McEntee v Cricket Val. Energy Ctr., LLC

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McEntee v Cricket Val. Energy Ctr., LLC 2021 NY Slip Op 33807(U) February 22, 2021 Supreme Court, Dutchess County Docket Number: Index No. 51029/20 Judge: Maria G. Rosa 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. INDEX NO. 2020-51029 FILED: DUTCHESS COUNTY CLERK 02/23/2021 11:54 AM NYSCEF DOC. NO. 61 RECEIVED NYSCEF: 02/22/2021 SUPREME STATE OF NEW NEW YORK YORK SUPREME COURT COURT OF THE THE STATE COUNTY DUTCHESS COUNTY OF OFDUTCHESS Present: Present: Rosa, Justice Hon. Han. Maria Maria G. Rosa, Justice JOSEPH MCENTEE, LESLIE A. RUSS, RUSS, JOSEPH MCENTEE, JR., LESLIE ROBERT HUDSON, DARYN DARYN GAST DIANA GAST, ROBERT HUDSON, GAST and DIANA GAST , Plaintiffs, Plaintiffs, DECISION AND AND ORDER DECISION ORDER Index NO.51029120 No.51029/20 Index -against-against- CRICKET ENERGY CENTER, CRICKET VALLEY VALLEY ENERGY CENTER, LLC; CRICKET VALLEY ASSET ASSET MANAGEMENT MANAGEMENT SERVICES, SERVICES, LLC; LLC; CRICKET VALLEY II, LLC; CRICKET VALLEY ENERGY HOLDINGS II, CRICKET VALLEY ENERGY HOLDINGS CRICKET PARTNERS and CRICKET VALLEY VALLEY ENERGY ENERGY PARTNERS CRICKET VALLEY ENERGY HOLDINGS, LLC CRICKET VALLEY ENERGY HOLDINGS, Defendants. Defendants. The read on Plaintiffs' Plaintiffs' motion motion for an injunction injunction and Defendants' Defendants' The following following papers papers were were read cross-motion cross-motion to dismiss. dismiss. ORDER ORDER TO SHOW SHOW CAUSE CAUSE AFFIRMATION IN SUPPORT AFFIRMATION SUPPORT MEMORANDUM LAW IN SUPPORT MEMORANDUM OF LAW SUPPORT AFFIDAVIT IN SUPPORT AFFIDAVIT SUPPORT EXHIBITS EXHIBITS 1 - 2 AFFIDAVIT IN SUPPORT AFFIDAVIT SUPPORT EXHIBIT EXHIBIT 1 AFFIDAVIT IN SUPPORT SUPPORT AFFIDAVIT NOTICE OF CROSS-MOTION NOTICE CROSS-MOTION AFFIDAVIT IN SUPPORT SUPPORT AFFIDAVIT EXHIBITS A - B EXHIBITS .AFFIDA VIT IN SUPPORT SUPPORT -AFFIDAVIT EXHIBITS A - B EXHIBITS AFFIDAVIT IN SUPPORT SUPPORT AFFIDAVIT EXHIBITS EXHIBITS A - D . AFFIDAVIT IN SUPPORT SUPPORT AFFIDAVIT EXHIBITS A - B EXHIBITS AFFIDAVIT OF JULIANA JULIANA PAONESSA PAONESSA AFFIDAVIT [* 1] 1 of 6 FILED: DUTCHESS COUNTY CLERK 02/23/2021 11:54 AM NYSCEF DOC. NO. 61 INDEX NO. 2020-51029 RECEIVED NYSCEF: 02/22/2021 AFFIDAVIT OF MARK MARK DUQUETTE DUQUETTE AFFIDAVIT AFFIRMATION IN SUPPORT SUPPORT AFFIRMATION EXHIBITS A - C EXHIBITS MEMORANDUM OF LAW LAW IN SUPPORT SUPPORT MEMORANDUM REPLY AFFIRMATION AFFIRMATION REPLY EXHIBITS 1 - 4 EXHIBITS MEMORANDUM OF LAW LAW IN OPPOSITION OPPOSITION MEMORANDUM AFFIDA VIT IN OPPOSITION OPPOSITION AFFIDAVIT REPL Y MEMORANDUM MEMORANDUM OF LAW LA W REPLY Plaintiffs commenced commenced this this action action seeking seeking damages damages and and to enjoin enjoin operation operation of of the Cricket Cricket Plaintiffs Valley Energy Center, LLC ("CVEC") electric generation facility in Dover, New York. Plaintiffs Valley Energy Center, ("CVEC") electric generation facility Dover, New York. Plaintiffs have asserted asserted causes causes of of action action for nuisance, nuisance, intentional intentional infliction infliction of of emotional emotional distress distress and and fraud. have They move move by order order to show show cause cause to enjoin enjoin CVEC CVEC from operating operating during during the pendency of this this They pendency of action. Defendants Defendants cross-move cross-move to dismiss dismiss pursuant CPLR 3211(a)(3)(5)(7) 3211(a)(3)(5)(7) and (8) alleging alleging action. pursuant to CPLR Plaintiffs lack lack standing, standing, that that Plaintiffs' Plaintiffs' claims claims are barred collateral estoppel, estoppel, that that the complaint complaint Plaintiffs barred by collateral fails to state a cause personal jurisdiction jurisdiction over cause of of action action and that that the court court lacks lacks personal over the defendants. defendants. support of of its motion motion to dismiss dismiss for lack lack of of personal Defendants have have In support personal jurisdiction, jurisdiction, Defendants submitted an affidavit affidavit of oftheir attorney and secretary secretary Arnold Arnold Wallenstein. Wallenstein. Mr. Wallenstein Wallenstein asserts asserts submitted their attorney that he is designated designated to receive receive service service of of process Defendants of of filings filings made made with with the the New process for all Defendants New that York Secretary Secretary of of State. State. He states states that that none none of of the defendants defendants ever ever received