BAEC Bulletin | September/October 2023 | 23
dismiss the complaint on grounds that the complaint did not plausibly allege that it was plaintiff’s employer, and therefore it could not be liable for unlawful discrimination. The Court denied the motion, ruling instead that the complaint contained sufficient allegations of employee discipline, supervision, and control to plausibly allege that the second defendant was plaintiff’s “joint employer.” In the course of that ruling, the Court rejected documentary evidence submitted by the second defendant on grounds such extraneous evidence was inappropriate on a motion to dismiss. Private Nuisance and Negligence Claims In South Buffalo Development LLC v. PVS Chemical Solutions, Inc., 21-cv-1184-WMS (May 30, 2023), plaintiff, who owned 10 parcels of contiguous property adjacent to defendant’s chemical plant, had previously sued defendant under a single state tort theory and concerning only a single parcel of property. Plaintiff then sought leave to amend and add private nuisance and negligence claims with respect to all 10 parcels, claiming that noxious odors emanating from the chemical plant interfered with plaintiff’s use and enjoyment of those properties. The Court granted leave, but only with respect to the new private nuisance claim. Plaintiff alleged that defendant emitted the odors outdoors to the ambient air and public sewer system, which arguably impact the public at large instead of relatively few persons as required in New York for a plausible private nuisance claim. The Court, however, concluded that other allegations, such as that defendant’s emissions subject plaintiff, its tenants and employees to pervasive odors and permeate plaintiff’s ten properties, might not exceed the “relatively small number” of plaintiffs permitted for a private nuisance claim. On the other hand, the Court concluded that the amended claim did not plausibly allege a negligence claim because, in New York, a plaintiff may not seek compensation for purely economic loss, but rather must first claim either physical injury or property damage, neither of which plaintiff had alleged here . Expert Disclosures In Mittlefehldt v. Travelers Property Casualty Ins. Co., on the same day defendant moved for summary judgment, plaintiff moved for leave to disclose a rebuttal expert witness. The Court previously had issued a case management order which set forth deadlines for expert disclosures, expert depositions, and summary judgment motions. Plaintiff did not disclose any experts, and defendant disclosed four experts and then timely filed a summary judgment
motion on the corresponding deadline. The Court refused to grant leave to plaintiff to serve a rebuttal expert disclosure, holding first that Rule 26(b) (2)(D)(ii), which requires that a rebuttal expert must be disclosed within thirty days of the earlier expert disclosure, did not offer relief to plaintiff notwithstanding that his application was made only 34 days after receiving defendant’s expert disclosures. According to the Court, this rule applies only in the absence of a case management order otherwise addressing the dates of expert disclosures, making plaintiff’s application considerably more tardy. Moreover, plaintiff failed to show diligence in pursuing the aspect of his case to which the subject rebuttal expect pertained. The Court determined that plaintiff should have been aware that the issue to be addressed by the rebuttal expert would be central to the litigation as early as when defendant served its answer and affirmative defenses, and that plaintiff at least should have sought leave soon after defendant served its expert disclosures, which also addressed the issue, rather than waiting for the summary judgment deadline.
ARBITRATE OR MEDIATE YOUR CASE
Since 2001, I have been honored to have been chosen to serve as a mediator or neutral arbitrator in over 3,000 claims which were pending in our court system. The vast majority of the non-binding mediations were successfully resolved. In addition to having over 30 years of experience in the litigation and trial of personal injury claims, I have lectured on behalf of the Bar Association of Erie County’s Erie Institute of Law and have given in-house presentations on
the topic of ADR. I am a past President of the Western New York Trial Lawyers Association, and a charter member of the NYSBA’s Dispute Resolution Section. I am also a Certified Federal Court Mediator. My fees are extremely reasonable, certainly a more cost effective alternative than a trial. I will be as flexible as possible in terms of scheduling and location, resulting in a quicker and more convenient resolution of your claim. MICHAEL MENARD 69 Delaware Ave., Suite 705, Buffalo, NY 14202 (716) 842-6700 | FAX: (716) 842-6707
menardlaw@aol.com www.menardlaw.com
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