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MANCUSO v. CONSOLIDATED EDISON CO. OF NEW YORK

November 3, 1995

FRANK MANCUSO, ELLEN MANCUSO, individually and on behalf of their children, DEANNA and THERESA MANCUSO and F. MANCUSO BOAT YARD, INC. d/b/a ECHO BAY MARINE, Plaintiffs, against CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., Defendant.

William C. Conner, Sr. United States District Judge


The opinion of the court was delivered by: CONNER

CONNER, D.J.:

 This action is a citizen suit brought under the Clean Water Act, see 33 U.S.C. § 1365, to which plaintiffs have added pendent claims under New York state law for personal injuries and property damage. On December 12, 1994, Judge Vincent L. Broderick granted the defendant's motion for partial summary judgment dismissing the state law claims for property damage as barred by the applicable statute of limitations. Pursuant to Local Rule 3(j) and Fed. R. Civ. P. 60(b)(2), plaintiffs have moved for reargument of that motion and for relief from the judgment. For the reasons set forth below, although we grant the motion for reargument in part, summary judgment dismissing plaintiffs' state law claims for property damage is granted. The motion for relief from the judgment is denied.

 BACKGROUND

 In October 1987, plaintiff Frank Mancuso purchased Echo Bay Marina from Robert Kohlasch. The marina is adjacent to a substation owned and formerly operated by Consolidated Edison ("ConEd"). ConEd ceased to use the substation in 1981 and has since been engaged, intermittently, in dismantling it and cleaning up the site. The marina is also adjacent to a storm drain that carries runoff from the New York State Thruway and to an oil storage facility and pipeline terminal owned and operated by Shoreline Oil Company, Inc. ("Shoreline").

 In August 1992, Mancuso filed a claim against Kohlasch in New York State Supreme Court seeking rescission of the sale of the marina. Mancuso asserted that Kohlasch had fraudulently concealed, until after the sale was complete, that the storm drain existed, that the channel was too shallow to navigate at low tide, and that the marina was contaminated by PCBs. In an affidavit submitted to the state court in connection with that suit, Mancuso explained that Kohlasch continued to work at the marina for approximately six months after the sale. At some point during that time, Kohlasch told Mancuso that "the water at the marina was full of PCBs from the Con Edison plant on the other side of the channel." Kohlasch also informed Mancuso that when he dredged the marina in 1984, he submitted mud samples from another portion of the harbor to the New York Department of Environmental Conservation ("NYDEC") for testing. Kohlasch recommended that Mancuso do the same if he ever dredged the marina because submitting samples of the contaminated mud from the marina would result in special disposal costs. See Affidavit of Frank Mancuso, dated August 18, 1992, at P 6, attached as Exhibit F to Certification of Richard J. Giglio, dated October 11, 1994; see also Affidavit of Frank Mancuso, dated April 25, 1995, at P 7.

 Plaintiffs allege that on July 2 and July 29, 1992, Mancuso's counsel mailed to ConEd notices of PCB contamination in Echo Bay and at the marina, pursuant to 33 U.S.C. § 1365(b)(1)(A). On January 4, 1993, plaintiffs *fn1" filed suit against ConEd alleging past and continuing discharges of PCBs and other toxic chemicals from the substation site. In addition to alleging violations of the Clean Water Act, the suit included pendent claims under New York state law for gross negligence, nuisance, strict liability under the New York Navigation Law, trespass and battery. Plaintiffs requested compensatory and punitive damages, as well as injunctive relief against future discharges.

 On June 11, 1993, ConEd moved for summary judgment dismissing the entire action because plaintiffs' notices failed to specify, in sufficient detail, an ongoing violation of the Clean Water Act. Judge Broderick denied that motion because the issues it raised were too intertwined with the merits of the action to be decided at that stage. On October 11, 1994, Con Ed moved again for summary judgment, arguing that plaintiffs' state law claims for property damage were barred by the applicable statute of limitations. Judge Broderick granted that motion in a brief opinion dated December 12, 1994. Judge Broderick held that Mancuso had actual knowledge by some time in early 1988 of property damage to the marina caused by PCB contamination from the ConEd substation. Because Mancuso failed to bring suit until January 1993, his state law property damage claims were barred by N.Y. Civ. Prac. L. & R. § 214-c(2), which prescribes a three-year limitation period for any injury caused by the latent effects of exposure to toxic substances. *fn2" Plaintiffs filed a Notice of Appeal from Judge Broderick's ruling, but withdrew their appeal as premature on February 23, 1995. Instead, they requested reargument before the district court.

 On March 21, 1995, this case was reassigned to us. At a conference held shortly thereafter, we granted permission for plaintiffs to seek reargument of ConEd's motion for partial summary judgment *fn3" and to move pursuant to Fed. R. Civ. P. 60(b)(2) for relief from the judgment on the ground of newly discovered evidence. We have carefully considered the voluminous papers submitted to us, and we now address each of plaintiffs' requests in turn.

 DISCUSSION

 I. Motion for Reargument

 The standard for granting a motion for reargument is strict to prevent wasteful reconsideration of arguments on issues already fully considered by the court. See Farkas v. Ellis, 783 F. Supp. 830, 832 (S.D.N.Y.), aff'd, 979 F.2d 845 (2d Cir. 1992). The moving party must demonstrate that the court overlooked controlling decisions or factual matters that might have materially influenced the earlier decision. See Violette v. Armonk Assocs., 823 F. Supp. 224, 226 (S.D.N.Y. 1993); Farkas, 783 F. Supp. at 833.

