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55 MOTOR AVENUE COMPANY; CUBBIES PROPERTIES

December 29, 1994

55 MOTOR AVENUE COMPANY; CUBBIES PROPERTIES, INC., and J. JAY TANENBAUM, Plaintiffs, against LIBERTY INDUSTRIAL FINISHING CORP.; LIBERTY AERO, INC.; LIBERTY ASSOCIATES, a New York General Partnership; LIBERTY ASSOCIATES, a New Jersey Partnership; UNITED STATES OF AMERICA; COLTEC INDUSTRIES, INC.; and VENADA CORPORATION, Defendants.


The opinion of the court was delivered by: CAROL BAGLEY AMON

 AMON, UNITED STATES DISTRICT JUDGE

 INTRODUCTION

 Plaintiffs bring this action against the defendants for alleged hazardous waste contamination of plaintiffs' property in Nassau County, New York. The Complaint contains claims pursuant to the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. §§ 9601 et seq., as well as state law claims. Defendants Liberty Industrial Finishing Corp. ("Liberty Industrial") and the government separately move to dismiss the state law claims, Causes of Action Four through Nine. Defendant Liberty Industrial also moves to dismiss cross-claims for contribution and indemnity brought by defendants Liberty Aero, Inc. ("Liberty Aero") and Liberty Associates.

 For the reasons set forth below, the government's motion to dismiss on jurisdictional grounds is denied in part and granted in part. Defendant Liberty Industrial's motion to dismiss for lack of jurisdiction is denied. Liberty Industrial's motion to dismiss for failure to state a claim pursuant to Rule 12(b) (6) is granted as to Causes of Action Four, Five, Six and Seven and denied as to Causes of Action Eight and Nine. Defendant Liberty Industrial's motion to dismiss the cross-claims brought by defendants Liberty Aero and Liberty Associates is denied.

 ALLEGATIONS OF THE COMPLAINT

 Plaintiff 55 Motor Avenue Company (55 Motor) is a New York partnership which is the operator of two parcels of land (Lots 326 and 327) in Farmingdale, New York known as Liberty Industrial Finishing Site (Site). Plaintiff Cubbies Properties Inc. (Cubbies), a New York Corporation, and individual plaintiff J. Jay Tanenbaum are the current owners of both the Site and 55 Motor. Plaintiffs Cubbies and Tanenbaum acquired their interest in the Site in December of 1986. The property was formerly owned by Four J's Co. One of the partners in the now dissolved Four J's Co. is the sole shareholder of Cubbies.

 The complaint names the United States of America based upon the actions of two government owned corporations, the Reconstruction Finance Corporation (RFC) and the Defense Plant Corporation (DPC). DPC owned and operated the Site from 1941 until 1945. DPC was dissolved in 1945 and its functions, assets and liabilities were transferred to RFC which in turn operated the Site from 1945 until 1948. Together with a private company, DPC and RFC manufactured precision aircraft parts on the Site. During the course of the manufacturing process, hazardous metals were disposed on the land. The complaint alleges that DPC and RFC were asked by the Nassau County Department of Health to present and to implement plans for waste treatment. According to the allegations of the Complaint, these requests were ignored.

 The Site was privately purchased in 1948, and the DPC and RFC were subsequently dissolved.

 Between 1948 and 1978, a series of private corporations used the Site for the manufacture of aircraft machine parts and electroplating facilities. Throughout this period, inadequately treated or wholly untreated metal plating wastes were disposed of on the Site, causing contamination by cadmium, chromium, copper and other hazardous substances.

 From 1966 to 1978, defendant Liberty Industrial conducted operations on the Site. Liberty Industrial "generated, treated and disposed of hazardous substances at the Site". (Complaint at 11). In 1975, Liberty Industrial was issued a State Pollutant Discharge Elimination System ("SPDES") permit by the New York State Department of Environmental Conservation which set maximum discharge levels of specified pollutants. In 1977, tests of water collected from Liberty Industrial's basins revealed that Liberty Industrial had violated its permit with respect to the discharge of chromium, cadmium and copper. Pursuant to a consent order, Liberty Industrial agreed to clean up the Site by October 1, 1978. Liberty Industrial failed to clean up the Site, abandoned the property and moved its operations to its current location.

 In December 1980, without notice of any hazardous waste contamination, Four J's purchased Lot 326 and leased Lot 327 with an option to purchase. Four J's exercised the option to purchase Lot 327 in 1984.

 Neither Four J's nor 55 Motor released hazardous chemicals onto the property nor did they lease the property to anyone who did so.

