Davies v. S.A. Dunn & Co., 530994, 531613

CourtNew York Supreme Court Appellate Division
Writing for the CourtLynch, J.
Citation200 A.D.3d 8,156 N.Y.S.3d 457
Parties Brenda DAVIES et al., on Behalf of Themselves and All Others Similarly Situated, Respondents, v. S.A. DUNN & COMPANY, LLC, Appellant.
Docket Number530994, 531613
Decision Date21 October 2021

200 A.D.3d 8
156 N.Y.S.3d 457

Brenda DAVIES et al., on Behalf of Themselves and All Others Similarly Situated, Respondents,
v.
S.A. DUNN & COMPANY, LLC, Appellant.

530994, 531613

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: August 19, 2021
Decided and Entered: October 21, 2021


156 N.Y.S.3d 459

Beveridge & Diamond, PC, New York City (Michael G. Murphy of counsel), for appellant.

Michaels & Smolak, PC, Auburn (Matthew Z. Robb of Liddle & Dubin, PC, Detroit, Michigan, of counsel, admitted pro hac vice), for respondents.

Hunton Andrews Kurth LLP, New York City (Jennifer L. Bloom of counsel), for Chamber of Commerce of the United States of America, amicus curiae.

Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara, Wolf & Carone, LLP, White Plains (Robert A. Spolzino of counsel), for National Waste & Recycling Association, amicus curiae.

Before: Egan Jr., J.P., Lynch, Clark, Aarons and Reynolds Fitzgerald, JJ.

OPINION AND ORDER

Lynch, J.

200 A.D.3d 10

Appeals (1) from that part of an order of the Supreme Court (McGrath, J.), entered December 16, 2019 in Rensselaer County, which denied defendant's motion to dismiss the negligence cause of action and the class allegations in the complaint, and (2) from an order of said court, entered June 11, 2020 in Rensselaer County, which denied defendant's motion to dismiss the public nuisance cause of action in the amended complaint.

Defendant operates a landfill in the City of Rensselaer, Rensselaer County. Plaintiffs – residents of property in the City of

156 N.Y.S.3d 460

Rensselaer – commenced this action on behalf of themselves and "[a]ll owner[s]/occupants and renters of residential property residing within [1.5] miles of the landfill's property boundary," asserting causes of action for public nuisance and negligence, among other things, based upon defendant's alleged failure to contain noxious odors emanating from the landfill. In lieu of serving an answer, defendant moved for, among other things, dismissal of the complaint under CPLR 3211(a)(7). In a December 2019 order, Supreme Court, as relevant here, granted that part of the motion seeking dismissal of the public nuisance claim – finding that the complaint "d[id] not allege facts that the harm suffered by plaintiffs as a result of the odors was any different from that experienced by other members of the community" – and denied that part of the motion seeking dismissal of the negligence claim, concluding that the complaint alleged legally cognizable stigma damages.1

Plaintiffs thereafter filed an amended complaint and defendant moved to dismiss the public nuisance claim asserted therein, contending that plaintiffs had not remedied the pleading deficiencies. As relevant here, the amended complaint alleged that the noxious odors had "interfered with the exercise of the general public's rights to breath clean and/or uncontaminated air." It further alleged that plaintiffs and the putative class members had "suffered a discrete violation of their property rights, separate and apart from the interference with the

200 A.D.3d 11

right(s) common to the general public" insofar as the odors were substantially interfering with the "use and enjoyment of their properties," and had resulted in a diminution in their property values. Distinguishing such harm from the injuries suffered by other "people who live in the class area but are not members of the [c]lass," plaintiffs noted that the odors permeate the air of local schools and also affect "guests, lodgers and minor children" in ways that do not affect their property rights. In a June 2020 order, Supreme Court denied defendant's motion to dismiss the public nuisance claim in the amended complaint, finding that plaintiffs had cured the pleading defects. These appeals by defendant ensued.

Defendant argues that Supreme Court erred in permitting the public nuisance claim to proceed on the merits because plaintiffs did not assert a special injury that would afford them standing, as private individuals, to recover damages for a public nuisance. We agree. When assessing a motion to dismiss for failure to state a cause of action (see CPLR 3211[a][7] ), this Court "affords the complaint a liberal construction, accepts the facts alleged as true, accords the plaintiff[s] the benefit of every favorable inference and determines only whether the alleged facts fit within any cognizable legal theory" ( Leonard v. Cummins, 196 A.D.3d 886, 888, 151 N.Y.S.3d 510 [2021] [internal quotation marks, brackets and citations omitted]; see Doe v. Bloomberg, L.P., 36 N.Y.3d 450, 454, 143 N.Y.S.3d 286, 167 N.E.3d 454 [2021] ). Even under this liberal standard, dismissal is warranted "if the factual allegations and inferences to be drawn from them do not allow for an enforceable right of recovery" ( Himmelstein, McConnell, Gribben, Donoghue & Joseph, LLP v. Matthew Bender & Co., Inc., 37 N.Y.3d 169, 175, 150 N.Y.S.3d 79, 171 N.E.3d 1192 [2021] [internal quotation marks and citation omitted]). The relevant inquiry is whether the plaintiffs "have a cause of action and not whether one has been stated" (

156 N.Y.S.3d 461

Alaimo v. Town of Fort Ann, 63 A.D.3d 1481, 1482, 883 N.Y.S.2d 321 [2009] [internal quotation marks, brackets and citations omitted]; see Maddicks v. Big City Props., LLC, 34 N.Y.3d 116, 123, 114 N.Y.S.3d 1, 137 N.E.3d 456 [2019] ).

