dismissed their claims and their requests for injunctive relief

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Case 1:04-cv-08825-JFK-HBP Document 118 Filed 06/26/12 Page 10 of 56reasonable inferences against the movant.” Dallas Aerospace,Inc. v. CIS Air Corp., 352 F.3d 775, 780 (2d Cir. 2003). “Whena motion for summary judgment is properly supported by documentsor other evidentiary materials, the party opposing summaryjudgment may not merely rest on the allegations or denials ofhis pleading; rather his response, by affidavits or otherwise asprovided in the Rule, must set forth specific factsdemonstrating that there is a genuine issue for trial.” Wrightv. Goord, 554 F.3d 255, 266 (2d Cir. 2009) (internal quotationsomitted); see Hayut v. State Univ. of N.Y., 352 F.3d 733, 743(2d Cir. 2003) (“The mere existence of a scintilla of evidencein support of the [nonmovant’s] position will be insufficient”to prevent summary judgment).UCC is a New York corporation, while UCIL was incorporatedpursuant to the laws of India. Plaintiffs’ initial andsupplemental briefs cite New York law, and Defendants raise noobjection to the presumptive applicability of New York law.Moreover, no party has suggested any inconsistencies between NewYork and Indian law such that New York law should not govern.Plaintiffs’ claims generally sound in nuisance. A publicnuisance “is an offense against the State and is subject toabatement or prosecution on application of the propergovernmental agency.” Copart Indus., Inc. v. ConsolidatedEdison Co. of New York, Inc., 362 N.E.2d 968, 971 (N.Y. 1977).10
Case 1:04-cv-08825-JFK-HBP Document 118 Filed 06/26/12 Page 11 of 56“It consists of conduct or omissions which offend, interferewith or cause damage to the public in the exercise of rightscommon to all, in a manner such as to . . . endanger or injurethe property, health, safety or comfort of a considerable numberof persons.” Id. (internal citations omitted). As Defendantshave not raised the issue, the Court makes the generousassumption, but does not find, that Plaintiffs have standing topursue a public nuisance claim.In contrast, a private nuisance requires defendant’s“invasion of another’s interest in the use and enjoyment ofland” that is “(1) intentional and unreasonable, (2) negligentor reckless, or (3) actionable under the rules governingliability for abnormally dangerous conditions or activities.”Id. at 971. Such invasion is considered intentional “when theactor (a) acts for the purpose of causing it; or (b) knows thatit is resulting or is substantially certain to result from hisconduct.” Id. at 972-73. On the other hand, “whenever a[private] nuisance has its origin in negligence, negligence mustbe proven.” Id. at 972. Whether public or private, “[o]ne whocreates a nuisance through an inherently dangerous activity oruse of an unreasonably dangerous product is absolutely liablefor resulting damages, [regardless] of fault.” State v.Schenectady Chemicals, Inc., 459 N.Y.S.2d 971, 976 (N.Y. Sup.11
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dismissed their claims and their requests for injunctive relief

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