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KARA HOLDING CORP. v. GETTY PETROLEUM MARKETING

United States District Court, S.D. New York


August 13, 2004.

KARA HOLDING CORP., Plaintiff,
v.
GETTY PETROLEUM MARKETING, INC., GETTY PROPERTIES CORP., GETTY REALTY CORP., LEEMILT'S PETROLEUM INC., and THE TYREE ORGANIZATION LTD., Defendants. v. ISLAND TRANSPORTATION CORP. and XERXES CORPORATION, Third-Party Defendants. XERXES CORPORATION, Second/Third-Party Plaintiff, v. TYREE BROTHERS ENVIRONMENTAL SERVICES, INC., LARRY E. TYREE COMPANY, INC., TYREE MAINTENANCE CO., INC., and TYREE ENGINEERING, P.C., Second/Third-Party Defendants.

The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge

OPINION

There are currently four pending motions in this case: 1) a motion for partial summary judgment by plaintiff Kara Holding Corp. ("Kara") against defendants and third-party plaintiffs Getty Petroleum Marketing, Inc. ("Getty Petroleum"), Getty Properties Corp. ("Getty Properties"), Getty Realty Corp. ("Getty Realty"), Leemilt's Petroleum Inc. ("Leemilt's") and The Tyree Organization, Ltd. ("Tyree") (collectively "G & T"); 2) a cross-motion for summary judgment by G & T against Kara; 3) a motion for summary judgment by third-party defendant Island Transportation Corp. ("Island") against G & T; and 4) a motion for sanctions by Kara against G & T and second third-party defendants Tyree Brothers Environmental Services Inc. ("Tyree Bros."), Larry E. Tyree Co., Inc. ("Larry Tyree"), Tyree Maintenance Co., Inc. ("Tyree Maintenance") and Tyree Engineering, P.C. ("Tyree Engineering"). For the reasons set forth below, G & T's motion for summary judgment is granted in part and denied in part. Kara's motion for partial summary judgment is denied. Island's motion for summary judgment is denied, except that G & T's Navigation Law claim is dismissed. Kara's motion for sanctions is granted in part and denied in part.

  Parties

  Kara owns a two-story office building, with a cellar, at 1209 Colgate Avenue in the Bronx (the "Colgate Building") which has been leased to the New York City Human Resources Administration (the "City") and is used as a Job Center. The Colgate Building is adjacent to Getty Station # 329 located at 1441 Westchester Avenue (the "Station").

  Getty Realty is a real estate company headquartered in Jericho, New York that, among other things, leases properties to others primarily for use as gasoline stations. Leemilt's is a subsidiary of Getty Realty and holds title to the Station. Leemilt's has leased the Station to Getty Properties, also a subsidiary of Getty Realty, which, in turn, has leased it to Getty Petroleum. Getty Petroleum sublets the Station to Esteven Service Station, which is responsible for its day to day operations.

  Tyree is an independent contractor with special environmental assessment, monitoring and remediation expertise which had been hired by Getty Properties to undertake repair, maintenance and remediation activities at the Station and at other Getty stations in the New York City area. Tyree has represented that its "[w]ork [on behalf of Getty] shall be performed and completed in compliance with all applicable statutes, regulations rules, rulings, ordinances, and/or directives of any and/or all federal, state, county, municipal and/or local government departments and/or agencies" and that "a high degree of care . . . will be exercised by Tyree in the performance of any Work. . . ." Unit Cost Agreement between Getty Petroleum Corp. and Tyree, dated October 5, 1994 at Articles 7(f) and 11. Getty Properties is the successor to Getty Petroleum Corp.

  Tyree Bros., Larry Tyree, Tyree Maintenance are corporations with a principal place of business in Farmingdale, New York. Tyree Engineering is a corporation with a principal place of business in Wachtung, New Jersey. Each of the second third-party defendants are alleged to have performed services on behalf of the Getty defendants in connection with remediation and monitoring at the Station.

  Prior Proceedings

  The complaint in this action was filed on January 14, 1999. On September 22, 1999, G & T's motion to dismiss the complaint and for summary judgment was denied, except that Kara's complaint was dismissed to the extent that it requested relief under the Resource Conservation and Recovery Act of 1976 and the Solid Waste Amendments of 1984 (collectively, "RCRA"), 42 U.S.C. §§ 6901, et. seq., "civil penalties for past events and `declaratory judgment' for `all remedial costs incurred' as a consequence of wastes discharged by the Getty station . . ." Kara Holding Corp. v. Getty Petroleum Marketing, Inc., 67 F. Supp. 2d 302, 309 (S.D.N.Y. 1999) ("Kara I"). On October 21, 1999, G & T filed a third-party complaint against Island and Xerxes Corporation ("Xerxes"), alleging that Island's driver negligently overfilled an underground storage tank at the Station and that Xerxes was negligent in the design, manufacture and sale of the tanks. On September 25, 2000, Xerxes filed a second third-party complaint against Tyree Bros., Larry Tyree, Tyree Maintenance and Tyree Engineering, alleging that the failure of the second third-party defendants to properly secure the alarm sensor on one of the USTs at the Station rendered it susceptible to overflow, thus contributing to the contamination.

  At Kara's request, discovery orders were signed by the Court on June 26, 2001 and November 6, 2001.

  On March 28, 2002, Kara's motion to strike G & T's answer as a discovery sanction was denied, as was the motion by third-party defendants Island and Xerxes to dismiss the defendants' third-party complaint. See Kara Holding Corp. v. Getty Petroleum Marketing, Inc., 99 Civ. 0275, 2002 WL 475125 (S.D.N.Y. Mar. 28, 2002) ("Kara II"). However, the defendants were ordered to comply with earlier discovery orders, and the Court noted that "Any future failure to comply may result in the type of harsh sanctions that plaintiff sought prematurely in this motion." Id. at *1.

