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IDYLWOODS ASSOCS. v. MADER CAPITAL

February 26, 1997

IDYLWOODS ASSOCIATES, and KAM, INC., Plaintiffs,
v.
MADER CAPITAL, INC., SLATE BOTTOM CREEK APARTMENTS, INC., MARC EQUITY PARTNERS I, TRUSTEES OF THE MADER CONSTRUCTION CORPORATION EMPLOYEES PROFIT SHARING PLAN (formerly the Mader Corporation Employees Profit Sharing Plan), WITBEN REALTY CORPORATION, SERETH PROPERTIES, INC., WOLSHER, INC., UNIVERSAL MARION CORPORATION, AMERICAN PREMIER UNDERWRITERS, INC., and LOUIS E. WOLFSON, Defendants.


LESLIE G. FOSCHIO, UNITED STATES MAGISTRATE JUDGE


The opinion of the court was delivered by: FOSCHIO

(consent)

 JURISDICTION

 The parties to this matter executed a consent to proceed before the undersigned on Defendants' summary judgment motions on March 6, 1995. The matter is presently before the court on Defendants Witben and Universal Marion's motion to amend the court's Decision and Order of February 16, 1996 to certify legal issues for interlocutory appeal to the United States Court of Appeals for the Second Circuit, dated July 15, 1996.

 BACKGROUND and FACTS

 This action alleging claims under the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA") was originally filed on June 5, 1991. An amended complaint was filed on March 8, 1993 adding Penn Central, Witben Realty, Sereth Properties, Wolsher, Inc., Universal Marion, and Louis E. Wolfson ("Wolfson") as party defendants. American Premier Underwriters, Inc. ("APU") was substituted for Penn Central, as a successor corporation, on May 18, 1994. On June 20, 1994, APU filed a cross-claim against Defendants Witben, Sereth, Wolsher, Universal Marion, and Wolfson alleging three causes of action, two claims under CERCLA and one state claim for contribution.

 On April 17, 1995, APU filed a motion for summary judgment on its cross-claims under CERCLA. On the same day, Wolfson filed a motion for summary judgment on the ground that he was not liable to APU for any damages or costs under CERCLA or any other theory of liability. Witben, Sereth, Wolsher, and Universal Marion filed a similar motion.

 On June 24, 1996, Defendants Wolfson, Witben, and Universal Marion filed motions for reconsideration of issues decided in the February 16, 1996 Decision and Order. Those motions are discussed in a separate opinion. Thereafter, on July 15, 1996, Defendants Witben and Universal Marion filed a motion to certify legal issues for interlocutory appeal pursuant to 28 U.S.C. § 1292(b), along with a supporting memorandum of law. Defendant APU filed an affirmation in opposition to Witben's and Universal Marion's motion, along with memorandum of law.

 For the reasons as set forth below, Defendant Witben and Universal Marion's motion is DENIED.

 DISCUSSION

 The facts of this case were set forth in the court's February 16, 1996 Decision and Order, familiarity with which will be assumed. Defendants Witben and Universal Marion now seek to amend the court's decision and order to provide for an interlocutory appeal to the Second Circuit, pursuant to 28 U.S.C. § 1292(b).

 Under 28 U.S.C. § 1292(b), a district court may certify an order for interlocutory appeal upon a finding that such order involves a controlling question of law as to which there is substantial ground for difference of opinion, and that an immediate appeal from the order may materially advance the ultimate termination of the litigation. 28 U.S.C. § 1292(b). The Second Circuit has mandated that use of this certification procedure be "strictly limited [because] only 'exceptional circumstances [will] justify a departure from the basis policy of postponing appellate review until after entry of a final judgment.'" Klinghoffer v. S.N.C. Achille Lauro, 921 F.2d 21, 25 (2d Cir. 1990) (citing Coopers & Lybrand v. Livesay, 437 U.S. 463, 475, 57 L. Ed. 2d 351, 98 S. Ct. 2454 (1978)). In addition, the Second Circuit has "urged the district courts to exercise great care in making a § 1292(b) certification." Westwood Pharmaceuticals, Inc. v. National ...


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