs public
nuisance cause of action is dismissed for failure to state a claim.

However, despite Defendant's suggestion to the contrary, the Court finds that a
dismissal with prejudice would be inappropriate. The Court disagrees with Defendant's
position that at this juncture, the Court should conclude that the putative class is

categorically precluded from establishing a special injury simply because it is composed

of a large number of individuals who allegedly suffer the same type of injury. (Dkt. 39-1
at 14-18); see Francis v. Schoellkopf, 53 N.Y. 152, 154 (1873)("The idea that if by a
wrongful act a serious injury is inflicted upon a single individual a recovery may be had
therefor against the wrong-doer, and that if by the same act numbers are so injured no
recovery can be had by anyone, is absurd."). A "special injury" need not be "unique," it
must only be different in kind from the harm sustained by the public at large. See Wakeman
V. Wilbur, 147 N.Y. 657, 663 (1895)("the fact that numerous other persons have been
injured by the act is no ground for a denial of the relief for a public nuisance); Francis,
53 N.Y. at 154-55 ("[0]ne erecting or maintaining a common nuisance is not liable to an

action at the suit ofone who has sustained no damage therefrom except such as is common
to the entire community, yet he is liable at the suit of one who has sustained damage
peculiar to himself. No matter how numerous the persons may be who have sustained this

peculiar damage, each is entitled to compensation for his injury."(emphasis added)); see
also Sierra Club v. Vill. ofPainted Post, 26 N.Y.3d 301, 311 (2015)(in the context of an

Article 78 proceeding to enforce the State Environmental Quality Review Act, stating that

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the harm alleged "need not be unique" and that "[t]he number of people who are affected
by the challenged action is not dispositive of standing").
"[T]he proper inquiry is not whether Plaintiff^] ha[s] alleged an injury different in
kind from other property owners

Rather, it is whether Plaintiff[] ha[s] alleged an injury

different in kind from the community at large." Cangemi v. United States,939 F. Supp. 2d
188, 206 (E.D.N.Y. 2013) (citation omitted).

A public nuisance claim involves

interference with "the exercise ofrights common to all, in a manner such as to offend public
morals, interfere with use by the public ofa public place or endanger or injure the property,

health, safety or comfort of a considerable number ofpersons^ See Copart Indus., Inc.,
41 N.Y.2d at 568 (emphases added); see also AcuSport, Inc., 271 F. Supp. 2d at 482

('"Public nuisance,' in addition to referring to a field oftort liability, is used to refer more
narrowly to 'the consequences of conduct'—^that is, to the invasion of the public right on
which a claim for public nuisance must be based."); Reid v. Kawasaki Motors Corp.,
U.S.A., 189 A.D.2d 954, 957(3d Dep't 1993)("The sine qua non of an action for public

nuisance ... is the interference by a defendant with a public right."). The more numerous
the affected individuals the more likely the alleged injury is not different in kind from that
suffered by the general public, but the mere fact that the putative class contains a significant
number of injured individuals does not necessarily mean that Plaintiff is unable to allege a
harm distinct in kind from "the entire community exercising the same public right." Leo,

145 A.D.2d at 294. To hold otherwise would be to deny a group of affected individuals

the right to pursue a private nuisance claim due to the widespread nature of the alleged
harm while simultaneously denying those same individuals the right to pursue a public
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nuisance claim due to the coneomitant fact that many individuals have been so injured.
While there may be instances where private litigants are factually unable to pursue either
cause of action due to the widespread nature ofthe alleged harm, to categorically preclude
Plaintiff and the putative class from even attempting to set forth sufficient facts

demonstrating the public harm as distinguished from the existence of a "special injury"
would be inappropriate.

Here, Plaintiff has failed to set forth factual allegations describing the scope of the

relevant community affected by the Landfill, leaving it unclear whether the pecuniary
interest alleged is, in fact, an injury different in kind from that sustained by the general

public. If Plaintiff can plausibly allege that the members of the putative class do not
constitute "all members of the public who come in contact with the nuisance," AcuSport,
Inc.,271 F. Supp.2d at 498(quotation omitted)—as suggested by Plaintiffs eounsel during
oral argument—Plaintiff may yet be able to assert a public nuisance cause of action, see
also lannucci v. City of New York, No. CV-02-6135 (CPS), 2006 WL 1026432, at *4
(E.D.N.Y. Apr. 19, 2006)("While the entire community is injured in that its access to

public streets and sidewalks is restricted due to defendants' illegal parking, plaintiff has
sustained 'special injuries' in that his driveways and parking lots are bloeked and the value

of his properties has decreased as a result ofthe parking."); Concerned Area Residentsfor
The Env't v. Southview Farm, 834 F. Supp. 1410, 1421 (W.D.N.Y. 1993)(the court was
"not convinced at [the summary judgment] stage that plaintiffs cannot show at trial that
they have suffered some harm peculiar to themselves by virtue oftheir status as landowners

and residents near" the polluting activity); Ouellette v. Int'l Paper Co., 602 F. Supp. 264,
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274(D. Vt. 1985)("Plaintiffs allege ...that the discharges from defendant's mill 'interfere

with [pjlaintiffs' use and enjoyment oftheir property and have decreased the market value

and rental value of their property.' Such an allegation is sufficient to state a private cause
ofaction for a 'nuisance' which might generally be classified as 'public.'"), aff'd, 776 F.2d
55 (2d Cir. 1985), aff'd in part, rev'd in part on other grounds, 479 U.S. 481 (1987); see
also Francis, 53 N.Y. at 154 (a nuisance was actionable where "offensive smells" made

the plaintiff"unable to rent one of her houses at all for a portion of the time" and required
her to rent another "for a less[er] sum than she could have otherwise obtained," even though
"other houses in the vicinity" were similarly affected); of 532 Madison Ave., 96 N.Y.2d at

293 C[E]very person who maintained a business, profession or residence in the heavily
populated areas of Times Square and Madison Avenue was exposed to similar economic
loss during the closure periods." (emphasis added)); Burns Jackson Miller Summit &
Spitzer v. Lindner, 59 N.Y.2d 314, 334 (1983)(finding no special injury where "out-ofpocket expenses" and "loss of business profits" resulting from a transit strike was "suffered

by every person,firm and corporation conducting his or its business or profession in the
City ofNew YorF'(emphases added)). Accordingly, Plaintiff's public nuisance cause of
action is dismissed without prejudice.
CONCLUSION

For the foregoing reasons,to the extent Defendant requests that the Court reconsider
its previous determination as to the viability of Plaintiffs negligence claim, Defendant's

motion (Dkt. 39)is denied, but Defendant's motion is granted insofar as Plaintiffs public
nuisance cause of action is dismissed without prejudice for failure to state a claim.
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so ORDERED.

ELIZABETKA.

United States District Judge
Dated:

September 9, 2019
Rochester, New York

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