received by mail mail or otherwise otherwise York copies of of the complaint complaint or amended amended complaint. complaint. He notes notes that that the affidavits affidavits of of service service Plaintiffs Plaintiffs filed filed copies indicate that that service service was made made by leaving leaving copies copies of of the summons summons and and complaint complaint with with an authorized authorized indicate agent of of the office office of of the Secretary Secretary of of State State on March March 20, 2020 2020 at 11 11:37 Wallenstein agent :37 p.m. p.m. Mr. Wallenstein asserts that that it is unlikely unlikely that that such such office office would would have have been been open open at that that time time or during during a week week that that asserts Governor Cuomo Cuomo ordered ordered non-essential non-essential government government offices offices and businesses businesses closed closed due to the onset onset Governor of the COVID-19 COVID-I9 pandemic. foregoing allegations allegations would would ordinarily ordinarily warrant warrant the the court court to hold hold of pandemic. The foregoing traverse hearing hearing on the issue issue of of whether whether Defendants Defendants were were properly served. However, However, on December December properly served. a traverse 9,2020, same date Mr. Wallenstein Wallenstein executed executed his affidavit, affidavit, Plaintiffs Plaintiff s filed affidavits affidavits of of service service 9, 2020, the same of an amended amended summons summons and amended amended complaint complaint on Defendants Defendants by delivering delivering them them to the office office of of of Secretary of of State State on December December 4, 4,2020 court is cognizant cognizant that that this this service service the Secretary 2020 at 12:37 p.m. p.m. The court was purportedly made only only six days prior Defendants filing filing their their cross-motion cross-motion to dismiss. dismiss. was purportedly made prior to Defendants However, Defendants Defendants fail to address address this subsequent subsequent service service in their their reply reply papers. Under such such However, papers. Under circumstances, the court court declines declines to hold hold a traverse traverse hearing hearing on whether whether service service was was properly made circumstances, properly made March 20, 2020. 2020. Defendants Defendants do not dispute being served with the amended amended summons summons on March not dispute being properly properly served with the complaint and thus thus the issue issue appears appears to be moot. Based on the foregoing, foregoing, it is and complaint moot. Based jurisdiction is denied ORDERED ORDERED that that Defendants' Defendants' motion motion to dismiss dismiss for lack lack of of jurisdiction denied without without prejudice make any appropriate appropriate application application challenging challenging the validity validity of of the service service allegedly allegedly made made prejudice to make December 4, 2020. 2020. on December 2 [* 2] 2 of 6 FILED: DUTCHESS COUNTY CLERK 02/23/2021 11:54 AM NYSCEF DOC. NO. 61 INDEX NO. 2020-51029 RECEIVED NYSCEF: 02/22/2021 doctrine o~ col~ateral estoppel estoppel bars from litigating litigating an issue issue where: where: (1) (l) the . . T~e doctrine bars a party party from Identical issue Issue was decided decIded ma III a prior action and is decisive decisive in the present action; and and (2) the the party identical prior action present action; party relitigating the issue issue had had a full and fair opportunity opportunity to contest contest the the prior issue. to be precluded precluded from relitigating prior issue. nd Westchester Cty. Corr. Officers Officers Benev. Benev. Assoc., Assoc., Inc. v. County County of of Westchester, Westchester, 65 AD3d AD3d 1226 (2nd Westchester Defendan~s invoke invoke the doctrine doctrine of of collateral collateral estoppel estoppel based the February February 2020 2020 De~t .2009). _2009). Defendan~s based on the decIsIOn and order order of of this thIS court court (Acker, (Acker, J.) dismissing dismissing an Article Article 78 proceeding Plaintiff Joseph Joseph proceeding Plaintiff decis10n McEntee, Jr. commenced commenced against against the New York State State Department Department of of Environmental Environmental Conservation Conservation New York McEntee, ("DEC") and Cricket Cricket Valley Valley Energy Energy Center, Center, LLC. In that that proceeding Petitioner sought sought an order order of of ("DEC") proceeding