Elliott v. City of New York

497 F. App'x 108

• Court: Court of Appeals for the Second Circuit
• Decided: September 20, 2012
• Docket: No. 10-4925-cv
• Status: Published

Opinion

Plaintiffs appeal from the district court’s award of summary judgment in favor of defendants (referred to collectively as the “City”). We assume the parties’ familiarity with the underlying facts and specification of issues for review.

We conclude that the district court properly granted summary judgment in favor of the City on the ground that plaintiffs lacked standing, under Article III of the U.S. Constitution, to bring their Endangered Species Act 16 U.S.C. § 1540(g)(1)(A) claim. Plaintiffs did not raise a genuine issue as to whether they would suffer any injury if the population of dwarf wedge mussels was further depleted. Thus, they made no showing that an injunction barring the City from causing any further harm to the mussels would redress their alleged injury.

The mere fact that plaintiffs live in close proximity to the threatened species does not itself give rise to a cognizable claim for constitutional standing. Cf. Lujan v. Defenders of Wildlife, 504 U.S. 555, 562-63, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (“[T]he desire to use or observe an animal species, even for purely esthetic purposes, is undeniably a cognizable interest for purpose of standing.”).

The district court properly granted summary judgment on plaintiffs’ negligence claims against the City. Plaintiffs’ claim that New York law imposes a duty on all owners and operators of dams to protect downstream residents fails as a matter of law. See Iodice v. State, 277 A.D. 647, 102 N.Y.S.2d 742 (4th Dep’t 1951), aff'd, 303 N.Y. 740, 103 N.E.2d 348 (1951). Iodice determined that there is no duty to use a dam that is built to create a reservoir for drinking water to also control floods downstream. See id. at 744. Instead, the standard is that “a dam owner has the right to let nature take its course, i.e., the right to permit flood waters [to] go over his dam where the volume of water cast into the channel below the dam does not exceed the volume coming in above the dam.” See id. The dam owner is not liable for downstream damage as long as it does not increase the flow of water from the dam beyond its natural flow. New York courts have reaffirmed this principle. See Allen v. City of New York, 49 A.D.3d 1126, 855 N.Y.S.2d 279, 281 (3d Dep’t 2008); see also Stormes v. United Water New York, Inc., 74 A.D.3d 784, 901 N.Y.S.2d 707, 709 (2d Dep’t 2010). Here, the City did not increase the flow of water over the spillway beyond that which is incurred naturally as a result of the storms in question. Plaintiffs conceded that the City’s dam actually attenuated the flooding. The district court correctly granted summary judgment on plaintiffs’ negligence claims. The City owed no duty to plaintiffs.

Plaintiffs’ remaining arguments are without merit. Accordingly, the judgment of the district court hereby is AFFIRMED.