Key Points

  • The Third Department unanimously affirmed a Supreme Court order that dismissed all claims against DEC and the Green Amendment and public nuisance claims against Seneca Meadows, while keeping the private nuisance claim.
  • The request to enjoin DEC from approving the landfill expansion permits was not ripe because DEC has not made a final determination on the applications.
  • A Green Amendment claim faulting DEC for not bringing enforcement amounts to mandamus over a discretionary decision and is not available; the Green Amendment regulates governmental, not private, conduct, and state permitting and oversight alone do not make the landfill's conduct state action.
  • The business plaintiffs' economic losses flowed from the same community-wide interference and were not a special injury supporting a private public nuisance claim.
  • The court held it premature, before discovery, to dismiss the private nuisance claim on the theory that community-wide odors cannot support one, without resolving the Copart/Davies versus Dudley dispute.

A New York appeals court ruled Thursday that residents and businesses near a landfill run by Seneca Meadows Inc. may keep pursuing a private nuisance claim over its odors. The court also held that the state constitution's environmental-rights provision, known as the Green Amendment, gives them no claim against the private operator or against state regulators who have declined to bring an enforcement action.

Justice Ryba wrote for a unanimous panel of the Appellate Division, Third Department, joined by Justices Ceresia, Powers and Corcoran. The panel affirmed in full a March 13, 2025, order of Supreme Court Justice Kimberly O'Connor in Albany County, which had dismissed every claim against the state Department of Environmental Conservation and two of the three claims against Seneca Meadows.

The ruling sends the private nuisance claim into discovery on a question that has divided New York's appellate courts: whether an interference felt across a whole community can still be a private nuisance. The panel declined to resolve that dispute at the pleading stage. Its Green Amendment rulings hold that state permitting and oversight alone do not turn a private facility's conduct into state action.

The plaintiffs are two environmental groups, among them Seneca Lake Guardian Inc., two Seneca County businesses and two individuals who live near the municipal solid waste landfill. They sued to stop the landfill's continued operation and to force immediate abatement of "the persistent and noxious odors emanating therefrom."

In July 2020, Seneca Meadows applied to DEC to modify its air emissions and solid waste permits to significantly expand the landfill's disposal capacity and extend its operating life by 15 years. DEC took the lead role in reviewing the applications under the State Environmental Quality Review Act and directed the preparation of a draft environmental impact statement.

Against DEC, the plaintiffs sought a declaration that the agency violated the Green Amendment by not requiring Seneca Meadows to remedy the landfill's impacts. They also sought an injunction barring DEC from approving the expansion. The panel held the injunction claim was not ripe, meaning not yet fit for a court to decide, because DEC's review "remains ongoing and it has not rendered a final determination approving or denying either application."

The Green Amendment guarantees the "right to clean air and water, and a healthful environment." The panel looked past the declaratory label on the claim against DEC and treated it as a request for mandamus, a court order compelling an official to perform a specific, nondiscretionary duty. Ryba wrote that the agency "necessarily exercises its judgment in determining whether, when and how to investigate alleged violations and pursue enforcement proceedings."

Because those choices are discretionary, the court held, they are not subject to judicial enforcement. "Plaintiffs' attempt to cast DEC's decision not to commence enforcement proceedings as a constitutional violation of the Green Amendment does not alter this analysis," Ryba wrote. The court relied on its 2025 decision in People v. Norlite LLC, which held that the Green Amendment does not impose a ministerial duty requiring DEC to pursue enforcement.

The claim that Seneca Meadows itself violated the Green Amendment failed for a different reason. "It is well settled that the Green Amendment regulates governmental" conduct, "not private conduct," Ryba wrote. To proceed, the plaintiffs had to show that the company's conduct was fairly attributable to the state. They argued that DEC's permits, inspections, monitoring and approval power over any expansion made the state and the company intertwined.

The panel disagreed. "The fact that SMI operates the landfill pursuant to DEC permits and is subject to extensive governmental regulation and oversight does not, without more, render its conduct fairly attributable to DEC," Ryba wrote. The complaint alleged no facts showing that DEC directed or jointly participated in the conduct at issue, the court found.

The court also upheld dismissal of the public nuisance claim. A private party may bring such a claim only by showing a special injury, which the Court of Appeals has required to be "different in kind, not merely in degree" from the harm to the public. The two business plaintiffs, Waterloo Contractors Inc. and Absolute Auto Repair Inc., alleged economic losses from the odors and from gulls that the landfill draws to their properties.

Those losses, Ryba wrote, "flow from the same widespread interference alleged to broadly affect the community population," and so did not qualify as a special injury.

On Seneca Meadows' cross-appeal, the panel held that the plaintiffs had adequately pleaded a private nuisance by alleging that the landfill's odors had, over an extended period, substantially interfered with the use and enjoyment of their homes and businesses.

Seneca Meadows argued that the claim fails as a matter of law because the odors reach the surrounding community rather than a discrete group of owners. It relied on the Court of Appeals' 1977 statement in Copart Industries v. Consolidated Edison Co. that a private nuisance threatens "one person or a relatively few" people. It also cited the Third Department's 2021 Davies v. S.A. Dunn & Co. decision and a 2024 Fourth Department ruling, William Metrose Ltd. v. Waste Management of New York, which the Court of Appeals has agreed to review.

The plaintiffs relied on the Second Department's 2025 decision in Dudley v. API Industries, which declined to read Copart as imposing a numerical cap on private nuisance claims. The Third Department did not pick between the two readings. "At this early stage of the litigation, before discovery has been completed, it is premature to foreclose plaintiffs' private nuisance claim as a matter of law," Ryba wrote.

Lawyers for the plaintiffs included Robert S. Rosborough IV of Whiteman Osterman & Hanna LLP. Seneca Meadows was represented by Michael G. Murphy of Beveridge & Diamond PC. The state Attorney General's office represented DEC.

The order was affirmed without costs. The private nuisance claim returns to Supreme Court in Albany County, where the parties will develop a factual record on the nature, extent and impact of the odors, after which, the panel wrote, "the viability of the claim may be assessed on an appropriate motion." DEC's review of the expansion permits remains pending.