Petitioner mandamus compelling compelling the DEC DEC to re-open re-open the environmental environmental review review process and re-examine re-examine permits mandamus process and permits approvals issued issued to operate operate the power Petitioner alleged alleged that that Respondents Respondents violated violated the and approvals power plant. plant. Petitioner Environmental Quality Quality Review Review Act Act after after the DEC DEC denied denied Petitioner's Petitioner's request request to require State Environmental require a supplemental environmental environmental impact impact statement statement for the power Petitioner sought sought a permanent supplemental power plant. plant. Petitioner permanent injunction prohibiting operation of ofthe additional reviews reviews were were conducted. conducted. The The court court the plant plant until until the additional injunction prohibiting operation dismissed the proceeding applicable four-month four-month statute statute oflimitations oflimitations and and for failure failure dismissed proceeding as barred barred by the applicable state a claim claim for a writ of mandamus mandamus because determination of of whether whether to require require a because the determination to state writ of supplemental environmental environmental impact impact statement statement was was discretionary. discretionary. The The court court further further found found the supplemental proceeding moot because was already already fully operational. operational. proceeding moot because the plant plant was issues raised raised in this this action action are not identical to those those raised raised in the the Article Article 78 proceeding. The issues not identical proceeding. this action, action, Plaintiffs Plaintiffs have have asserted asserted tort tort claims claims based based on allegations allegations that that Defendants Defendants made made In this misrepresentations in applying applying for permits about known known health health hazards hazards that that would would result result from from misrepresentations permits and about operations of of the power Although Plaintiffs Plaintiffs seek seek injunctive injunctive relief relief in this this action action as did did the the power plant. plant. Although the operations petitioners Article 78 proceeding, grounds underlying applications differ. differ. The The Article Article petitioners in the Article proceeding, the grounds underlying the applications challenged an administrative administrative determination determination refusing refusing to require require a supplemental supplemental 78 proceeding proceeding challenged environmental impact impact statement. statement. Plaintiffs' Plaintiffs' tort tort claims claims are not alleged procedural procedural environmental not based based on alleged irregularities of of an administrative administrative agency agency and would would not not have have been raised in an Article Article 78 been properly properly raised irregularities proceeding. Based on the foregoing, foregoing, it is proceeding. Based ORDERED that that Defendants' Defendants' motion motion to dismiss dismiss the action action based the doctrine doctrine of of collateral collateral ORDERED based on the estoppel is denied. denied. estoppel motion to dismiss dismiss for failure failure to state state a cause cause of of action action pursuant CPLR 321 3211(a)(7), On a motion pursuant to CPLR l(a)(7), court must must afford afford the claims claims a liberal liberal construction, construction, accept accept all facts alleged alleged as true true and and accord accord the this court claimant the benefit of every every possible favorable inference. inference. See Leon Leon v. Martinez, Martinez, 84 NY2d 83,87 possible favorable NY2d 83, 87 claimant benefit of (1994). The court's court's function function is to determine determine only only whether whether the the facts facts as alleged alleged fit within within any (1994). cognizable legal theory. theory. Id. Whether Whether the complaint complaint can can survive survive a motion motion for summary summary judgment cognizable judgment or claims will will ultimately role in the determination determination of of a CPLR CPLR 3211 motion motion to the claims ultimately be proven proven plays plays no role nd nd dismiss. Litvinoffv. Litvinoffv. Wright, Wright, 150 AD3d 715-16 (2 Dept Dept 2017). 