 Plaintiffs argue that Judge Broderick overlooked (1) allegations made by plaintiffs that indicate the existence of an issue of fact concerning Mancuso's knowledge of the presence of PCBs at the marina, (2) case law that requires a much higher level of knowledge than Mancuso possessed in order to bar claims on limitation grounds, (3) the existence of issues of fact regarding the applicability of equitable estoppel to this case, and (4) allegations of property damage caused by pollutants other than PCBs. Plaintiffs also argue that Judge Broderick misapplied controlling law by relying on the wrong limitation provision. They contend that he should have applied N.Y. Civ. Prac. L. & R. § 214-c(4), which extends the limitation period for plaintiffs who discover the injury to their persons or property before they are able to discover the cause of the injury. Plaintiffs assert that their claims would not be time-barred under this provision.

 A. Claims for Property Damage from PCBs

 In evaluating plaintiffs' arguments concerning their claims of property damage from PCB contamination, we must be mindful of the circumstances under which summary judgment is appropriate. Fed. R. Civ. P. 56(c) provides that the court shall grant summary judgment when "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." The Supreme Court has held that there is no genuine issue of fact for trial "unless there is sufficient evidence favoring the nonmoving party for a [reasonable] jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The court must draw all justifiable inferences in favor of the nonmoving party, see id., at 255, but summary judgment may be granted if the evidence presented by the nonmoving party is not significantly probative. See 477 U.S. at 249-50.

 1. Knowledge

 Under this standard, it is apparent that no genuine dispute exists over the fact that Mancuso had actual knowledge of PCB contamination at the marina following his conversation with Kohlasch. *fn4" Neither ConEd nor Mancuso disputes that Kohlasch made the statements in question or that Mancuso heard them. *fn5" Instead, plaintiffs attempt to demonstrate the existence of an issue of fact by contending that Mancuso did not actually know of the PCB contamination because he did not believe Kohlasch's statements at the time they were made. Plaintiffs argue that Judge Broderick's ruling overlooked an affidavit that Mancuso submitted in this action in which he testified that he did not believe what Kohlasch told him because Kohlasch was an alcoholic and because Kohlasch immersed himself in the waters of Echo Bay while helping Mancuso repair the marina's bulkhead. See April 1995 Mancuso Affidavit, P 7.

 It is well-settled in this Circuit, however, that "a party may not, in order to defeat a summary judgment motion, create a material issue of fact by submitting an affidavit disputing his own prior sworn testimony." Trans-Orient Marine Corp. v. Star Trading & Marine, Inc., 925 F.2d 566, 572 (2d Cir. 1991); see Mack v. United States, 814 F.2d 120, 124 (2d Cir. 1987); Miller v. International Telephone & Telegraph Corp., 755 F.2d 20, 24 (2d Cir.), cert. denied, 474 U.S. 851, 88 L. Ed. 2d 122, 106 S. Ct. 148 (1985); Perma Research & Dev. Co. v. Singer Co., 410 F.2d 572, 578 (2d Cir. 1969). Admittedly, in each of those cases, both the pre-motion testimony and the affidavits submitted in opposition to summary judgment were given in the same case. Here, by contrast, Mancuso first described Kohlasch's comments in an affidavit submitted in the state court action and now seeks to contradict, or at least drastically recharacterize, that testimony in this case. We see no reason, however, why this distinction should lead to a different result.

 The rationale behind the Second Circuit's approach to this issue is to prevent the nonmoving party from defeating summary judgment merely by creating spurious disputes regarding the credibility of the nonmovant's previous factual assertions. That is, however, precisely what plaintiffs seek to accomplish here. Mancuso has advanced no other explanation for asserting in his 1992 affidavit that, based on Kohlasch's statements to him, he was aware that "PCBs and other hazardous waste pose a substantial and imminent health hazard to my family and myself because we are forced to spend so much time on the premises [of the marina]. . .," see 1992 Mancuso Affidavit, at PP 6, 14, while later asserting in an affidavit submitted in this action that because Kohlasch had dredged the marina and because he went into the water there, Mancuso "did not take his statement to mean that the Marina, after the dredging, was still contaminated." See April 1995 Mancuso Affidavit, at P 7. Hence, Mancuso has not demonstrated that a genuine issue of fact exists regarding his understanding of Kohlasch's statements that would require resolution by a jury.

 Plaintiffs also argue that an issue of fact exists regarding whether Mancuso had actual knowledge of the PCB contamination following his conversation with Kohlasch because Kohlasch later testified--at a deposition taken during discovery in this case--that he had never discussed pollution problems with Mancuso. See Deposition Transcript of Robert Kohlasch, undated, at 42, attached as Exhibit 2 to Plaintiffs' Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment, dated November 18, 1994. Plaintiffs ask us to infer from Kohlasch's denial, made years later, that in 1988 Mancuso believed Kohlasch's statements to be mere rumors of PCB contamination at the marina. Such an inference is simply not justifiable when considered in conjunction with Mancuso's own 1992 affidavit, which states clearly that Mancuso learned of the PCB contamination from Kohlasch by some time in early 1988. *fn6" Plaintiffs' contention is therefore not significantly probative of the existence of a genuine issue of fact.

 Plaintiffs next argue that Judge Broderick's ruling also overlooked case law that set a high standard for finding knowledge under § 214-c and that Kohlasch's statements are clearly insufficient to satisfy that standard. Plaintiffs argue that Jensen v. General Electric Co., 82 N.Y.2d 77, 603 N.Y.S.2d 420, 623 N.E.2d 547 (N.Y. 1993), established that property owners do not have actual knowledge of the injury to their property until they have received actual ...


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