minor children, the record is void of any express claims that that child sustained injuries or will sustain injuries as a result of defendants' conduct.
Perhaps more important is the fact that although Dr. Sawyer opines
that "it is highly probable that the headaches experienced by Kyle Swearingen were directly related to the well established neurotoxic effects of [TCE] which classically include headaches[,]" he goes on to candidly state, "[a] more definitive work-up of Kyle is indicated by a qualified physician as other potential causes must be ruled out." Id. at 7. Certainly this meager record does not support a finding that either of the minor children should be allowed "to recover for apprehended consequences not presently manifest" because there has not been a showing of "such a degree of probability of their occurrence as to amount to a reasonable certainty that they will result[.]" See Askey, 477 N.Y.S.2d at 247 (citations omitted). At this juncture, the court can only speculate as to any prospective consequence of the minor children's alleged exposure to TCE, and obviously such speculation cannot form the basis for allowing amendment of the complaint in this regard. In addition, there is no showing that Dr. Sawyer is qualified to render an opinion on this narrow issue "with a degree of reasonable medical certainty," as Askey and its progeny require. See id. Consequently, plaintiffs' motion to amend is deficient in that regard as well. See id. (citation omitted); see also Ace v. State of New York, 207 A.D.2d 813, 616 N.Y.S.2d 640, 641 (2nd Dep't 1994) (claimant's fears of future harm too speculative to support an award of damages for prospective consequences). Moreover, because plaintiffs failed to submit a proposed amended complaint as L.R. 15.1 requires, the court is unable to determine whether such complaint would allege actual exposure to TCE by the minor children at toxic levels sufficient to state a cause of action upon which relief may be based. See Jones v. Utilities Painting Corp., 198 A.D.2d 268, , 603 N.Y.S.2d 546 at 546-547 (2nd Dep't 1993) (citations omitted).
Plaintiffs fare no better with their argument that the minor children should be allowed to assert a claim for heightened anxiety due to the possibility of developing cancer at some future time. To support this claim, plaintiffs rely upon Bossio v. Fiorillo, 210 A.D.2d 836, 620 N.Y.S.2d 596 (3rd Dep't 1994), but that was a malpractice action wherein the defendant doctor allegedly failed to timely treat plaintiff's breast cancer. Even if recovery under such a theory were viable in a case such as the present one, plaintiffs still would not be entitled to amend their complaint to include such a claim on behalf of the minor children because, once again, the record lacks the requisite medical proof of reasonable certainty in this regard. See id. at 598 (citations omitted). In light of the foregoing, the court agrees with defendants that given the current state of the record, due to the lack of viable proof to support damage claims by the children, it would be futile to allow plaintiffs to amend their complaint to specifically include the minor children as plaintiffs with respect to the negligence causes of action. Thus, insofar as plaintiffs' motion seeks such relief, it must be denied.
Insofar as plaintiffs are seeking to amend their complaint as to the trespass cause of action, defendants argue that such amendment as to the minor children would be futile because neither of those children have "'exclusive legal possession'" of the subject property. Defendants' Memorandum at 9 (quoting Allied 31st Avenue Corporation v. City of New York, 27 A.D.2d 948 at 948-949, 279 N.Y.S.2d 372, 373 (2nd Dep't 1967)). Plaintiffs counter that because the minor children reside on the subject property they have a "possessory interest," and as such are entitled to pursue a trespass cause of action against these defendants. Plaintiffs' Amended Reply Memorandum at n. 1 (quoting Allied 31st, 27 A.D.2d at 949, 279 N.Y.S.2d at 374).
In making this respondse argument, plaintiffs are improperly equating the fact that the children reside on the subject property with "possessory interest." Clearly, as minors the children are unable to claim a possessory interest in the subject property, as that term is commonly used in the law. Furthermore, "'under New York law, trespass is the interference with a person's right to possession of real property either by an unlawful act or a lawful act performed in an unlawful manner.'" Concerned Area Residents v. Southview Farm, 834 F. Supp. 1410, 1420 (W.D.N.Y. 1993) (quoting New York State Nat'l Org. for Women v. Terry, 886 F.2d 1339, 1361 (2d Cir. 1989)) (emphasis added), rev'd on other grounds, 34 F.3d 114 (2d Cir. 1994).
As is evident from that statement, right to possession of real property is a predicate to the assertion of a trespass claim; and because the Swearingen children are minors, plainly, they do not have, and in fact are unable to have, the necessary right to possession. Thus, plaintiffs' motion to amend their complaint to include a trespass claim on behalf of the minor children also must be denied.
C. Private Nuisance
Defendants maintain that amendment of the complaint to add specific allegations pertaining to the minor children in connection with the private nuisance cause of action also would be futile because, in essence, those children lack standing to assert such a claim because they are not fee title holders to the subject property. Invoking the Fourth Amendment which, inter alia, protects the right of citizens to be free from unreasonable searches and seizures by the government,
plaintiffs counter that the minor children have standing to assert such a claim.