2017). dismiss. AD3d 714, 715-16 elements of of a private cause of of action action are an interference: interference: (1) substantial substantial in private nuisance nuisance cause The elements nature; intentional in origin; origin; (3) unreasonable character; (4) with with a person's right to nature; (2) intentional unreasonable in character; person's property property right use and enjoy enjoy land; and (5) caused by another's conduct in acting or failure to act. Massaro v. Jaina Massaro Jaina land; caused another's conduct acting failure nd nd Network AD3d 701, 703 (2 Dept Dept 2013). 2013). Except Except for the the issue issue of of whether whether a plaintiff plaintiff Network Sys., Inc., 106 AD3d 3 [* 3] 3 of 6 FILED: DUTCHESS COUNTY CLERK 02/23/2021 11:54 AM NYSCEF DOC. NO. 61 INDEX NO. 2020-51029 RECEIVED NYSCEF: 02/22/2021 interest, the remaining has the requisite requisite property property interest, remaining elements elements generally generally present present issues issues offact of fact unless unless the evidence is undispu~ed. Broxmeyer v. United United Capital Capital Corp., Corp .. 79 AD3d AD3d 780, 782-83 782-83 (2ndDept (2 nd Dept evidence undispu:ed. See Broxmeyer 2010). What What constitutes constitutes a reasonable of one's one's property property depends depends on the the circumstances circumstances of of each each 2010). reasonable use of nd Dept Materials Corp., Nelstad Materials Corp., 214 AD2d AD2d 632,633 632, 633 (2nd Dept 1995). case. Benjamin Benjamin v. Nelstad Plaintiffs' amended complaint asserts Plaintiffs' amended complaint asserts that that in November November 2019 2019 Defendants Defendants began began testing testing the power plant. It alleges that the testing occurred in the evening and during weekend hours alleges that testing occurred evening and during weekend hours and and was was power plant. characterized by explosive explosive and roaring roaring sounds asserts that that in a final characterized sounds that that have have continued continued since. since. It asserts Environmental Impact Statement Defendants Environmental Impact Statement Defendants represented represented that that the the project project would would comply comply with with the most restrictive restrictive nighttime nighttime sound of 50 dBA dBA in the Town Town of of Dover Dover zoning zoning code code as most sound level level limit limit of measured on the northern, southern and eastern northern, southern eastern property property lines lines which which abut abut the nearest nearest residential residential measured receptors. The amended amended complaint complaint alleges McEntee has measured of noise noise receptors. alleges that that Plaintiff PlaintiffMcEntee measured the volume volume of punctuating his residence residence which punctuating which is adjacent adjacent to Defendants' Defendants' operation, operation, and and that that it has has reached reached decibels decibels high as 93 dBA. dBA. Plaintiffs allege that Plaintiffs allege that this this noise noise volume volume is substantial, substantial, unreasonable unreasonable and and has as high impaired their their ability ability to use and enjoy impaired enjoy their their property. property. Viewing Viewing all inferences inferences in Plaintiffs' Plaintiffs' favor favor as court must must in adjudicating adjudicating a motion the court motion to dismiss dismiss under under CPLR CPLR 3211(a)(7), 321 l(a)(7), the the foregoing foregoing is sufficient to state state a private of Plaintiffs' Plaintiffs' sufficient private nuisance nuisance claim. claim. While While Defendants Defendants dispute dispute the the accuracy accuracy of claims about about noise noise levels levels emanating emanating from the power claims power plant, plant, the court court may may not not resolve resolve factual factual disputes disputes within motion to dismiss. dismiss. within the context context of of a motion The court, court, however, however, reaches reaches a different different conclusion conclusion about about Plaintiff Plaintiffss nuisance nuisance claim claim based based on alleged pollutants pollutants emanating emanating from the power alleged power plant. plant. The The record record as a whole whole demonstrates demonstrates that that the of the power power plant plant for its potential potential environmental environmental impacts impacts under under the DEC DEC conducted conducted a full review review of State Review Act Act and issued issued a final environmental environmental impact impact statement statement in July July State Environmental Environmental Quality Quality Review findings concluded "[t]he