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TOWN OF NEW WINDSOR v. TESA TUCK INC.

July 15, 1996

THE TOWN OF NEW WINDSOR, and THE STATE OF NEW YORK, Plaintiffs, against TESA TUCK INC., LIGHTRON CORPORATION, INC., EUGENE LITMAN, HARRY BASCH, MEARL CORPORATION, KOLLMORGEN INSTRUMENTS CORPORATION, Defendants. TESA TUCK INC. and LIGHTRON CORPORATION, Third-Party Plaintiffs, -against- THE UNITED STATES OF AMERICA, JAMES S. PATSALOS, JAMES S. O'NEILL, CHARLES T. KAVANAGH, CORNELL GROUP SERVICE CORP., THE NEW YORK STATE DEPARTMENT OF TRANSPORTATION, CITY OF NEWBURGH, THE NEW YORK STATE THRUWAY AUTHORITY, Third-Party Defendants.


The opinion of the court was delivered by: PARKER

 BARRINGTON D. PARKER, JR., U.S.D.J.

 FACTS

 The DOT presently owns property adjacent to the New Windsor landfill. Prior to 1970, a portion of that property was owned by the United States of America. On October 16, 1970, the United States' property was deeded to the Metropolitan Transportation Authority ("MTA"). Ownership of that property, as well as 8000 additional acres that had been acquired by the MTA, was transferred to the DOT, pursuant to New York State Transportation Law § 400, Chapter 370, § 5, L. 1982, which became effective June 21, 1982.

 The landfill, which the Town of New Windsor operated between 1962 and 1976, encroached upon the property now owned by DOT. The area of the encroachment has been leased by DOT to the United States of America for use by the Air National Guard, the Marine Corps Reserve, and the United States Air Force since April 1, 1983, pursuant to New York State Transportation Law § 400(3)(h)(i), (ii).

 In January 1992, the Town notified DOT that it had determined that a portion of the landfill was on DOT property and inquired into the feasibility of DOT conveying that portion of the land to the Town. See Exhibit 2, letter from the Town to DOT, dated January 3, 1992. DOT requested the Town to identify the area of encroachment. See Exhibit 3, letter from DOT to the Town, dated January 13, 1992. DOT rejected the request to convey the land to the Town, however, allegedly because it was prohibited from allowing such a facility to be located on that portion of the property. See Baldwin Declaration P 20; New York State Transportation Law § 400(5).

 In February 1992, the New York State Department of Environmental Conservation provided DOT with the preliminary design documents for the landfill remedial program for comment. See Exhibit 4, letter from DEC to DOT, dated February 5, 1992. In response, DOT sent DEC comments indicating that the actual area of encroachment was not clearly described, that FAA approval might be necessary for certain activities, and that the Town had requested that DOT convey the encroached area to it. See Exhibit 5, letter from DOT to DEC, dated February 14, 1992.

 In April 1992, DOT offered to provide fill material from another existing landfill site on the property. See Exhibit 6, letter from DOT to DEC, dated April 10, 1992; Exhibit 7, letter from DEC to the Town, dated April 14, 1992. The Town later rejected this offer. See Exhibit 13, letter from Chemical Waste Management, Inc. to DOT, dated December 16, 1992. Also in April 1992, DOT requested of its leasee, the Air National Guard, that it be advised as to what documentation would be needed to grant an easement to the Town so that it could remove landfill materials from within the Air National Guard leasehold property. See Exhibit 8, letter from DOT to Air National Guard, dated April 23, 1992.

 DOT now moves for summary judgment on the grounds that (1) because it acquired the property involuntarily, § 101(20)(D) applies to exclude it from the definition of "owner," and (2) because it exercised "due care" with regard to the hazardous substances that had been inadvertently dumped on a portion of the Airport property when DOT did not own it, § 107(b)(3)'s Third-Party Defense applies.

 DISCUSSION

 Rule 56 of the Federal Rules of Civil Procedure authorizes summary judgment if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The Court's responsibility is to perform "the threshold inquiry of determining whether there is the need for a trial -- whether, in other words, there are any genuine issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." McNeil v. Aguilos, 831 F. Supp. 1079, 1082 (S.D.N.Y. 1993) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986)); Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990). In determining whether a genuine issue of material fact exists, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See McNeil, 831 F. Supp. at 1082 (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 8 L. Ed. 2d 176, 82 S. Ct. 993 (1962)(per curiam)(other citations omitted)). See also Coach Leatherware Co., Inc. v. AnnTaylor, Inc. 933 F.2d 162, 167 (2d Cir. 1991)(citations omitted).

 Liability under CERCLA is imposed where a plaintiff establishes the following five elements: (1) the defendant falls within one of the four categories of "responsible parties" enumerated in § 107(a); (2) the site of the clean-up is a facility under § 101(9); (3) there is a release or threatened release of hazardous substances at the facility; (4) as a result of which plaintiff has incurred response costs; and (5) the costs incurred conform to the national contingency plan ("NCP") under § 107(a)(4) as administered by the EPA. See U.S. v. Alcan Aluminum Corp., 990 F.2d 711, 719-20 (2d Cir. 1993)(citing B.F. Goodrich Co. v. Murtha, 958 F.2d 1192, 1198 (2d Cir. 1992)). Under § 107(a), a "responsible party" includes: "(1) the owner and operator of a vessel or a facility . . ." 42 U.S.C. § 9607(a)(1).

 Under the Third-Party Defense set forth in CERCLA § 107(b)(3), a defendant owner is not liable if it establishes that the release or ...


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