Roosevelt Eighty-Fifth Estates, Inc., 77 N.Y.S.2d 74 (N.Y. Sup.
Ct. 1947) — involve private-nuisance actions, and National
Fuel has not suggested why the holdings of those cases should
be applied to public-nuisance actions such as the one at bar.
In light of the different interests and public-policy concerns
involved in public-nuisance actions, the court has not been
convinced that New York courts would dismiss Westwood's claim.
This conclusion is bolstered by the nature of the alleged
public nuisance involved here — contamination of the
environment by hazardous substances. Knowledge about the
hazards to public health and to the environment posed by
hazardous wastes is increasing constantly, and this court is
not willing to assume that the New York law of public nuisance
is too inflexible to meet the growing public need for avenues
to address these hazards, including lawsuits where public
interests are being protected through a cause of action brought
by a private party.
iii. Westwood's Private-Nuisance Claim
National Fuel also contends that the doctrine of caveat
emptor bars Westwood's common-law private-nuisance claim. Item
14 at 30-41. Westwood replies that under New York law there is
no such bar to its claim, arguing that the New York doctrine
against alienation of nuisances should be applied to
"override" this defense. Item 19 at 9-17.*fn7
The general rule under New York law is that the sale of real
property is governed by the doctrine of caveat emptor.
See, e.g., Lindlots Realty Corp. v. Suffolk County, 278 N.Y. 45,
54, 15 N.E.2d 393 (1938); London v. Courduff, 141 A.D.2d 803,
529 N.Y.S.2d 874, 875 (2d Dep't), lv. to appeal denied, 73
N Y2d 809, 537 N.Y.S.2d 494, 534 N.E.2d 332 (1988); De Roche
v. Dame, 75 A.D.2d 384, 430 N.Y.S.2d 390, 392 (3rd Dep't),
lv. to appeal denied, 51 N.Y.2d 821, 433 N.Y.S.2d 427,
413 N.E.2d 366 (1980). While the New York Court of Appeals has
abolished the defense of caveat emptor in cases involving
contracts for the construction and sale of homes, see Caceci v.
Di Canio Construction Corp., 72 N.Y.2d 52, 530 N.Y.S.2d 771,
526 N.E.2d 266 (1988), Westwood has provided no convincing
reason for this court to assume that the Court of Appeals would
likewise refuse to apply the doctrine where, as in the present
case, the vendor and the vendee of the property at issue are
both sophisticated commercial enterprises who agreed to a
purchase price based, apparently in large part, on the
condition of the property at the time of conveyance.*fn8
Westwood has cited three cases in support of its argument
that New York courts would apply the doctrine against
alienation of nuisances under these facts, but each is readily
distinguishable from the case at bar.
Westwood correctly points out that in Pharm v. Lituchy the
New York Court of Appeals recognized the principle that a
landowner who creates a nuisance cannot escape liability to
third persons for injuries caused by the nuisance simply by
having sold the property before the injuries were sustained.
The court, however, qualified its holding by stating that a
vendor's liability "persists beyond conveyance at least until
the new owner has had reasonable opportunity to discover the
condition on prompt inspection and to make necessary repairs. .
. . We need not determine its limits more precisely." 283 N.Y.
at 132, 27 N.E.2d 811 (emphasis added).
Subsequent case law has reaffirmed that there are limits to
a vendor's liability in such cases. For example, in New York
Telephone Co. v. Mobil Oil Corp.,
99 A.D.2d 185, 473 N.Y.S.2d 172 (1st Dep't 1984), one of New
York's intermediate appellate courts held:
The owner of land ceases to be liable in
negligence for its dangerous condition when the
ownership of the premises or possession and
control pass to another before the injury is
sustained. Even where a continuing trespass or
nuisance exists, liability of the owner terminates
after the conveyance at such time as the new owner
has had a reasonable opportunity to discover the
condition by making prompt inspection and necessary
Id., 473 N.Y.S.2d at 174 (emphasis added) (citing Pharm v.