CVE DEC's findings concluded that, that, with with respect respect to greenhouse greenhouse gasses, gasses, "[t]he CVE Project Project 2012. The DEC's example of of a low-carbon low-carbon intensity intensity electric electric generation generation facility facility that that will will meet meet recently recently enacted enacted is an example carbon dioxide dioxide (CO2) (C02) standards." standards." It then State Facility carbon then issued issued an Air Air State Facility permit, permit, a Title Title IV Acid Acid Rain Rain permit, a Water Water Quality Quality Certificate Certificate and a Fresh permit, Fresh Water Water Wetlands Wetlands permit. permit. Petitioners Petitioners failed failed to challenge the issuance issuance of of these these permits permits either either administratively administratively or through through an Article Article 78 proceeding. proceeding. challenge 2016 the Public Service Commission In 2016 Public Service Commission granted granted a Certificate Certificate of of Environmental Environmental Compatibility Compatibility and Public Need construct a 14.6 mile, Public Need to construct mile, 345 KV transmission transmission facility facility associated associated with with the plant. plant. Again, Again, challenge was brought brought to the issuance no challenge issuance of of this this certificate. certificate. In asserting asserting their their nuisance nuisance claim claim based based upon the alleged alleged emission emission of of environmental environmental pollutants, pollutants, Plaintiffs Plaintiffs do not not allege allege that that the the plant plant is upon operating Moreover, Plaintiffs Plaintiffs do not allege allege that that the plant's plant's operation operation has has operating in violation violation of of state law. Moreover, caused a present present health Instead, Plaintiffs caused health impact. impact. Instead, Plaintiffs merely merely assert, assert, upon upon information information and and belief, belief, that that emissions create create a heightened heightened risk of future future health health impacts. impacts. Considering Considering the the foregoing foregoing in its the emissions risk of totality, Plaintiffs have failed failed to state an actionable the plant plant emissions. emissions. totality, Plaintiffs have actionable nuisance nuisance claim claim based based on the Permitting such such a speculative speculative claim claim to go forward Permitting forward would would completely completely undermine undermine the the finality finality of of New New York's regulatory process. Moreover, York's regulatory process. Moreover, speculative speculative claims claims of of future future adverse adverse health health impacts impacts fail to demonstrate the type of of present present substantial substantial interference interference necessary necessary to sustain sustain a nuisance nuisance claim. claim. demonstrate Wherefore, it is Wherefore, ORDERED that ORDERED that Defendants' Defendants' motion motion to dismiss dismiss Plaintiffs' Plaintiffs' nuisance nuisance claim claim based based on alleged alleged 4 [* 4] 4 of 6 FILED: DUTCHESS COUNTY CLERK 02/23/2021 11:54 AM .NYSCEF DOC. NO. 61 INDEX NO. 2020-51029 RECEIVED NYSCEF: 02/22/2021 '' noise pollution denied. It is further noise pollution is denied. further ORDERED that ORDERED that Defendants' Defendants' motion motion to dismiss dismiss Plaintiffs' Plaintiffs' nuisance nuisance claim claim based based on plant plant emissions is granted. granted. It is further further emissions ORDERED that that Defendants' of action action is granted. granted. ORDERED Defendants' motion motion to dismiss dismiss Plaintiffs' Plaintiffs' fraud fraud cause cause of elements of of such such cause cause of of action action are a misrepresentation misrepresentation or a material material omission omission of of fact which which The elements known to be false by the defendant of inducing inducing the the other other party party was false and known defendant made made for the the purpose purpose of justifiable reliance reliance ofthe to rely upon upon it, it,justifiable of the other other party party on the misrepresentation misrepresentation or omission omission and injury. injury. Pasternack v. Lab. Corp. Corp. of of Am. Holdings, Holdings, 27 NY3d NY3d 817 (2016). (2016). Plaintiffs' Plaintiffs' fraud fraud claim claim is based based Pasternack allegations that on allegations that Defendants Defendants failed failed to provide provide information information to local