  On July 24, 2002, Kara's motion to strike G & T's answer as a discovery sanction was again denied, as was the motion by third-party defendants Island and Xerxes Corporation ("Xerxes") to dismiss the defendants' third-party complaint. See Kara Holding Corp. v. Getty Petroleum Marketing, Inc., 99 Civ. 0275, 2002 WL 1684365 (S.D.N.Y. July 24, 2002) ("Kara III"). Further, Kara's motion to disqualify then-counsel for the defendants, Robert G. Del Gadio ("Del Gadio") was postponed until after a hearing. Other counsel were subsequently substituted for Del Gadio.

  Further discovery orders were signed by the Court on November 7, 2002, December 19, 2002, January 2, 2003 and January 21, 2003.

  On September 22, 2003, both Kara and G & T moved for partial summary judgment, and Kara moved for sanctions against the defendant. One day later, Island moved for summary judgment, dismissing the third-party complaint against it. After submission of briefs, argument was heard on all four motions on January 21, 2004, at which time they were was deemed fully submitted.

  Facts

  As they pertain to the various summary judgment motions, the following facts are taken from the parties' Rule 56.1 statements, the responses to those statements, and the briefs. Factual disputes are noted. As required, the facts are construed in the light most favorable to the non-movant, as applicable. They do not constitute findings of fact by the Court.

  The instant action arises out of a petroleum spill that occurred on April 2, 1997 at the Station, located in Bronx, New York. Kara, the owner of the Colgate Building, which is situated adjacent to the gas station, contends that a gasoline spill or spills at the station have resulted in hazardous conditions at the Colgate Building, as well as contamination of nearby soil and groundwater contamination, as well as of the Bronx River, which is less than 400 feet away. G & T contend that the petroleum contamination was the result of an overfill of an underground storage tank ("UST") at the Station in the early morning hours of April 2, 1997 by Terrance Mullane ("Mullane"), a gasoline truck driver employed by Island Island conversely proposes that the delivery of 5,100 gallons of premium gasoline to the Station two days prior to Island's delivery is the cause of the petroleum contamination.

  The Colgate Building and the Station

  The Colgate Building is a two story building, approximately 100 feet by 81 feet, with a full cellar. The cellar is not in active commercial use but is used by maintenance and other personnel for the rendering of supporting services to the building. Kara contends that the Colgate Building is approximately 150 feet from shore, while defendants have submitted an aerial photograph and United States Geological Survey map showing that the building is approximately 300 feet from the river.

  The Colgate Building is currently rented to the New York City Human Resources Administration (the "City") for use as a Job Center. The City leased the Colgate Building from Kara for a period of 15 years beginning in April 1993. Further, the City "has not penalized the owner of [the Colgate Building] for any downtime and has made no indications of breaking the lease agreement." Expert Report of Eric A. Sterling, IFA, ASA, GAA ("Sterling Report"), at 2. The annual rent on the Colgate Building is $176,076.50.

  Kara alleges, and G & T deny, that Leemilt's is the fee owner of the 1441 Westchester Avenue, and that Leemilt's leased the real property to Getty Petroleum. There is also a factual dispute over who controls the Station. Kara maintains that Leemilt's retains control over the property, and that Getty Petroleum retained a right over improvements it made, and that Getty controlled the use of the property. G & T argue that Getty sublets the Station to Esteven Service Station, which is responsible for its day to day operations. According to Kara, Esteven is only the manager of the station. Environmental Oversight

  The New York State Department of Environmental Conservation ("NYSDEC") is the state agency responsible for the cleanup and removal of petroleum discharges pursuant to Article 12 of the Navigation Law and Article 17 of the Environmental Conservation Law.

  G & T argue that the Environmental Protection Agency ("EPA") has designated NYSDEC as the implementing agency for the RCRA Underground Storage Tank ("UST") program, pursuant to the "Revised Memorandum of Agreement between the New York State Department of Environmental Conservation and the Environmental Protection Agency" (the "Revised MOA"). The Revised MOA states that "[w]ith regard to Federal enforcement, it is EPA's expectation that it will not take such action where the State has taken timely and appropriate enforcement action." Kara argues that, notwithstanding the Revised MOA, that New York State is not an approved State for enforcement of UST provisions.

  In 1988, EPA promulgated regulations that required underground storage tanks to be upgraded or replaced within ten years to meet certain safety and performance standards. See 40 C.F.R. § 280.21 (2003). In 1995, as part of tank removal and replacement at the Station, Tyree removed twelve 550 gallon USTs and one 4,000 gallon UST at the Station and replaced them with three new 4,000 gallon fiberglass USTs. G & T assert, and Kara denies, that the replacement program was in compliance with federal regulations.

  One UST was dedicated to the storage of "regular" unleaded gasoline, and the other two to "premium" unleaded gasoline. Each of the three USTs has its own "fill line" used to deliver gasoline to the tank. Island contends that each UST at the Station was equipped with an Attached Collar Riser ("ACR") that sits atop the tank and is designed to contain any leak from the tank system and its piping. G & T dispute this, contending that the ACR was not designed to contain any leak from the tank or its piping, and that Island's own expert has admitted this.

  On July 10, 1995, during the removal of the tanks, petroleum-contaminated soil was identified and Tyree reported the contaminated soil to NYSDEC, which issued the Station Spill No. 95-04305. According to Kara, Getty and Tyree failed to timely report the spill as required by New York state law. Thereafter, Tyree removed approximately 980 tons of petroleum-contaminated soil from the area where the previous USTs had been situated. In January 1996, Tyree submitted a Closure Report to the NYSDEC documenting the UST upgrade and soil remediation activities. The NYSDEC has not provided comment on the Closure Report. Events Surrounding the Spill

  On September 23, 1996, the overfill alarm probes inside of the premium USTs at the Station were removed by a Tyree employee. The probes are designed both to gauge the level of fluid inside the UST and to sound an external alarm when the fluid level nears the tank's capacity. G & T does not dispute this, but notes that alternate overfill alarm protection was in place, including leak detection probes in the tanks, between the tank walls and in the containment sumps.

