The opinion of the court was delivered by: CHARLES L. BRIEANT
Plaintiffs, the New York State Department of Environmental Conservation ("NYSDEC") and Thomas C. Jorling, Trustee of New York State's natural resources pursuant to the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. § 9607(f)(2)(b), seek partial summary judgment holding Defendant Lashins Arcade Co., a limited partnership, ("Defendant Lashins"), liable under § 107(b)(3) of CERCLA (seventh claim) and under the common law of nuisance (eighth claim). Specifically, the State seeks partial summary judgment holding Defendant Lashins strictly, and jointly and severally liable for all costs, including attorney fees and other costs of enforcement incurred by the State in responding to the release or threat of release of hazardous substances and in abating public nuisance and for all damages to the natural resources of the State sustained as a result of the release of tetrachloroethylene, 1, 2-dichloroethylene (DCE) and trichloroethylene (trichloroethene or TCE) found in the groundwater in the vicinity of the Bedford Village Shopping Arcade ("Shopping Arcade").
Defendant Lashins also seeks summary judgment in its favor based on its affirmative defense under CERCLA § 107(b)(3) and dismissal without prejudice of the common law nuisance claim.
The Shopping Arcade, a 6,800 square foot one story building with six retail stores, was built in 1955. The Shopping Arcade was owned by Holbrook B. Cushman (who is not a party to this suit) until his death in 1966. Mr. Cushman leased a store at the Shopping Arcade to defendant Rocco Astrologo ("Mr. Astrologo"), and later to defendant Rocco Tripodi ("Mr. Tripodi"). Mr. Astrologo operated a dry cleaning establishment in that store in the Shopping Arcade from in 1958 to 1963. From 1963 to 1971, Mr. Tripodi operated the same business, defendant Bedford Village Cleaners, Inc. d/b/a/ Village Cleaners and Tailors ("Village Cleaners"), a New York corporation. Any discharge into the aquifer of these hazardous substances commonly associated with dry cleaning was done by one or both of these dry cleaning tenants, the last of which had left the Shopping Arcade in 1971.
After the death of Mr. Cushman in 1966, the Shopping Arcade was held in trust by Beatrice Cushman and the Bank of New York until November 1972. In November 1972, the trust sold the Shopping Arcade to Miriam Baygell who owned it until her death in 1977, when her husband Milton Baygell (who is not a party to this suit) inherited the Shopping Arcade.
On April 6, 1987, Mr. Lashins signed a contract of sale between Milton G. Baygell as seller and Edward A. Lashins, Inc. as purchaser. On April 24, 1987 that contract was assigned to Lashins Arcade Corp., a New York corporation. On June 26, 1937, Mr. Baygell conveyed the property through his corporate vehicle, Deferred Holding Co., Inc., to defendant Lashins Arcade Corp. which, on the same day, transferred title to Defendant Lashins Arcade Co. ("Defendant Lashins"), a New York limited partnership.
In 1978, the Westchester County Department of Health ("WCDOH") had conducted a county-wide survey regarding possible groundwater contamination by volatile organic chemicals ("VOCs"). The WCDOH found such contamination in the drinking water in wells in the hamlets of Katonah, Armonk and Bedford Village. Wells near the Shopping Arcade were contaminated with varying amounts of tetrachlorethylene, 1, 2-dichloroethene (DCE) and trichloroethylene (trichloroethene or TCE). These chemicals are believed to be carcinogens.
The WCDOH issued "boil water" notices to affected homeowners and directed property owners to install granulated activated carbon ("GAC") filters.
In 1982, the NYSDEC began an informal administrative proceeding pursuant to the Environmental Conservation Law ("ECL"), Article 27, Title 13 which authorized state funds for an investigation and remediation of the groundwater in the area of the Shopping Arcade and the nearby Hunting Ridge Shopping Mall. In June 1983, a NYSDEC consultant, Wehran Engineering Co. performed a DEC Phase I investigation and found the highest concentration of contaminants in the Shopping Arcade area formerly occupied by the dry cleaners. Upon completing its Phase I investigation pursuant to ECL, Article 27, Title 13, the DEC designated the Shopping Arcade and the Hunting Ridge Shopping Mall as the "Bedford Village Wells" site ("the site") on the New York State Registry of Inactive Hazardous Waste Disposal Sites, No. 3-60-006. Exhibit F, Doc. 24, Lashins Affidavit.
By letter dated, March 20, 1987 (before the contract of sale was signed by Lashins on April 6, 1987), Donald Mazin, Esq., attorney for Mr. Baygell, informed Henry Hocherman, Esq., attorney for Lashins: "that there are chemicals in the ground being treated by ultra violet and activated carbon machines situated in the rear of the building to clean the water. Chemicals have to be replaced approximately every 8-9 months." In June 1987, a water service contractor from Environmental Recovery Co. told Mr. Lashins that the GAC filters were required because there was an area-wide groundwater contamination which he believed was caused by an Exxon gas station adjacent to the Shopping Arcade.
In July 1987, the NYSDEC, under contract with Dvirka and Bartilucci Consulting Engineers ("D&B), conducted a State-funded Remedial Investigation/Feasibility Study (RI/FS) D&B analyzed available date (Exhibit B, Remedial ...