Lituchy). The court held that a former gasoline-station owner
and its gasoline supplier were not liable in nuisance to an
adjoining property owner for damage allegedly caused by leakage
from subsurface gasoline tanks that had been installed by the
owner and the supplier. In reaching its decision, the court
found that the subsequent owner and its lessee*fn9 had had
ample opportunity to discover the nuisance and to make
appropriate repairs during the more than nine years that,
collectively, they had owned, possessed, and controlled the
premises and had conducted operations thereon. 473 N.Y.S.2d at
175.*fn10 See also Zeledon v. Bowery Savings Bank, 195 Misc. 933,
85 N.Y.S.2d 414 (1948), appeal dismissed, 276 A.D. 898,
95 N.Y.S.2d 345 (1st Dep't 1950) (six months "more than enough"
time to give successor property owner reasonable opportunity to
discover and to repair nuisance (defective fire escape),
thereby terminating any potential liability of two prior owners
to injured party); Tri-Boro Bowling Center, Inc. v. Roosevelt
Eighty-Fifth Estates, Inc., 77 N.Y.S.2d 74 (N.Y. Sup. Ct. 1947)
(former property owner not liable for damages caused by
nuisance (collapsed ceiling) over four years after property was
conveyed). Cf. Rufo v. South Brooklyn Savings Bank, 268 A.D.
1057, 52 N.Y.S.2d 469 (2d Dep't 1945), appeal dismissed,
295 N.Y. 981, 68 N.E.2d 60 (1946) (after verdict indicating that
jury had found approximately one month to be sufficient time
for successor property owner to discover and to repair nuisance
(defective stair tread) that had existed at time property was
conveyed, verdict against codefendant prior owner reversed).
The court concludes that, whatever the precise limits they
might otherwise place on the applicability of the doctrine
against alienation of nuisances, New York courts would find on
the present record that Westwood had a reasonable opportunity
to discover and to take steps to abate the alleged nuisance
between 1972 and 1985.
Westwood also cites the New York Court of Appeals'
affirmance in State v. Ole Olsen, Ltd., 65 Misc.2d 366, 317
N YS.2d 538 (1971), aff'd, 38 A.D.2d 967, 331 N.Y.S.2d 761 (2d
Dep't 1972), after trial, 76 Misc.2d 796, 352 N.Y.S.2d 97
(1973), aff'd mem., 45 A.D.2d 821, 357 N.Y.S.2d 1016 (2d Dep't
1974), aff'd as modified, 35 N.Y.2d 979, 365 N.Y.S.2d 528,
324 N.E.2d 886 (1975), as a recent reaffirmation by that court of
the doctrine against alienation of nuisances. Westwood relies
on the court's statement that "these defendants had conveyed
all their interest in the properties in question to the present
homeowners or their predecessors in title several years ago."
35 N.Y.2d 979, 365 N.Y.S.2d at 529, 324 N.E.2d 886. See Item 19
Ole Olsen does not advance Westwood's position for three
reasons. First, that case involved a public-nuisance action
brought by the State of New York against the
developers of a residential tract comprised of individual
vacation homes. Second, National Fuel is not challenging the
continuing viability of the doctrine against alienation of
nuisances; rather, it is arguing that the doctrine does not
apply in the present case. Third, while the doctrine against
alienation of nuisances was discussed in Ole Olsen, see 317
N YS.2d at 541; 331 N.Y.S.2d at 763; 352 N.Y.S.2d at
99-100,*fn11 Westwood is simply reading too much into the
portion of the Court of Appeals' opinion that it cites. That
statement was not made in the context of rejecting a defense of
caveat emptor. Rather, when read in light of the history of
that litigation, it is clear that the statement was made in
response to the defendants' claim, maintained from the outset
of the lawsuit, that the trial court did not have the power to
order remedial relief that required the defendants to enter
upon the land of another where the defendants had not reserved
any right to reenter at the time of conveyance. See 317
N YS.2d at 541-42; 331 N.Y.S.2d at 763. As the Court of
Appeals went on to state in its opinion:
Problems of fashioning remedial relief other than
by way of damage against these defendants who no
longer hold any interest in the properties, have
been obviated in this case. All presently
affected homeowners have been made parties to
this action. None has taken exception to that
portion of the judgment by which each is directed
to permit reasonable entrance on his property for
[abatement of the nuisance].
365 N.Y.S.2d at 529, 324 N.E.2d at 886. The opinion simply
does not vindicate Westwood's claim that the defense of caveat
emptor is inapplicable to a private-nuisance claim brought by
a commercial purchaser of land who had many years to discover
and to take steps to abate an alleged nuisance.