  From September 23, 1996 to April 2, 1997, there were a total of 63 deliveries of premium gasoline to the Station. On March 30, 1997, a fuel carrier other than Island delivered 5,100 gallons of premium gasoline to the Station. The March 30 delivery represents 67% of the total capacity available in both USTs used to store premium gasoline at the Station.

  Island asserts, and G & T deny, that the entire leak detection/overfill alarm system was deactivated on April 2, 1997.

  On the morning of April 2, 1997, Island driver Mullane made a delivery of gasoline to the Station. The Island delivery truck had been loaded with 2,299 gallons of premium gasoline at the Mount Vernon fuel terminal. According to Island, the "driver card" given to Mullane at the Mount Vernon terminal contained a highlighted notation that the two premium USTs at the Station were "not connected." G & T dispute this characterization, contending that while the first page of the driver card indicated that they were not connected, another page of the card stated that the two premium grade USTs were connected by a "siphon bar."

  At the time of the April 2, 1997 delivery, a two-inch siphon bar contained with a three-inch secondary containment pipe ran between the two premium USTs at the Station. The siphon bar responds to variance in pressure created by differing fluid levels between the two USTs by transferring gasoline from the tank containing more fluid to the other, resulting in a leveling of the gasoline levels in the two tanks. The siphon bar was functioning at the time of the delivery.

  Mullane had never previously delivered to the Station. Island asserts that a station employee, Tito Gomez ("Gomez"), was present for the delivery of the fuel and signed the delivery receipts prepared by Mullane. G & T state that they lack knowledge sufficient to determine whether Gomez actually signed the receipts or was present for the delivery.

  Prior to delivering any gasoline into the USTs, Mullane measured the level of fuel in each UST by taking dipstick readings, obtained by inserting a dipstick into the UST. According to Island, 35 ½ inches of gasoline was in one of the premium USTs, and 35 inches was in the other. G & T state that they lack knowledge sufficient to determine whether the readings were accurate.

  In 1997, third-party defendant Xerxes Corporation ("Xerxes"), the manufacturer of the USTs installed at the station, published a conversion chart (the "Xerxes tank chart") for USTs like those at the Station. The chart provides fluid measurement, in gallons, corresponding to dipstick readings, in inches. The chart also indicates that the actual capacity of the 4,000 gallon USTs is 3,758 gallons. Island contends, and G & T dispute, that on April 2, 1997, Mullane did not use a Xerxes tank chart corresponding to the USTs at the Station, but instead used a "generic tank chart" to convert his readings.

  The invoice for the April 2, 1997 delivery of fuel indicates that the post-delivery fuel levels of the premium USTs were 51 ½ inches and 53 ½ inches, respectively. Mullane testified that the post-delivery readings were 51 ½ inches and 53 inches, respectively. Using the Xerxes tank chart and Mullane's dipstick readings, the amount of gasoline in the premium USTs pre-delivery was 1,890 and 1,926 gallons, respectively. Following delivery, the amount of gasoline according to the invoice was 2,998 and 3,116 gallons, respectively, and according to Mullane's testimony was 2,998 and 3,087 gallons, respectively. The total difference in the pre- and post-delivery amounts of gasoline is 2,298 gallons according to the invoice, and 2,269 according to Mullane's testimony. Island asserts that this demonstrates that there was no overfill. G & T dispute this, asserting that there was an overfill of the westernmost premium UST. G & T also state that

given the siphon effect between the two premium tanks, the post-delivery stick readings cannot establish whether the deliveries were made separately to each premium tank or whether excess gasoline from the overfilled tank was siphoned into the other premium tank.
G & T's Response to Island's Rule 56.1 Statement, ¶ 41. G & T also state that, according to Island's driver, the readings can be inaccurate by "a couple of hundred" gallons. Mullane Deposition at 182-83.

  On the afternoon of April 2, 1997, a gasoline odor was reported coming from the Colgate Building. The same afternoon, the Colgate Building tenant notified the Fire Department of the gasoline odor. Shortly thereafter, the Fire Department arrived at the Colgate Building and foamed the cellar with a fire suppressant as a precautionary measure. A member of the Fire Department also took dipstick readings from each of the premium USTs. Each tank showed 49 ½ inches of fuel, which corresponds to 2,875 gallons using the Xerxes tank chart. The Fire Department notified the New York City Department of Environmental Protection ("NYCDEP") of gasoline fumes during the afternoon of April 2, 1997. At approximately 2:20 P.M. that day, NYCDEP called in a spill report to the NYSDEC, which issued the Station Spill No. 97-00109.

  According to Island, the monthly Statistical Inventory Reconciliation ("SIR") prepared for the Station by Warren Rogers Associates, Inc. show no loss of gasoline from the Station for the period February 19, 1997 through April 19, 1997. G & T dispute this, noting that the SIR reports for premium tanks during that time period showed variances of hundreds of gallons, including deficiencies of 170 gallons and excesses of 275 gallons.

  Remediation of the Station and the Colgate Building

  Tyree arrived at the Station at approximately 6:05 P.M. or, according to Kara, the later afternoon or early evening. Shortly after arriving at the Station, Tyree determined that fresh gasoline was floating on top of the water that had entered the cellar of the Colgate Building from an area beneath the staircase in the cellar. According to Tyree employee Edward Waldron ("Waldron"), the gasoline in the cellar had accumulated quite recently because it "looked too clean to be sitting there for three days." Waldron Deposition at 189. On April 2, 1997, as directed by the NYCDEP, Tyree pumped approximately 600 gallons of petroleum-impacted water out of the cellar. In accordance with orders from the NYSDEC, on the same day Tyree installed a temporary Vapor Abatement System ("VAS") to exhaust the gasoline fumes outdoors. According to Kara, the design and method of installation was determined by Tyree.

