The opinion of the court was delivered by: Sweet, District Judge.
Defendants Getty Petroleum Marketing, Inc. ("Getty Petroleum"),
Getty Properties Corp. ("Getty Properties"), and Getty Realty
Corp. ("Getty Realty") (collectively, "Getty"), as well as
Leemilt's Petroleum, Inc. ("Leemilt's"), and The Tyree
Organization, Ltd. ("Tyree") have moved pursuant to Rules
12(b)(1), 12(b)(6), and 56(b) of the Federal Rules of Civil
Procedure to dismiss the complaint in this action. For the
reasons stated herein, the motion is granted in part, and denied
Plaintiff Kara Holding Corp. ("Kara") is a New York corporation
with its principal place of business in Bronx, New York.
Defendant Getty Petroleum is a corporation authorized to do
business in the State of New York, with business locations in
Bronx, New York and Manhattan.
Defendant Getty Properties is a corporation authorized to do
business in the State of New York, with a business location in
Defendant Getty Realty is a corporation authorized to do
business in the State of New York, with a business location in
Defendant Leemilt's is a corporation authorized to do business
in the State of New York, with business locations in Jericho, New
York and Manhattan.
Defendant Tyree is a corporation authorized to do business in
the State of New York with business locations in Brookfield,
Connecticut and Farmingdale, New York.
The following facts are undisputed by the parties, except where
The instant action arises out of a petroleum spill that
occurred on April 2, 1997 at Getty Service Station # 329 (the
"Getty station" or the "station"), a gas station located in
Bronx, New York. Plaintiff, the owner of a building situated
adjacent to the gas station, contends that a gasoline spill or
spills at the station have resulted in considerable soil and
groundwater contamination, as well as contamination of the Bronx
River — which is located only a short distance away. Defendants
are, variously, the alleged owner(s) and operator(s) of the Getty
Station, or related corporate entities — though the parties
apparently disagree as to which corporate entities are actually
responsible for operation of the Getty station.
Plaintiff's building is rented by the New York City Human
Resources Administration (the "HRA"). Located at the building is
an HRA office known as the "Colgate Learning Center," which is
responsible for the administration of public assistance programs.
On April 2, 1997, the Colgate Learning Center was evacuated
because of gasoline vapors attributable to petroleum spilled at
the Getty station. According to Defendants, the discharge of
petroleum at the gas station was halted on April 2nd, and
remediation of the spill began in earnest on that very same day —
when a response team from defendant Tyree was dispatched to the
gas station and began the removal of contaminants.
By letter dated November 19, 1997, New York State's Department
of Environmental Conservation (the "DEC") contacted Scott Hanley
of Getty Properties to obtain Getty's voluntary commitment to
"cleanup and remove" the petroleum contamination at the gas
station. (Hanley Aff.Ex. B.) Enclosed with the letter was a
proposed Stipulation Agreement (the "Stipulation") that set a
schedule for Getty's remediation efforts and allowed cleanup
activities to proceed without the need for additional DEC
permits. By signing the stipulation, the letter informed Hanley,
Getty was not admitting any liability under New York's Navigation
Law or waiving any defenses it might have to liability. By the
same token, however, the letter informed Hanley that Getty's
agreement to remedy the petroleum discharge itself would not
affect the DEC's ultimate right to pursue an action under the
Navigation Law or New York's Environmental Conservation Law.
On December 10, 1997, Getty Realty signed the Stipulation on
behalf of "Getty" — the generic entity listed on the
Stipulation's caption. By its own terms, the Stipulation was.
"equivalent to an order pursuant to [New York's] ECL §§ 17-0303
and a directive pursuant to NL § 176 and is enforceable as such."
(Hanley Aff.Ex. B.) Getty's cleanup efforts were to be conducted
in accordance with a "Corrective Action Plan" setting forth a
timetable for the cleanup of petroleum wastes.
By complaint dated December 9, 1998, the DEC, nevertheless,
commenced an administrative enforcement action concerning
groundwater and soil contamination at the Getty station and
adjoining properties. The complaint asserted, inter alia,
violations of New York's Environmental Conservation Law and
Navigation Law, and sought declaratory relief, injunctive relief,
and civil penalties. Named as defendants in that complaint were
Getty Petroleum, Getty Realty, and Getty Petroleum Corp., a
predecessor of defendant Getty Properties.
While plaintiff Kara has asserted that the petroleum
contamination at issue in this action has its origins in a
discrete spill event in April of 1997, it also claims that the
petroleum hydrocarbon wastes released during that spill have yet
to be fully cleaned, and that additional spill events have
occurred since April of 1997. According to the papers submitted
by Kara, the Colgate Learning Center has been evacuated on
multiple occasions over the past several years as a result of
gasoline vapors attributable to the Getty station's spilled
petroleum. These vapors, which emanate from the basement of
Kara's building, have resulted in repeated complaints by HRA
employees, and have required responses from the New York City
Fire Department and a "HAZMAT" unit. According to Kara,
groundwater contaminated by petroleum and petroleum products
enters the cellar of the Colgate Learning Center periodically,
creating a potentially explosive petroleum water and vapor
condition. In late spring of 1998, samples taken from wells on
the Getty property revealed elevated levels of petroleum
constituents in the groundwater circulating beneath the Getty
The complaint in this action was filed on January 14, 1999, and
asserts federal causes of action under the Solid Waste Disposal
Act, as amended by the Resource Conservation and Recovery Act of
1976 and Solid Waste Amendments of 1984 (referred to collectively
as the "RCRA"), 42 U.S.C. § 6901 et seq., and the Clean Water
Act (the "CWA"), 33 U.S.C. § 1251 et seq., as well as various
state claims for trespass, nuisance, negligence, gross
negligence, intentionally wrongful conduct, indemnity,
restitution, and violations of New York's Navigation Law and
Education Law. For its federal RCRA ...