10-4925-cv
Elliott v. City of N.Y.

                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                              AMENDED SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.


        At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 25th day of September, two thousand twelve,

Present:    ROSEMARY S. POOLER,
            BARRINGTON D. PARKER,
            RICHARD C. WESLEY,
                        Circuit Judges.
_____________________________________________________

BARBARA MEI ELLIOTT, BRENDAN ELLIOTT, RICHARD
P. O'LEARY, JOAN G. O'LEARY, JAMES A. BALLARD,
WERNER BANTIN, INGRID BANTIN, DOROTHY BOYLE,
CHARLES BOYLE, JOSEPH BRANCATO, LINDA
BRANCATO, HELEN BRITTON, JOSEPH CAPIRICHIO,
PATRICK F. CAREY, GESMONDA CASAZZA, ROBERT R.
CASE, MARY T. CHAIN, LAWRENCE CONKLIN,
CLIFFORD COOPER, DIANA COOPER, SALVATORE
CRIMANDO, LAURIE CRIMANDO, BRAD CRONK, JASON
CSENCSITS, BROOKE CSENCSITS, NANCY
DALLAVERDE, ANN DALY, HUGH DELANEY, VINCENT
DIMAGGIO, SHEILA DIMAGGIO, PATRICK J. DOCKERY,
MARSHA DOLES, PETER DOROSZ, NATALKA DOROSZ,
ELFRIEDE EBNER, KENNETH J. EDWARDS, LYNNE
EDWARDS, BARBARA FEINBERG, RAYMOND FERNEKES,
ELIZABETH FERNEKES, JOSEPH FLYNN, BERNICE
FLYNN, VINCENT C. GALLIGAN, KATHLEEN GALLIGAN,
HELEN V. GARRITY, DANIEL J. GRUSZ, ROBERT HAHN,
ALICE HAHN, LILLIAN HARPER, CHARLES
HILDERBRANDT, MAUREEN HILDERBRANDT, GEORGE
HOROS, JANE HOROS, MARK HOUSE, PAM HOUSE,
LORRAINE HOWELL, WILLIAM HOWELL, CRAIG W.
HURTAK, KAREN INNIELLA, LOUIS INNIELLA,
DOMINICK IOCCO, ELAINE IOCCO, ROBERT JONES, BOB
KEENER, TOM KIERNAN, PAT KIERNAN, RICHARD KING,
DARLENE STOFFEL, DOUGLAS A. KIRK, FRED A.
KURZROCK, JAMES KURZROCK, VICTORIA KURZROCK,
JOAN L. KURZROCK, THERESA KUTZLER, TED
KUYKENDALL, GEORGINA KUYKENDALL, STEVEN
LASCH, CHERYL LEE, VIRGINIA LEITH, WILLIAM T.
LLOYD, EDWARD LUKAS, LOUISE LUKAS, WILLIAM
MARION, SR., DOUGLAS MARTIN, ROBERT MAY,
EUNICE MAY, WILLIAM T. MCCUE, LARISA MCCUE,
GERALD MCDERMOTT, MARIE MCDERMOTT, JOHN J.
MCINTYRE, ROBERT C. MCMILLEN, JR., LINDA
MENYHART, KURT MEYER, OLY MEYER, DENNIS J.
MORAN, GLORIA MORAN, TIM MOUL, CAROL MOUL,
DONALD MOYSON, VIRGINIA MOYSON, JOHN MULVEY,
MYRON MYRON, LESTER R. NEWELL, NEVERSINK
RIVER CAMPGROUND, INC., C/O JULIA DOUGLAS,
SECRETARY, DAVE NORTON, JANE NORTON, MICHAEL
O'LEARY, CHRISTINE O'LEARY, RICHARD A. O'LEARY,
KRISTINE O'LEARY, TIM O'LEARY, ROBERT OSTROM,
DEBBIE PALLAS, JOHN H. ROBB BRIGHTON, ALBERTA
BRIGHTON, ANTHONY ROUSSOS, CHRISTINE ROUSSOS,
MICHAEL RUEF, SALVATORE C. RUSSO, CHRISTOPHER
SCHAEFER, MARCIA SCHAEFER, KEVIN L.
SCHOOMAKER, EDWIN SIWARSKI, PETER SLIKER,
MARILYN J. SPERBER, KEVIN STEWARD, MONICA
STEWARD, DOUGLAS STORMS, TRICIA STORMS,
GERILYN TAINSKY, ROLAND TAMADGE, VERONICA
TALMADGE, DEREK TOLLESON, NANCY TOLLESON,
MICHAEL T. VALENTIA, JEROME VANDEMARK, BRIAN
VAN DERVEER, TERRANCE VAN STRANDER, AGNES
VAN STRANDER, WILLIAM VERNI, DEBBIE WALSH,
WILLIAM J. WILLIAMS, ROBERT J. ZELLER, ON BEHALF
OF THEMSELVES AND ALL OTHERS SIMILARLY
SITUATED, ALEXANDER BELANCHUK, ON BEHALF OF
THEMSELVES AND ALL OTHERS SIMILARLY SITUATED,
YEVGENIYA BLOKN, ON BEHALF OF THEMSELVES AND
ALL OTHERS SIMILARLY SITUATED, DOREEN COHEN,
ON BEHALF OF THEMSELVES AND ALL OTHERS
SIMILARLY SITUATED, MARVIN COHEN, ON BEHALF OF
THEMSELVES AND ALL OTHERS SIMILARLY SITUATED,
MARILYN FEINBERG, ON BEHALF OF THEMSELVES AND
ALL OTHERS SIMILARLY SITUATED, ROBERT
FEINBERG, ON BEHALF OF THEMSELVES AND ALL
OTHERS SIMILARLY SITUATED, JULIA FRIEDMAN, ON
BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY
SITUATED, MATSYUK GALINA, ON BEHALF OF
THEMSELVES AND ALL OTHERS SIMILARLY SITUATED,
FELIX GNYP, ON BEHALF OF THEMSELVES AND ALL

