of apportionment of liability. Id. at 1577.
Plaintiff solely seeks to hold Conrail strictly liable under
CERCLA § 9607(a)(1) as a current owner of contaminated property
within the Site. Unlike the factual scenarios in the Penn
Central and related Rail Act Court cases, determining Conrail's
liability as a current owner of contaminated property does not
involve examination of the pre-conveyance activities of Conrail's
predecessors and does not require interpretation of the Rail Act
or conveyance documents to ascertain the respective liabilities
of Conrail and its predecessors. To the extent that plaintiff's
amended complaint may be construed as an attempt to hold Conrail
liable as a successor in interest for preconveyance
contamination, only the District Court for the District of
Columbia has jurisdiction to determine that issue. However,
Niagara Mohawk denies such an attempt and concedes that pursuant
to the Penn Central and related Rail Act Court cases, Conrail
may not be held liable as a successor in interest for
preconveyance contamination. Therefore, Conrail's motion to
dismiss for lack of subject matter jurisdiction must be denied.
B. USX's Motion for Summary Judgment
1. Summary Judgment Standard
Summary judgment must be granted when the pleadings,
depositions, answers to interrogatories, admissions, and
affidavits show that there is no genuine issue as to any material
fact, and that the moving party is entitled to summary judgment
as a matter of law. Fed.R.Civ.P. 56; Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986);
Lang v. Retirement Living Pub. Co., 949 F.2d 576, 580 (2d Cir.
1991). The moving party carries the initial burden of
demonstrating an absence of a genuine issue of material fact.
Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 323,
106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Thompson v. Gjivoje,
896 F.2d 716, 720 (2d Cir. 1990). Facts, inferences therefrom, and
ambiguities must be viewed in a light most favorable to the
nonmovant. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986);
Project Release v. Prevost, 722 F.2d 960, 968 (2d Cir. 1983).
When the moving party has met the burden, the non-moving party
"must do more than simply show that there is some metaphysical
doubt as to the material facts." Matsushita Elec. Indus. Co.,
475 U.S. at 586, 106 S.Ct. 1348. At that point, the non-moving
party "must set forth specific facts showing that there is a
genuine issue for trial." Fed.R.Civ.P. 56: Liberty Lobby Inc.,
477 U.S. at 250, 106 S.Ct. 2505; Matsushita Elec. Indus. Co.,
475 U.S. at 587, 106 S.Ct. 1348. To withstand a summary judgment
motion, evidence must exist upon which a reasonable jury could
return a verdict for the nonmovant. Liberty Lobby, Inc., 477
U.S. at 248-49, 106 S.Ct. 2505; Matsushita Elec. Indus. Co.,
475 U.S. at 587, 106 S.Ct. 1348. Thus, summary judgment is proper
where there is "little or no evidence . . . in support of the
non-moving party's case." Gallo v. Prudential Residential
Servs., 22 F.3d 1219, 1223-24 (2d Cir. 1994) (citations
USX claims that it is not liable to the plaintiff under CERCLA
as an owner/operator of contaminated property because when the
Site was in operation, USX did not own it, and when USX did own
the Site, it was not in operation. Further, USX asserts that
Niagara Mohawk has not submitted any evidence that USX generated
any waste that was disposed of at the Site.
It is premature to grant USX summary judgment, as no formal
discovery has taken place yet. Further, the affidavits and other
evidence which has been submitted by both parties in connection
motion demonstrate that issues of fact exist concerning when USX
owned property within the Site, and whether contaminants were
generated and released at the Site during such ownership.
Therefore, USX's motion must be denied.
Based upon the foregoing, it is
1. Consolidated Rail Corporation's motion to dismiss for lack
of subject matter jurisdiction is DENIED;
2. USX's motion for summary judgment is DENIED; and
3. American Premier Underwriters, Inc.'s motion for leave to
file a memorandum out of time is GRANTED.
IT IS SO ORDERED.