local and and federal federal authorities authorities when when seeking approvals approvals to operate operate the plant. seeking plant. Plaintiffs Plaintiffs fail to identify, identify, and and this this court court is unaware unaware of, any regulation that would have have required law or regulation that would required Defendants Defendants to provide provide publicly publicly available available studies studies to regulatory agencies agencies after after it obtained obtained approvals regulatory approvals to operate operate the plant. plant. Therefore, Therefore, Plaintiffs Plaintiffs fail to allege allege .that Defendants made made a misrepresentation that Defendants misrepresentation or false material material omission omission of of fact. Nor, Nor, do Plaintiffs' Plaintiffs' allegations allege that Defendants Defendants opted allegations allege that opted not to submit submit these these materials materials for the purpose purpose of of inducing inducing specific action. action. Finally, Finally, Plaintiffs any specific Plaintiffs do not allege allege that that Defendants Defendants had had any any obligation obligation to provide provide such information information to them. plaintiff may such them. A plaintiff may not establish establish the reliance reliance element element of of a fraud fraud claim claim by showing that party relied relied on a defendant's showing that a third third party defendant's false false statement statement resulting resulting in injury injury to a plaintiff. plaintiff. Id. Based Based on the foregoing, the court the foregoing, court declines declines to address address whether whether Plaintiffs' Plaintiffs' fraud fraud claim claim is also barred by the applicable statute of of limitations. barred applicable statute limitations. elements of of intentional The elements intentional infliction infliction of of emotional emotional distress distress are: (1) extreme extreme and and outrageous outrageous conduct; (2) the intent cause, or the disregard conduct; intent to cause, disregard of of a substantial substantial likelihood likelihood of of causing causing severe severe Dutchess Ct)'. Cty. emotional (4) severe severe emotional emotional distress. distress. Petkewicz Petkewicz v. Dutchess emotional distress; distress; (3) causation; causation; and (4) Services, 13 AD3d 990 (2ndnd Dept Dept 2016). 2016). The The conduct conduct in question question Dept. of of Community Community & Family Family Services, 1377 AD3d must transcend transcend all bounds bounds of of decency decency and "be "be regarded must regarded as atrocious atrocious and and utterly utterly intolerable intolerable in a civilized community." community." Christenson Christenson v. Gutman, civilized Gutman, 249 AD2d AD2d 805, 808 (3rdrd Dept Dept 1998). Plaintiffs' intentional intentional infliction Plaintiffs' infliction of of emotional emotional distress distress claim claim is premised premised on allegations allegations that that Defendants' operation operation of of the power plant could have adverse health impacts on Plaintiffs. Plaintiffs Defendants' power plant could have adverse health impacts Plaintiffs. Plaintiffs allege that "it is predictable allege that "it predictable that that the operation operation of of such such plants plants as that that owned owned and operated operated by Defendants shall shall cause cause serious serious health Defendants health impacts impacts on a portion portion of of those those exposed exposed to its emissions." emissions." Plaintiffs further further allege allege that Plaintiffs that Defendants Defendants have have intentionally intentionally failed failed to alert alert Plaintiff Plaintiffto these these health health risks risks advise them them of of steps steps they or advise they may take take to avoid avoid such such health health effects. effects. Defendants Defendants are lawfully lawfully operating operating electric power power plant. an electric plant. While While Plaintiffs Plaintiffs allege allege that that such such operation operation will will cause cause environmental environmental pollution and have adverse health pollution have adverse health impacts impacts on those those who who reside reside near near the the plant, plant, such such claims claims fail to constitute the extreme extreme and outrageous constitute outrageous conduct conduct necessary necessary to sustain sustain an intentional intentional infliction infliction of of emotional distress distress claim. claim. As Defendants emotional Defendants