Summary
In Alberti, the Court specifically stated that the statute involved was "not a mere codification of common-law nuisance" (204 A.D.2d, supra, at 1022).
Summary of this case from St. Jacques v. City of New YorkOpinion
May 27, 1994
Appeal from the Supreme Court, Monroe County, Cornelius, J.
Present — Pine, J.P., Lawton, Callahan, Doerr and Davis, JJ.
Order unanimously affirmed without costs. Memorandum: Supreme Court properly denied defendant's motion for partial summary judgment dismissing plaintiffs' causes of action pursuant to General Municipal Law § 205-e. The allegation that defendant violated 6 NYCRR 211.2 is a sufficient predicate for an action pursuant to General Municipal Law § 205-e (see, Ruotolo v. State of New York, 83 N.Y.2d 248; Phalen v. Kane, 192 A.D.2d 186; Costantini v. Benedetto, 190 A.D.2d 888). We decline to adopt the reasoning of Supreme Court in Ramos v. Doesn't Matter Realty Corp. ( 153 Misc.2d 80) that a statute or regulation that merely codifies a common-law duty cannot serve as a predicate for a General Municipal Law § 205-e cause of action. In any event, 6 NYCRR 211.2 is not a mere codification of common-law nuisance.
We reject defendant's further argument that 6 N.Y.CRR 211.2 is too vague to provide the basis for a cause of action pursuant to General Municipal Law § 205-e (see, Delford Indus. v New York State Dept. of Envtl. Conservation, 126 Misc.2d 355). Defendant's remaining argument, that the Air Pollution Control Act and its corresponding regulations do not create a private right of action, is raised for the first time on appeal. Thus, it is not preserved for review (see, Matter of Ouimet v. Ouimet, 186 A.D.2d 1002; MacMaster v. Sardina, 182 A.D.2d 1132, 1133).