Davies v S.A. Dunn & Co., LLC

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Davies v S.A. Dunn & Co., LLC 2019 NY Slip Op 34240(U) December 5, 2019 Supreme Court, Rensselaer County Docket Number: 2019-262993 Judge: Patrick J. McGrath Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] RENSSELAER COUNTY CLERK 12/16/2019 03:41 PM NYSCEF DOC. NO. 32 INDEX NO. EF2019-262993 RECEIVED NYSCEF: 02/12/2020 At an an IAS Term of the At Term of the Supreme Court, held in IAS Supreme held in and and Court, for for the of in of the County of Rensselaer, of Troy. in the the City Troy. Rensselaer, County City 27th New on the the 27 th day New York, on of September 2019 of September 2019 York, day McGRATH J. PRESENT: HON. PATRICK HON. PATRICK J. McGRATH PRESENT: of Court Justice Justice of the the Supreme Supreme Court SUPREME COURT SUPREME COURT COUNTY OF RENSSELAER RENSSELAER COUNTY OF STATE OF NEW YORK ST A TE OF NEW YORK BRENDA DAVIES DA VIES BRENDA DAVIES and GREG VIES and GREG DA behalf of themselves themselves and all all others others of and similarly on on behalf similarly situated, situated, F•; :~c e:r1i1 ed seceweo J_ //.:i.. f./ O: 1 2 AM Ar,1 1 2/16 20199 l10:12 / ~Dl F.-;-:1. n k :i3 1-ii::rola Merola i ranK kRenuelaer d 1'.'- ~:e 1;'1.e ,- ;: owi t:\• Ci 1:: d ,: clerk conty Plaintiff, Plaintiff, DECISION AND ORDER ORDER DECISION AND lNDEX NO. 2019-262993 INDEX NO. 2019-262993 -against-against- LLC, S.A. DUNN S.A. DUNN & & COMPANY, COMPANY, LLC, Defendant. Defendant. APPEARANCES : APPEARANCES: PC MICHAELS & PC MICHAELS & SMOLAK, SMOLAK, PC LIDDLE & PC LIDDLE & DUBIN, DUBIN, Plaintiff for the Attorneys for Attorneys the Plaintiff PC BEVERIDGE & PC BEVERIDGE & DIAMOND, DIAMOND, Defendant for the Attorneys for Attorneys the Defendant McGRATH, PATRICK J., PATRICK J., McGRATH, J.S.C. J.S.C. Davies on behalf of class Plaintiffs Brenda Davies and Davies bring this this putative putative class action, on behalf ot Plaintiffs Brenda Davies and Greg action, bring Greg against Dunn LI C, Defendant S.A. & Company. Company. themselves and all all others others themselves and similarly situated, against Defendant S.A. Dunn & LLC. situated, similarly gross negligence. before the law claims for and alleging common law claims for nuisance, negligence, and gross negligence. Presently before the common negligence, nuisance, Presently alleging CPLR 3211 facts are taken motion dismiss. 3211(a)(7). The following Court is motion to CPLR (a)(7). The facts are taken from from the the Court is defendant's defendant's to dismiss. following indicated: unless otherwise complaint, unless otherwise indicated: complaint, demolition landfill in the of Rensselaer. construction and demolition debris of Rensselaer. Defendant operates aa construction and debris landfill in the City Defendant operates City in and allege that New Brenda Davies and Davies reside New York Plaintiffs Brenda Davies and Greg Davies reside in Rensselaer, and allege that York. . Plaintiffs Rensselaer, Greg their noxious odors onto defendant's landfill releases defendant's landfill releases noxious odors onto their property. property. 1 of 11 [*FILED: 2] RENSSELAER COUNTY CLERK 12/16/2019 03:41 PM NYSCEF DOC. NO. 32 INDEX NO. EF2019-262993 RECEIVED NYSCEF: 02/12/2020 Materials deposited into defendant's landfill include demolition debris including gypsu Materials deposited landfill include into defendant's demolition debris gypsum including (i.e. sheetrock sheetrock wallboard (i.e. or The deposited into Defendant's landfill decompos wallboard or drywall). drywall). The materials materials deposited into Defendant's landfill decompose and generate generate landfill landfill gas, gas, an an odorous odorous and and offensive offensive byproduct byproduct of of decomposition decomposition which which generally generall and consists of hydrogen sulfide, methane, carbon dioxide, and various other compounds. Landfill ga of hydrogen carbon and various other compounds. consists Landfill gas sulfide, methane, dioxide, "odiferous" from construction construction and and demolition demolition debris debris landfills landfills can can be be especially especially "odiferous" given given the the high hig from "rotten-egg" content content of of hydrogen hydrogen sulfide, sulfide, which which isis known known toto have have aa "rotten-egg" smell. smell. Plaintiffs Plaintiffs allege allege that that a properly operated, maintained, and managed landfill will collect, capture and destroy landfill gas in and will capture and landfill in managed landfill gas operated, maintained, collect, properly destroy order to prevent order to prevent it escaping into air emissions, but that ha it from from the ambient air as as fugitive into the ambient fugitive but that defendant has defendant emissions, escaping failed to manage its fugitive fugitive emissions failed to manage its emissions and to otherwise prevent odors from the from otherwise and to prevent odors from the landfill landfill from the homes of plaintiffs invading the homes and property of plaintiffs and the class. and property and the class. invading Plaintiffs' The complaint alleges that more more The complaint alleges that than 150 have contacted Plaintiffs' counsel 150 households households have contacted than counsel the odors odors to the documenting the they attribute to the Defendant's landfill. Further, that defendant has attribute Defendant's landfill. that defendant has a Further, documenting they documented pattern of failing control documented pattern of to control its emissions, demonstrated as follows: to its demonstrated as follows: emissions, failing a) a) complaints to state local Numerous resident resident complaints to authorities including but not to state and and local not limited authorities but limited the to the including New Department New York York Department of Conservation (DEC); of Environmental Environmental Conservation (DEC); b) b) Between and April April Between January and 2017, the Defendant with 33 Notices Notices of for the DEC cited Defendant with DEC cited of Violation for Violation 2017, January accepting improper waste.; improper waste.; accepting c) c) In August Defendant August was with five In 2018, Defendant was served with five Notices of based on served Notices of Violation Violation based on DEC DEC 2018, for its its failure failure operate so as inspections for operate the landfill so the the the landfill as to to minimize minimize the generation generation the leachate.: leachate.: accepting and ;; and and and storing accepting storing Numerous inspections d) d) In August the DEC DEC and and Defendant In August 2018, the entered a consent decree requiring Defendant, to Defendant entered consent decree to 2018, Defendant, requiring $100,000 and undertake pay a $100,000 penalty and undertake a $225,000 environmental benefit project in response $225,000 environmental benefit in project response pay penalty to Defendant's repeated violations not limited to Defendant's repeated violations including but not to, and use of but limited construction and use of the the to, construction including two access access points on Partition Partition Street to two points on Street adjacent to the accepting and storing 205,000 205,000 adjacent the landfill; and landfill; accepting storing cubic yards the East cubic yards of mined the Capital, LLC property, which is not located within the LLC which ofmined East Albany is not located within the property, Capital, Albany mine's life of mine stormwater mine's life of mine boundary; boundary; discharging storm water from the onto Street from the mine mine onto the the Partition Partition Street discharging and emissions emissions of dust dust on on at Extension; and of on occasions in April 2018: on various at least least four four various occasions in early April Extension; 2018; early e) e) DEC enforcement enforcement measures are ongoing, DEC measures are and Defendant to undertake and DEC DEC has has required required to undertake Defendant ongoing, odor mitigation measures various odor mitigation measures which have been sufficient to the problem. which have not not been sufficient to remedy the problem. remedy various Standard Legal Standard Legal When determining motion to dismiss dismiss for failure failure to state state cause cause of the pleadings must When a motion to for to action, the pleadings must ofaction, determining liberal construction and the the court must determine whether be afforded a liberal construction and must determine only whether the plaintiff has any court the plaintiff has only any cause for relief under legal cognizable theory. Uzzle v. Nunzie Court cause for relief under any legal theory. Uzzle v. Nunzie Court Homeowners Ass',. Inc., Homeowners Ass',. Inc., any cognizable 55 AD3d AD3d 723 (2d (2d Dept. Dept. 2008). will not be dismissed for insufficiency 55 723 2008). Thus, a pleading pleading will not be dismissed for merely Thus, insufficiency merely is inartistically because it is such pleading is deemed deemed to allege allege whatever can be because it drawn; rather, such pleading is to whatever can be implied implied drawn; rather, inartistically be afforded 11 2 of of 11 Page Page 2 2 of 11 [*FILED: 3] RENSSELAER COUNTY CLERK 12/16/2019 03:41 PM NYSCEF DOC. NO. 32 INDEX NO. EF2019-262993 RECEIVED NYSCEF: 02/12/2020 from its by fair intendment. Brinkley v. 80 428 80 AD2d AD2d 428 (Is (1st from its statements statements fair and and reasonable reasonable intendment. v. Casablancas, Brinkley Casablancas, by rather than factual factual Dept. 1981 allegations that state or rather than that state only legal opinions or conclusions, Dept. 1981). ). Conversely, allegations opinions conclusions, Conversely, only legal statements, are not afforded any weight. Asgahar v. Tringali Realty, Inc., 18 AD3d 408 (2d Dept. Asgahar Tringali 18 AD3d 408 (2d Dept. not afforded weight. v. are Realty, Inc., statements, any 2005). 