water into the area where ConEd's groundwater monitoring wells are located, perhaps calling into question the validity of ConEd's previous testing for PCBs; (8) an underground septic tank that may be leaching oil and other contaminants into the marina; (9) the results of tests that ConEd conducted in May 1995 on its property and on plaintiffs' that tend to show that PCBs are present at the marina; and (10) discovery materials that plaintiffs obtained from Shoreline's environmental contractor that plaintiffs contend demonstrate that no PCBs were found in the oil from Shoreline's pipeline, thereby tending to rule out Shoreline as a source of the contamination. Plaintiffs characterize this information as the discovery of new causes of injury to the marina of which they could not have learned before Judge Broderick issued his ruling on December 12, 1994.
Assuming that the evidence to which plaintiffs refer has all been discovered since December 12, 1994, and that all of the structures and points of discharge that plaintiffs describe existed before that date, plaintiffs are nevertheless unable to satisfy the standard for relief under Rule 60(b)(2). The new evidence that plaintiffs have provided is both unlikely to change the prior decision and cumulative. First, Judge Broderick's decision was based on Mancuso's actual knowledge, by some time in early 1988, of PCB contamination present at the marina as a result of discharges from the ConEd substation. For obvious reasons, the discovery of new evidence that tends to show that ConEd is responsible for discharging PCBs into Echo Bay is unlikely to convince us that Judge Broderick erred in reaching that conclusion.
Second, the newly discovered evidence is cumulative when considered in conjunction with evidence that plaintiffs possessed prior to Judge Broderick's decision. In responses to interrogatories, dated April 14, 1994, plaintiffs contended that dioxin, dibenzofurans and PCBs had travelled and continued to travel through the underground storage and drainage system at the substation, which then discharged those pollutants into Echo Bay and into the marina. See Answers to Second Interrogatories, at PP 5-6. Plaintiffs also contended that ConEd's underground storage and drainage system leached oil onto plaintiffs' property. See id., at PP 2A, 3A. Furthermore, plaintiffs appeared before Magistrate Judge Fox on December 1, 1994, and described a number of pipes that discharge oil onto plaintiffs' property. See Transcript of Status Conference, dated December 1, 1994, at 13-14, attached as Exhibit L to Giglio Reargument Certification. From these materials, it is apparent that plaintiffs have consistently advanced their theory that pollutants are being discharged into Echo Bay and into the marina through the system of pipes, tunnels and tanks buried beneath the substation. Newly discovered evidence that supports this argument is merely cumulative of what was previously before the court.
In essence, plaintiffs' argument is that each new point of discharge that they discover should ground a new cause of action for which the limitation period has not yet run. At most, however, plaintiffs' new evidence tends to show that the injury to their property is ongoing. Under New York law, allegations of continuing injury will not defeat the application of § 214-c where the discovery of the injury occurred more than three years before plaintiffs filed suit. See Jensen, 603 N.Y.S.2d at 425. Plaintiffs have therefore failed to demonstrate that the newly discovered evidence they have presented justifies relief from the judgment dismissing their state law claims for property damage.
For the reasons set forth above, to the extent that plaintiffs' state law claims for property damage are premised on allegations of PCB contamination, plaintiffs' motion for reargument is denied. Plaintiffs' motion for reargument is granted to the extent that we have reconsidered the grant of summary judgment dismissing plaintiffs' state law claims for property damage that are premised on allegations of contamination from oil, dibenzofurans and dioxins. Upon reconsideration, summary judgment dismissing those claims is granted. Plaintiffs' motion for relief from the judgment pursuant to Fed. R. Civ. P. 60(b)(2) is denied.
Date: November 3, 1995
White Plains, New York
William C. Conner
Sr. United States District Judge