note to cover the balance of the purchase price. There was no transfer, sale, purchase or exchange of stock. The purchase agreement provided that liabilities arising prior to the purchase would remain with the Great American defendants, which agreed to indemnify LPCCC for "all obligations and liabilities of the seller, direct and indirect, fixed or contingent, known and unknown, not expressly assumed by the purchaser."
At the time of the asset purchase, there was no identity of directors between the Lin Pac defendants and the Great American defendants, and LPCCC's directors continued in place after the purchase. There was similarly no identity of shareholders between the Lin Pac defendants and the Great American defendants. Following the purchase, GACCC and G.A. Corrugated continued to exist as corporate entities until their dissolutions in 1982 and 1981, respectively, though GACCC had no significant assets and G.A. Corrugated's assets were limited to its shares in GACCC.
Following the purchase, LPCCC replaced a senior manager employed by GACCC, but retained virtually all of GACCC's employees and managerial staff. LPCCC operated the plant and marketed the corrugated box products manufactured at the plant under its own name to GACCC's existing clients, but also sought to expand its client base. LPCCC operated the plant for seven years, until it was closed in 1987, and during that time effected certain changes in the manufacturing process.
Based upon these undisputed facts, the Lin Pac defendants maintain that they cannot be held liable for Columbia's waste disposal practices as Columbia's successor because the acquisition of GACCC was a mere asset purchase that should not subject the Lin Pac defendants to GACCC's environmental liabilities. As a general rule, one corporation that acquires the assets of another does not additionally assume the predecessor corporation's liabilities unless one of four criteria are met: (1) the successor corporation either expressly or impliedly agrees to assume the predecessor's liabilities; (2) the transaction is a de facto merger; (3) the successor may be considered a mere continuation of the predecessor; or (4) the transaction is fraudulent. See Betkoski, 99 F.3d at 519; United States v. Carolina Transformer Co., 978 F.2d 832, 838 (4th Cir. 1992); Gould, Inc. v. A & M Battery and Tire Serv., 950 F. Supp. 653, 656 (M.D. Pa. 1997).
As there are no allegations that the transaction was fraudulent and as it is clear from the closing documents that the Lin Pac defendants did not agree to assume GACCC's liabilities, the Court therefore focuses on whether the transaction was a de facto merger or whether LPCCC may be considered a mere continuation of GACCC. The Court concludes that the business dealings between the Lin Pac defendants and the Great American defendants did not result in a de facto merger. In determining whether a de facto merger has taken place, the Court considers: (1) whether there is a continuation of the enterprise of the seller corporation such that there is continuity of management, personnel, location, assets, and general business operations; (2) whether there is a continuity of shareholders; (3) whether the seller has ceased its operations, liquidated and dissolved as soon thereafter as possible; and (4) whether the purchasing corporation assumes those obligations of the seller necessary for the continuation of business operations. State of New York v. Panex Indus., Inc., 1996 U.S. Dist. LEXIS 9418, 1996 WL 378172 at *7-8 (W.D.N.Y. June 24, 1996) (quoting Philadelphia Elec. Co. v. Hercules, Inc., 762 F.2d 303, 310 (3d Cir. 1985)); see also Louisiana-Pacific Corp. v. ASARCO, Inc., 909 F.2d 1260, 1264-1265 (9th Cir. 1990). Here, as noted above, there was no identity of shareholders between the Great American defendants and the Lin Pac defendants either before or after LPCCC's acquisition of GACCC. Courts have not been willing to overlook the identity of shareholders requirement and have consistently refused to find that a de facto merger has taken place without such a showing. See Louisiana-Pacific Corp., 909 F.2d at 1264-1265. Accordingly, the Court concludes that there has been no de facto merger here, and that the liability of the Lin Pac defendants, if any, must be premised upon a finding that LPCCC was a "mere continuation" of GACCC.
A substantial body of caselaw has arisen construing the scope of the "mere continuation" test. In Betkoski, the Second Circuit adopted, as have other courts, the "continuity of enterprise," also known as the "substantial continuity," rule for determining whether this criterion has been satisfied. Betkoski, 99 F.3d at 519. This approach looks to the following factors:
(1) retention of the same employees; (2) retention of the same supervisory personnel; (3) retention of the same production facilities in the same location; (4) production of the same product; (5) retention of the same name; (6) continuity of assets; (7) continuity of general business operations; and (8) whether the successor holds itself out as the continuation of the previous enterprise.
