The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Judge
Plaintiff County of Erie, New York, commenced this action seeking to recover damages for expenses it incurred in connection with the airplane crash of Continental Connection Flight 3407 in Clarence Center, New York, on February 12, 2009. Pending before this Court is the Motion of Defendants Colgan Air, Inc., Pinnacle Airlines Corp., and Continental Airlines, Inc., to Dismiss the Complaint pursuant to Rule 12 (b)(6). For the reasons stated below, this Court finds oral argument unnecessary and the motion is granted.
Plaintiff commenced this action in this Court on March 1, 2010, with subject matter jurisdiction based upon diversity of citizenship. (Complaint, Docket No. 1). Four causes of action were asserted in the Complaint: negligence, res ipsa loquitur negligence, public nuisance, and liability as owners of the aircraft pursuant to New York General Business Law § 251. In connection with each of the four causes of action, Plaintiff alleged that:
Plaintiff has sustained unnecessary and unprecedented property and financial damage as a direct and proximate result of Defendants' wanton, reckless, negligent, and willful conduct to the extent Erie County was required to expend resources in excess of the normal provisions of police, fire, and emergency services as a result of the crash of Flight 3407. Specifically, Plaintiff was forced to expend unprecedented monetary resources in order to provide public services including: Overtime pay for police and emergency personnel; the clean-up and removal of human remains; the clean-up and removal of the Aircraft itself; the provision of emergency and counseling services to the surviving members of the decedents' families; and the purchase, lease, or rent[al] of equipment necessary to respond to the crash of Flight 3407." (Compl. ¶¶ 23, 30, 38-39, 42). In connection with its public nuisance claim, Plaintiff also alleged that the expenditure of "resources in excess of the normal provisions of police, fire, and emergency services" included "abating environmental hazards that presented imminent harm to the health of the public at large." (Compl. ¶ 38). Prior to answering, Defendants collectively moved for dismissal, arguing, among other things, that Plaintiff cannot state a claim upon which relief can be granted because public expenditures made in the performance of governmental functions are not recoverable. (Docket Nos. 10 (2nd Amended Notice of Motion), 10-3).
Plaintiff subsequently filed an Amended Complaint (Docket No. 16), asserting the same four causes of action plus an additional claim that Plaintiff was entitled to recover damages from Defendants pursuant to New York Public Health Law § 1306 for: the costs of the removal of human remains from the area of the crash, for the costs of sealing off the crash area for security while remedial action was ongoing, for moving the residents to safety away from the crash area and for other costs which after the crash, constituted a major health condition detrimental to the well being of the community. (Amended Compl. ¶ 44).
In considering a motion to dismiss*fn1 for failure to state a claim pursuant to Rule 12 (b)(6), a court must accept all factual allegations in the complaint as true and make all reasonable inferences in a plaintiffs' favor. ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007). In order to survive such a motion, a complaint must "contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' " Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009), quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); ATSI Commc'ns, Inc., 493 F.3d at 98. This assumption of truth applies only to factual allegations and is inapplicable to legal conclusions. Ashcroft, 556 S.Ct. at 1949. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft, 129 S.Ct. At 1949. Further, where, as here, a plaintiff amends his complaint while a motion to dismiss is pending, a court may either deny the motion as moot or consider it in light of the amended pleading. Roller Bearing Co. of America, Inc. v. American Software, Inc., 570 F.Supp.2d 376, 384 (D.Conn. 2008). Because the parties have fully briefed their arguments with respect to the Amended Complaint, this Court will consider the Motion to Dismiss on the merits.
As recognized by the New York State Court of Appeals,*fn2
"[t]he general rule is that public expenditures made in the
performance of governmental functions are not recoverable." Koch v.
Consolidated Edison Co. of N.Y., 62 N.Y.2d 548, 560 (N.Y. 1984), cert
denied 469 U.S. 1210 (1985)(denying reimbursement to city for
emergency services necessitated by blackout caused by power company's
gross negligence); see Austin v. City of Buffalo, 182 A.D.2d 1143,
1144 (N.Y. App. Div. 4th Dep't 1992), lv dismissed in part, denied in
part 79 N.Y.2d 1033 (N.Y. 1992)(denying recovery to city for damage to
fire vehicles because damage was foreseeable risk of response to
fire); State of New York v. Long Is. Light. Co., 129 Misc.2d 371,
373-374 (Nassau County Court 1985) (denying recovery to state for
costs of closing highway and diverting traffic when defendant's power
lines fell because the state had a duty to ensure the safety of the
traveling public). Known as the free public services doctrine, this
general rule precludes governmental entities from seeking costs
"incurred for wages, salaries, overtime and other benefits of police,
fire, sanitation and hospital personnel from whom services (in
addition to those which would normally have been rendered) were
required." Koch, 62 N.Y.2d at 560.