 In 1984, Four J's retained an engineering firm to investigate the status of the soil and ground water contamination attributed to the operations. The study performed by the firm revealed concentrations of hazardous chemicals at levels in excess of EPA and New York State standards. In March of 1987, 55 Motor Avenue entered into a consent order providing for the clean up of the Site in compliance with a Department of Environmental Conservation approved Site Operation Plan.

 DISCUSSION

 A. Government Motions

 In its moving papers, the Government seeks dismissal of Claims Four (intentional private nuisance), Five (negligent private nuisance); Seven (trespass) and Nine (equitable indemnity) for failure to comply with the jurisdictional requirements of the Federal Tort Claims Act (28 U.S.C. § 1346). As to Claims Six (the strict liability claim) and Eight ( the demand for restitution), the Government contends that there has been no waiver of sovereign immunity and no basis for the assertion of federal jurisdiction over these claims.

 In the complaint, plaintiffs rely on the Federal Tort Claims Act (28 U.S.C. § 1346), the Federal question statute (28 U.S.C. § 1331) and the doctrines of pendent and ancillary jurisdiction as the basis for jurisdiction against the United States for the actions of DPC and RFC. (Complaint at P 2). In their papers, they assert as an additional jurisdictional predicate, the provisions of the Reconstruction Finance Corporation Act and its Amendments which clothed the RFC and later the DPC with corporate powers including the authority to "sue and be sued, to complain and to defend in any court of competent jurisdiction, State or Federal." Reconstruction Finance Corporation Act, § 4, 47 Stat. 6 (1932) (repealed 1966).

 For the reasons that follow, the Court concludes that the United States has waived sovereign immunity and that there is a basis for the assertion of federal jurisdiction over all of the state law tort and implied contract claims with the exception of the Sixth Claim, the cause of action for strict liability.

 The inquiry does not end here, however, since the jurisdiction conferred by this provision is subject to the exclusive terms of the Federal Tort Claims Act.

 In 28 U.S.C. § 2679, Congress provided:

 
(a) The authority of any federal agency to sue and be sued in its own name shall not be construed to authorize suits against such federal agency on claims which are cognizable under section 1346(b) of this title, and the remedies provided by this title in such cases shall be exclusive.

 Accordingly, in asserting tort claims, a plaintiff is required to comply with the requirements of the Federal Tort Claims Act even where an agency is authorized to sue and be sued in its own name. See Ascot Dinner Theatre, Ltd. v. Small Business Administration, 887 F.2d 1024, 1028 (10th Cir. 1989).

 1. Compliance with the Federal Tort Claims Act

 Here, the government argues that this Court lacks jurisdiction under the Federal Tort Claims Act (FTCA) because plaintiffs have failed to comply with the filing requirements of 28 U.S.C. § 2675.

 Four of the nine causes of action asserted by plaintiff are based on state tort law and are brought against the government pursuant to the FTCA. *fn1" The FTCA provides a limited waiver of sovereign immunity for parties seeking tort damages against the United States. Section 1346 provides that district courts:

 
shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages...for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government...
 
an action shall not be instituted upon a claim against the United States for money damages for injury or loss of property...unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have. been finally denied in writing. [] The failure of an agency to make a final disposition of a claim within six months after it is filed shall, at the option of the claimant...be deemed a final denial of the claim...

 28 U.S.C. § 2675(a).

 Section 2675 was designed to provide a procedure to enable the government to investigate and consider settlement of tort claims. Johnson v. United States, 788 F.2d 845, 848 (2d Cir.), cert. denied, 479 U.S. 914, 93 L. Ed. 2d 288, 107 S. Ct. 315 (1986). The notice of claim provided for by § 2675 is intended to supply sufficient information to permit an investigation by the appropriate federal agency and to estimate the claim's worth. Id. (citations omitted). The administrative claim need not satisfy formal pleading requirements. Id. Thus, all that is required is that the claim be "specific enough to serve the purposes intended by Congress in enacting § 2675(a), i.e., 'to ease court congestion and avoid unnecessary litigation, while making it possible for the Government to expedite the fair settlement of tort claims asserted against the United States.'" Id. at 848-49 (quoting S.Rep. No. 1327, 89th Cong., 2d Sess. 2 (1966), reprinted in 1966 U.S.C.C.A.N. 2515, 2516). The regulations promulgated in conjunction with § 2675 provide that a claim shall be deemed presented when a

 28 C.F.R. § 14.2.

 The government claims that plaintiffs have failed to comply with the claim procedures set forth in § 2675. Plaintiffs contend that a letter dated February 25, 1991 ("Letter"), from their attorneys to the Department of Justice satisfies the filing requirement. The Letter sets forth plaintiffs' intention to bring a CERCLA claim and includes a ...


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