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February 16, 2001


The opinion of the court was delivered by: William C. Conner, Senior District Judge.


On January 4, 1993, Frank Mancuso ("Mancuso") and his wife brought this action against defendant Consolidated Edison Company of New York, Inc. ("Con Ed"), for personal injury to themselves and their children and for property damage in violation of the Clean Water Act ("CWA" or the "Act"), 33 U.S.C. § 1365, and New York State law. On December 12, 1994, Judge Broderick of this Court granted defendant's motion to dismiss the property damage claims as time-barred. See Mancuso v. Consolidated Edison Co. of N.Y., Inc., No. 93 Civ. 0001, 1994 WL 702749, at *1 (S.D.N.Y. Dec. 12, 1994), aff'd on reconsideration 905 F. Supp. 1251 (S.D.N.Y. 1995). On July 30, 1999, this Court granted defendant's motion for summary judgment and dismissed the action with prejudice based upon plaintiffs' failure to secure competent expert testimony that would support their claims of personal injury. See Mancuso v. Consolidated Edison Co. of N.Y., Inc., 56 F. Supp.2d 391 (S.D.N.Y. 1999) (the "1999 Opinion"), aff'd in part and vacated in part, No. 99-9233, 216 F.3d 1072, 2000 WL 730417 (2d Cir. June 5, 2000). On appeal, the Second Circuit affirmed our dismissal of the personal injury claims but vacated our dismissal of the CWA claim and remanded the case for consideration of that claim without addressing the merits. See Mancuso v. Consolidated Edison Co. of N.Y., Inc., No. 99-9233, 216 F.3d 1072, 2000 WL 730417 (2d Cir. June 5, 2000).

Plaintiffs claim that defendant has violated the CWA by discharging pollutants into Echo Bay through contaminated drain pipes, tunnels, conduits and cable ducts and by water runoff from the contaminated soil at defendant's adjoining substation.

Pursuant to the CWA plaintiffs seek: (1) a declaration that defendant is in violation of the Act; (2) an order that defendant remedy all damage to the environment caused by its illegal discharges; (3) civil penalties of $25,000 per day paid to the U.S. Treasury for each day defendant violates the Act by failing to pursue cleanup after a finding of violation by the trier of fact; (4) attorneys fees and costs; and (5) any other relief this Court deems just and proper.*fn1 Defendant has renewed its motion for summary judgment, pursuant to FED. R. Civ. P. 56(b), based upon plaintiffs lack of standing.*fn2 For the reasons stated hereinafter, the CWA claim is dismissed with prejudice.


In 1981, there was a fire in defendant's substation which caused oil containing polychlorinated biphenyls ("PCB"s) to spill from a transformer into its surrounding moat.*fn4 After testing the soil at and around the substation, the New York State Department of Environmental Conservation ("DEC") ordered a cleanup, resulting in the substation's closure. There has always been a sharp disagreement as to extent which this oil spillage resulted in PCB contamination of the soil and water of Echo Bay and the adjoining Echo Bay Marina.

In 1987, F. Mancuso Boatyard, Inc., a corporation owed by Mancuso, purchased the Marina from Robert Kolasch. In the summer of 1988, plaintiffs moved to the Marina where they resided with their children until 1992. Mancuso owned the property until May, 1993, when it was acquired by the City of New Rochelle at a foreclosure sale for the non-payment of real estate taxes. (Giglio Aff. ¶ 5, Ex. A.) Plaintiffs currently reside in Dutchess County, New York. (Def.Sur.Mem., Ex. A.) They do not work anywhere in the vicinity of New Rochelle. (Id.) From 1993 to 1997, Mancuso's only contact with Echo Bay consisted of visits to acquire evidence for this case. (Id.)

Argument on the instant motion centers around Mancuso's contacts with Echo Bay since 1998. Initially, the motion was based upon Mancuso's original response to defendant's third set of interrogatories. (Giglio Aff. ¶ 5, Ex. C.) He stated that he visited Echo Bay on May 8, 1998, in the company of his and defendant's attorneys in order to obtain discovery in connection with this lawsuit. Interrogatory No. 2 asked: "In the period after May 8, 1998, has any plaintiff or any person acting on behalf of any plaintiff been (1) at, in, on, or in sight of Con Edison's Echo Avenue property, (2) at, in, on, or in sight of the property formerly owned by Frank Mancuso on Echo Bay, or (3) at, in, on or in sight of Echo Bay." (Id.) (emphasis added). Mancuso responded in the affirmative and identified only one visit, on January 11, 2000, when he met with environmental groups to discuss possible remedial action. (Id.)

