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NOXIOUS ODORS FROM A PLASTIC-MANUFACTURING FACILITY CANNOT BE THE BASIS OF A NEGLIGENCE CAUSE OF ACTION BECAUSE THE ODORS HAVE NOT CAUSED PHYSICAL INJURY OR PROPERTY DAMAGE (ECONOMIC LOSS IS NOT SUFFICIENT); THE NOXIOUS ODORS DO SUPPORT A PRIVATE NUISANCE CAUSE OF ACTION EVEN THOUGH A LARGE NUMBER OF PRIVATE CITIZENS IN THIS CLASS ACTION LAWSUIT ARE AFFECTED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court in this class action lawsuit, in a full-fledged opinion by Justice Voutsinas, over a concurrence and partial dissent, determined (1) noxious odors emanating from defendant’s plastic-manufacturing facility are properly the subject of a private nuisance cause of action on behalf of a collective of individuals, and (2) the noxious odors are not a proper subject for a negligence cause of action because no tangible physical harm or property damage was alleged (diminution in property value is not enough):

“‘To recover in negligence [or gross negligence], a plaintiff must sustain either physical injury or property damage resulting from the defendant’s alleged negligent conduct . . . This limitation serves a number of important purposes: it defines the class of persons who actually possess a cause of action, provides a basis for the factfinder to determine whether a litigant actually possesses a claim, and protects court dockets from being clogged with frivolous and unfounded claims'” … .

“Although [the] defendant undoubtedly owes surrounding property owners a duty of care to avoid injuring them . . . , the question is whether [the] plaintiff[s] sustained the required injury” … . “‘[T]he economic loss resulting from the diminution of [the] plaintiff[s’] property values is not, standing alone, sufficient to sustain a negligence claim under New York law'” … . * * *

“‘The elements of a private nuisance cause of action are: (1) an interference substantial in nature, (2) intentional in origin, (3) unreasonable in character, (4) with a person’s property right to use and enjoy land, (5) caused by another’s conduct in acting or failing to act'” … . …

A private nuisance cause of action is one where “[t]he rights invaded . . . are not suffered by the [plaintiffs] in their status as citizens or part of the public” … . Rather, the harm is suffered by the plaintiffs “in their private capacity in respect of an interference with the comfortable enjoyment of their homes,” which does not become a public nuisance “merely because a considerable number are injured” … . Dudley v API Indus., Inc., 2025 NY Slip Op 07379, Second Dept 12-31-25

Practice Point: Noxious odors do not support a negligence cause of action because there is no physical injury of property damage (diminished property value is not enough).

Practice Point: Noxious odors support a private nuisance cause of action, even where a large number of private citizens are affected.

 

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