Carolina Transformer Co., 978 F.2d at 838. Here, certain of these factors are unquestionably satisfied. It is undisputed that LPCCC retained most of the managerial personnel and virtually all of the employees of GACCC, at least for some period of time. It purchased all of GACCC's physical assets and continued the same business in the same location. However, apart from a stray reference to GACCC in a filing with the State of New York's Department of Environmental Conservation, LPCCC did not hold itself out as GACCC's successor, nor did it market the containers that it manufactured under GACCC's name.
Several other courts have held that two other factors are relevant to a determination of whether successor liability should attach under the substantial continuity test -- the purchasing corporation's notice of the seller's potential liabilities and whether the purchasing corporation has "substantial ties" to the selling corporation. See Mexico Feed & Seed Corp., 980 F.2d at 489; Louisiana-Pacific Corp., 909 F.2d at 1265-1266; Elf Atochem North America v. United States, 908 F. Supp. 275, 282-283 (E.D. Pa. 1995); United States v. Peirce, 1995 U.S. Dist. LEXIS 4042, 1995 WL 356017 (N.D.N.Y. Feb. 21, 1995); United States v. Atlas Minerals and Chemicals, Inc., 824 F. Supp. 46, 51 (E.D. Pa. 1993). The Court agrees with the district court in Peirce that these factors, while not dispositive, should be considered along with the other factors set forth in Carolina Transformer Co. in determining whether successor liability should attach under the substantial continuity test. Cf. Atlantic Richfield Co. v. Blosenski, 847 F. Supp. 1261 (E.D. Pa. 1994) (holding that notice not required because CERCLA is a strict liability statute). Although the appropriateness of these two factors was not before the Second Circuit in Betkoski, the Second Circuit did cite approvingly to the Mexico Feed & Seed decision in its opinion, which is one of the leading cases supporting the consideration of these additional factors in the context of the inquiry into substantial continuity. See Betkoski, 99 F.3d at 581.
Applying those two factors to this case, the Lin Pac defendants clearly did not have notice of GACCC's potential liability under CERCLA because CERCLA was not yet enacted at the time LPCCC acquired GACCC's assets. While it is doubtless true that there was public debate regarding the clean-up of hazardous waste facilities in the months leading up to the enactment of CERCLA, the statute and common law setting forth and refining the very notion of successor liability were not in existence at the time of the asset purchase. Regarding the "substantial ties" factor, as in Mexico Feed & Seed the asset purchase was an arm's length transaction between competitors, and "not a cozy deal where responsible parties merely changed the form of ownership yet in substance remained the same, nor one where the actual managers of a corporation took over its ownership with full knowledge of its practices." Mexico Feed & Seed, 980 F.2d at 489. These additional two factors would thus appear to undermine a finding of substantial continuity.
Having considered these two factors, together with all of the other factors that comprise the substantial continuity test, in light of the undisputed facts of this case the Court concludes that the Lin Pac defendants are not proper CERCLA defendants since they cannot be viewed as the mere continuation of their Great American predecessor. The Court is mindful of the broad remedial purpose of CERCLA and the extent to which courts have expanded traditional principles of tort liability to hold parties responsible for the costs of compliance with CERCLA. See, e.g., Schiavone v. Pearce, 79 F.3d at 253-254. However, in this case, such an expansion would be inequitable and would impose an unwarranted penalty upon a good faith third-party purchaser for value. The Lin Pac defendants, with their roots in the United Kingdom, had no ties to the Great American defendants. They purchased the assets of an on-going concern, operated it under the Lin Pac name, sought to expand on the existing client base, and over time made manufacturing and other changes. There is no whiff of impropriety or self-dealing here. In short, to hold the Lin Pac defendants liable on these facts would essentially scrap the common law rule treating asset purchases differently from mergers and consolidations. Accordingly, to the extent that the Lin Pac defendants seek dismissal of the Town's CERCLA claims, their motion for summary judgment is granted.
IV. Joint and Several Liability vs. Contribution
Having determined that Occidental, Marmon, Grumman, GACCC and GAI are liable under CERCLA, the Court now turns to an examination of the nature of that liability. Each of the defendants contends that the Town may only seek contribution pursuant to § 9613 and cannot impose joint and several liability against them. Implicit in this argument is the assumption, which is not contested by the Town, that the Town is itself a responsible person under CERCLA. Indeed, the record evidence that the Town contributed to the condition of the landfill is compelling. Notwithstanding its status as a responsible person, the Town maintains that it is entitled to seek joint and several liability against the defendants pursuant to 42 U.S.C. § 9607. The parties' dispute regarding the interplay between § 9607 and § 9613 is part of a larger debate amongst the parties as to whether the Town will be required to bear a portion of the response costs attributable to "orphan shares" -- those shares attributable to potentially responsible persons that are either insolvent or cannot be located or identified. See Pinal Creek Group v. Newmont Mining Corp., 118 F.3d 1298, 1303 (9th Cir. 1997).