Unlike a private nuisance, which "threatens one person or ... relatively few" ( Copart Indus. v. Consolidated Edison Co. of N.Y., 41 N.Y.2d 564, 568, 394 N.Y.S.2d 169, 362 N.E.2d 968 [1977] ), a public nuisance consists of "a substantial interference with the exercise of a common right of the public, thereby offending public morals, interfering with the use by the public of a public place or endangering or injuring the property, health, safety or comfort of a considerable

200 A.D.3d 12

number of persons" ( 532 Madison Ave. Gourmet Foods v. Findlandia Ctr., 96 N.Y.2d 280, 292, 727 N.Y.S.2d 49, 750 N.E.2d 1097 [2001] ; see Duffy v. Baldwin, 183 A.D.3d 1053, 1054–1055, 124 N.Y.S.3d 110 [2020] ). A public nuisance is "an offense against the [s]tate and is [generally] subject to abatement or prosecution on application of the proper governmental agency" ( Copart Indus. v. Consolidated Edison Co. of N.Y., 41 N.Y.2d at 568, 394 N.Y.S.2d 169, 362 N.E.2d 968 ; see Burns Jackson Miller Summit & Spitzer v. Lindner, 59 N.Y.2d 314, 334, 464 N.Y.S.2d 712, 451 N.E.2d 459 [1983] ; State of New York v. Schenectady Chems., 103 A.D.2d 33, 37, 479 N.Y.S.2d 1010 [1984] ). Government enforcement is particularly apt for such a highly regulated activity as operating a landfill (see ECL 27–0703[2][a][iv] ; 6 NYCRR part 360; see also State of New York v. Ferro, 189 A.D.2d 1018, 1021, 592 N.Y.S.2d 516 [1993] ). "A public nuisance is actionable by a private person only if it is shown that the person suffered special injury beyond that suffered by the community at large" ( 532 Madison Ave. Gourmet Foods v. Finlandia Ctr., 96 N.Y.2d at 292, 727 N.Y.S.2d 49, 750 N.E.2d 1097 [citations omitted]; accord Duffy v. Baldwin, 183 A.D.3d at 1055, 124 N.Y.S.3d 110 ). The injury sustained must be "different in kind, not merely in degree" ( 532 Madison Ave. Gourmet Foods v. Finlandia Ctr., 96 N.Y.2d at 294, 727 N.Y.S.2d 49, 750 N.E.2d 1097 ; see Wakeman v. Wilbur, 147 N.Y. 657, 663, 42 N.E. 341 [1895] [the injury must be "private and peculiar" to the plaintiff]). The utility in this limitation is to "guard[ ] against the multiplicity of lawsuits that would follow if everyone were permitted to seek redress for a wrong common to the public" ( 532 Madison Ave. Gourmet Foods v. Finlandia Ctr., 96 N.Y.2d at 292, 727 N.Y.S.2d 49, 750 N.E.2d 1097 ).

There is no dispute that noxious odors emanating from the landfill may qualify as a public nuisance insofar as they interfere with a common right of the public to clean and fresh air. The dispute centers on whether plaintiffs have sufficiently alleged a special injury different from the "community at large" – an inquiry that necessarily requires a determination of the relevant scope of that community. Plaintiffs argue that, to define the relevant community, the injuries asserted in the amended complaint must be assessed against the injuries sustained by all members of the public who come into contact with the noxious odors. Using this framework, plaintiffs reason that, because individuals who encounter the odors at work, school and through recreation do not all suffer impacts to their properties therefrom, plaintiffs have asserted a special injury that is different in kind from the general public. Defendant counters that the meaning of "community at large" is not so expansive and, instead, must be framed by the injuries alleged

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in the amended complaint. To that end, because the amended complaint alleges harm to property rights, defendant asserts that the injuries suffered by plaintiffs and the putative class members must

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2 practice notes
  • Nemeth v. K-Tooling, 2022-03034
    • United States
    • New York Supreme Court Appellate Division
    • May 5, 2022
    ...that of the lower and intermediate federal courts, the ruling of the Court of Appeals controls" (Davies v S.A. Dunn & Co., LLC, 200 A.D.3d 8, 15 [2021], lv denied 38 N.Y.3d 902 [2022]; see Towle v Forney, 14 NY 423, 428 [1856 ]) - a request that we must also decline. In sum, there ......
  • Hammond v. Equinox Holdings LLC, 2022-30909
    • United States
    • United States State Supreme Court (New York)
    • March 22, 2022
    ...must be dismissed as there is no allegation that defendant Alexander caused plaintiff physical injury (Davies v S.A. Dunn & Co.; LLC, 200 A.D.3d 8, 16 [1st Dept 2021] [observing "[t]o recover in negligence, a plaintiff must sustain either physical injury or property damage resultin......
2 cases
  • Nemeth v. K-Tooling, 2022-03034
    • United States
    • New York Supreme Court Appellate Division
    • May 5, 2022
    ...that of the lower and intermediate federal courts, the ruling of the Court of Appeals controls" (Davies v S.A. Dunn & Co., LLC, 200 A.D.3d 8, 15 [2021], lv denied 38 N.Y.3d 902 [2022]; see Towle v Forney, 14 NY 423, 428 [1856 ]) - a request that we must also decline. In sum, there ......
  • Hammond v. Equinox Holdings LLC, 2022-30909
    • United States
    • United States State Supreme Court (New York)
    • March 22, 2022
    ...must be dismissed as there is no allegation that defendant Alexander caused plaintiff physical injury (Davies v S.A. Dunn & Co.; LLC, 200 A.D.3d 8, 16 [1st Dept 2021] [observing "[t]o recover in negligence, a plaintiff must sustain either physical injury or property damage resultin......

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