thank you your honors michael dan occur on behalf of the defendant and appellant honeywell we're here today because the district court ignored a fundamental principle of new york law limiting the scope of a tortfeasor is duty to those who have sustained property damage this principle clearly articulated in the court of appeals five thirty two madison decision should have resulted in the dismissal of the negligence claims of r and bacon a business and michael bacon  property owner and treating them the same the business and the property no your honor i think the business and the property are very differently situated the r e m the business does not own any real property michael bacon the individual own the property at five times out of the correct r m asserts a claim entirely for lost profits and that claim is based essentially on a stigma theory of damages michael bacon at least alleges that there is a way present on his property so let me first talk about our am and the lost profits claim in the amended complaint r e m asserts a pure stigma theory of damages r m as a business claims that the general presence of p f away contamination in groundwater i mean a simple water around the village depressed home prices it also claims that e p a s statements that the state's designation of certain sites is superfund sites that statements made by local banks that the department of health blood testing program and other factors resulted in a general economic depression in the area and as a result it customers became either unable or unwilling to engage in home improvement projects and hire it these kinds of stigma last profit claims are squarely foreclosed by five thirty two madison also claiming that they lost business because the water supply was contaminated and there was no toxic contamination in five thirty to just a building for going there aren't bacon is claiming that they lost business because other people not because they couldn't proceed because the water supply was contaminated they're claiming that the water supply being contaminated made their have those arguments but r m does not the just like in five thirty two madison the potential plaintiffs who were within the zone of closure right the the building collapse resulted in a fifteen square block area of manhattan being closed to traffic those businesses were never touched by whatever fell from five thirty to matters they were they were never invaded  r property was invaded by the toxic some of our em bacon doesn't own property to have been invaded by the toxic substance michael bacon on his property is purely a business just like a business  on forty eighth street in manhattan it within the zone of closure and arm so claim is not even that it's business was impacted by whatever might be present on michael bacon's property whatever's present or not on michael because property is irrelevant to ams claim what i am says is that customers within the whose it falls area including customers whose property may have been contaminated with p f away and customers or property may not have been refused to hire me and so i lost profits and that claim is an economic loss claim that's foreclosed by five thirty two madison in the courts discussion in five thirty two madison of the back and dunlop cases is instructive on this point in beck and dunlop those are two cases that arose from the same set of operative facts there was in those cases an f m c company factory that had an explosion the explosion rained debris stones and other debris on nearby properties including the dunlop tire property and it also created an area wide electrical outage that impacted a neighboring share a nearby chevrolet plant the dunlop tire plaintiffs whose property had been impacted by stones and debris were allowed to proceed and they were allowed to proceed because there was physical damage to their property they could also assert lost profits or lost economic opportunity as a consequential damage the in the in the back case the plaintiffs were chevrolet employees who lost wages because of the electrical outage and the back plaintiffs were not allowed to proceed five thirty two madison cited this with approval and here because they had suffered only economic loss here our ems claim is very similar to the back plaintiffs claims in back the employees so claim was for lost wages just like r m so claim is for lost profits has lost wages because their employers made a decision not to pay them when their they closed the plant because of the absence of electricity just like r m allegedly lost profits when its potential customers became less willing to move forward with home improvement unfortunately the district court ignored the limitations set forth in five thirty two madison creating a requirement for physical damage to property in order for these kinds of claims to proceed and instead create out of whole cloth and his own of contamination test and found the defendants duty extends to all businesses within a zone of contamination regardless of whether those businesses claim any injury to property and regardless of whether they even own any property this approach is problematic for several reasons most importantly five thirty two madison itself rejected this kind of geographic approach indeed the court of appeals there recognized that the appellate division had struggled to create a geographic zone approach and it said that geographic zone was unacceptable because it was both too broad and too narrow and it was too narrow because it excluded producers and suppliers who may have lost business because they couldn't get in to the closure zone second the zone of contamination approach itself creates its own inequities why should for example a plumber who lives in troy outside of any zone of contamination but who works on the very same home improvement project that r m works on be foreclosed from bringing a lost profits case can bring it trying exercise is going to create some inequities with people who are inside and outside but doesn't that notion of a zone of contamination that is discernible from you measuring p f away and water levels around the superfund site at the center for example distinguish this in some ways from all of the businesses that were impacted in five thirty two madison yes and five thirty to madison there was an area that was absolutely closed off for a period but i think that was for two weeks and you know there was continuing affects well outside that and really for people who are vertically if you know in the zone as well as on the street level so i think that district court felt that there was some ascertained ability here that made it different from five thirty two i believe he was wrong i think there are a number of responses to that the first is that the five thirty two madison recognized that any kind of line drawing is necessarily going to create some kind of arbitrariness and that it that when you engage in policy driven line drawing you're doing that and the court then went on to say that that's igs actually what it was doing by creating a requirement for physical property damage i think the second answer is th of contamination is not as neatly circumscribed as the district court may have made it out to be even on the facts of this case the plate the complaint certainly don't describe a zone of contamination the municipal water may be definable but as to said in the earlier argument there are private wells that are contaminated and there are private wells in the area that are not contaminated and the third is what does a zone of contamination mean that in and of itself is policy driven line drawing is it a single molecule of any industrial chemical is it anywhere that exceeds regulatory limits there's no clear way to draw those lines am i right in understanding that the federal government familiarity with