2005). The plaintiff has burden toto produce produce documentary evidence supporting the iin has no evidence the allegations allegations The plaintiff no burden documentary supporting the complaint in order to oppose a motion to dismiss under CPLR321 l(a)(7). Stuart Realt Co. CPLR321 the complaint in order to oppose motion to dismiss under l(a)(7). Stuart Co. v. v. Realty Rye Country Store, Inc., 296 AD2d 455 (2d Dept. 2002). However, if evidenc if documentary Rye 296 AD2d 455 (2d Dept. 2002). evidence Country Store, Inc., However, documentary contradicts" in such allegations introduced in record "flatly contradicts" any in the such will introduced in the the record allegations the complaint, allegations will complaint, "flatly any allegations Tringali 18 AD3d 2005). Realty, Inc., 18 408 (2d Dept. 2005). Also, the not be be taken as Asgahar v. not taken as true. true. Asgahar v. Tringali AD3d 408 (2d Dept. the Realty, Inc., Also, to show show that the allegations allegations in the complaint complaint are plaintiff can introduce documentary evidence to that the in the ar plaintiff can introduce evidence documentary Orofino 40 321 l(c); 321 l(e); Rovello v. Orofino Realty Co., 40 NY2d supportable with further proof. CPLR with further proof. CPLR 321 Rovello v. NY2d supportable Realty Co., 3211(c); l(e); 633 1976). 633 ( (1976). To at this juncture, juncture, therefore, therefore, a defendant must demonstrate either that To succeed succeed at this defendant must either all factual factual demonstrate that all when taken cannot legal claim for or in allegations when taken as make out legal claim for relief, or that evidence in the the allegations as true true cannot make out any that evidence relief, any all factual factual legal claim record flatly contradicts all allegations that make out claim for relief. record contradicts allegations that would would make out a legal for relief. flatly Negligence Negligence Defendant moves to dismiss the ordinary negligence cause arguing that defendant moves to dismiss the negligence cause of of action, that defendant action, ordinary arguing plaintiffs' does plaintiffs a duty of diminution in property property values is a is does not of care care and and that that plaintiffs' alleged alleged diminution in values not owe owe plaintiffs duty under of purely economic harm that is not recoverable under a theory of negligence. economic harm that is not recoverable negligence. purely theory Defendant Under of common common Under long-established principles of law, a plaintiff plaintiff asserting a negligence claim long-established principles claim negligence law, asserting under York law must under New New York law must allege "(I) a duty owed by the defendant to the plaintiff, (2) a breach allege owed the defendant to the breach plaintiff, "(1) (2) duty by therefrom." Lerner 459 F.3d thereof, and injury proximately proximately resulting therefrom." Lerner v. Bank, N.A., 459 and (3) v. Fleet Fleet F.3d 273, Bank, 273, thereof, N.A., (3) injury resulting "duty" In 286 (internal quotation marks omitted). In general, the "duty" in question is a duty 286 (2d (2d Cir. Cir. 2006) (internal quotation marks omitted). the in question is to general, 2006) duty to in other other in will exercise reasonable care; words, to acting in a way give to a foreseeable, exercise reasonable to avoid avoid that will give rise rise to foreseeable, care; in words, acting way that but avoidable, risk of harm to others. See Korean Air Lines Co. v. McLean, 118 F.Supp.3d 4471, 71. 486 but risk of harm to others. See Korean Air Lines Co. v. 118 F.Supp.3d 486 avoidable, McLean, (EDNY 2015). (EDNY 2015). 2019 In D'Amico of N.Y., U.S. *l 5 (WDNY (WDNY In v. Mgmt. ofN.Y., LLC, 2019 U.S. Dist. LEXIS 50323, at D'Amico v. Waste Waste Mamt. Dist. LEXIS at *15 LLC, 50323, defendant's landfill emissions ... onto Mar. 25, 2019), plaintiffs alleged that the defendant's landfill released "odorous emissions ... Mar. plaintiffs alleged that the released "odorous onto 25, 2019), individually." occasions too numerous ofplaintiffand the class class on on occasions numerous to recount The odors odors the property of plaintiff and the too to recount individually." The the property "offensive" and that in the complaint as "offensive" and that interfered with Plaintiffs and the were described in as they interfered with Plaintiffs and the were described the complaint they members' enjoyment of their their Plaintiff and enjoyment property. claimed that "[d]efendant's putative class use and of property. Plaintiff claimed that "[ d]efendant's putative class members' use Class as to the compared with the public at given the emissions are especially injurious to the Class as compared with the public at large, given the emissions are injurious large, especially homes." these that these emissions have caused dimimnion in the value of impacts impacts toto their their homes." Finally, that emissions have caused a diminution in the value of Finally, members' property. putative class The complaint in D'Amico sounded in plaintiffs and plaintiffs and the the putative class members' property. The complaint in D 'Amico sounded in ordinary ordinary nuisance. gross and public negligence, gross negligence, and public nuisance. negligence, negligence, analysis of 532 532 Madison Madison Ave. Gourmet Inc. v. v. Finlandia 96 After a lengthy analysis of Ave. Gourmet Foods, Inc. Finlandia Ctr., Im:., 96 Foods, Ctr., Inc., lengthy After of 11 11 Page 33 of Page 3 of 11 [*FILED: 4] RENSSELAER COUNTY CLERK 12/16/2019 03:41 PM NYSCEF DOC. NO. 32 INDEX NO. EF2019-262993 RECEIVED NYSCEF: 02/12/2020 defendants also NY2d 280, 280,290 (2001) (which the instant instant defendants also rely rely on) on) as as well well as as Baker Baker v.v. Saint-Gobain Saint-Gobai (which the NY2d 290 (2001) (NDNY the Performance Plastics Plastics Corp F. Supp. 3d 233 233 (NDNY 2017), the Court Court held held that that defendant defendant owed owe 232 F. Supp. 3d Performance Corp., .• 232 2017), plaintiffs-as adjacent adjacent landowners-a landowners-a duty to operate operate its its landfill landfill inin aa reasonable reasonable manner. manner. D'Amicc D' Amie plaintiffs-as duty to supra at ("Plaintiff and and the the putative putative class class members members inin this this case case have hav at ("Plaintiff v. Waste Waste Mgmt. Mgmt. of ofN.Y., LLC,, supra LLC v. N.Y., of an an adjacent operator of adjacent landfill landfill will will take take reasonable reasonable measures measures tct a reasonable reasonable expectation expectation that that the the operator a properties." air space prevent the the unreasonable unreasonable contamination of the the immediate immediate air space permeating permeating their their properties.'