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PRISCO v. NEW YORK

October 11, 1995

FILOMENA PRISCO, Individually and as Administratrix of the Goods, Chattels, and Credits of THOMAS PRISCO, Deceased, Plaintiff,
v.
THE STATE OF NEW YORK; NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION; THOMAS C. JORLING, as Commissioner of THE NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION; STATE OF NEW YORK ORGANIZED CRIME TASK FORCE; JOHN M. MURRAY and WILLIAM E. BUBENICEK, as employees of Division of Law Enforcement, Bureau of Environmental Conservation Investigation, NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION; NEW YORK STATE POLICE; THOMAS A. CONSTANTINE, as Superintendent of NEW YORK STATE POLICE; LLOYD F. WARD, as an employee of the NEW YORK STATE POLICE; JAMES LaBATE; ANGELO ANTHONY CALVELLO; A-1 CARTING, INC.; A-1 COMPACTION CORP.; A-1 COMPACTION, INC.; GREENE REFUSE SERVICE; A & D CARTING CORP.; A.F.C. TRANSFER CORP.; AMERICAN DISPOSAL SERVICES, INC.; BLACK MEADOW CONSTRUCTION, INC.; JOHN DANNA & SONS, INC.; GUN HILL TRUCKING, LTD.; SUBURBAN CARTING CORP.; NYCONN WASTE DISPOSAL; TRI-COUNTY DISPOSAL, INC.; STAMFORD WRECKING COMPANY; FINNE BROS. REFUSE SYSTEMS, INC.; TIGER RECYCLING, INC.; ANTHONY MORENO; MORENO BULK HAULAGE; SC-ND CONSTRUCTION CO., INC.; LSC TRUCKING CORP.; DeCOSTOLE CARTING, INC.; KRISTAL PAPERS, LTD.; KARNAK INC.; BEST CONTAINER SERVICE, INC.; MONTAUK ENTERPRISES; G & A SAND AND GRAVEL, INC.; MILL BASIN CONSTRUCTION CORP.; GARAN CARTING CO., INC.; STEVENS TRUCKING, INC.; TOP JOB SANITATION CO., INC.; CROSS BAY CONTRACTING CORP. and CONSUMER TRANSFER TRUCKING, Defendants.


ROBERT L. CARTER, U.S.D.J.


The opinion of the court was delivered by: CARTER

CARTER, District Judge

 Preliminary Statement

 Plaintiffs Filomena and Thomas Prisco instituted this action against the state of New York, various state agencies and officials, and certain private defendants for alleged violations of state and federal environmental statutes, federal due process rights, and state common law. The Priscos *fn1" seek declaratory and injunctive relief and monetary damages. For further procedural history see Prisco v. N.Y., 902 F. Supp. 374, 1995 U.S. Dist. LEXIS 13264, 1995 WL 548322 (S.D.N.Y. 1995) (Carter, J.); Prisco v. N.Y., 1994 U.S. Dist. LEXIS 3542, No. 91 Civ. 3990, 1994 WL 114818 (S.D.N.Y. Mar. 25, 1994) (Buchwald, J.); Prisco v. N.Y., 804 F. Supp. 518 (S.D.N.Y. 1992) (Carter, J.); Prisco v. N.Y., 1992 U.S. Dist. LEXIS 5273, No. 91 Civ. 3990, 1992 WL 88165 (S.D.N.Y. Apr. 22, 1992) (Carter, J.).

 Presently before the court is a motion by state defendants *fn2" for summary judgment on plaintiff's claims under the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601 et seq. (1995) ("CERCLA"), the Resource Conservation and Recovery Act, 42 U.S.C. § 6972 et seq. (1995) ("RCRA"), and the Clean Water Act, 33 U.S.C. § 1251 et seq. (1986) ("CWA"), combined with a motion to dismiss plaintiff's claims under 42 U.S.C. § 1983. *fn3" Defendants also move to strike all allegations in the complaint alleging a right to recover personal injury and punitive damages, and they move to strike plaintiff's demand for a jury trial. Plaintiff cross-moves for summary judgment on her claims under CERCLA, RCRA, and CWA. Plaintiff further moves for an order declaring defendants jointly and severally liable for all future response costs to be incurred in the permanent remedial closure of the Prisco site. Finally, plaintiff cross-moves for the impaneling of an advisory jury.

 The court's opinion of September 13, 1995 sets forth in detail the facts that gave rise to this action; they will not be repeated here. See Prisco, 902 F. Supp. 374, 1995 U.S. Dist. LEXIS 13264, 1995 WL 548322 at *1-*2.

 Legal Standards

 Summary judgment will be granted if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits . . . show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c), F.R. Civ. P. For the purposes of a summary judgment motion, the court must view all evidence submitted in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). Thus, the court must resolve all doubts, ambiguities, and inferences in favor of the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655, 8 L. Ed. 2d 176, 82 S. Ct. 993 (1962). The court must determine whether there is then sufficient evidence to allow a reasonable jury to find in favor of the party opposing summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 A complaint may be dismissed for failure to state a cause of action pursuant to Rule 12(b)(6), F.R. Civ. P., only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). In addressing a defendant's arguments under a motion to dismiss, the court must accept all allegations in the complaint as true and draw all inferences in favor of the plaintiff. Cosmas v. Hassett, 886 F.2d 8, 11 (2d Cir. 1989); Granat v. Center Art Galleries-Hawaii, Inc., 1993 U.S. Dist. LEXIS 14092, No. 91 Civ. 7252, 1993 WL 403977, at *2 (S.D.N.Y. Oct. 6, 1993) (Carter, J).