In the court's opinion, plaintiffs' reliance on Fourth Amendment case law is wholly misplaced. The issue of whether a plaintiff has standing to assert a claim to be free from searches and seizures violative of the Fourth Amendment differs greatly from the issue of whether, under New York law, a minor may pursue a claim of private nuisance against a private citizen. Therefore, the few Fourth Amendment cases cited by the plaintiffs are completely inapposite to the issue now before the court.
On the other hand, the court finds that defendants' position is well taken. In New York, "the essence of a private nuisance is interference with the use and enjoyment of land amounting to an injury in relation to a right of ownership in that land." Turner v. Coppola, 102 Misc. 2d 1043, 424 N.Y.S.2d 864, 866 (Sup. Ct., Nassau Co. 1980) (citing, inter alia, Kavanagh v. Barber, 131 N.Y. 211, 30 N.E. 235 (1892)) (emphasis added).
Thus, because there are no allegations, and indeed there could be none, that these minor children have a legally protected ownership interest in the subject property, it would be futile to allow the complaint to be amended to include a private nuisance cause of action on their behalf. Accordingly, plaintiffs' motion to amend is denied insofar as they are seeking to add allegations specifically pertaining to the minor children as to the private nuisance cause of action.
D. Public Nuisance
As they argued in connection with plaintiffs' private nuisance claim, defendants contend that the minor children also lack standing to assert a public nuisance claim because they have no "right in the property." Defendants' Memorandum at 8 (emphasis in original). As an additional basis for denying plaintiffs' motion to amend as to the public nuisance claim, defendants contend that there has been no showing that the children have sustained special damages - an essential element to a private litigant's claim of this nature. See N.Y. State Organization For Women v. Terry, 704 F. Supp. 1247, 1261 (S.D.N.Y. 1989) (citation omitted), mod'd on other grounds, 886 F.2d 1339 (2d Cir. 1989), cert. denied, 495 U.S. 947, 110 S. Ct. 2206, 109 L. Ed. 2d 532 (1990). It is this latter argument upon which the court will focus.
It is well established in New York that "to support a private action for public nuisance, the complainant must establish special damages of a different kind from that suffered by other persons exercising the same public rights." Id. at 1262 n. 19 (internal quotations and citations omitted). Plaintiffs did not even bother to respond to defendants' argument that allegations of such damages are lacking here. Besides the fact that they failed to submit a proposed amended complaint so that they court could examine it to see whether this element was sufficiently alleged, the court is unable to find on the present record even a suggestion that the minor children sustained, or allegedly sustained, damages different from those suffered by others exercising the same public rights. Therefore, this aspect of plaintiffs' motion to amend must be denied as well.
In short, the court finds no basis for allowing plaintiffs to amend their complaint with respect to the minor children as to the negligence, gross negligence, public and private nuisance, and trespass causes of action.
III. Procedural Irregularities
A. L.R. 15.1
Before concluding, the court is compelled to comment upon two significant procedural irregularities. The first, as alluded to earlier, is plaintiffs' failure to comply with Local Rule 15.1, requiring submission of a proposed amended complaint and identification of the requested amendments. As should be apparent by now, that rule is not just a procedural nicety, but rather it is intended to provide the court and opposing counsel with all of the information necessary to respond to and decide a Rule 15 motion to amend. Without the proposed amended complaint, the court, as well as the opposing party, are operating at a decided disadvantage in that they are forced to speculate as to the scope of the amendment which a plaintiff is seeking. Although Local Rule 15.1 does not expressly provide for denial of a motion to amend for failure to comply therewith, it would certainly have been well within the court's discretion to have denied this motion without prejudice on that basis.
The second procedural matter is the timing of this motion. The court is fully cognizant that delay alone is an insufficient basis for denying a motion to amend. See Richardson Greenshields Securities, supra, 825 F.2d at 653 n. 6. In the present case, however, the delay in bringing this motion - approximately five and a half months after the motion cutoff date; three years after the commencement of this action; and two and a half months prior to trial - does give the court pause. That delay, combined with the fact, as previously discussed, that the amendments sought would be futile, provide more than ample basis for the denial of plaintiffs' motion in its entirety. See Zahra, supra, 48 F.2d at 686 (reasonable for district court to deny request to amend made two and a half years after commencement of the action, and three months prior to trial, and where such request appeared to be futile); John Hancock, supra, 22 F.3d at 462 (no abuse of discretion where district court denied motion for leave to amend made four months after deadline for seeking such relief and where the amendment appeared to be futile as well). Thus, the court hereby denies plaintiffs' motion to amend their complaint pursuant to Fed. R. Civ. P. 15(a).
The court reminds counsel that in accordance with the court's pre-trial order of April 10, 1995, this case is scheduled for trial on August 22, 1995, and, in accordance with that order, all pre-trial submissions must be filed and served no later than July 10, 1995.
IT IS SO ORDERED.
DATED: June 28, 1995
Syracuse, New York
Neal P. McCurn
Senior U.S. District Judge