· contamination of prevent 2011 143772 citing Fitzgibbons Fitzgibbons v.v. City No. 5:10-CV-1038 5:1 0-CY-1038 FFJS/ATB, 2011 U.S. U.S. Dist. Dist. LEXIS LEXIS 14377 of Oswego, No. City of Oswego, JS/ATB, citing negligence the (NDNY 2011) 2011) (denying (denying motion motion to to dismiss negligence claim claim where the adjacent adjacent landowner landowner alleged allege (NDNY dismiss where care with that the the defendant defendant "owed "owed him him a duty duty of with regard regard to to its its operation operation of of the the [l]andfill"). Th [1]andfill"). of care The that D' Amico court court further concluded that the the plaintifY plaintiff had had "plausibly stated aa claim claim for for ordinary ordinar_ stated concluded D'Amico further that "plausibly alleged breach of its its duty by causing causing the the airspace airspace on on and an negligence based based upon Defendant's alleged breach of negligence upon Defendant's duty by values." surrounding Plaintiffs Plaintiffs property property to to be be contaminated, resulting inin aa diminution diminution inin property property values ... contaminated, resulting surrounding D 'Amico recognized recognized that that inin 532 532 Madison Madison Ave. Ave. Gourmet Gourmet Foods, Foods Additionally, the the Court in D'Amico Court in Additionally, Inc. v.v. Finlandia Finlandia Ctr., Ctr., Inc., Inc., 96 N.Y.2d 280 (2001), the the Court of Appeals Appeals held held that that defendant defendan Court Inc. 96 N.Y.2d 280 of (2001), landowners do do not not owe owe a duty to their their neighbors neighbors to to avoid avoid purely purely economic economic losses. losses. However. However. that tha landowners to duty damages" of damages damages ini damages" as as aa valid valid category category of New "stigma New York York courts courts have have recognized "stigma recognized or imminent imminen environmental cases cases because because the the diminished property values values result result from from an an actual actual or environmental diminished property * citing 87th 87th St. St. 251 1223 Hill-87th St. 251 F. F. Supp. Supp. 2d 2d 1215, 1223 (SDNY (SDNY 2002) 2002) quoting quotin Owners Corp. Corp. v.v. Carnegie Owners Carnegie Hill-87th St. Corp., Corp., 1215, of of Commerce Holding Holding Corp. Corp. v. Assessors of the the Town Town of of Babylon, Babylon, 88 88 NY2d NY2d 724, 724, 732 732 (1996). (1996). v. Bd. Bd. of Assessors Commerce while The D'Amico D 'Amico court court noted that damages, while economic economic inin nature, nature, are are distinguishable distinguishable from from The that "stigma noted "stigma damages, harm' 'purely economic economic harm ' that that arises arises from from the the loss loss ofof intangible intangible financial financial interests interests unaccompanied unaccompanied by by 'purely property." any tangible intrusion onto the property." tangible intrusion onto the any invasion of of aa landowner's landowner's property property by by a defendant's defendant's polluting polluting conduct. conduct. M. Id. at at *13, 13, citing invasion The allegations allegations inin the the instant instant complaint complaint with with respect respect toto ordinary ordinary negligence negligence are are the the same same as as The D 'Amico, and and the the same same result result should should follow. follow. Therefore, Therefore, the the motion motion toto dismiss dismiss the the negligence claim is ordinary negligence claim is denied. denied. ordinary those alleged alleged inin D'Amico, those the dismissed D 'Amico court the gross gross negligence negligence claims, claims, noting noting that that the the complaint complaint court dismissed However, the the D'Amico However, extreme alleged departure failed toto set set forth forth facts that alleged "an departure from from the the standards standards of of ordinary ordinary care" care" or or the the failed facts that "an extreme diligence." or slight slight absence of"even of "even slight care diligence." M., Id. , citing Bayerische Bayerische Landesbank, Landesbank, NY. NY . Branell, Branch, 692 692 absence slight care or citing F.3d 42, 42, 61-62 61-62 (2d (2d Cir. Cir. 2012) 2012) and and Maliv. Maliv. British British Airways, Airways, 2018 2018 U.S. U.S. Dist. Dist. LEXIS LEXIS 112994 112994 (quotation (quotation F.3d words marks omitted). omitted). The Court noted noted that that "simply appending conclusory words or or phrases, phrases, such such as as marks The Court "simply appending conclusory 'knowingly' of ' knowingly' or or ''intentionally' intentionally ' to of ordinary ordinary negligence negligence does does not not satisfy satisfy the the aggravated aggravated to allegations allegations Bayerische nature of ofaa gross gross negligence negligence claim." claim." D'Amico, Bayerische Landesbank, Landesbank, NY. NY. Branch, Branch, 692 692 F.3d F.3d nature citing 'reckless' word to transform an at Aladdin's does not at 62 62 ("Simply ("Simply adding adding the the conclusory word 'reckless' to Aladdin's trading does not transform an trading conclusory D 'Amico, citing decision ill-advised into ill-advised investment investment decision into something approaching intentional intentional misconduct"); misconduct"); Kinsey Kinsey v.v. something approaching 04 Civ.0582 Civ.0582 Cendant Corp., Corp., No. No. 04 RWS, 2005 2005 U.S. U.S. Dist. Dist. LEXIS LEXIS 16397 16397 (SDNY (SDNY 2005) 2005) (holding (holding that that Cendant RWS, negligence" allegations demonstrate allegations "sufficient "sufficient to to demonstrate ordinary negligence" do do not not necessarily necessarily allege allege aa gross gross ordinary allegations sufficient to factual negligence negligence claim claim without without factual allegations sufficient to "meet "meet the the heightened heightened standard standard necessary necessary Coro. for gross to state state aa claim claim for gross negligence"); negligence"); Sutton Sutton Park Park Dev. Dev. Corp. Trading Co. Co. Inc., Inc., 297 297 AD2d AD2d at at 431 431 to Trading from this complaint are ("Notably missing missing from this complaint are any any factual factual averments averments alleging alleging conduct conduct ofsuch of such aggravated aggravated ("Notably Page Page 44 of of 11 4 of 11 [*FILED: 5] RENSSELAER COUNTY CLERK 12/16/2019 03:41 PM l NYSCEF DOC. NO. 32 INDEX NO. EF2019-262993 RECEIVED NYSCEF: 02/12/2020 character."). character."). In this this case, the complaint alleges that that defendant defendant "intentionally, "intentionally, recklessly, recklessly, willfully. willfully the complaint alleges In case, wantonly, maliciously, grossly grossly and and negligently negligently failed to properly construct, repair, maintain and/o maintain and/oi failed to properly construct, repair, maliciously, wantonly, Plaintiffs' frequent of Plaintiffs' property by noxious odors on frequent operate its landfill, and caused the invasion invasion of noxious on its and caused the odors operate landfill, property by occasions." intermittent and reoccurring occasions.'· Further, that "gross negligence wa negligence was that defendant's defendant's "gross intermittent and ongoing Further, reoccurring ongoing of Plaintiffs, Plaintiffs, which which entitles entitle malicious and and made made with with aa wanton wanton or or reckless reckless disregard disregard for for the the property property of malicious Plaintiffs to of exemplary, and punitive relief." relief." This This Court finds that the th finds that of compensatory, and punitive Plaintiffs an award award Court to an compensatory, exemplary, of ordinary car complaint fails to set forth facts that allege an extreme departure from the standards an departure from the standards carc complaint facts that allege extreme of fails to set forth ordinary ofactior conduct ofsuch character. or factual averments averments alleging conduct of such aggravated character. Accordingly, the cause ofactio cause aggravated the or factual Accordingly, alleging for gross gross negligence negligence is without prejudice. is dismissed, without prejudice. for dismissed, Plaintiffs' damages is also Plaintiffs ' claim claim for for punitive punitive damages is without prejudice. As by th also dismissed, without prejudice. As noted noted the dismissed, by extreme available to punish driven defendant, punitive damages are an extreme remedy available only to punish actions driven b damages are an actions punitive defendant, only by remedy Sharapata v. Town Town See v. of Islip, 56 N. Y.2d 332. malicious intent or morally culpable conduct. intent or other other culpable conduct. See Sharapata of Islip, 56 N.Y.2d malicious 332, morally support their 335 Plaintiffs allege no facts their demand. (1982). Plaintiffs allege no facts to to support demand. 