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Black v. George Weston Bakeries

November 13, 2008

BEVERLY E. BLACK AND JAMES A. BLACK, PLAINTIFFS,
v.
GEORGE WESTON BAKERIES, INC., GEORGE WESTON BAKERIES DISTRIBUTION, INC., STROEHMANN BAKERIES, L.C., AND STROEHMANN BAKERIES, INC., DEFENDANTS.



The opinion of the court was delivered by: William M. Skretny United States District Judge

DECISION AND ORDER

I. INTRODUCTION

Plaintiffs, Beverly Black and James Black, allege that Defendants, George Weston Bakeries, Inc., George Weston Bakeries Distribution, Inc., Stroehmann Bakeries, L.C. and Stroehmann Bakeries, Inc., have operated, and continue to operate, their bakeries in a manner that causes harm to Plaintiffs' properties. As a result, Plaintiffs assert seven claims against Defendants. (Am. Compl., Docket No. 12)*fn1 . Presently, before this Court is Defendants' Motion to Dismiss each of Plaintiffs' claims in the Complaint. (Docket No. 14). For the reasons stated below, Defendants' motion is granted in part and denied in part.

II. BACKGROUND

A. Facts

Plaintiffs own rental properties located at 125, 125 1/2 , 127, and 127 1/2 North Second St., Olean, NY, and a residence located at 129 North Second St., Olean, NY. (Am. Compl., Docket No. 12, ¶¶2-3). At all times pertinent to this action, Defendants owned and operated a bakery, on the same block, specifically, 111 North Second St, Olean, NY. (Id., ¶¶12-20). Plaintiffs allege that the bakery has emitted "noxious discharges," including mold, mold spores, and fungus. (Id., ¶21). Plaintiffs allege that these emissions aerosolized and have coated Plaintiffs' properties with mold and mold residue. (Id., ¶22). Plaintiffs allege that this mold and its residue has discolored their properties with a blackened appearance, and damaged the exterior of their properties. (Id., ¶¶23 & 24). Plaintiffs further allege that they have repeatedly attempted to remove the mold and repaint their properties to alleviate the unsightly appearance caused by Defendants' emissions. (Id., ¶25). But these attempts have allegedly been unsuccessful, and Plaintiffs maintain that they have suffered loss of rental income by having to seek reduced rental costs as well as difficulty in finding replacement tenants. (Id., ¶34). Plaintiffs also allege that they have suffered a loss of resale value in both their home and rental properties. (Id., ¶35).

Plaintiffs complained to Defendants about their emissions by letter dated December 16, 2005. (Id., ¶41). Defendants responded to the letter by questioning the source of the emissions. (Exhibit B, Docket No. 12-2).*fn2 After receiving Defendants' response, Plaintiffs forwarded a Forensic Microbiological Investigation Report by Building Science Investigations, Inc., ("Report") to Defendants' counsel. (Id.). The Report, dated April 10, 2006, concludes that the bakery is the source of the mold growth. (Id.). The Report noted the high incidence of mold in the proximity of, and downwind from, the bakery; mold growth in the rear of the bakery, especially around doors and exhaust fans; and mold growth concentrated on the bakery-side of nearby trees. (Id.). Investigators isolated samples of the fungi Aureobasidum pullulans, Cladosporium cladosporioides, and Cladosporium sphaerospermum from Plaintiffs' residence and the surrounding neighborhood. Most prevalent was Aureobasidum pullulans. (Id.). This species of fungi is associated with wheat, barley, oat, and flour products, and was present in air samples collected downwind from the bakery, but not upwind. (Id.). In sum, Plaintiffs, maintain that the Report's findings corroborate their claims.

Despite Plaintiffs' letter and the findings contained in the Report, the emissions did not cease. On June 12, 2006, the New York State Department of Environmental Conservation ("DEC") wrote to Defendants' counsel to confirm the Report's findings and direct that Defendants cease emissions and take steps to remedy the damage. (Exhibit A., Docket No. 12-2). The letter dismissed various assertions by Defendants that Defendants argued should relieve them of responsibility and informed Defendants that they were in violation of 6 NYCRR Part 211.2. (Id.).

B. Procedural History

Plaintiffs commenced this action in New York State Supreme Court for the County of Cattaraugus on November 14, 2007. The case was removed to this Court on December 27, 2007, pursuant to 28 U.S.C. §§ 1331, 1332, 1441, and 1446. (Docket No. 1). On January 4, 2008, Defendants filed a Motion to Dismiss Plaintiffs' Complaint. (Docket No. 8). As a result, Plaintiffs filed an Amended Complaint on January 30, 2008. (Docket No. 12). In response, on February 19, 2008, Defendants filed a Motion to Dismiss Plaintiffs' Amended Complaint for failure to state a claim upon which relief may be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Docket No. 14).

C. Overview of Plaintiffs' Claims

Plaintiffs assert seven causes of action against Defendants. (Am. Compl., Docket No. 12). Specifically, Plaintiffs allege that Defendants' operation of their bakery constituted: (1) negligence; (2) a violation of the Clean Air Act; (3) trespass; (4) private nuisance; and (5) public nuisance. In their sixth cause of action, Plaintiffs allege that they are entitled to punitive damages and in their seventh cause of action, Plaintiffs request an injunction.

III. DISCUSSION

A. Motion to Dismiss Standard

Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal of a complaint where Plaintiff has "fail[ed] to state a claim upon which relief can be granted."

FED. R. CIV. P. 12(b)(6). In determining whether a complaint states a claim, the Court construes the complaint liberally, accepts all factual allegations as true, and draws all reasonable inferences in Plaintiffs' favor. ATSI Communications, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir.2007); Goldstein v. Pataki, 516 F.3d 50, 56-57 (2d Cir.2008). While the complaint need not include detailed factual allegations, a plaintiff must show the "grounds of his entitlement to relief." Bell Atlantic Corp. v. Twombly, ---U.S. ----, 127 S.Ct. 1955, 1964-65, 167 L.Ed.2d 929 (2007). To survive a ...


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