this designating superfun tort claims of people who may live in the area what kind of relief is available to those people who like the business here were clearly devastatingly affected it depends again the relief is available it depends on what the nature of an injury might be if a person has a physical injury if a person is ill were sick they can bring tort claims if a person has physical damage to property those claims are available and open but if a person is if the plaintiffs is bringing merely a lost requested no time for a bottle i've requested no time for rebuttal thank you i have i believe i have i guess it's over thank you may please the court good morning your honor is my name is william walsh i represent the plaintiff would respond in this case both michael bacon and our h p are in bacon why don't you speak about the economic losses you first situated was contaminated with p f away doctors about our ams losses i think that's what mr donnegan spent some time talking about and why it isn't five thirty two madison determined that that particular cause of action for economic loss to the business because people were doing anything to their houses after this happened several reasons your honor first as judge kahn correctly noted below defendant in this case is completely misconstrued the purpose of five thirty two madison five thirty two madison is a question of of the threshold issue of duty and the question was whether or not the individuals who were responsible for the accident at five thirty two had a duty to those other businesses around the area and the determination on that in question duty was no as to damages with regard to five thirty two specifically there was a determination that those businesses directly underneath those that had the brick and mortar come down on them would be able to recover not only the cost of damages incurred by the shattered window on a store front perhaps with all the related consequential damages in new york law has recognize impacted parties can recover all related consequential damages for the last one hundred years in a store they could recover but what if their only claim was that they were spears's because people couldn't get to the store those claims were not allowed to proceed that's correct your honor but in this instance the p f away it was in essence brick and mortar that honeywell and cinco bain were launching into the air from their facilities and was raining down on the entire community the complaint in this is the allegations in this complaint reflect that p a four way was falling throughout the community and this is you say it makes no difference who owns the  property and the because mr bacon himself own property right the business was just operating in this area correct your honor because our own bacon actually leases the property so it has current property interests the question for injury does not regard to baker your honor it was my recollection his decision there was what he was looking at was diminishing of property value and to the extent that a property has lost property value then the owner is the only one who's going to be able to recover that not the renter in this case since arm bacon was leasing the property did have existing property interest those interests have been recognized by new york courts for over a century as sufficient for not only the ability in that instance you had a neighboring property that had an explosion the debris that went into dunlops property did cause some damage caused about sixteen thousand dollars worth of damage based on the allegations in the it also knocked down related power to hours that were not on that property those power towers owned by no mohawk caused a power outage which forced dunlop to be closed for twenty four hours that damage which did thousand for damages incurred through concussion prop impact on its property but it could also recover the hundred seventy thousand for related consequential damages which were within the consequences of the incident but were not directly impacted to the property the work neighboring could not recover and your honor that was an assessment of duty it within the threshold and because that plant was a mile and a half away the determination was with by the court that there was no duty that was there that the duty was so far away it was extenuated that you would be looking at a ripple effect that would go too far beyond but here again we have an instance where you view a defense in this case having substantially contaminated the entire community within their communities are in bacon or in bacon is an impacted property let me ask you in particular looking at your complaint could you point to the paragraphs in which you allege that the property under which bacon was environmental conservation informed plaintiffs that measurable levels of p f away exist on the five ten south street property upon information and belief p o f f p f away reach the property from a missions and know nothing about timing nothing about levels nothing about the consequence of that that that finding that that is you know so vegas to be the contamination that was found on that property and know nothing about the actual levels or when that testing was done or how long that persistent or just says found inform plaintiffs that measurable levels existed right that's great your hon away yes your honor and an aspect of that fill the fill that arm bacon was using was both from the location the location where it was operating as well as from different locations for operation but again you're under the i'm i'm still looking for the  actual allegations that you make that bacons that the company's property was contaminated even so i mean we're looking at the cases and comparing them to which nearby businesses suffered you know rocks raining down on them and i'm not really seeing the equivalent in your complaint and i understand your honor and to the extent that we're missing paragraphs or that there are now i will take the blame on that and also a matter of time the complaint was originally drafted in twenty sixteen at a point where the testing had not been substantially done outside of the scope you know there are there is a do additional information that i could provide believe you could amend the complaint to provide specific information about the levels of contamination on the property there's additional information such as your honor there has been a poet system that has been added to the property that the purpose of that is in order to filter out of her way and other contaminants in the water that come up so there is additional information but again we're at a point at the additional initial pleadings spot and at that point the court at this point only question is whether there is sufficient information in order to sustain the negligence claim judge confound that to the extent that you are looking for information similar to an explosion that resulted in missions throughout well again at this the allegations are very conclusory and you need to show property damage i'm trying to understand what you can allege anything with greater specificity but you haven't i've missed it you haven't missed your honor though what i would point to at this stage is however the opening sentence within the group new yorker of peel's decision in jensen which noted the phrase injury to property embraces actions for damages since consuming from exposure to any substance so to the extent that for at the pleading stage we need to demonstrate the injury to property the presence of p o four way the allegation purefoy on the property i believe i sufficient to meet within the standards that new york is using to demonstrate that injury to meet the the requirements under negligence of your honor's i notice i'm out of time and you've had a rather busy morning with the related