New York Appellate Court Dismisses Claims Against Odorous Landfill Due To Narrow Scope Of State Law
When a homeowner misses trash day for months, piling up stinking bags of trash in the backyard, neighboring homeowners could presumably bring a private nuisance claim against that homeowner to abate the nuisance. But what if that neighbor was a landfill and its noxious odors spread for miles: who in the surrounding neighborhood would have standing to abate that apparent nuisance? The answer depends on the jurisdiction. In the recent decision Davies v. S.A. Dunn & Co., Nos. 530994/531613 (3d Dep’t Oct. 21, 2021), a split panel in the Appellate Division for the Third Judicial Department in New York dismissed public nuisance and negligence claims brought by neighboring residents against a landfill for failing to control its odor emissions because the plaintiffs failed to allege that they had suffered a “special injury” that was distinct from other residents in the area. Assuming it withstands any appeal, the decision is a significant check on public nuisance claims in New York.