However, in response to the motion, Mancuso filed an affidavit stating: that he "regularly travel[s] to Echo Bay and the marina property and . . . ha[s] regularly observed the substation at least once a week for the last three years to note defendant's clean-up operations" (Mancuso Aff. at 1); that he and his family have spent thousands of hours preparing for this case and that on 29 occasions between January 1998 and February 1999, he took 117 photographs of defendant's substation as well as videotapes (id. at 2); that he swam in Echo Bay as a child and sailed in it since 1972 (id.); that he still visits Hudson Park, located near Echo Bay, and often drives or walks by defendant's substation (id.); that he has "always had, and continue[s] to have, an active aesthetic and environmental interest in Echo Bay" and therefore corresponds with state and county agencies to discuss its condition (id. at 2-3); that he often travels to New Rochelle to visit family and friends and to speak with swimmers, boaters, fisherman and children about the defendant's substation (id. at 4); and that in the summer of 2000, he and his family attended a play and concerts in Hudson Park, located near Echo Bay. (Id.)

When defendant, in its reply memorandum, accused Mancuso of perjury based on contradictions between that affidavit and his interrogatory answers, Mancuso submitted amended interrogatory answers together with an affirmation stating that he had been confused by the interrogatories and believed that Interrogatory No. 2 referred only to his actual on-site visits to defendant's substation. (Mancuso Affm. at 1.) Accordingly, he changed the answer to state that he has visited Echo Bay on January 11, 2000 as well as:

[V]arious other dates, precise dates unknown, for being at or near or in sight of the property. Frank Mancuso regularly travels to Echo Bay and the marina property and regularly observed the substation at least once a week for the last three years to note Con Edison's cleanup operations. Photographs and Videos provide the dates where such film was taken.

To corroborate this amended answer, Mancuso has submitted 118 photographs, and one videotape. Defendant, surprised by Mancuso's apparent change of position, asks this Court to exclude the amended interrogatory answers and the allegedly perjured affidavit.*fn5 Plaintiff argues that defendant is collaterally estopped from raising the standing issue because it was unsuccessfully litigated on the appeal to the Second Circuit.


I. Summary Judgment Standard

Summary judgment may be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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). The general rule is that the party invoking federal jurisdiction bears the burden of establishing all of the elements of standing. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992). Because standing is an "indispensable part of plaintiffs case," plaintiff bears the burden of providing sufficient evidence of standing to survive a motion for summary judgment. Id., 112 S.Ct. at 2136. Plaintiff cannot rest on "mere allegations," but must set forth "specific facts" by affidavit or other evidence. Id., 112 S.Ct. at 2137. On a motion for summary judgment, these facts must be accepted as true. Id., 112 S.Ct. at 2137.

II. Subject Matter Jurisdiction

Mancuso argues that defendant is collaterally estopped from raising the standing issue because defendant has known of all relevant facts since 1993 and that issue was raised in the briefs submitted to the Second Circuit in connection with plaintiffs' appeal of this Court's 1999 Opinion. Although the Second Circuit did not comment upon whether plaintiffs had standing under the CWA, Mancuso argues that the Court implicitly determined that standing was present when it remanded the case for reconsideration of the CWA claim. Therefore, according to Mancuso, because the matter was "distinctly put in issue and directly determined by a court of competent jurisdiction . . . [it] cannot be disputed in a subsequent suit between the same parties or their privies." Montana v. United States, 440 U.S. 147, 153, 99 S.Ct. 970, 973, 59 L.Ed.2d 210 (1979) (citations omitted). We reject that argument.

First, after review of the relevant portion of the appellate briefs, we conclude that the standing issue was never raised by the parties. The briefs concentrated on whether this Court's dismissal with prejudice should be applied to the CWA claim. (Pl. Cert. & Summ. Doc. Evid., Exs. 1, 2.) The Court of Appeals did not address the merits of any issues raised by the CWA claim. We certainly cannot infer that its silence constituted a ruling on the issue of standing.

Second, "[f]ederal courts are not courts of general jurisdiction; they have only the power that is authorized by Article III of the Constitution and the statutes enacted by Congress pursuant thereto." Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541, 106 S.Ct. 1326, 1331, 89 L.Ed.2d 501 (1986). "The federal courts are under an independent obligation to examine their own jurisdiction, and standing `is perhaps the most important of [the jurisdictional] doctrines.'" FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231, 110 S.Ct. 596, 608, 107 L.Ed.2d 603 (1990) (quoting Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984)); see generally 15 JAMES WM. MOORE, MOORE'S FEDERAL PRACTICE § 101.30[2] (Daniel R. Coquilette et al. eds., 3d ed. 2000).

Therefore, the issue of standing can be raised on motion of a party or even sua sponte at any time during the litigation or appeal; it cannot be waived. See United States v. Hays, 515 U.S. 737, 742, 115 S.Ct. 2431, 2435, 132 L.Ed.2d 635 (1995); Bender, 475 U.S. at 541-42, 106 S.Ct. at 1331; Mehdi v. United States Postal Serv., 988 F. Supp. 721, 730 n. 7 (S.D.N.Y. 1997); FED. R. Civ. P. 12(h)(3). We therefore must determine whether plaintiffs can invoke the power of this Court.


The CWA prohibits the discharge of pollutants into navigable waters in order to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a), 1311(a). To achieve these goals, it provides for citizen suits in addition to state actions. Thus, pursuant to the CWA, "any citizen may commence a civil action on his own behalf" against any person in violation thereof. Id. § 1365(a). The term "citizen" is defined as "a ...

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