Dudley v API Industries, Inc.: Private Nuisance Is Not Numerically Limited to “One Person or a Relatively Few,” but Negligence Still Requires Physical Injury or Tangible Property Damage

1. Introduction

Dudley v API Industries, Inc. arises from alleged recurring noxious odors emitted by a plastics manufacturing facility in Orangeburg, New York, operated by API Industries, Inc. Residents living within a defined geographic radius (a putative class reaching from approximately 195 households to potentially 3,000 households within 1.5 miles in certain directions) alleged that the odors invaded their homes, interfered with the use and enjoyment of their property, and reduced property values.

The plaintiffs pleaded three tort theories—public nuisance, private nuisance, and negligence—and sought class certification under CPLR 901 and 902. The Supreme Court dismissed the public nuisance claim, allowed the private nuisance and negligence claims to proceed, and certified the class. API appealed.

The Second Department confronted two core issues with broader doctrinal stakes:

• Negligence and “odor-only” harms: Can plaintiffs recover in negligence for odor intrusions and alleged diminution in property value without physical injury or tangible property damage (including by pleading “stigma damages”)?
• Private nuisance and numerosity: Does the “one person or a relatively few” language in Copart Indus. v Consolidated Edison Co. of N.Y. impose a numerical cap that bars private nuisance when many households are impacted—and, if not, can such claims be litigated as a class action?

2. Summary of the Opinion

The Second Department modified the order:

• Negligence: Dismissed. The court held that negligence requires physical injury or tangible property damage; allegations of odor invasions and property-value diminution alone are insufficient, and “stigma damages” do not bypass that requirement in New York negligence law.
• Private nuisance: Sustained. The court held that a private nuisance claim may be maintained by a collective of individuals; the number of affected households does not automatically convert the claim into public nuisance or defeat private nuisance as a matter of law.
• Class certification: Affirmed as to the surviving private nuisance theory; common issues predominated and merits review at certification is limited to whether a non-sham cause of action is stated.
• Evidence/exhibits disputes: Largely affirmed; Exhibit R from defendant was properly stricken as irrelevant to class certification/summary judgment posture.

A partial dissent (Golia, J.) agreed negligence should be dismissed, but would also dismiss private nuisance on the view that the pleaded 1.5-mile/3,000-household scope falls outside “relatively few,” rendering class certification academic.

3. Analysis

3.1. The New Rule / Clarification

3.2. Precedents Cited (and How They Shaped the Decision)

A. Negligence: Physical Injury or Tangible Property Damage Required

• William Metrose Ltd. Bldr./Dev. v Waste Mgt. of N.Y., LLC: The court relied on this case for the controlling formulation that negligence requires “either physical injury or property damage,” and that diminution in value alone is not enough. It also supplied the policy justification (defining the class of claimants; administrability; docket control), reinforcing the court’s unwillingness to expand negligence to odor/value-only disputes.
• Davies v S.A. Dunn & Co., LLC: Quoted via William Metrose for the same limitation and its rationales. The Second Department also used Davies later to underscore the importance of not conflating nuisance categories, noting that courts have long separated private nuisance from private actions seeking to vindicate public nuisance.
• 532 Madison Ave. Gourmet Foods v Finlandia Ctr.: Cited as a Court of Appeals anchor for the economic loss rule in negligence (economic loss alone is insufficient). This case served as the “high court” constraint that makes odor-caused market stigma, without physical damage, non-cognizable in negligence.
• D'Amico v Waste Mgt. of N.Y., LLC: Not controlling, but addressed to reject plaintiffs’ argument. The Second Department acknowledged federal recognition of stigma damages in some contexts, yet declined to adopt that approach for New York negligence claims.
• Matter of Commerce Holding Corp. v Board of Assessors of Town of Babylon, Criscuola v Power Auth. of State of N.Y., Murphy v Both, Turnbull v MTA N.Y. City Tr.: These cases were used to show that New York courts have applied “stigma damages” concepts in other doctrinal settings (notably valuation/condemnation-type contexts), but not to satisfy the injury element of negligence. Their role is limiting: they demarcate where stigma arguments have been accepted—and where they have not.