335 (1982). Nuisance Nuisance complaint The alleges that the the noxious noxious odors odors invading invading Plaintiffs' Plaintiffs' property property are and are "indecent "indecent and The complaint alleges that offensive to to the the senses, and obstruct obstruct the the free free use use of of their their property property so so as as to to substantially substantially and and offensive and senses, of life and property"; that that "Defendant has unreasonably interfere interfere with the comfortable enjoyment with comfortable enjoyment of life and property"; "Defendant has the unreasonably Plaintiffs' an of and of Plaintiffs' interest in the use and intentionally and negligently caused an unreasonable invasion unreasonable invasion interest in the use and caused intentionally negligently their and the enjoyment of their "apart from damage incurred enjoyment of property"; and from the property damage incurred by by Plaintiff and Plaintiff the and that that "apart the property property"; Defendant's common to Class. Defendant's emissions have substantially interfered with rights common to the general public. emissions interfered with rights the general have Class, public, substantially air." right to and/or including the right to uncontaminated and/or unpolluted air." the uncontaminated unpolluted including not whether Initially, the the defendant notes that that the the complaint does not identify whether plaintiffs plaintiffs are defendant notes complaint does are Initially, identify plaintiffs' a public or private after alleging a public or private nuisance, nuisance, however, however, after aa review review of papers, itit isis of plaintiffs ' opposition opposition papers, alleging clear that that the complaint sounds sounds inin public public nuisance. nuisance. clear the complaint lack standing their public because Defendant asserts that Plaintiffs lack to bring their public nuisance claim because Defendant asserts that Plaintiffs to bring nuisance claim standing have not not alleged an injury different from others. argues that complaint focuses they have an injury different from others. Defendant argues that the the complaint focuses alleged Defendant they plaintiffs' of the community. Further, that plaintiffs· entirely on the plaintiffs' own property rights, not a right on of community. plaintiffs the own not right the that rights, Further, entirely property right to air is "restatement of a legal legal standard. which is of which is alleged right to uncontaminated uncontaminated and/or unpolluted air is a "restatement alleged and/or unpolluted standard, claim." insufficient to a claim." Finally, that plaintiff fails to allege any facts as to how defendant to state state that plaintiff fails allege facts as to how defendant insufficient a to Finally, any interfered interfered with with this this right. right. affirmation in opposition The affirmation of of plaintiffs' plaintiffs' counsel counsel in opposition to to the the motion motion to to dismiss dismiss argues argues that that The based on diminution which constitutes plaintiffs have special injury based on diminution of property values, which constitutes a plaintiffs have suffered suffered special of values, property injury large" that the at large·· beyond the community at large. the "community special injury beyond that by the at large. Further, that at special that suffered suffered Further, injury community "community by that hold such who area on on includes no property as people pass through the class includes people people that hold no property interest, such as people who pass through the class area interest, who area for for work, or recreation. those visit the recreation. roads and who visit the class shopping, dining, or roads and those class area work, dining, shopping, Page of 11 11 Page 55 of 5 of 11 [*FILED: 6] RENSSELAER COUNTY CLERK 12/16/2019 03:41 PM NYSCEF DOC. NO. 32 INDEX NO. EF2019-262993 RECEIVED NYSCEF: 02/12/2020 Public nuisance nuisance isis "a "a substantial substantial interference interference with with the the exercise exercise of of aa common common right right of of the th Public of a public place o public, thereby offending public morals, interfering with the use by the public public with the use the public of a public place or public, morals, thereby by offending interfering persons.' or injuring injuring the the property, property, health, health, safety safety or or comfort comfort ofa of a considerable considerable number number of of persons.' endangering or endangering 41 NY2d 564,568 (1977); In re MTBE Products Liabilit Copart Indus. v. Consolidated Edison Co., 41 In Products Copart Indus. v. Consolidated Edison NY2d 564, 568 (1977); re_MTBE Liability Co., Torts on e Litigation, 175 t 75 F. 2d n.51 (SDNY 2001); accord R2d 821 prevail on F. Supp. (SDNY accord R2d Torts 821B.B. "To "To prevail Supp. 2d 593,621 Litigation, 593, 621 n.51 2001); show New York law, a plaintiff plaintiff must show that conduc public nuisance claim under New that the defendant's under York must the defendant's conduct public nuisance claim law, amounts to a substantial interference with with the the exercise of right of public, thereb substantial common right of the amounts to interference exercise of a common the public, thereby persons." or injuring injuring the the property, property, health, safety or of number of endangering or of persons.' or comfort comfort of a considerable considerable number health, endangering safety In re re MTBE Products Liab. Liab. Litig., 725 F.3d F.3d 65, 65, 121 (2d Cir. Cir.2013) (internal quotations quotations and and citation citatio In MTBE Products 725 12I (2d (internal Litig., 2013) omitted). omitted). A A public nuisance nuisance isis aa violation violation against against the the State State and and isis subject subject to to abatement abatement or or prosecutior prosecutio public supra at at 568. 568. "A "• by the the proper proper governmental authority. Copart Indus. v.v. Consolidated Consolidated Edison Edison Co., Co ., supra governmental authority. Copart Indus. by is actionable shown that the the person public nuisance nuisance is by a private private person person only only if is shown that person suffered specia public actionable if it it is suffered special by beyond that suffered This principle the necessity of injury beyond that by the the community at large. This principle recognizes the necessity o suffered at large. recognizes community injury by of guarding against the multiplicity of lawsuits that would follow if everyone were permitted to see lawsuits follow if everyone permitted to seek against the that would were guarding multiplicity for a redress for a wrong wrong common common to to the the public." public." 532 532 Madison Ave. Gourmet Foods Inc. v.v. Finlandi redress Madison Ave. Gourmet Inc. Finlandia Foods, supra at comment Ctr.. Inc. , supra at 292; Restatement [Second] of Torts 821 C, comment a; Prosser, Private Actio Restatement of Torts Private Action Inc., 292; a; Prosser, Ctr., 821C, [Second] for Public common to t for Public Nuisance, 52 52 Va Va LL Rev Rev 997,1007 997,1007 (1966). Thus, "where "where the the claimed claimed injury injury isis common (1966). Nuisance, Thus, the of action action isis barred. barred. The The claimed claimed injury injury must must be be different different inin kind kin the entire entire community, community, aa private private right right of Hanson Aggregates A re ates New New York, York. from the the entire entire community, community, not not simply simply different different inin degree." degree." Booth Booth v.v. Hanson from Inc., 16 AD3d 1137, 1138 (4th Dept. 2005). 16 AD3d 1 137, 2005). 1 138 (4th Dept. ins, in D'Amico, subject two motions to Court's The complaint in D 'Amico. supra supra was was subject to to dismiss. The first The complaint to two motions dismiss. The Court's tirst of because allegation ("D'Amico ("D'Amico I") dismissed the nuisance cause of action because it lacked any allegation ot decision dismissed the nuisance cause action it lacked of decision I") any with with rights interference a interference with a public public right, right, and and only only alleged alleged interference interference with rights to use and and enjoyment enjoyment of ot to use Mgmt. private Waste U.S. Dist. The private property. property. D'Amico D'Amico v.v. Waste Mgmt. ofN.Y., ofN. Y., LLC, 2019 U.S. Dist. LEXIS 50323 , *9-10. The 2019 LEXIS *9-10. LLC, 50323, Court of the the Amended Amended Complaint Complaint might might conceivably conceivably permit permit an an Court noted noted that that aa "liberal "liberal construction construction of inference inference that that the the Landfill's Landfill's noxious noxious emissions emissions have have substantially substantially interfered interfered with with the the public's public's right right to "the mere to uncontaminated uncontaminated and and unpolluted unpolluted air." air. " However, However. "the mere possibility possibility that that there there has has been been aa air does does not federal substantial interference clean air substantial interference with with the the public's public's right right to to clean not satisfy federal pleading standards; standards; satisfy pleading from ifif a plaintiff claims across the line conceivable to plausible. plaintiff has has not not nudged nudged [his] claims across the line from conceivable to plausible. [his [his] [his] l dismissed." complaint Ld. 10-1 1. without prejudice. must be at I 0-11. The The dismissal dismissal was without prejudice. complaint must be dismissed." Id. at was Plaintiff Plaintiff brought brought aa second second amended amended complaint, complaint, which which was was again again subject subject to to aa motion motion to to dismiss. dismiss. In