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South Buffalo Development LLC v. PVS Chemical Solutions Inc.

Property Owner May Add Private Nuisance Claim But Negligence Claim Is Futile

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DECISION AND ORDER I. INTRODUCTION Before this Court are Plaintiff South Buffalo Development’s objections to a Report and Recommendation of the Hon. Jeremiah J. McCarthy, United States Magistrate Judge, wherein Judge McCarthy recommends that this Court deny Plaintiff’s motion to amend its complaint. With briefing complete and oral argument unnecessary, this Court will accept in part and set aside in part the Report and Recommendation, grant in part and deny in part the objections, and grant Plaintiff leave to amend its complaint to add a private nuisance cause of action. II. BACKGROUND Plaintiff South Buffalo Development, LLC, (“SBD”) is a real estate development entity that owns multiple properties in Buffalo, New York. Defendant PVS Chemical Solutions, Inc., (“PVS”) is the owner of a property at 55 Lee Street that directly borders Plaintiff’s properties. SBD commenced this action in New York State Supreme Court alleging a single cause of action against PVS related to PVS’s use of a rail spur situated on one of Plaintiff’s properties. Plaintiff then filed an amended complaint adding Norfolk Southern Railroad as a defendant. After Norfolk Southern removed this action to federal court, Plaintiff moved to amend its complaint to add causes of action for private nuisance and negligence against PVS. In its proposed Second Amended Complaint (“SAC”), SBD adds nine properties to the one named in its original complaint. (Docket No. 23-3, 3.) It alleges that PVS’s property is located immediately southwest of SBD’s properties. (Id., 20.) According to SBD, PVS “exhausts sulfur dioxide and other by products of its production processes to the ambient air outside [PVS's] facility.” (Id.,

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