In arguing that it is entitled to seek joint and several liability against all the defendants, the Town relies primarily upon the language of § 9607(a)(4)(B), which, as set forth above, provides for a cause of action in favor of "any ... person" that has incurred response costs consistent with the National Contingency Plan. As noted above, CERCLA's definition of "person" includes municipalities. 42 U.S.C. § 9601(21). In a § 9607 action for recovery of costs, potential responsible persons are ordinarily jointly and severally liable for the costs associated with the cleanup and site remediation. See New Castle County v. Halliburton NUS Corp., 111 F.3d 1116, 1121 (3d Cir. 1997). The Town argues that because it is a person that has incurred response costs under CERCLA, it is entitled to joint and several liability against the defendants pursuant to the clear and unequivocal language of § 9607(a)(4)(B), regardless of its status as a responsible person. The Town's argument is premised upon the assumption that a cause of action under § 9607 is procedurally distinct from the right to contribution among potentially responsible persons, which is codified at § 9613(f), and that it may elect to proceed under § 9607 instead of § 9613. This argument has some support among district courts. See, e.g., Town of Wallkill v. Tesa Tape, Inc., 891 F. Supp. 955, 958-960 (S.D.N.Y. 1995); Companies for Fair Allocation v. Axil Corporation, 853 F. Supp. 575, 577-580 (D. Conn. 1994); United States v. Kramer, 757 F. Supp. 397, 416-417 (D.N.J. 1991).
All of the circuit courts to have considered this issue have determined, however, that a potentially responsible person, such as the Town, cannot seek joint and several liability against other potentially responsible persons, but may only seek contribution pursuant to § 9613. See Sun Co. v. Browning-Ferris, Inc., 124 F.3d 1187, 1997 WL 464633 (10th Cir. 1997); Pinal Creek Group, 118 F.3d 1298; New Castle County, 111 F.3d 1116; Bancamerica Commercial Corp. v. Mosher Steel of Kansas, 100 F.3d 792 (10th Cir.), amended by 103 F.3d 80 (1996); Redwing Carriers, Inc. v. Saraland Apartments, 94 F.3d 1489 (11th Cir. 1996); United States v. Colorado & E. R. R. Co., 50 F.3d 1530 (10th Cir. 1995); United Technologies Corp. v. Browning-Ferris Indus., Inc., 33 F.3d 96 (1st Cir. 1994); Azco Coatings, Inc. v. Aigner Corp., 30 F.3d 761 (7th Cir. 1994). As articulated by certain of these courts, although the right of one potentially responsible person to pursue another for response costs derives from § 9607, the nature of that claim is necessarily one for contribution and is mapped out by § 9613. See, e.g., Sun Co., 124 F.3d at 1191, 1997 WL 464633 at *5 ("While a [ § 9413] contribution action is not a 'cost recovery' action under [ § 9607] as that action has been defined, because it does not impose strict, joint and several liability on the defendant PRPs, it is an action for recovery of the costs referred to in [ § 9607]."); Pinal Creek Group, 118 F.3d at 1298 ("While [ § 9607] created the right of contribution, the 'machinery' of [ § 9613] governs and regulates such actions, providing the details and explicit recognition that were missing from the text of [ § 9607]."); New Castle County, 111 F.3d at 1122 ("[ 42 U.S.C. § 9613] does not in itself create any new liabilities; rather, it confirms the right of a potentially responsible person under section 107 [ 42 U.S.C. § 9607] to obtain contribution from other potentially responsible persons.").
The conclusion that § 9607 incorporates a contribution claim is consistent with the history leading up to the enactment of § 9613(f). As originally enacted, CERCLA did not provide specifically that one potentially responsible person could recover from other potentially responsible persons to the extent that its response costs exceeded its fair share; however, courts determined that a right to contribution in such cases could be implied from the language of § 9607. See, e.g., Mardan Corp. v. C.G.C. Music Ltd., 804 F.2d 1454, 1457 n.3 (9th Cir. 1986). In 1986, Congress enacted the Superfund Amendments and Reauthorization Act of 1986 ("SARA"), Pub. L. No. 99-499 et seq., 100 Stat. 1613, 1615 (1986), which amended § 9613 to expressly authorize contribution among responsible parties. A principal goal of the amended § 9613 was to "'clarify and confirm the right of a person held jointly and severally liable under CERCLA to seek contribution from other potentially liable parties, when the person believes that it has assumed a share of the cleanup or cost that may be greater than its equitable share under the circumstances.'" United Technologies Corp., 33 F.3d at 100 (quoting S. Rep. No. 11, 99th Cong., 1st Sess. 44 (1985)).