                                  2
OTHERS SIMILARLY SITUATED, VALENTINA GNYP, ON
BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY
SITUATED, TAMARA GOLDIN, ON BEHALF OF
THEMSELVES AND ALL OTHERS SIMILARLY SITUATED,
VLADIMIR GOLDIN, ON BEHALF OF THEMSELVES AND
ALL OTHERS SIMILARLY SITUATED, LEONID
GOLDSHMIDT, ON BEHALF OF THEMSELVES AND ALL
OTHERS SIMILARLY SITUATED, OLGA GOLDSCHMIDT,
ON BEHALF OF THEMSELVES AND ALL OTHERS
SIMILARLY SITUATED, MIKHAIL GUSEV, ON BEHALF OF
THEMSELVES AND ALL OTHERS SIMILARLY SITUATED,
BORIS KAPALYUS, ON BEHALF OF THEMSELVES AND
ALL OTHERS SIMILARLY SITUATED, EFIM KARASIK, ON
BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY
SITUATED, TATYANA KITAYCHIK, ON BEHALF OF
THEMSELVES AND ALL OTHERS SIMILARLY SITUATED,
FAINA KRASOV, ON BEHALF OF THEMSELVES AND ALL
OTHERS SIMILARLY SITUATED, VLADIMIR KRASOV, ON
BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY
SITUATED, POLINA KRUGRIK, ON BEHALF OF
THEMSELVES AND ALL OTHERS SIMILARLY SITUATED,
GALINA KUSIN, ON BEHALF OF THEMSELVES AND ALL
OTHERS SIMILARLY SITUATED, IOSIF KUSIN, ON
BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY
SITUATED, LOUIS LEVY, ON BEHALF OF THEMSELVES
AND ALL OTHERS SIMILARLY SITUATED, ZOIRADA
NEGRON, ON BEHALF OF THEMSELVES AND ALL
OTHERS SIMILARLY SITUATED, MICHAEL OWEN, ON
BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY
SITUATED, TAMMY OWEN, ON BEHALF OF
THEMSELVES AND ALL OTHERS SIMILARLY SITUATED,
LEONARD E. POLIKOFF, BORIS ROZENTSVYGE, ON
BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY
SITUATED, CAROL SCHOENLEBER, ON BEHALF OF
THEMSELVES AND ALL OTHERS SIMILARLY SITUATED,
HARRY SOMMERS, ON BEHALF OF THEMSELVES AND
ALL OTHERS SIMILARLY SITUATED, BORIS
TABOROVSKY, ON BEHALF OF THEMSELVES AND ALL
OTHERS SIMILARLY SITUATED, LYUDMILA
TABOROVSKY, ON BEHALF OF THEMSELVES AND ALL
OTHERS SIMILARLY SITUATED, BELLA TREYGAR, ON
BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY
SITUATED, JEFF TREYGAR, ON BEHALF OF
THEMSELVES AND ALL OTHERS SIMILARLY SITUATED,
ROSE WEISS, ON BEHALF OF THEMSELVES AND ALL
OTHERS SIMILARLY SITUATED,

                     Plaintiffs-Appellants,


                                       3
                         -v-                                                 10-4925-cv

CITY OF NEW YORK, & ITS AGENCIES & BUREAUS
INCLUDING WITHOUT LIMITATION, CITY OF NEW YORK
DEPARTMENT OF ENVIROMENT PROTECTION,

                        Defendants-Appellees.
_____________________________________________________

Appearing for Appellants:      Steven J. Spiegel, Spiegel & Jones, LLP, Florida, N.Y.

Appearing for Appellees:       Norman Corenthal, Assistant Corp. Counsel (Scot C. Gleason,
                               Kristin M. Helmers) for Michael A. Cardozo, Corporation Counsel
                               of the City of New York, New York, N.Y.

     Appeal from a judgment of the United States District Court for the Southern District of
New York (Patterson, J.).

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

       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 (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, 102
N.Y.S.2d 742 (4th Dep’t 1951), aff’d, 303 N.Y. 740 (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

                                                 4
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, 855 N.Y.S.2d 279, 281 (3d Dep’t 2008); see also
Stormes v. United Water New York, Inc., 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.


                                                    FOR THE COURT:
                                                    Catherine O’Hagan Wolfe, Clerk




                                               5