In the the second second amended amended complaint, complaint, plaintiff plaintiff alleged alleged that that "[a]part " [a]part from from the the property property damage damage incurred incurred by by Plaintiff Plaintiff and and the the Class, Class, Defendant's Defendant's emissions emissions have have substantially substantially interfered interfered with with rights rights common common to to the the general general public, public, including including the the right right to to uncontaminated uncontaminated and/or and/or unpolluted unpolluted air," air," which which is is the the very very same same allegation allegation contained contained inin the the instant instant complaint. complaint. Plaintiff Plaintiff argued argued that that he he alleged alleged facts facts injury" "special that putative class the the members had suffered beyond harm demonstrating that the putative class members had suffered a "special injury" beyond the harm demonstrating sustained alleged impact the public that because nuisance activities at large, and that sustained by the public at and because Defendant's Defendant's alleged nuisance activities impact large, by putative individuals in the outside those who compose the diminution in individuals in the community outside those who compose the putative class, the diminution in the class, community an injury constitutes sustained class members distinct from that an distinct from that property values values sustained by the the putative putative class members constitutes property by injury suffered suffered by by the the general general public. public. Page 11 Page 66 of of 11 6 of 11 [*FILED: 7] RENSSELAER COUNTY CLERK 12/16/2019 03:41 PM NYSCEF DOC. NO. 32 INDEX NO. EF2019-262993 RECEIVED NYSCEF: 02/12/2020 In "D' Amico II", the Court was "underwhelmed by Plaintiffs Plaintiffs efforts efforts toto rectify rectify the the pleading| pleadin, Court was "underwhelmed II", the by Order." deficiencies outlined outlined inin its its March March 25, Decision and and Order." D'Amico D'Amico v.v. Waste Waste Memt. Mgmt. ofN.Y., ofN.Y., deficiencies Decision 25, 2019, 2019, 2019 *12 September 2019 U.S. U.S. Dist. Dist. LEXIS LEXIS 153296, * 12 (WDNY, September 9, 2019). Specifically, the court held that 2019). held the court that 153296, 9, Specifically, (WDNY, plaintiff plaintiff failed failed toto "set "set forth forth facts facts plausibly plausibly alleging alleging that that his his claim claim satisfies satisfies the the standard standard for for aa public public public" nuisance by by substantially substantially interfering with rights held in common by the public" and that th nuisance with rights held in common the and that the interfering by complaint allege complaint "failed "failed toto plausibly plausibly allege a special injury that that isis distinct from any any harm harm suffered suffered by by the the a special from distinct injury large." public The court noted that oral argument public at at large." The court noted that at at oral argument on on the the motion, motion, plaintiffs plaintiffs counsel counsel claimed claimed that that the other the emissions emissions "also "also impact impact other individuals who who work, work, recreate, recreate, or or travel travel inin the the vicinity vicinity of of the the individuals counsel Landfill, but but Defendant's Defendant's counsel cogently observed that no no such such facts facts were were alleged alleged inin the the [[second second that observed Landfill, cogently other amended complaint]. complaint]. InIn other words, Plaintiff has alleged no facts plausibly suggesting that the amended Plaintiff has alleged no facts that the words, plausibly suggesting issue." Id. at at**13. 13 . relevant community community extends extends beyond beyond the the putative putative class at issue." M. relevant class at In "D'Amico The court court acknowledged acknowledged that that ""[d]iminished [d]iminished property property values may constitute constitute aa special special injury injury values may law." the under New New York York law." However, However, the plaintiff plaintiff only alleged inin a conclusory conclusory manner manner that that Defendant's Defendant's alleged only operation of the Landfill Landfill has interfered with the public's right to uncontaminated air operation ofthe interfered has substantially with the air and public's right to uncontaminated and substantially suffered that putative class has suffered diminished property values as result. The lacked any that the the putative class has values as a result. diminished The complaint lacked complaint property any facts conclusion support facts toto plausibly plausibly support a conclusion that pecuniary loss "does not affect the entire that the alleged loss "does not the alleged affect the entire pecuniary consideration." at *14-15. community under under consideration." M. Id. at* 14-15. The Court refused to dismiss dismiss the the cause cause of of action action The Court refused to community with with prejudice, prejudice, as as urged urged by by the the defendant, noting that "if Plaintiff can plausibly allege that the that "if Plaintiff can that allege the defendant, noting plausibly members class do all of the members of of the the putative putative class do not not constitute all members members of the public public who who come come inin contact contact with with constitute - as argumentthe Plaintiffs counsel the nuisance nuisanceas suggested by Plaintiffs counsel during oral argumentPlaintiff may yet be able suggested oral Plaintiff by during may yet be able action." of action." M. to cause to assert assert aa public public nuisance nuisance cause of Id. at at**1919 (internal (internal citations citations omitted). omitted). The under instant complaint from The instant complaint suffers from the same same pleading pleading deficiencies considered inin D'Amico ff Amico suffers deficiencies considered the II. complaint alleges [I. Like Like that that complaint, complaint, the the instant instant complaint alleges that that the the defendants have interfered interfered with with aa public public defendants have plaintiffs' the right to right, specifically, the right to uncontaminated and unpolluted air. While the plaintiffs' attorney unpolluted uncontaminated and air. While the specifically, right, attorney of law references references inin his his memorandum memorandum of law that that people people who who did did not not own own property property can can be be exposed exposed toto no such allegation noxious such with noxious fumes, fumes, no allegation with factual factual support is contained in the the complaint complaint or or other other support is contained in plaintiffs' evidence.¹ 1 Moreover, while while the the alleged alleged depreciation depreciation inin plaintiffs' property property values, values, ifit documentary evidence. Moreover, documentary would constitute special odor (see proven, would constitute special injury injury resulting resulting from from the the odor (see Schee Scheg v.v. Agway.Inc., Agway, Inc. , 229 229 AD2d AD2d proven, 963 Allen 963 (4th (4th Dept. Dept. 1996); Allen Avionics, Avionics, Inc. Inc. v.v. Universal Universal Broadcasting Corp., 118 AD2d 527, 52 7, 528 528 (2d (2d 118 AD2d 1996); Broadcasting Corp., Dept. sub. nom Board of of Zoning Zoning and and Appeals Appeals of of Town Town of of North North Dept. 1986), 1986), affd affd sub. nom Sun-Brite Car Wash v.v. Board Sun-Brite Car Wash 69 NY2d 406 must Hempstead, 69 NY2d 406 ( 1987)), plaintiffs must also allege that the injury to their real property is also allege that to real plaintiffs the their is Hempstead, (1987)), injury property different different both both inin kind kind and and degree degree from from that that ofof the the community community as as aa whole. whole. See See Black Black v.v. George George Weston No. 07-CV-0853, 07-CV-0853, 2008 2008 U.S. U.S. Dist. Dist. LEXIS LEXIS 92031, 92031 , 2008 2008 WL WL 491I791, 4911791 , atat *7 *7 Weston Bakeries, Bakeries, Inc., Inc., No. (WDNY Nov. diminution of ("Pleading a diminution inin value value of one's home and and property property qualifies qualifies as as (WDNY Nov. 13, a one's home 13, 2008) 2008) ("Pleading special of establishing in a public nuisance v. special damages damages for for purposes purposes of standing in a public nuisance suit."); Iannucci v. City Iannucci City suit."); establishing standing The As opposition to 32 1 1 motion, As noted noted in infra, in opposition to a 3211 motion. the the plaintiff plaintiff can can introduce documentary evidence evidence to to show show that that introduce fi·a, in documentary complaint are supportable with the supportable the allegations allegations in in the the complaint are with further further proof. proof. CPLR321 CPLR 321 l(c); I(c); 321 321 l(e); I (e); Rovello Rovelto v. v. Orofino Orofino 633 ((1976). Realty Co., Co., 40 40 NY2d NY2d 633 1976). However, However, plaintiffs plaintiffs have have merely merely provided provided the the affirmation affinnation of of counsel, counsel, which which Realty does does not not meet meet these these requirements. requirements. 