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SENECA MEADOWS INC. v. ECI LIQUIDATING

November 14, 1997

SENECA MEADOWS INC. and and MACEDON HOMES, INC., Plaintiffs,
v.
ECI LIQUIDATING, INC., et al, Defendants.



The opinion of the court was delivered by: LARIMER

 This action is brought pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. § 9601 et seq., and the Declaratory Judgment Act, 28 U.S.C. § 2201 et seq., and also raises New York common law causes of action. Pending before the Court is defendants' motion for partial summary judgment.

 Plaintiff Seneca Meadows, Inc. ("SMI") is the current owner of the Tantalo Landfill Site in Seneca Falls, New York ("Tantalo Site"). SMI purchased this site in 1968. Plaintiff Macedon Homes, Inc. ("MHI") and SMI each own real property immediately adjacent to the Tantalo Site ("Adjacent Properties"). MHI and SMI purchased these properties in 1994 and 1995 respectively.

 Land filling and other waste disposal practices occurred at the Tantalo Site from approximately 1958 until 1974. The New York State Department of Environmental Conservation ("DEC") listed the Tantalo Site on its registry of Inactive Hazardous Waste Disposal Sites in 1980. On August 19, 1992, SMI entered into a Consent Order with the DEC to investigate the contamination at the Tantalo Site and to develop remedial alternatives.

 Plaintiffs commenced this action on August 18, 1995, alleging that defendants--the principal generators of the hazardous wastes--are responsible for the resulting contamination on both the Tantalo Site and the Adjacent Properties. In their complaint, plaintiffs assert, inter alia, state common law claims for property damage under theories of negligence, private nuisance, public nuisance, strict liability, and trespass ("common law claims").

 Defendants move for summary judgment on SMI's common law claims regarding the Tantalo Site on the ground that they are time barred. Defendants also move for summary judgment on SMI and MHI's common law claims regarding the Adjacent Properties on the ground that plaintiffs have not suffered any recoverable damages.

 DISCUSSION

 A. Summary Judgment Standard

 Summary judgment will be granted if the record demonstrates 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." Fed. R. Civ. P. 56(c). A genuine issue of material fact exists only if the record, taken as a whole, could lead a reasonable trier of fact to find in favor of the non-movant. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986).

 The burden of demonstrating the absence of any genuine issue of material fact rests on the moving party, Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986), and all ambiguities and inferences that may be reasonably drawn from the facts must be viewed in the light most favorable to the non-moving party. Coach Leatherware Co. v. AnnTaylor, Inc., 933 F.2d 162, 167 (2d Cir. 1991). To defeat summary judgment, the non-moving party must go beyond the pleadings and designate "specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e).

 "These principles apply equally whether summary judgment is granted on the merits of the claim, or on an affirmative defense such as the statute of limitations." Buttry v. General Signal Corp., 68 F.3d 1488, 1492 (2d Cir. 1995).

 B. SMI's Common Law Claims Regarding the Tantalo Site

 Defendants move for summary judgment on SMI's common law claims regarding the Tantalo Site on the ground that they are barred by the applicable statute of limitations. Specifically, defendants argue that SMI did not commence this action, as required by CPLR 214-c(2), within three years from the date SMI discovered or ...


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