  According to G & T, on April 3, 1997, Tyree, as directed by NYCDEP, sealed the areas in the cellar where groundwater was entering. While Kara acknowledges that Tyree sealed at least one claimed contamination entry, it asserts that Tyree did not seal all of the areas where contamination was entering.

  On April 3, 1997, Tyree began the installation of a temporary soil vapor extraction system ("SVES") to remove hydrocarbon vapors in the soil, including the installation of two groundwater monitoring wells. On April 8, 1997, Tyree commenced operation of the temporary SVES.

  At the direction of NYSDEC, on or about April 8, 1997, Tyree removed the temporary VAS fan and installed a permanent VAS vent with a high velocity blower to vent the gasoline odors outdoors.

  The temporary SVES was replaced with a permanent SVES on or about April 11, 1997. On or about April 15, 1997, a carbon filter was added to the SVES to reduce any gasoline odors emitted by the SVES. On or about July 30, 1997, Tyree moved the exhaust vent away from the Colgate Building's air intake vents to help prevent any petroleum odors emitted by the exhaust vent from entering the Colgate Building.

  Pursuant to the NYSDEC-approved Corrective Action Plan, Tyree performed an environmental site investigation in February 1998 to determine the extent and magnitude of the spill. Kara, however, asserts that neither Getty nor Tyree determined the extent of the magnitude of the spill in that report or in a later document.

  On June 1, 1998, the VAS was upgraded with a more powerful exhaust fan in response to requests from the Colgate Building tenant. Kara states that it does not know whether the more powerful fan is more effective in removing fumes.

  On June 9, 1998, Tyree submitted its Environmental Site Investigation Report to the NYSDEC.

  In or about November 1999, with the approval of the NYSDEC, the dual phase high vacuum extraction system ("DPHVES"), which was installed to replace the SVES, commenced operation. Kara disputes this, stating that the DPHVES was not fully installed in November 1999. Further, Kara states that there is no record that the NYSDEC approved the DPHVES system because the design of the system was not disclosed to the NYSDEC, and such a system was required to have been approved pursuant to a corrective or remedial action plan, and NYSDEC states that such a plan does not exist.

  To further delineate the zone of contamination and to assess the effectiveness of the DPHVES, Tyree conducted additional subsurface soil and groundwater sampling in February through April 2002. According to Kara, G & T have not delineated the contamination plume as required, although Kara acknowledges that soil and groundwater sampling was undertaken.

  According to G & T, Kara has undertaken no remediation work and has incurred no remediation costs in connection with the petroleum contamination discovered at the Colgate Building. Kara disputes this, stating that its remediation work consists of attempting to compel G & T to properly remediate the spill. Kara also states that it has engaged in work regarding its sumps and leakage repairs but that it cannot quantify this work for purposes of specific dollar amounts for remediation. Kara also states that substantial costs have been incurred in this litigation and in developing a proper review of the spill conditions and developing a proper remediation action for protection of the Colgate Building and the surrounding environment including the Bronx River. According to G & T, Tyree has performed monthly system monitoring, quarterly well monitoring, and has submitted quarterly status reports to the NYSDEC concerning the status of the remediation at the Station covering the period from April 1997 to September 2003. Kara states that the reports submitted to the NYSDEC show neither monthly system monitoring nor quarterly well monitoring.

  G & T contend that the air samples collected by Tyree and by Kara's expert, Shapiro Engineering P.C. from the cellar of the Colgate Building indicate contaminant levels below the Permissible Exposure Limits promulgated by the Occupational Safety and Health Administration, 29 C.F.R. § 1915.1000 Table Z (2000), and below background levels for ambient air in basements promulgated by the New York State Department of Health. Kara denies this, stating that the air samples collected by Tyree, particularly on December 20, 2000 showed "excessive levels" which required the evacuation of the Tyree technician. Kara also states that at other times the Colgate Building was evacuated. Kara also states that the air quality levels were not below permissible levels "because employees were hazardously endangered." Kara's Response to Defendants' Rule 56.1 Statement, ¶ 41. Kara also states that because Tyree has failed to provide the analytical data packages for the contamination samples, the Tyree data cannot be verified and should be excluded. G & T state that the sampling data drawn from monitoring wells in and around the Station indicate a substantial decrease in BTEX and MTBE groundwater concentrations during the period October 1997 through July 2003. Kara objects to this data as well, arguing that because no analytical packages were received for this data, it should be excluded.

  G & T state that the groundwater in and around the Station is not a source of drinking water. While Kara does not directly dispute this, it does assert that the groundwater in and around the Station is contaminated at levels above NYSDEC standards, and observes that "people have been known to withdraw ground water for many purposes without authorization." Id. at ¶ 44.

  According to Kara, G & T do not intend to return the Colgate Building to its pre-spill condition. Theodore Stevens ("Stevens"), an engineer who was retained by G & T, and who was responsible for overseeing and directing certain remediation activities at the Station and consulting on other aspects from the time of the spill, testified that it was not his objective to restore the environment at the Station to its pre-spill conditions. Stevens Deposition, 2/25/03, at 49. G & T states that it disputes this characterization, but has not cited to evidence establishing that it is G & T's objective. Discussion

  Summary judgment is granted only if there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Fed.R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Silver v. City Univ., 947 F.2d 1021, 1022 (2d Cir. 1991); see generally 11 James Wm. Moore, et al., Moore's Federal Practice § 56.11 (3d ed. 1997 & Supp. 2004). The court will not try issues of fact on a motion for summary judgment, but, rather, will determine "whether the evidence presents a sufficient disagreement to require submission to a [factfinder] or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).