The purpose of the free public services doctrine is rooted in public policy, Id., in that "the cost of public services for protection from fire or safety hazards is to be borne by the public as a whole, not assessed against the tortfeasor whose negligence creates the need for the service." City of Flagstaff v. Atchison, Topeka and Santa Fe Railway Co., 719 F.2d 322, 323 (9th Cir. 1983)(finding that the allocation of expenses for emergency services to taxpayers was neither irrational or unfair); see District of Columbia v. Air Florida, Inc., 750 F.2d 1077, 1080 (D.C. Cir. 1984)(recognizing "that the government's decision to provide tax-supported services is a legislative policy determination"); Walker County v. Tri-State Crematory, 643 S.E.2d 324, 328 (Ga. 2007)(question of whether the costs of providing public services should be reallocated implicates fiscal policy, and thus is one best left to the legislature). In light of this policy, it is "the identity of the claimant and the nature of the cost that combine to deny recovery," City of Flagstaff, 719 F.2d at 324, and no consideration is given to the extraordinary nature of the incident that necessitates the public service response.*fn3 See e.g. Air Florida, Inc., 750 F.2d at 1079-1080 (D.C. Cir. 1984)(applying free public services doctrine to claim for reimbursement for emergency and cleanup expenses following 1982 crash of a passenger jet); City of Falstaff, 719 F.2d at 323 (applying same following train derailment of four petroleum tank cars); City of Boston v. Smith & Wesson Corp., 12 Mass. L. Rptr. 225, 2000 WL 1473568, *8 (Mass. Super. 2000)(noting that although train derailments and airplane crashes were more unusual, a municipality could still expect to have to respond to such an emergency).
This general rule is not applicable where recovery is made permissible
by express statutory language or legislative history. Matter of James
AA, 188 A.D.2d 60, 63 (N.Y. App. Div. 3d Dep't 1993); see Koch, 62
N.Y.2d at 561. Further, this rule does not prohibit
a governmental entity from seeking recovery for damage to its own
property. See Long Is. Light. Co., 129 Misc.2d at 373; see also Air
Florida, Inc., 750 F.2d at 1080 (D.C. Cir. 1984). Plaintiff concedes
that it is seeking reimbursement for its provision of "public
services," and fails to identify any specific property belonging to
the County that was damaged as a result of the crash. Amended Compl.
¶¶ 23, 31, 41, 50. Plaintiff argues that the motion to dismiss should
nonetheless be denied because (1) New York Public Health Law § 1306
provides a statutory exception to the general rule,*fn4
and (2) its claim falls within the 'public nuisance'
exception to the free public services doctrine. These will be
"[I]t has long been recognized that when a local government, in the proper exercise of its delegated powers, summarily abates a public nuisance, it may compel the owner of the property involved to bear the cost of abatement." Lane v. City of Mount Vernon, 38 N.Y.2d 344, 349 (N.Y. 1976); see Brancato v. City of New York, 244 F.Supp.2d 239, 245 (S.D.N.Y. 2003), citing Lawton v. Steele, 152 U.S. 133, 136 14 S.Ct. 499, 38 L.Ed. 385 (1894). New York Public Health Law § 1306 further provides that, in addition to a property's owner or occupier, a county board of health may also recover expenses associated with the "suppression or removal of a nuisance or conditions detrimental to health" from "the person who caused or maintained such nuisance." § 1306 (1). A public nuisance: consists of 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 Industries, Inc. v. Consolidated Edison Co. of New York, Inc., 41 N.Y.2d 564, 568 (N.Y. 1977)(internal citation omitted). A "[n]uisance is a conscious and deliberate act involving the idea of continuity or recurrence" and requiring some degree of permanence. Long Is. Light. Co., 129 Misc.2d at 375, cited in Town of Hempstead v. S. Zara & Sons Contracting Co., Inc., 173 A.D.2d 536, 537 (N.Y. App. Div. 2d Dep't 1991), lv dismissed 82 N.Y.2d 889 (N.Y. 1993); see Domen Holding Co. v. Aranovich, 1 N.Y.3d 117, 124 (N.Y. 2003)(a nuisance is a "continuous invasion of rights"). There must be an actual invasion of interests in land that constitutes a substantial interference with the exercise of a common right of the public. Town Hall Realties v. Kelly, 70 A.D.3d ...