Having considered the arguments on both sides, the Court agrees with the Courts of Appeal for the First, Third, Seventh, Ninth, Tenth and Eleventh Circuits that the Town, as a responsible person, may proceed against the defendants under § 9607, but that the nature of its claim is for contribution as set forth in § 9613. The Court reaches this conclusion for a number of reasons. First, regardless of how the Town seeks to cast its CERCLA claim, the reality is that because the Town itself is liable to some extent for the condition of the landfill, its claim is quintessentially a claim for contribution. See Azco Coatings, Inc., 30 F.3d at 764; see also New Castle County, 111 F.3d at 1122; Colorado & E. R.R. Co., 50 F.3d at 1536. Second, and more significantly, the Court observes that § 9607 is a generous statutory provision. It has a longer statute of limitations than § 9613 (six years as opposed to three years) and has been interpreted to provide for strict, joint and several liability. If the Court were to hold that § 9607 and § 9613 give potentially responsible persons two entirely separate theories of recovery from which to choose, it is difficult to imagine that any potentially responsible person would ever elect to proceed under § 9613. Such a reading would effectively eviscerate § 9613. See New Castle County, 111 F.3d at 1123; Colorado & E. R.R. Co., 50 F.3d at 1536; United Technologies Corp., 33 F.3d at 101. In the final analysis, to read § 9613 as mapping out the parameters of a contribution right that has its genesis in § 9607 reconciles CERCLA's emphasis on placing the burden of environmental remediation upon those parties that created the environmental harm with the legislative history of SARA, which demonstrates Congress' concern that this burden be equitably apportioned. Accordingly, the Court grants the defendants' motion for summary judgment insofar as it seeks dismissal of the Town's first and second claims for joint and several liability under CERCLA, and denies the Town's motion for summary judgment to the extent that it seeks to impose joint and several liability against the defendants.
V. The Town's State Law Claims
As noted above, the complaint also contains three state law claims. The fourth claim is for creation and maintenance of a public nuisance, the fifth claim is for unjust enrichment based upon the defendants' alleged failure to abate the public nuisance, and the sixth claim is for common law contribution. Defendants now seek dismissal of the public nuisance and unjust enrichment claims on statute of limitations grounds. Additionally, the Great American defendants seek dismissal of the common law claims for the same reason as they sought dismissal of the CERCLA claims -- because GACCC and G.A. Corrugated are dead and buried corporations that are no longer amenable to suit. The Court will examine each of these arguments in turn.
A. Statute of Limitations
Turning first to the Town's nuisance claim, the Court notes that under New York law, a public nuisance:
consists of conduct or omissions which offend, interfere with or cause damage to the public in the exercise of rights common to all in a manner such as to offend public morals, interfere with use by the public of a public place, or endanger or injure the property, health, safety or comfort of a considerable number of persons.
Copart Industries, Inc. v. Consolidated Edison Co. of New York, 41 N.Y.2d 564, 568, 362 N.E.2d 968, 971, 394 N.Y.S.2d 169, 172 (1977). "To establish a public nuisance the annoyance, discomfort or interference experienced by a considerable number of persons must be substantial." State of New York v. Fermenta ASC Corp., 166 Misc. 2d 524, 531, 630 N.Y.S.2d 884, 890 (Sup. Ct. Suffolk Cty. 1995), aff'd, 238 A.D.2d 400, 656 N.Y.S.2d 342 (2d Dep't 1997).
The statute of limitations applicable to the Town's public nuisance claim is controlled by C.P.L.R. 2l4-c, which provides, in pertinent part:
The three year period within which an action to recover damages for ... injury to property caused by the latent effects of exposure to any substance or combination of substances, in any form ... upon or within property must be commenced shall be computed from the date of discovery of the injury by the plaintiff or from the date when through the exercise of reasonable diligence such injury should have been discovered by the plaintiff, whichever is earlier.