  "The party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists and that the undisputed facts establish her right to judgment as a matter of law." Rodriguez v. City of New York, 72 F.3d 1051, 1060-61 (2d Cir. 1995). In determining whether a genuine issue of material fact exists, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Gibbs-Alfano v. Burton, 281 F.3d 12, 18 (2d Cir. 2002). Thus, "[s]ummary judgment may be granted if, upon reviewing the evidence in the light most favorable to the non-movant, the court determines that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law." Richardson v. Selsky, 5 F.3d 616, 621 (2d Cir. 1993).

  A material fact is one that would "affect the outcome of the suit under the governing law," and a dispute about a genuine issue of material fact occurs if the evidence is such that "a reasonable [factfinder] could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248; R.B. Ventures, Ltd. v. Shane, 112 F.3d 54, 57 (2d Cir. 1997). The Court is "to grant summary judgment where the nonmovant's evidence is merely colorable, conclusory, speculative or not significantly probative." Schwimmer v. Kaladjian, 988 F. Supp. 631, 638 (S.D.N.Y. 1997) (citing Anderson, 477 U.S. at 249-50).

  G & T's Motion for Summary Judgment

  G & T move to dismiss all claims made by Kara against them. G & T argue that Kara is unable to prove damages or any basis for injunctive relief. In response to G & T's motion, Kara has withdrawn its claim for a violation of the New York Education Law (Count Nine) and its claim for indemnification and restitution (Count Ten). RCRA Claim — Count One

  Under the citizen suit provisions of the RCRA, "any person may commence a civil action on his own behalf" either "against any person . . . who is alleged to be in violation of any permit, standard, regulation, condition, requirement, prohibition, or order" effective pursuant to the RCRA, 42 U.S.C. § 6972(a)(1)(A), or "against any person . . . who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment." 42 U.S.C. § 6972(a)(1)(B).

  In opposition to G & T's motion, Kara argues that it alleged in the Complaint that G & T had violated § 6972(a)(1)(A). However, Kara has "not alleged that defendants are violating a specific `permit, standard, regulation, condition, requirement, prohibition, or order' under the RCRA." United States E.P.A. v. The Port Authority of New York and New Jersey, 162 F. Supp. 2d 173, 190 (S.D.N.Y. 1990) (quoting § 6972(a)(1)(A)). Count One of the Complaint makes reference to RCRA generally, and makes specific reference to 42 U.S.C. §§ 6991e and 6928(g). Section 6991e refers to the procedure by which EPA compliance orders are issued, and section 6928(g) refers to civil penalties for RCRA violations. Kara's reference to these provisions is inadequate to state a claim under § 6972(a)(1)(A). Nor do the previous paragraphs of the Complaint make reference to any specific violations of the RCRA. Accordingly, to the extent that Count One alleges a violation of 6972(a)(1)(A), the claim is dismissed.

  As held in a previous opinion in this case, in order to prevail on a claim under 42 U.S.C. § 6972(a)(1)(B),

a RCRA plaintiff must ultimately demonstrate that:
(1) the defendant was or is a generator or transporter of solid or hazardous waste or owner or operator of a solid or hazardous waste treatment, storage or disposal facility, (2) the defendant has contributed or is contributing to the handling, storage, treatment, transportation, or disposal of solid or hazardous waste, as defined by RCRA, and (3) that the solid or hazardous waste in question may pose an imminent and substantial endangerment to health or the environment.
Kara I, 67 F. Supp. 2d at 309-10 (quoting Prisco v. A & D Carting Corp., 168 F.3d 593, 608 (2d Cir. 1999)). As they did previously, G & T "contend that the specific wastes at issue in this case do not pose any imminent and substantial endangerment to health or to the environment." Id. at 310.

  In order for there to be an imminent and substantial endangerment under § 6972(a)(1)(B):

(1) there must be a population at risk, (2) the contaminants must be listed as hazardous waste under RCRA, (3) the level of contaminants must be above levels that are considered acceptable by the State, and (4) there must be a pathway of exposure. Price v. United States Navy, 818 F. Supp. 1323, 1325 (S.D. Cal. 1992), aff'd, 39 F.3d 1011 (9th Cir. 1994); see also Interfaith Community Organization v. Honeywell Int'l, 263 F. Supp. 2d 796, 815 (D.N.J. 2003) (using substantially similar three-part test). Further, as previously held in Kara I,
The operative word in section 6972(a)(1)(B) is "may," however, and a plaintiff "need not establish `an incontrovertible "imminent and substantial" harm to health and the environment.'" [Orange Env't, Inc. County of Orange, 860 F. Supp. 1003, 1029 (S.D.N.Y. 1994)] (quoting Gache v. Harrison, 813 F. Supp. 1037, 1044 (S.D.N.Y. 1993)). A finding of imminency also does not demand a demonstration that the actual harm will occur immediately. As the Supreme Court held in [Meghrig v. KFC Western, 516 U.S. 479 (1996)], the language of the RCRA "`implies that there must be a threat which is present now, although the impact of the threat may not be felt until later.'" 516 U.S. at 486 (quoting Price v. United States Navy, 39 F.3d 1011, 1019 (9th Cir. 1994)).
67 F. Supp. 2d at 310.

  G & T argue that they have established that the environmental conditions at the Station do not cause adverse health effects or pose a threat to human health or the environment because the petroleum-contaminated ground water is not used as a drinking source and the contaminants are not in the air. G & T's expert Steven Johnson ("Johnson") testified that the readings of ambient air in the cellar of the Colgate Building taken in April 1997 through March 2000 "measured contaminants at either non-detectable or extremely low levels, indicating that the gasoline vapors in the cellar do not constitute a threat to human health." Johnson Affidavit, ¶ 43. Kara later denied access to the cellar to test both air quality and subsurface water contamination.

