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PLAINTIFF REAL ESTATE DEVELOPER’S PRIVATE NUISANCE, PUBLIC NUISANCE AND NEGLIGENCE CAUSES OF ACTION BASED UPON THE ALLEGED NOXIOUS ODORS FROM DEFENDANT’S LANDFILL SHOULD HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the plaintiff real estate developer causes of action against defendant landfill operation for private nuisance, public nuisance and negligence, based upon noxious odors from the landfill, should have been dismissed: Plaintiff alleged the odors made it difficult to sell homes and reduced the value of properties in the vicinity of the landfill:

… [A] private nuisance is one that “threatens one person or . . . relatively few” … . … [P]laintiff’s allegations indicate that the noxious odors affected a large number of community residents and, therefore, we conclude that plaintiff’s cause of action for private nuisance must be dismissed … . …

… [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 number of persons” … . “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” … .

Here, plaintiff alleged that it suffered a special injury because it “suffered lost profit[s] and other substantial economic loss,” including “irreparable damage to its reputation in the community as a residential home builder.” … [P]laintiff did not allege facts sufficient to support a public nuisance cause of action. It failed to allege that it sustained any harm or damages that were “different in kind, not merely in degree,” from the community at large … .

* * * [P]laintiff “ha[s] not alleged any tangible property damage or physical injury resulting from exposure to the odors” and, “likewise, the economic loss resulting from the diminution of plaintiff[‘s] property values is not, standing alone, sufficient to sustain a negligence claim under New York law” … . William Metrose Ltd. Builder/Developer v Waste Mgt. of N.Y., LLC, 2024 NY Slip Op 01458, Fourth Dept 3-15-24

Practice Point: Here noxious odors from a landfill did not support causes of action for private nuisance, public nuisance or negligence, criteria explained.

 

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