B. Private Nuisance: Character of Right, Not Headcount

• Copart Indus. v Consolidated Edison Co. of N.Y.: The opinion’s central interpretive move is its rereading of Copart. While Copart contains the oft-quoted “one person or a relatively few” phrase, the Second Department emphasized that Copart was primarily about distinguishing nuisance from negligence by focusing on the harm (interference with use/enjoyment) and allowing culpability to be intentional or negligent. The court treated the “relatively few” phrase as contextual description, not an element. It stressed Copart’s own reliance on the Restatement and its framing that public and private nuisance “have almost nothing in common” because the rights invaded differ.
• McFarlane v City of Niagara Falls: Identified as the likely origin of the “threatens one person or a few” phrasing. The court used McFarlane to show the phrase arose in a different instructional context (contributory negligence and nuisance), and not as a decisive numerical gatekeeping rule.
• People v Brooklyn & Queens Tr. Corp.: A key support for the majority’s “character of rights” approach. Quoted for the proposition that harm does not become public nuisance “merely because a considerable number are injured,” so long as the invasion is of private rights in land. The court also used it to rebut the dissent’s proximity-based reading, noting the case concerned a public nuisance indictment and did not foreclose private suits by those within the affected area.
• Del Vecchio v Gangi, Harris v Miranda, Barricella v Papadopoulos: These cases supplied the elements of private nuisance used to measure the pleadings: substantial, intentional, unreasonable interference with property rights to use and enjoy land caused by another’s conduct.
• New York Trap Rock Corp. v Town of Clarkston and Melker v City of New York: Cited through Copart’s public-nuisance discussion; they reinforce that public nuisance is about interference with rights common to all and the comfort/health/safety of a considerable number of persons—conceptually distinct from individualized property-right invasions.
• Blessington v McCrory Stores Corp.: Cited via Copart for the “interference with use or enjoyment of land” feature—used by the majority as the essential characteristic, displacing a literal numeric limit.
• Second Department examples undermining a strict numeric cap: Queens County Bus. Alliance v New York Racing Assn., Benjamin v Nelstad Materials Corp, Broxmeyer v United Capital Corp, Members of the Dekalb Ave. Condominium Assn. v Klein, and Sullivan v Keyspan Corp. The court emphasized that these decisions did not reject private nuisance due to the number of affected persons and, in at least one instance (Sullivan), involved “more than 100 homeowners,” illustrating functional compatibility between private nuisance and multiple plaintiffs.
• Cases invoked by the dissent for a narrower view: William Metrose Ltd. Bldr./Dev. v Waste Mgt. of N.Y., LLC, Cedar & Wash. Assoc., LLC v Bovis Lend Lease LMB, Inc., and Davies v S.A. Dunn & Co., LLC. The majority distinguished these as either addressing different nuisance configurations (notably private actions for public nuisance) or as not compelling a numerical cutoff where private rights are asserted collectively.
• Federal cases referenced in the dissent: Scribner v Summers, Jefferson Park Assoc., L.P. v Qualitrol Co. LLC, South Buffalo Dev., LLC v PVS Chem. Solutions, Inc., Quattlander v Ray, and Baker v Saint-Gobain Performance Plastics Corp.. Their relevance here is mostly diagnostic: they reflect that other courts often quote “relatively few” when describing private nuisance, but they do not resolve the interpretive question posed in this appeal under New York intermediate appellate authority.

C. Class Certification: Predominance and Limited Merits Review

• Jenack v Goshen Operations, LLC: Used for the standards governing class certification, especially that common questions must predominate and that the merits inquiry is limited to whether the claim “on the surface” is not a sham.
• DeLuca v Tonawanda Coke Corp. and Burdick v Tonoga, Inc.: Cited for the proposition that individualized damages do not defeat class treatment—important in nuisance cases where the intensity, frequency, and resulting damages may vary household-to-household.

3.3. Legal Reasoning

A. Why Negligence Failed

The negligence holding rests on a familiar New York boundary: negligence is not a vehicle for recovering purely economic loss absent physical injury or tangible property damage. The court accepted that API owed a duty of reasonable care to neighboring property owners, but treated the decisive issue as the injury element.

• Pleadings deficiency: The complaint alleged repeated odor invasions and consequent loss of use/enjoyment and diminished property value, but did not allege physical injury or tangible property damage caused by the odors.
• Economic loss rule enforced: Diminution in property value “standing alone” is insufficient under New York law (reinforced by 532 Madison Ave. Gourmet Foods v Finlandia Ctr.).
• Stigma damages rejected as a negligence substitute: The court drew a sharp doctrinal line: while “stigma” appears in other contexts, New York negligence claims still require physical injury or tangible property damage. Federal decisions recognizing stigma as an exception were not adopted.

B. Why Private Nuisance Survived Despite Many Affected Households

The majority’s interpretive choice is to treat nuisance classification as a rights-based inquiry, not a headcount test:

• Private nuisance protects private land-use interests: The court emphasized that the rights invaded are those of individuals “in their private capacity” in the comfortable enjoyment of their homes (drawing from People v Brooklyn & Queens Tr. Corp.).
• “Relatively few” is relational, not absolute: The court reasoned that even hundreds or thousands of households can still be “relatively few” compared to the general public whose rights are vindicated through public nuisance enforcement.
• Avoiding perverse immunity: The court highlighted the policy problem if numeric scope alone defeated private nuisance: a defendant could avoid private nuisance liability by affecting more people, thereby “converting” private harms into something plaintiffs could not privately enforce (especially after the public nuisance claim here had been dismissed and not appealed).
• Element-focused analysis preserved: The court returned to the classic elements (substantial, intentional, unreasonable interference with use/enjoyment of land) and held the pleadings satisfied them for purposes of defeating summary judgment.