  Kara argues that air quality is still endangered, and cites as evidence in support two incidents in October 2000 in which vapors were reported in the cellar of the Colgate Building, and one in which a Tyree employee visited the cellar in December 2000 but had to leave when he "felt light headed from the vapors." Plaintiff's Exhibit 77. G & T argue that Kara has not shown that the October vapor complaints are attributable to subsurface soil or groundwater petroleum contamination, and dispute the characterization of the December 2000 incident. Neither party has provided any information about air contamination from 2001 to the present.

  Kara argues that the groundwater in and around the Station is contaminated at levels above NYSDEC standards. Although Kara does not contend that the contaminated groundwater is used for drinking, it argues that "people have been known to withdraw ground water for many purposes without authorization." Kara has not explained, however, how or whether groundwater had been drawn from the site by individuals unrelated to this litigation.

  While the reports of vapors in late 2000 provide only anecdotal evidence of contaminants at levels above that acceptable by the State, on a motion for summary judgment they suffice to create a question of material fact as to whether there may presently be an imminent and substantial endangerment.

  However, a finding that material issues of fact exist is not sufficient to provide a basis to deny defendant's request for summary judgment on the RCRA claim. In order for Kara's claim for injunctive relief to survive, it "would have to identify some action that defendant could be ordered to take that is not already in place thanks to the action of the state agency and that would improve the situation in some way." 87th Street Owners Corp. v. Carnegie Hill-87th Street Corp., 251 F. Supp.2d 1215, 1220 (S.D.N.Y. 2002). The court in 87th Street Owners dismissed a RCRA claim despite denying defendant's request for summary judgment on liability because "Plaintiff has identified nothing whatsoever that this Court could order defendant to do to supplement the [NYSDEC]'s efforts." Id. at 1221.

  Unlike the plaintiff in 87th Street Owners, Kara has proposed a remediation plan which it estimates would cost over $3.4 million for initial installation and the first year of operation costs, and would thereafter require over $2 million in annual operating and utility costs. Kara's Exhibit C (Remediation Plan prepared by Shapiro Engineering, P.C.). However, Kara has not shown that the remediation plan proposed by the plaintiffs is necessary to insure that the petroleum contamination is no longer an imminent and substantial endangerment in light of the considerable remediation that has already taken place. Kara's expert, Elliot Shapiro ("Shapiro"), acknowledged, when asked whether other remediation systems which would intercept gasoline-laden groundwater, that "[u]ndoubtedly, there are a number of ways that could be effective, cost-effective and effective in obtaining the results." Shapiro Deposition at 209. Further, a representative of NYSDEC testified in late 2002 that he was satisfied with the progress of the remediation systems in place at the site, that there was a downward trend in petroleum contamination, that Tyree had "pretty much done everything I've asked them to do," and that the systems that NYSDEC recommended and approved are in place at the site. Deposition of Mark Tibbe at 46-48. Therefore, while Kara has proposed an action that may improve the situation over the remediation currently in place and approved by NYSDEC, it has not shown that the current remediation is not sufficient to address any danger to health or the environment.

  As the 87th Street Owners court held, RCRA gives a district court "broad equitable powers": "the Court may not only `restrain' a defendant from doing whatever it is doing with hazardous waste that creates the environmental danger, but may also order it take any `action' that `may be necessary' to abate that danger." 251 F. Supp. 2d at 1219 (quoting 42 U.S.C. § 6972(a)). When the agency charged with overseeing petroleum remediation has found that the systems currently in place are sufficient to abate the danger, no further action is necessary. The cases cited by G & T for the proposition that this Court should not second-guess the judgment of the NYSDEC are not entirely apposite, as they concern the review of the actions of state and federal environmental agencies under the deferential "arbitrary and capricious" standard. See Pan American Grain Mfg. Co. v. E.P.A., 95 F.3d 101 (1st Cir. 1996); Fairchild Holding Corp. v. Revere Copper & Brass, Inc., 291 B.R. 29, 35-38 (S.D.N.Y. 2003). However, where the determination of the existence of an imminent and substantial endangerment turns in part on whether contaminants are "above levels that are considered acceptable by the State," Price, 818 F. Supp. at 1325, evidence of the acceptability of the remediation plan by NYSDEC must be given substantial weight. Accordingly, Kara's RCRA claim is dismissed.

  Count Two — Clean Water Act Claim

  The Clean Water Act ("CWA") "prohibits `discharge' of `any pollutant' into `navigable waters' without a permit issued by the United States Environmental Protection Agency (`EPA')." No-Spray Coalition, Inc. v. City of New York, 351 F.3d 602, 604 (2d Cir. 2003) (quoting 33 U.S.C. §§ 1311(a), 1342). G & T argue that Kara does not have standing to bring a CWA claim because it cannot demonstrate any injury to itself as the result of any alleged discharge of pollutants. In order to bring suit, Kara must satisfy both the statutory and constitutional standing requirements. The CWA provides that

any citizen may commence a civil action on his own behalf . . . against any person . . . who is alleged to be in violation of (A) an effluent standard or limitation under this chapter or (B) an order issued by the [EPA] or a State with respect to such a standard or limitation . . .
33 U.S.C. § 1365(a)(1). For purposes of § 1365, "the term `citizen' means a person or persons having an interest which may be adversely affected." § 1365(g). The Supreme Court has observed that "Congress legislates against the background of [the Court's] prudential standing doctrine, which applies unless it is expressly negated." Bennett v. Spear, 520 U.S. 154, 164-65 (1997) (citing § 1365(g). In order to satisfy the constitutional standing requirements,

 

a plaintiff must show (1) it has suffered an "injury in fact" that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and 3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.
Friends of the Earth, Inc. v. Laidlaw Env'tl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000). "The injury alleged must be . . . distinct and palpable, and not abstract or conjectural or hypothetical." Allen v. Wright, 468 U.S. 737, 751 (1984). In Friends of the Earth, the Supreme Court found that the plaintiff organization had standing to bring a CWA claim on behalf of its members because several members had testified that they had hiked, fished, camped, and swam in the river before the facility operated by the defendant had opened, but that afterward they would not do so because the river smelled and because of concern that the water was polluted because of defendant's discharges. 528 U.S. at 181-82.