are operating operating within within the law, law, Plaintiffs' Plaintiffs' factual factual allegations allegations cannot sustain sustain a claim claim that cannot that Defendants Defendants have have transcended transcended all bounds bounds of of decency decency and and are engaging engaging in utterly intolerable conduct. conduct. Electricity is a necessary utterly intolerable Electricity necessary utility utility of of modern modern life. Its creation creation for residential and commercial commercial use requires requires the operation of electrical electrical power power plants. plants. Plaintiffs Plaintiffs also fail residential operation of cause of of action action for the infliction to state a cause infliction of of emotional emotional distress distress because because their their claims claims of of emotional emotional 5 [* 5] 5 of 6 FILED: DUTCHESS COUNTY CLERK 02/23/2021 11:54 AM .. ;,. NYSCEF DOC. NO. 61 ',p" ',,;.'· i' i" ''I.. INDEX NO. 2020-51029 •• RECEIVED NYSCEF: 02/22/2021 disturbance and future health risks risks are conclusory, conclusory, speculative, speculative, and unsupported by medical medical disturbance future health and unsupported nd nd evidence. See Glendara Glendara v. Walsh, Walsh, 227 AD2d AD2d 377 (2 Dept 1996), Wherefore, evidence. Dept 1996} Wherefore, it is ORDERED that Defendants 'motion dismiss Plaintiffs' cause of of action action for the intentional ORDERED that Defendants' motion to dismiss Plaintiffs' cause intentional infliction of of emotional emotional distress distress is granted. granted. It is further further infliction ORDERED that that Plaintiffs' injunction is denied. Plaintiffs' only only ORDERED Plaintiffs' motion motion for,a for,a preliminary preliminary injunction denied. Plaintiffs' remaining claim claim in this this action action is a private nuisance claim claim based remaining private nuisance based on alleged alleged noise noise pollution. pollution. As there there disputed issues issues of noise level emanating from the power Plaintiffs have have not are disputed of fact as to the noise level emanating power plant, plant, Plaintiffs their burden burden ofdemonstrating of demonstrating a likelihood of success success on the merits. demonstrated merits. Nor Nor have have they they demonstrated met their likelihood of irreparable harm harm would result in the absence absence of of an injunction. not allege allege any permanent irreparable would result injunction. Plaintiffs Plaintiffs do not permanent harm would would result result from from the alleged alleged noise noise pollution. court notes notes that harm pollution. The court that Plaintiffs Plaintiffs waited waited six months months filing of of the action action to move further from the filing move for injunctive injunctive relief. relief. It is further ORDERED that that Defendants Defendants shall file an answer answer within within ten days after after service service of of notice notice of of ORDERED ten days entry of of this order. order. See CPLR 3211(f). entry CPLR 3211(±). foregoing constitutes constitutes the decision decision and and order order of of the Court. Court. A preliminary preliminary conference conference of of The foregoing action will be held virtually on March 17,2021 12:15 this action held virtually March 17, 2021 at 12: 15 p.m. p.m. .~:z Dated: February February ·:;;),:Z ,,2021 Dated: 2021 Poughkeepsie, New Poughkeepsie, New York York ENTER: ENTER: ~ ~~ = · = - - - - - - - : - ' MARIAG.ROSA,J.S.C. MARlA G. ROSA, l.S.C. Scanned to the E-File E-File System System only only Scanned Pursuant to CPLR CPLR §5513, ~5513, an appeal appeal as of of right must be taken taken within after service service by a Pursuant right must within thirty thirty days after party upon the appellant appellant of of a copy copy of of the judgment order appealed appealed from from and and written of .its judgment or order written ~otice ~otice of_its party upon entry, except except that that when when the appellant appellant has served served a copy copy of of the judgment and wrItten entry, judgment or order order and written notIce notice of its entry, entry, the appeal appeal must taken within thereof. of must be taken within thirty thirty days thereof. Sussman & Associates Associates Sussman Box 1005 PO Box Goshen, NY 10924 Goshen, NY 10924 Keane & Beane, Beane, P.C. Keane Hamilton Avenue, Avenue, 15thth Floor Floor 445 Hamilton White Plains, Plains, NY White NY 10601 6 [* 6] 6 of 6 , I

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