In Jensen v. General Elec. Co., 82 N.Y.2d 77, 623 N.E.2d 547, 603 N.Y.S.2d 420 (1993), the New York State Court of Appeals held that this section imposed a clear-cut discovery rule in actions for damages.
As discovery of the harm triggers the running of the statute of limitations under New York law, the Court looks to when the Town can be said to have discovered the harm. The landfill was placed on the National Priorities List in 1983 and the Town signed the Administrative Order on Consent in which it agreed to prepare the RI/FS for the landfill in 1986. Further, it was in 1990 that the EPA selected the remediation that would be required for OU-1. The complaint was filed in 1994. The Town clearly had notice of the alleged damage to the landfill property long before it elected to commence this action. To the extent that the Town seeks to recover sums already incurred for remediation of the landfill, these sums are clearly in the nature of consequential damages and are time-barred.
The Town argues, however, that it is primarily seeking a declaration imposing liability and ordering the defendants to pay for or carry out future remediation of the landfill, and that C.P.L.R. 214-c applies only to actions for damages. In Jensen, the Court of Appeals held this distinction to be a proper one, concluding that the discovery rule contained in this section applies only to actions for damages and that the traditional common law rule applies to the extent that a plaintiff seeks injunctive relief. Id. at 90-91. Under common law, a continuing injury to real property gives rise to successive causes of action for the duration of the injury, and the right of the property owner to invoke the equitable power of the court similarly continues, regardless of the lapse of time that might occur before the commencement of legal proceedings. See Galway v. Metropolitan Elevated. Ry. Co., 128 N.Y. 132, 144-145, 28 N.E. 479, 481 (1891); see also Jensen, 82 N.Y.2d at 90-91; 509 Sixth Avenue Corp. v. New York City Transit Auth., 15 N.Y.2d 48, 52, 203 N.E.2d 486, 488, 255 N.Y.S.2d 89, 92 (1964). Accordingly, to the extent that the Town seeks an order directing the defendants to carry out any remediation as may be needed in the future, such relief would not be in the nature of damages and is consequently not barred by C.P.L.R. 214-c.
As for the Town's fifth claim, for unjust enrichment, New York courts have held that the central inquiry on such a claim is whether it would be against "equity and good conscience" for the defendant to retain a benefit that it has allegedly received:
Such a claim is undoubtedly equitable and depends upon broad considerations of equity and justice. Generally, courts will look to see if a benefit has been conferred on the defendant under mistake of fact or law, if the benefit still remains with the defendant, if there has been otherwise a change of position by the defendant, and whether the defendant's conduct was tortious or fraudulent.
Paramount Film Distrib. Corp. v. State of New York, 30 N.Y.2d 415, 421, 285 N.E.2d 695, 698, 334 N.Y.S.2d 388, 393, modified, 31 N.Y.2d 678, 288 N.E.2d 811, 336 N.Y.S.2d 911 (1972). A cause of action for unjust enrichment is governed by a six-year statute of limitations that starts to run upon the occurrence of the wrongful act giving rise to the duty of restitution. See Congregation Yetev Lev D'Satmar v. 26 Adar N.B. Corp., 192 A.D.2d 501, 503, 596 N.Y.S.2d 435, 437 (2d Dep't 1993). In this case, the EPA and the Town began negotiations regarding remediation of the landfill in 1990 and it was also in 1990 that the EPA wrote to a number of the defendants to determine whether they would contribute to the remediation effort. Later that year, the EPA selected the remedial action for OU-1. Since the defendants' obligation to contribute to the remediation was triggered by the EPA's 1990 letter and its subsequent selection of appropriate remedial action later that year, the Court will measure the six-year statute of limitations from 1990. As this action was commenced in 1994, the Town's fifth claim for relief is timely.
B. The Liability of GACCC and G.A. Corrugated under State Law
Having determined that the fourth (nuisance) and fifth (unjust enrichment) claims are timely, the Court now turns to the argument of the Great American defendants that these claims, along with the sixth claim for common law contribution, should be dismissed as against GACCC, formerly a New York corporation, and G.A. Corrugated, formerly a Delaware corporation, because these corporations are dead and buried. As to GACCC, which was incorporated under New York law, there is no evidence in the record that this corporation was not properly dissolved in accordance with New York's Business Corporation Law § 1004. However, as set forth at length above, the law in New York is that a claim that accrues prior to a corporation's dissolution may be interposed against the dissolved corporation, even if it has distributed its corporate assets. See Independent Investor Protective League, 50 N.Y.2d at 262-263, 406 N.E.2d at 487-488, 428 N.Y.S.2d 671; Fernandez v. Kinsey, 205 A.D.2d at 448, 613 N.Y.S.2d 895. In this case, the Town's nuisance claim arose out of the disposal of hazardous waste at the landfill that occurred until 1975, seven years before GACCC's corporate dissolution. Therefore, as the Town's nuisance claim accrued before GACCC's dissolution, this claim, to the extent that it seeks equitable relief against GACCC, may proceed. As noted above, however, the Town's nuisance claim, to the extent that it seeks consequential damages related to the disposal of hazardous substances at the landfill, is barred by the three-year statute of limitations. Although it may be an academic exercise to permit a claim for equitable relief to proceed against a dead and buried corporation, such a result appears to be conceptually correct under controlling New York precedent.