 I. CERCLA

 CERCLA was designed, generally, to ensure "that the persons who bore the fruits of hazardous waste disposal also bear the costs of cleaning it up." United States v. Northeastern Pharmaceutical & Chem. Co., 579 F. Supp. 823, 848 (W.D. Mo. 1984), aff'd in part, rev'd in part on other grounds, 810 F.2d 726 (8th Cir. 1986), cert. denied, 484 U.S. 848 (1987). The statute is to be construed broadly in order to accomplish Congressional intent. General Elec. Co. v. AAMCO Transmissions, Inc., 962 F.2d 281, 285 (2d Cir. 1992); B.F. Goodrich Co. v. Murtha, 958 F.2d 1192, 1198 (2d Cir. 1992). Defendants in CERCLA actions are held to a strict liability standard. Murtha, 958 F.2d at 1198; 3550 Stevens Creek Assocs. v. Barclays Bank, 915 F.2d 1355, 1357 (9th Cir. 1990), cert. denied, 500 U.S. 917, 114 L. Ed. 2d 101, 111 S. Ct. 2014 (1991).

 Plaintiff requests a declaratory judgment, pursuant to 42 U.S.C. § 9607(a)(4)(B), declaring defendants jointly and severally liable for all future response costs to be incurred in the permanent remedial closure of the Prisco site. "Numerous courts have entertained claims for declaratory judgment as to liability for future response costs under section 9607 of CERCLA." Arawana Mills Co. v. United Technologies Corp., 795 F. Supp. 1238, 1247 (D. Conn. 1992) (citing cases). In Arawana Mills, the district court concluded that

 
inasmuch as plaintiff has alleged that there was a release of hazardous substances on the Property during the time defendants operated the overhauling and servicing facility, plaintiff has alleged "the occurrence of the essential facts establishing its right to a declaratory judgment."

 Arawana Mills Co., 795 F. Supp. at 1247 (citation omitted). This court granted plaintiff's motion with regard to private defendants, finding that "the Priscos have . . . alleged the occurrence of the essential facts establishing their right to a declaratory judgment." Prisco, 902 F. Supp. 374, 1995 U.S. Dist. LEXIS 13264, 1995 WL 548322 at *14. The same holds true with regard to the state defendants: plaintiff has claimed that there was a release of hazardous substances on her property during the time that it was allegedly under state control. Therefore, the right to declaratory relief for future response costs under CERCLA is extended to include state defendants.

 Plaintiff also moves for summary judgment on her CERCLA claims. In order to prevail, plaintiff must establish each of the elements of a prima facie cause of action under the statute: she must show that

 
(1) defendant fits one of the four classes of responsible parties outlined in § 9607(a); (2) the site is a facility [under § 9601(9)]; (3) there is a release or threatened release of hazardous substances at the facility; (4) the plaintiff incurred costs responding to the release or threatened release; and (5) the costs and response actions conform to the National Contingency Plan set up under the Act and administered by the EPA [Environmental Protection Agency]. . . .

 Murtha, 958 F.2d at 1198. The court has already determined that plaintiff has met her burden under the second, third, and fourth elements. Prisco, 902 F. Supp. 374, 1995 U.S. Dist. LEXIS 13264, 1995 WL 548322 at *3-*7. Because a genuine issue of material fact exists concerning the fifth element, id. at *9, plaintiff's cross-motion for summary judgment against state defendants on the CERCLA claims is hereby denied.

 State defendants move for summary judgment on plaintiff's CERCLA claims as well, arguing that plaintiff has failed to raise a genuine issue of material fact over whether the state is a "covered party" as defined by the statute. Plaintiff claims that the state is an operator of the Prisco facility, and thus fits into the "owner or operator" category of "covered persons" under the statute, 42 U.S.C. § 9607(a) (1995). An owner or operator, for CERCLA purposes, is "any person owning or operating [a] facility. . ." 42 U.S.C. § 9601(20)(A) (1995). In the absence of a substantive statutory definition, courts have given the phrase "owner and operator" a liberal interpretation. Stilloe v. Almy Bros., 759 F. Supp. 95, 100 (N.D.N.Y. 1991); C.P.C. Int'l, Inc. v. Aerojet-Gen. Corp., 731 F. Supp. 783, 788 (W.D. Mich. 1989). "The most commonly adopted yardstick for determining whether a party is an owner-operator under CERCLA is the degree of control that party is able to exert over the activity causing the pollution." C.P.C. Int'l., 731 F. Supp. at 788. The question for the court, then, is "at what point does involvement or control become so pervasive or significant as to warrant the imposition of CERCLA liability." F.M.C. Corp. v. United States Dept. of Commerce, 1990 U.S. Dist. LEXIS 8902, No. 90 Civ. 1761, 1990 WL 102941, at *4 (E.D. Pa. July 18, 1990).

 Plaintiff alleges that the state was an operator of the Prisco site not in its landfill operations per se, but by virtue of the "sting" operation she claims the state had established through its employees William Bubenicek and Lloyd Ward. Plaintiff contends that Bubenicek and Ward acted on behalf of the state and in their capacity as state employees when they used the Prisco site to gather information about organized crime involvement in the waste hauling industry. The state incurred CERCLA liability for Bubenicek's and ...


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