  Here, the plaintiff is a corporate landlord that does not use or rely on the Bronx River for any purpose. The President of Kara, Elias Karmon ("Karmon"), testified that the Colgate Building's "cellar flooding is particularly related to the Bronx River backing up for whatever reason." Karmon Affidavit ¶ 2. Karmon also testified that "a clean [Bronx] river would . . . improve the life of the neighborhood as well as the property value of the neighborhood property, including my building." Id. at ¶ 7. No evidentiary support is provided for these statements. Standing may not be based on the "conclusory allegations of an affidavit." Lujan v. National Wildlife Federation, 497 U.S. 871, 888 (1990).

  Harmon further testified that he personally has worked to improve the environmental quality of the Bronx, including the Bronx River, and that a clean river would bring aesthetic and recreational pleasure as well as "personal enjoyment." Id. at ¶¶ 5, 7-8. Such testimony is irrelevant to the harm suffered by Kara, the corporation which is the plaintiff in this litigation. See Citizens Coordinating Committee on Friendship Heights, Inc. v. Washington Metropolitan Area Transit Authority, 765 F.2d 1169, 1173 (D.C. Cir. 1985) ("Aesthetic injury presupposes the ability to sense ones' surroundings. Though a corporation is a person for some purposes, we would be most reluctant to hold that it has senses and so can be affronted by deteriorations in its environment."). Kara has therefore not alleged any injury in fact which would confer standing on Kara. Accordingly, Count Two is dismissed.

  Even if Kara could allege an injury in fact, it has not provided evidence that the Bronx River is being contaminated by the petroleum discharge. While Kara's expert, Kenneth Weinberg ("Weinberg") stated in his report "that the gasoline that has been spilled into the ground at [the Station] abutting [the Colgate Building] will also travel via underground routes toward the [Bronx] river," Weinberg Report at 4, he also testified that he has "no idea" if there is a pathway between the Station and the Bronx River. Weinberg Deposition at 194-95.

  Count Three — Navigation Law Claim

  Section 181 of New York's Navigation Law holds "[a]ny person who has discharged petroleum . . . strictly liable, without regard to fault, for all cleanup and removal costs and all direct and indirect damages, no matter by whom sustained. . . ." damages, consisting of all costs associated with the cleanup and removal of a discharge." AMCO Int'l, Inc. v. Long Island Railroad Co., 302 A.D.2d 338, 340-41, 754 N.Y.S.2d 655 (2d Dep't 2003) (citing Navigation Law §§ 172(5), 181(2)). Litigation expenses, including attorneys' fees, may be awarded "to the extent that plaintiffs are able to establish that they incurred liability for counsel fees as a result of the discharge . . ." Strand v. Neglia, 232 A.D.2d 907, 909, 649 N.Y.S.2d 729 (3d Dep't 1996); see also AMCO Int'l, 302 A.D.2d at 341; State of New York v. Tartan Oil Corp., 219 A.D.2d 111, 115-16, 638 N.Y.S.2d 989 (3d Dep't 1996).

  G & T argue that the Navigation Law claim should be dismissed because Kara has incurred no expenses related to the cleanup and removal of the petroleum spill, and because any attorneys' fees incurred by Kara were not the result of the discharge. Kara conversely argues that it has suffered several kinds of damages and is entitled to attorneys' fees for having brought this suit. Because the issue of damages is relevant to several other claims, Kara's claims for damages will be considered here in detail.

  Kara Has Demonstrated That It Has Suffered Damages

  Under New York common law, a plaintiff may recover damages for either temporary or permanent injury to real property, or for both. See Scribner v. Summers, 138 F.3d 471, 472 (2d Cir. 1998). "[T]he proper measure for damages for permanent injury to real property is the lesser of the decline in market value and the cost of the restoration." Id. (quoting Jenkins v. Etlinger, 55 N.Y.2d 35, 39, 447 N.Y.S.2d 696, 698, 432 N.E.2d 589, 591 (1982)); see also Fisher v. Qualico Contracting Corp., 98 N.Y.2d 534, 539, 749 N.Y.S.2d 467, 779 N.E.2d 178, 181 (2002) ("when the reasonable cost of repairing the injury, or . . . the cost of restoring the land to its former condition is less than what is shown to be the diminution in the market value of the whole property by reason of the injury, such cost of restoration is the proper measure of damages.") (quoting Hartshorn v. Chaddock, 135 N.Y. 116, 122 (1892)). A plaintiff "need only prove one of the two measures and it becomes the defendant's burden to prove `that a lesser amount . . . will sufficiently compensate for the loss.'" Scribner, 138 F.3d at 472 (quoting Jenkins, 55 N.Y.2d at 39).

  G & T argue that Kara has suffered no permanent property damage because G & T have paid and are continuing to pay for all of the restoration costs incurred in remediating Kara's property. In support of its damage claim, Kara conversely argues that the remediation plan submitted by Shapiro, which would cost over $3 million in the first year alone, and which would allegedly restore the property, provides the proper measure of damages. However, as the value of the property is $1.35 million according to Kara's expert Eric Sterling ("Sterling"), see Sterling Deposition at 164, even using Kara's remediation plan as a benchmark, the decline in the market value of the property is the proper measure of damages.