11 Page 77 of of 11 Page 7 of 11 [*FILED: 8] RENSSELAER COUNTY CLERK 12/16/2019 03:41 PM NYSCEF DOC. NO. 32 INDEX NO. EF2019-262993 RECEIVED NYSCEF: 02/12/2020 ofN.Y., No. 02-CV-6135, 2006 U.S. Dist. LEXIS 21117 (EDNY 2006) ("While the entir Dist. LEXIS 21117 (EDNY ("While the entire of N.Y., No. 2006 U.S. 02-CV-6135, 2006) community is injured in that its access to public streets and sidewalks is restricted due to defendants public and sidewalks restricted to defendants in that its streets is due is injured access to community injuries' 'special illegal parking, plaintiff plaintiff has 'special injuries' in his and parking lots in that that his driveways driveways and parking lots ar are illegal has sustained sustained parking, complain· result of the blocked and of properties has has decreased as of parking."). The of his decreased as a result the parking."). The complain his properties blocked and the the value value differen1 does not allege facts that the suffered by plaintiffs as of was plaintiffs result of the was any facts that the harm harm suffered as a result the odors odors does not allege by any differen of the community. The nuisance cause of action is therefor from that by other members experienced nuisance of action is from that experienced other members ofthe community. The cause therefore by dismissed without prejudice. prejudice. dismissed without Relief Injunctive Relief Injunctive with Defendant's and stat The seeks "injunctive relief not inconsistent with Defendant's federally and seeks relief not inconsistent state The complaint complaint "injunctive federally Permits." the New York Legislature has delegatec enforced [sic) and notes that the New York State has delegate and Air Air Permits." Defendant Defendant notes that State Legislature enforced [sic} of regulation of to New York Department Environmental the permitting and regulation of landfills to New York State Department of Environmenta the and landfills State permitting witlECL charged Conservation ("NYSDEC"). ECL 27-0703; see also ECL 3-0301. NYSDEC is wit Conservation ("NYSDEC"). ECL 27-0703 also 3-0301. NYSDEC is charged ; see govern promulgating rules and that landfill operations and conditions, includin rules and regulations regulations landfill operations and related related that govern conditions, promulgating including pollution" odors," "air pollution" and public and welfare "air odors," with the potential potential to public health, safety, and and "obnoxious "obnoxious with the to affect affect welfare health, safety, Parts 360 Waste Management ECL see generally 6 NYC RR Parts 360 ("Solid Waste Management Facilities"), 36 ECL 27-0703(2)(a); see 6 NYCRR ("Solid 363 27-0703(2)(a); Facilities"), generally further to or revoke revoke permits for solid solid waste ("Landfills"). NYSDEC is directed to issue, issue, modify, modify, or permits for wast ("Landfills"). NYSDEC is further directed seek enjoin management facilities ; investigate landfills; issue issue compliance orders; seek penalties; penalties; and investigate compliance and enjoi management orders; facilities; landfills; The scope violations of See ECL art. NYCRR 360.7, 360.9, 363-10.1. The scope oof art. 71 6 NYCRR 363-10.1. violations of its its regulations. regulations. See ECL 360.7, 360.9, 71; ; 6 landfill in S.A. Dunn's waste NYSDEC's jurisdiction jurisdiction over the defendant landfill is in Dunn's solid wast over defendant is embodied embodied S.A. solid NYSDEC's the permit. Defendant are seeking to the jurisdiction management permit. Defendant argues that plaintiffs are to usurp the primary jurisdictio management argues that plaintiffs seeking usurp primary disposal in New York. Defendant argues this relief relief ofNYSDEC over management and in New York. Defendant argues this woul of NYSDF,C over waste waste would management and disposal NYSDEC's to enforce its regulations and the Dunn Landfill's solid waste supplant NYSDEC's authority to enforce its regulations and the Dunn Landfill's solid wast supplant authority if needed, Dunn mitigative measures related management permit and, to require S.A. Dunn to undertake mitigative measures relate management permit require S.A. to undertake to and, if needed, control of landfill and related odors. Defendant argues that Court should defer to to of gas odors. Defendant argues that this this Court should defer t to control landfill gas and related dismiss this demand for injunctive in this area this for relief NYSDEC's special expertise special in this and dismiss demand injunctive relief. NYSDEC's expertise area and refrain courts concurrent jurisdiction to refrain from The primary jurisdiction doctrine enjoins courts having concurrent jurisdiction to from The primaryjurisdiction enjoins doctrine having where the agency's agency's adjudicating disputes within an administrative agency's authority, especially where the agency's within an administrative disputes authority, especially adjudicating is involved. involved. See Sohn Sohn 78 NY2d specialized experience and expertise is See vv Calderon, 78 NY2d 755 755 experience and technical technical expertise specialized Calderon, 106 AD3d 701 (2d Dept. (1991); Massaro vv Jaina Network Systems, Inc., 106 AD3d 701 (2d Dept. 2013); 2013); Wong vv Massaro Jaina Network Systems, Wong Inc., (1991); 2003). In Ca Capitalital Tel. Co. Gouverneur Gardens Hous. Corp., 308 AD2d 301 (1st Dept. 2003). In Co. vv Gouverneur AD2d 301 (1st Dept. Tel. Gardens Hous. 308 Corp., of Appeals Court held that that the the doctrine doctrine of primary Pattersonville Tel. NY2d 11 ((1982) 1982) the of Appeals held of primary Pattersonville Tel. Co., 56 NY2d the Court Co., 56 jurisdiction "is to the relationship between between courts and agencies jurisdiction "is intended intended to co-ordinate co-ordinate the relationship courts and administrative administrative agencies between render the statutes of opinion them not render ineffective statutes with which of between them not ineffective the with which to the to the end end that that divergence divergence opinion matter before the court court within the to the that the matter is agency's both are and to the extent that the before the is within the agency's both are concerned, and extent concerned, the court court in its judgment the agency's agency's views specialized to make specialized field, to make available to in reaching its judgment the views available to the field, reaching scope of the factual and technical issues involved but also the and of the concerning not only the factual and technical issues involved but also the scope and meaning not the meaning concerning only jurisdiction the court Though the agency's is not court statute administered by the the agency. Though the agency's jurisdiction is not exclusive, the statute administered agency. exclusive, by views." agency's at 22 22 (internal (internal citations omitted). postpones action until it has has received the agency's postpones its its action until it the views." I_d. Id. at citations omitted). received I" similar argument of primary The Court Court first defendant's "D' Amico I" rejected defendant's similar argument of primary jurisdiction. jurisdiction. The first "D'Amico rejected lawsuit law causes causes of action action adjudicated noted Plaintiffs was based on common common noted that that Plaintiffs lawsuit was based on law of commonly adjudicated by commonly by Page 8 8 of of 11 Page 11 8 of 11 [*FILED: 9] RENSSELAER COUNTY CLERK 12/16/2019 03:41 PM NYSCEF DOC. NO. 32 INDEX NO. EF2019-262993 RECEIVED NYSCEF: 02/12/2020 . courts that that would would not not require require extensive extensive interpretation of agency regulations. regulations. Second, Second, while while itit was wa of agency interpretation " NYSDEC's responsibility responsibility toto "carry out the the environmental environmental policy policy ofof the out the state", state", that that agency agency was was'· not no NYSDEC's "carry responsible for for vindicating vindicating private private property property rights rights or or providing providing remedies remedies for for landowner landowner disputes.' disputes.' responsible The Court Court also also took took into into consideration the "type of injunctive injunctive relief" relief' contemplated contemplated by by the the action. action. A1 A The consideration the "type of oral oral argument, argument, plaintiff plaintiffss attorney stated that his clients wanted the landfill