C. Why Class Certification Was Proper

Having held that private nuisance may be asserted collectively, the court found CPLR class treatment workable:

• Predominance: Common questions about a single source (the facility), a uniform alleged mechanism (odor emissions), and shared interference with land-use interests supported predominance.
• Damages variability tolerated: Differences in the amount of damages do not bar certification (DeLuca v Tonawanda Coke Corp.; Burdick v Tonoga, Inc.).
• Limited merits inquiry: At certification, the question is not ultimate proof but whether the claim appears non-sham (Jenack v Goshen Operations, LLC).

3.4. Impact

A. Substantive Tort Law: Private Nuisance’s “Numerosity” Question

The decision is most significant for its treatment of Copart. By rejecting a literal numerical barrier, the Second Department:

• Expands practical access to private nuisance remedies for neighborhoods affected by a common source, without forcing plaintiffs into (often unavailable) public nuisance theories.
• Reduces dismissal risk where defendants argue that widespread impact transforms private nuisance into public nuisance, especially in environmental/industrial odor cases.
• Creates a clearer doctrinal test: the decisive inquiry is the character of the right invaded (private use/enjoyment of land), not the number of similarly situated owners.

B. Pleading and Strategy: Negligence Narrowed; Nuisance Elevated

• Negligence claims in odor cases face a hard gate: unless plaintiffs can allege tangible property damage or physical injury, negligence will be vulnerable to dismissal, even with property-value loss allegations.
• Private nuisance becomes the primary tort pathway for odor-only invasions (often paired with injunctive relief or damages theories), at least at the pleading/survival stage.

C. Class Actions: Increased Viability in Nuisance Settings

By affirming certification on a nuisance-only record, the court signals that:

• common source/common mechanism nuisance cases can meet predominance even where exposure intensity and damages vary; and
• defendants may not defeat certification merely by emphasizing individualized damages or the size of the affected community.

D. Doctrinal Tension and Future Appellate Development

The dissent frames a competing approach: “relatively few” as a meaningful constraint requiring case-by-case evaluation that can exclude geographically broad classes (1.5 miles; up to 3,000 households). This tension—especially in light of citations to Cedar & Wash. Assoc., LLC v Bovis Lend Lease LMB, Inc. and William Metrose Ltd. Bldr./Dev. v Waste Mgt. of N.Y., LLC—suggests continued litigation over:

• how far “private” nuisance can stretch geographically; and
• whether other Departments will adopt the Second Department’s non-literal reading of Copart.

4. Complex Concepts Simplified

• Private nuisance vs. public nuisance: Private nuisance is about interference with an individual’s private right to use and enjoy land (your home/property). Public nuisance is about interference with rights held in common by the public (public health/safety, public spaces, public rights). Many people can have private nuisance claims at the same time if each person’s private land-use interest is invaded.
• Economic loss rule (in negligence): New York generally does not allow negligence recovery for purely financial harm (like reduced property value) unless there is physical injury or tangible property damage. This prevents open-ended liability for market reactions or reputational effects.
• “Stigma damages”: A theory that property value drops because of perceived contamination/risk even without measurable physical damage. The court held this concept—whatever its role elsewhere—does not satisfy the injury requirement for a New York negligence claim.
• Class certification “predominance”: The court asks whether shared issues (e.g., whether the facility caused the odors and whether that constitutes a nuisance) outweigh individual issues (e.g., how much each household was affected or how much damages each suffered). Individualized damages usually do not defeat certification.
• Summary judgment vs. certification posture: Summary judgment tests whether claims can survive as a matter of law on the record; class certification is not a full merits trial and requires only a showing that the claims appear viable and that class criteria are met.

5. Conclusion

Dudley v API Industries, Inc. delivers two practical holdings with outsized importance for environmental-odor and industrial-neighbor disputes:

• Negligence: odor invasions and property-value diminution, without physical injury or tangible property damage, are insufficient; “stigma damages” do not cure that defect in New York negligence law.
• Private nuisance: a private nuisance claim may be pursued by a collective of homeowners; Copart Indus. v Consolidated Edison Co. of N.Y.’s “one person or a relatively few” phrasing does not impose a rigid numerical limit, and the relevant inquiry is the private character of the rights invaded.

The decision thus strengthens private nuisance as a scalable remedy—capable of class adjudication—while simultaneously reaffirming negligence’s restrictive injury threshold. The dissent underscores that appellate debate remains over how “relatively few” should operate in boundary cases, setting the stage for further inter-departmental or Court of Appeals clarification.