As to the unjust enrichment and contribution claims, since they did not accrue until well after GACCC was dissolved, they may not be maintained. See Quinn v. Spitale, 203 A.D.2d 674, 675, 610 N.Y.S.2d 370, 371 (3d Dep't 1994) ("A cause of action for contribution arises not on the date of injury for which the party seeking contribution may be held liable, but at the time that payment is made on the underlying claim."); Congregation Yetev Lev D'Satmar, 192 A.D.2d at 503 (holding that cause of action for unjust enrichment accrues upon payment of sum giving rise to duty of restitution).
As to G.A. Corrugated, which was dissolved under Delaware law, the controlling statute is title 8, § 278 of the Delaware Code, which provides that "all corporations, whether they expire by their own limitation or are otherwise dissolved, shall nevertheless be continued, for the term of 3 years from such expiration or dissolution ... for the purpose of prosecuting and defending suits, whether civil, criminal or administrative, by or against them." Although not technically a statute of limitations, this section has been held to be "a clear expression of a legislative policy normally prohibiting the commencement of actions by or against dissolved corporations more than three years after their dissolution." Smith-Johnson Steamship Corp. v. United States, 231 F. Supp. 184, 186 (D. Del. 1964). Courts have consistently concluded that upon expiration of the three-year period, the corporation ceases to exist as a legal entity and no claims may be asserted against it. See In re RegO Co., 623 A.2d 92, 96 (Del. Ch. 1992); In re Citadel Indus. 423 A.2d 500, 506-507 (Del. Ch. 1980); see also State of New York v. Panex Indus., Inc., 1997 U.S. Dist. LEXIS 15860, 1997 WL 627635 at *3 (W.D.N.Y. Oct. 6, 1997); Corcoran v. New York Power Auth., 935 F. Supp. 376, 391-392 (S.D.N.Y. 1996). As the complaint in this case was filed in 1994, almost thirteen years after G.A. Corrugated was dissolved, the Town's assertion of state law claims against G.A. Corrugated is prohibited by Delaware law.
C. The Liability of the Lin Pac Defendants under State Law
For the reasons set forth in respect to the Lin Pac defendants' motion for summary judgment dismissing the CERCLA claims, their motion for dismissal of the state law claims is also granted, as the factors discussed with regard to the CERCLA claims also apply to the Town's state law claims. See Schumacher v. Richards Shear Co., 59 N.Y.2d 239, 451 N.E.2d 195, 464 N.Y.S.2d 437 (1983); see also Heights v. U.S. Elec. Tool Co., 138 A.D.2d 369, 370, 525 N.Y.S.2d 653 (2d Dep't 1988).
Based upon the foregoing, the four pending motions are resolved as follows:
1. The Town's motion for summary judgment is granted to the extent that summary judgment is awarded on the Town's third claim for relief against Occidental, Marmon, Grumman, GACCC and GAI on the issue of CERCLA liability only, but is denied to the extent that the Town seeks a determination that the defendants are jointly and severally liable pursuant to its first and second claims for relief;
2. Defendants' motion for summary judgment is decided as follows: (1) the Town's first and second claims for relief which seek the imposition of joint and several liability against the defendants, are dismissed; (2) the Town's fourth claim for relief insofar as it seeks damages related to the Town's remediation of the landfill, is dismissed as time-barred; and (3) the motion is otherwise denied;
3. The Great American defendants' motion for summary judgment is granted to the extent that the fourth, fifth and sixth claims for relief are dismissed as against G.A. Corrugated, and the fifth and sixth claims for relief are dismissed as against GACCC, and is otherwise denied;
4. The Lin Pac defendants' motion for summary judgment is granted and the complaint dismissed against these defendants.
United States District Judge
Dated: Brooklyn, New York
December 5, 1997