odors to stop pollutin stated that his clients wanted the landfill odors to stop polluting attorney niembers' plaintiffs and and the the putative putative class members' properties, properties, but but declined to give give aa more more specific specific answer answe plaintiffs class declined to until the the case case proceeded proceeded past past discovery. The Court noted noted any injunctive relief relief that that might might interfere interter until discovery. The Court any injunctive with Defendant's compliance with with federal federal requirements requirements could face preclusion, preclusion, however, however, the the merc mer with Defendant's compliance could face possibility that that aa common common law law standard standard may may require require different different injunctive injunctive relief relief than than that that currently currentl possibility prescribed by by federal federal law law "does not by by itself itself place place this this issue within the the NYSDEC's NYSDEC's exclusive exclusiv prescribed "does not issue within domain." domain." The The Court Court was was "unpersuaded that there there isis a substantial danger ofof inconsistent inconsistent rulings ruling substantial "unpersuaded danger that between this this Court Court and the NYSDEC." NYSDEC." "Whether "Whether or or not not Defendant Defendant isis inin compliance compliance with with its it between and the regulatory responsibilities responsibilities isis not not necessarily necessarily dispositive dispositive ofof whether whether Plaintiff Plaintiff and and the the putative putative class clas regulatory members are are suffering suffering property property damage or otherwise being deprived of their right to the use an members or are otherwise oftheir damage deprived right to the are use and being property." enjoyment ofof their their property." enjoyment courts based on on This Court Court finds finds that that the the same result should follow here. The The instant instant case case isis based follow same here. result should common law law causes causes ofof action action commonly commonly adjudicated adjudicated by by courts, courts, and and will will not not require require extensive extensiv common interpretation ofagency of agency regulations. regulations. There There isis no no pending pending administrative administrative action action that that may may conflict conflict with with interpretation relief sought sought by by Plaintiffs. Plaintiffs. Finally, Finally, "[p]laintiff[s] "[p]laintiff{s] seek[] seek[] damages damages here, here, and and 'courts 'courts generally generally do do not not relief defer jurisdiction jurisdiction where where plaintiffs plaintiffs seek seek damages damages for for injuries injuries toto their their property property or or person.'" person."' D'Amico D' Amico defer l,1, supra, supra, atat *49, quoting Avery Avery Dennison Dennison Corp., Corp., 2012 U.S. Dist. Dist. LEXIS LEXIS 27264, 27264, 2012 2012 WL WL 677971 677971. U.S. 2012 *49, quoting at**1010 and and InIn re re Methyl Methyl Tertiary Butyl Ether ("MTBE") Prods. Liab. Litig., 175 F. Supp. 2d 593. 618 at Butyl Prods. Liab. Ether 175 F. Supp. 2d 593. 618 Tertiary Litig., ("MTBE") (SONY 2001). 2001 ). Accordingly, Accordingly, this this Court Court declines declines toto apply apply the the doctrine doctrine ofof primary primary jurisdiction jurisdiction toto stay stay (SDNY or strike the request for injunctive relief. for or strike the request injunctive relief. This Class Allegations Allegations Class Defendant argues argues that that the the Plaintiffs Plaintiffs have have not not alleged alleged a prima prima facie facie basis basis for for class class action action relief. relief. Defendant Defendant contends contends that that individualized issues with with respect respect toto each each plaintiff plaintiff would would overwhelm overwhelm any any individualized issues common issues issues pertaining pertaining toto the the proposed proposed class. class. Specifically, that the the proposed proposed class class claims claims will will common that Specifically, require the the Court Court toto analyze analyze complicated complicated and and individualized individualized issues issues ofof fact fact with with respect respect toto whether whether require each putative putative class class member perceived or or experienced experienced odors; whether those those odors odors were were offensive offensive each member perceived whether odors; and/or persistent; persistent; whether whether the the odors each person person was was exposed exposed toto came came from from the the Dunn Dunn Landfill Landfill as as and/or odors each opposed toto other other potential potential odor sources in the the area; area; whether whether and and the the degree degree toto which which each each person's person's opposed odor in sources use and and enjoyment enjoyment ofof property property was was affected by Dunn Landfill odors; and whether and the degree to use Landfill affected Dunn and whether and the degree to odors; by which each each person's person's property property value value has has decreased at all, much less less as as aa result result ofof alleged alleged odors. odors. much which at decreased all, s' Determination ofof putative class members' property value diminution claims would require Determination putative class value diminution claims meñiber would require property information as as toto when the property property was was purchased, purchased, the the purchase purchase price, price, what what the the levels/impact levels/impact ofot information when the odors may may have have been been at the time time the the property property was was purchased, purchased, and and any any localized localized or or intervening intervening odors at the impacts. impacts. Defendant argues allege Defendant also also argues that the the Complaint fails toto sufficiently allege that that the the named named Plaintiffs' Plaintiffs' that Complaint fails sufficiently claims and and defenses defenses are are typical typical of the putative putative class. class. Defendant points toto the the disparity disparity inin class class claims of the Defendant points Defendant Page 99 ofof 1I 1I Page 9 of 11 [*FILED: 10] RENSSELAER COUNTY CLERK 12/16/2019 03:41 PM NYSCEF DOC. NO. 32 INDEX NO. EF2019-262993 RECEIVED NYSCEF: 02/12/2020 members' members' respective respective distances and directions from from the the Dunn Dunn Landfill, Landfill, topographical topographical features feature and directions distances between their their respective respective residences residences and and the the Dunn Dunn Landfill, Landfill, the the type type and and timing timing of of odors odors allegedly allegedl between experienced, and and property-specific property-specific factors factors relevant relevant to to valuation. valuation. experienced, owners/occupants FinaJly, defendant argues argues that that the the proposed proposed class class definition definition ("[a]ll owners/occupants an defendant ("[a]ll anc Finally, renters ofresidential property residing residing within within one one and and one one half(1.5) half ( 1.5) miles miles of the [L ]andfil l's property property renters ofthe [L]andfill's of residential property boundary,") isis overbroad and improperly improperly encompasses encompasses individuals individuals who who are not aggrieved b) overbroad and are not aggrieved boundary,") by "owners" defendant's alleged conduct. Specifically, that the proposed class is not limited to "owners" an defendant's alleged that the class is not anc conduct. proposed limited to Specifically, "renters," "renters," who might might be be presumed presumed to to have have aa possessory possessory interest interest inin property. property. Instead, Instead, Plaintiffs Plaintiffs seek see who to advance advance their their claims claims on behalf of of mere mere "occupants." "occupants." to on behalf See Plaintiffs oppose, oppose, arguing arguing that that dismissal dismissal at the pleading pleading stage is inappropriate. Maddi ck Plaintiffs at the stage is inappropriate. See Maddicks (1" v. Big Props., LLC, LLC, 163 163 AD3d AD3d 501, 501, 502-03 502-03 (Pt Dept. Dept. 2018) 2018) quoting Bernstein v.v. Kelso Kelso & Co. Bernstein Co.. v. Big City City Props., (1" st 231 AD2d AD2d 314, 314, 323 323 (1 Dept. Dept. 1997). 1997). Plaintiffs Plaintiffs contend contend that that striking class at plead in 231 class allegations at the the pleading allegations striking quoting & in stage is only appropriate in the the rare instance that that the the complaint complaint demonstrates demonstrates conclusively conclusively that that as stage is appropriate rare instance as a only matter there is no for class matter oflaw, is no basis basis for class action action relief. relief. Maddicks Maddicks v.v. Big Big City City Props., Props .