raises issues of fact in view of Chase's asserted asbestos removal plans. (See, e.g., Pl.'s 3(g) Stmt. PP 56, 86, 87, 134(a).) Finally, T&N's argument that Chase's own fault bars its claim for indemnity under § 76 fails for the reasons already discussed with respect to contributory negligence. See supra part IV.
Accordingly, Chase has pleaded a claim for indemnity under § 76 and T&N has failed to offer any evidence that it is entitled to judgment on the indemnity claim as a matter of law.
Finally, T&N moves for summary judgment with respect to Chase's claim based on nuisance. Chase alleges that T&N is responsible for interfering with the safe use and enjoyment of One CMP with respect to persons who "use and occupy" the building as well as the general public who "frequent" it. (Am. Compl. P 191.) T&N argues that Chase's nuisance cause of action fails to allege an invasion of Chase's property, and that T&N is therefore entitled to summary judgment.
There are two types of nuisance actions at common law in New York: public nuisance and private nuisance. An action for public nuisance must allege "conduct or omissions which offend, interfere with or cause damage to the public in the exercise of rights common to all in a manner such as to offend public morals, interfere with use by the public of a public place or endanger or injure the property, health, safety or comfort of a considerable number of persons." Copart Indus. Inc. v. Consolidated Edison Co., 41 N.Y.2d 564, 568, 394 N.Y.S.2d 169, 172, 362 N.E.2d 968 (1977) (citations omitted). A public nuisance is "an offense against the State and is subject to abatement or prosecution on application of the proper governmental agency . . . ." State of New York v. Fermenta ASC Corp., 160 Misc. 2d 187, 194, 608 N.Y.S.2d 980, 985 (Sup. Ct. Suffolk Co. 1994) (quoting Copart, 362 N.E.2d at 968, 394 N.Y.S.2d at 172). The State has standing to bring actions for public nuisance as a matter of course in its role as "guardian of the environment." State of New York v. Shore Realty Corp., 759 F.2d 1032, 1051 (2d Cir. 1985) (quoting State of New York v. Schenectady Chems., Inc., 117 Misc. 2d 960, 968, 459 N.Y.S.2d 971, 978 (Sup. Ct. Rensselaer Co. 1983), aff'd as modified, 103 A.D.2d 33, 479 N.Y.S.2d 1010 (3d Dep't 1984)). While ordinarily a private plaintiff may not maintain an action for public nuisance, Copart, 362 N.E.2d at 971, 394 N.Y.S.2d at 172, a private party may sustain such a claim if some special harm has been suffered different from the harm suffered by other members of the public. See id.; Westwood Pharmaceuticals, Inc. v. Nat'l Fuel Gas Distrib. Corp., 737 F. Supp. 1272, 1281-82 (W.D.N.Y. 1990).
Private nuisance, on the other hand, is a distinctly different cause of action. "In contrast [to public nuisance], one is subject to liability for a private nuisance where his or her conduct invades the private use of property." Fermenta, 160 Misc. 2d at 194, 608 N.Y.S.2d at 985. Under New York law, "one is subject to liability for a private nuisance if his conduct is a legal cause of the invasion of the interest in the private use and enjoyment of land and such invasion is (1) intentional and unreasonable, (2) negligent or reckless, or (3) actionable under the rules governing liability for abnormally dangerous conditions or activities." Copart, 41 N.Y.2d at 569, 394 N.Y.S.2d at 172 (citations omitted).
With respect to a claim for private nuisance, New York cases hold that where the source of the nuisance exists on the plaintiff's own property the requisite invasion is absent and no action for nuisance may be maintained. See Drouin v. Ridge Lumber, Inc., 209 A.D.2d 957, 959, 619 N.Y.S.2d 433, 435-36 (4th Dep't 1994) (nuisance claims properly dismissed to extent diesel fuel contamination arose on plaintiff's own property; reinstating, however, nuisance claims based on contamination of surrounding land); Rose v. Grumman Aerospace Corp., 196 A.D.2d 861, 862, 602 N.Y.S.2d 34, 34 (2d Dep't 1993) ("Because the injury complained of was to the same property as that on which the nuisance was alleged to exist, the plaintiff's nuisance cause of action should have been dismissed."). Where contamination invades the plaintiff's property from a source outside that property, then the requisite invasion occurs and a nuisance claim is viable. See Nat'l Railroad, 819 F. Supp. at 1278 (denying dismissal of nuisance claim for abatement and removal costs where asbestos flaked from defendant's buildings onto plaintiff's railroad tracks beneath the buildings).
In the circumstances of Chase's private nuisance claim, the alleged nuisance harming the plaintiff is present in the plaintiff's building itself. It is undisputed that Sprayed Limpet Asbestos, which constitutes the alleged nuisance, is present at One CMP. (See Pl.'s & Def.'s 3(g) Stmts. PP 12, 19, 23; Am. Compl. P 27.) Chase does not allege any invasion of Sprayed Limpet Asbestos from any other building or property. Accordingly, given that there are no genuinely disputed issues of material fact that would allow Chase to sustain a claim for private nuisance, T&N's motion for summary judgment with respect to that aspect of Chase's nuisance cause of action is granted.
Chase does, however, set forth a claim for public nuisance because no invasion element is required for that cause of action. Chase asserts that T&N is responsible for the presence of the Sprayed Limpet Asbestos at One CMP, a product alleged to constitute a potentially severe health hazard to members of the public. See Shore Realty, 759 F.2d at 1051 (threatened release of hazardous chemicals is public nuisance as matter of New York law). Chase also maintains that it incurred and will incur the cost of abatement and removal, and that these costs represent special damages different from the damages suffered by the general public. See Westwood Pharmaceuticals, 737 F. Supp. at 1281 (containment and clean-up costs costs are special damages sufficient for standing to assert public nuisance action). Accordingly, on the facts as alleged, and drawing all reasonable inferences against the moving party, Chase has asserted an action for public nuisance. Therefore, T&N's motion for summary judgment dismissing Chase's public nuisance claim is denied.
Accordingly, T&N's motion for summary judgment is granted in part and denied in part. T&N is granted judgment as a matter of law dismissing Chase's claims for breach of express and implied warranty and private nuisance. With respect to Chase's claims for negligence, strict liability, fraud, restitution, indemnity, and public nuisance T&N's motion for summary judgment is denied.
Dated: New York, New York
October 18, 1995
John G. Koeltl
United States District Judge