• LLC, LLC, supra supra cit in of law, there citing v 91 (1st v Downing v First Lenox Terrace Assoc., 107 AD3d 86, 91 (1st Dept. 2013), aff,d Borden v 400 E First Lenox 107 Dept. Borden 400 E. Terrace AD3d aff'd Assoc., 86, 2013), Downing 55th St. St. Assoc., Assoc., L.P., L.P., 24 NY3d 382 (2014). 55th 24 NY3d 382 (2014). supra, the Court of of Appeals Appeals noted noted that "[n]othing ini the Court that "[n]othing In Maddicks Maddicks v.v. Big Big City Props., LLC, LLC, supra, In Props., City action the CPLR CPLR prevents prevents aa defendant defendant from from moving moving to to dismiss a class claim pursuant to to CPLR3211. CPLR 3211. the dismiss class action claim pursuant certification." However, a motion motion to to dismiss dismiss should should not not be be equated equated to to aa motion motion for a for class Id. at *1. class certification." Id. at *I. However, that "the class actio action Further, that "the deterrnination determination whether whether plaintiffs plaintiffs have have aa cause cause that may be be asserted as that may asserted as a class Further, the application of turns on of CPLR CPLR 901", 901 ", which which requires requires that that five five factors factors (numerosity, commonality, turns on the application commonality, (numerosity, of representation The Court typicality, adequacy of representation and and superiority) superiority) are are met. met. The Court noted noted that that typicality, adequacy CPLR 902 legislature established 902 the the legislature established aa procedure procedure for for immediate immediate threshold threshold review review ""[t]hrough [tJhrough CPLR action of the the question question whether whether an an action may proceed proceed as as aa class class action. action. Under Under that that section, section. a of may fo1 plaintiff plaintiff must must move move within within 60 60 days days after after the the window window for for responsive responsive pleadings pleadings has has closed closed for action class action an order order to to determine determine whether whether an an action action brought brought as as a class may be so maintained. That That an so maintained. may be satisfaction motion demonstrate of the motion practice practice allows allows aa would-be would-be class class representative representative to to demonstrate satisfaction of the CPLR 90I to mere mere allegations at a CPLR 90 I (a) (a) prerequisites prerequisites with with evidence evidence -- as as opposed opposed to allegations -- tested tested at hearing. The prudent of the complaint hearing. The prudent course course charted charted here, here, namely, namely, viewing viewing the the allegations of the complaint allegations 84 through the lens required NY2d and the allegations for through the lens required by by Leon, Leon, 84 NY2d 83 83 and leaving leaving the class class allegations for evaluation at the the hearing evaluation at stage envisioned envisioned by by the the legislature, legislature, leaves leaves open open the the possibility possibility that that stage hearing defendants defendants will will obtain obtain the the same same result-termination result- termination ofthe of the class class claims claims -- at at the the appropriate appropriate time." time." In from complaint as a matter not appear appear conclusively from the the complaint that, matter of oflaw, there In this this case, case, itit does does not law, there that, as conclusively and method is means of damage, is no no basis basis for for class class action action relief. relief. Plaintiffs Plaintiffs have have alleged alleged aa common common means and method of damage, which cannot concluded this point be at this which may result result inin various various degrees degrees of of harm. harm. However, However, itit simply simply cannot be concluded at point may of factual factual development of the the class class in this case. that no amount this case. that no amount of development could could support support the the certification certification of in Additionally, while while the the class class claim claim may may require require separate separate proof proof with with respect respect to to each each plaintiff. plaintiff Additionally, Page 11 Page 10 l 0 of of 11 10 of 11 [*FILED: 11] RENSSELAER COUNTY CLERK 12/16/2019 03:41 PM INDEX NO. EF2019-262993 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 02/12/2020 class certification certification is pennissible "[e]ven "[e ]ven ifif ... ... itit becomes becomes clear clear that that questions questions peculiar peculiar toto eack eac is still still permissible members..." individual may may remain remain or that there are varied varied damages damages suffered suffered among among class class members .. .'' Burdicl< Burdic individual or that there are vv Tonoga, 2019 NY Tonoga, Inc., Inc. , 2019 NY Slip Op *8 *8 (3d (3d Dept., Dept., November November 21, 21, 2019) 2019) (internal (internal quotations quotation 08461, Slip Op 08461, Friar omitted) v Vanguard 98 and vv Big citing Friar v Vanguard Holding Corp .. 78 AD2d 83, 98 (1980) and Maddicks Bi 1 City Cit 78 AD2d Maddicks 83, Corp., omitted) citing Holding (1980) 2019 NY Props., LLC., LLC. , 2019 NY Slip Op *2 (2019) (2019) and and Borden Borden vv 400 400 E. E. 55th 55th St. St. Assoc., Assoc., L.P., L.P., 24 2 *2 Props., 07519, Slip Op 07519, NY3d 399 (2014_). motion to NY3d 382, 382,399 (2014_). Therefore, the the motion to dismiss dismiss the the class class action action is is denied. denied. Therefore, class in accordance Therefore, in with the foregoing, foregoing, itit isis here accordance with the here Therefore, ORDERED motion gross negligence, ORDERED that that defendant's motion toto dismiss dismiss the the gross negligence, punitive punitive damages, damages, and an defendant's nuisance causes causes of of action action isis GRANTED; and it is further and it is further GRANTED; nuisance ORDERED ORDERED that the the defendant's motion toto dismiss dismiss plaintiff's plaintiffs cause cause of of action action for for ordinary ordinary motion defendant's negligence isis DENIED. DENIED. negligence that This shall shall constitute constitute the the Decision Decision and and Order Order of of the the Court. Court. This This Decision Decision and and Order Order isis being bein for the the plaintiffs. returned toto the the attorneys attorneys for plaintiffs. All All original original supporting supporting documentation documentation isis being being returned returned returned to for of this to the the Rensselaer Rensselaer County Court Clerk's Office for filing. The signing Court Clerk's Office filing. The Order of this Decision and Order shall Decision and shall County signing not not constitute constitute entry entry or or filing filing under under CPLR 2220. Plaintiffs are not relieved relieved from from the the applicable applicabl CPLR 2220. Plaintiffs are not to provisions of of that that rule rule relating to filing, entry, and notice of entry. provisions and notice of entry. entry, filing, relating This DATED: DATED: Troy, New New York York December 2019 December 5, 5, 2019 Troy, ATRIC Justice . McG the S TH ourt 2/16/ 2019 ;;,::i~~rtlO: AM 10:1 l 2 AM 2/16/ Frank ft·at1k 3J Merola Merola Rensselaer Rensselaer County Cow,t~•· Clerk Clerk Papers Considered: Considered: Papers I. 1. 2. 2. 3. 3. of Michael dated June Notice of of Motion, Motion, dated June 20, 20, 2019; 2019; Affirmation Aflinnation of Michael Murphy, Murphy, Esq., Esq., dated dated June June 20, 2019, 2019, with with annexed annexed Exhibits Exhibits 1-5; Memorandum of of Law Law inin Support Support of of S.A. S.A. Dunn Dunn & & 20, 1-5; Memorandum Motion Action LLC's Company, LLC's Motion toto Dismiss Dismiss the the Class Class Action Complaint Complaint and and Motion Motion toto Strike Strike Company, for Punitive Demand dated June Demand for Punitive Damages, dated June 20, 20, 2019. 2019. Damages, Plaintiffs' Memorandum of Law Opposition to Plaintiffs' Memorandum of Law inin Opposition to Defendant's Defendant's Motion Motion toto Dismiss Dismiss the the Class Class Action and Motion Strike Demand Punitive Action Complaint Complaint and Motion toto Strike Demand for for Punitive Damages, dated dated August August 19. 19, Damages, 2019. 2019. of Law of Support S.A. Dunn & Company, Reply Memorandum Memorandum of Law inin Support ofS.A. Dunn& Company, LLC's LLC's Motion Motion toto Dismiss Dismiss Reply Complaint and Demand for the Class Class Action Action Complaint and Motion Motion toto Strike Strike Demand for Punitive Punitive Damages, Damages, dated dated the September 2019. September 18, 2019. 18, Notice 11 of Page 11 of 11 Page 11 of 11

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