  The report prepared by Sterling assesses the market value of the Colgate Building by subtracting the cost of remediation (as well as stigma damage) from the pre-spill value of the property, from which it is concluded that the property has a negative market value. Such an approach, however, does not accurately measure the decline in market value in the instant case. In Putnam v. State, 223 A.D.2d 872, 636 N.Y.S.2d 473 (3d Dep't 1996), the court held that the plaintiff had failed to proffer sufficient proof of permanent damage when the appraiser who testified on plaintiff's behalf "did not take into account that claimant might be able to successfully use or rent the commercial portion of such property." 223 A.D.2d at 874. In the present case, it is undisputed that Kara has continued to rent the Colgate Building to the City with no loss of rental income, and that the City has given no indication that it intends to break the lease. Under such circumstances, Kara has failed to demonstrate that the property has suffered permanent damage.

  Kara's argument that the City "has not yet formulated a position regarding vacating the building or rent reduction or rent rebates," Kara Opp. Mem. at 5, is insufficient to create a material issue of fact because it is both speculative and supported only by hearsay in Karmen's affidavit. See Solow v. Liebman, 262 A.D.2d 633, 692 N.Y.S.2d 693 (2d Dep't 1999) (claims that property had been damaged or diminished in value were "conclusory, speculative, and unsubstantiated," and therefore insufficient to defeat motion for summary judgment).

  "Recovery for temporary injury to real property may be measured by the value of the loss of use, which is determined by the decrease in the property's rental value during the pendency of the injury." Jenkins, 55 N.Y.2d at 40. Under this standard, Kara has not demonstrated any temporary damages.

  Kara has argued that even in the absence of permanent or temporary damages, it is entitled to nominal damages. "Nominal damages are always available in breach of contract actions, but they are allowed in tort only when needed to protect an important technical right." Kronos, Inc. v. AVX Corp., 81 N.Y.2d 90, 95, 612 N.E.2d 289, 595 N.Y.S.2d 931 (1993). The reason is that "[i]n tort, there is no enforceable right until there is loss. It is the incurring of damage that engenders a legally cognizable right." Id. at 96. Nominal damages have been awarded in intentional tort cases, such as trespass and nuisance, "in which vindication of the right to be free of such invasions of interest takes priority over the primary purpose of tort law, namely the compensation for actual harm." 16 New York Practice, New York Law of Torts § 21:2 (2004). Kara has cited no authority for the proposition that the Navigation Law protects an important technical right, and the fact that § 181 provides for strict liability strongly suggests that it does not. Kara is therefore not entitled to nominal damages on its Navigation Law claim.

  The absence of evidence demonstrating that Kara has suffered damages according to common-law measures of property damage is, however, not fatal to Kara's Navigation Law claim. Section 611.6 of the New York Compilation of Codes, Rules and Regulations provides a list of the priorities and objectives of petroleum cleanup and removal. This section was

adopted pursuant to Section 191 of the Navigation Law to implement the responsibilities of the Department of Environmental Conservation under the provisions of article 12 of the Navigation Law, which prohibits the discharge of petroleum [and] provides for the cleanup and removal of any petroleum discharge . . .
6 N.Y.C.R.R. § 611.1(a). The fourth item on the list of the objectives of the cleanup and removal phase is "the restoration of the environment to its pre-spill conditions." 6 N.Y.C.R.R. § 611.6(a)(4). Although the regulation states the responsibilities of NYSDEC, it has been interpreted by courts to state the objectives of cleanup undertaken by non-state parties. See Matera v. Mystic Transp., Inc., 308 A.D.2d 514, 517-18, 764 N.Y.S.2d 458 (2d Dep't 2003); AMCO Int'l, 302 A.D.2d at 340.

  In AMCO Int'l, the trial court held that "plaintiff is entitled to have its property restored to it pre-spill condition, not merely to a standard found acceptable to [NYSDEC]." AMCO Int'l, Inc. v. Long Island R.R. Co., N.Y.L.J., July 23, 2001, p. 35, col. 5 (Sup. Co. Suffolk Co.). That decision was upheld by the Appellate Division, which cited to § 611.6(a)(4), and stated that "[t]he court also properly required restoration of the area to its pre-spill condition." AMCO Int'l, 302 A.D.2d 338, 340 (2d Dep't 2003).

  Kara has cited to unrebutted testimony by the consultant overseeing remediation of the spill that it is not G & T's objective to restore the environment at the Station to its pre-spill condition. See Stevens Dep., 2/25/03, at 49. G & T rests its claim that Kara is unable to show damages on the fact that G & T has paid and continues to pay for the remediation under the guidance and approval of NYSDEC. However, as Matera and AMCO Int'l show, a court may order the payment of damages for remediation beyond that required under a NYSDEC-approved plan. Under those cases and § 611.6(a)(4), G & T must restore the Colgate Building to its pre-spill condition.

  In its response to Kara's Rule 56.1 Statement, G & T dispute the contention that it does not intend to restore the Colgate Building to its pre-spill condition. However, construing the evidence relating to the remediation plan in Kara's favor, Kara has demonstrated there is a genuine issue of material fact whether it has suffered damages compensable under the Navigation Law. Accordingly, summary judgment is denied with respect to Count Three.

  Count Four — Trespass

  As discussed above, nominal damages are available in trespass actions, see Kronos, 81 N.Y.2d at 95, and Kara's claim for trespass therefore cannot be dismissed for failure to allege actual damages. "Under New York law, trespass is the intentional invasion of another's property." Scribner v. Summers, 84 F.3d 554, 557 (2d Cir. 1996) (citing Ivancic v. Olmstead, 66 N.Y.2d 349, 352 (1985)). "To be liable, the trespasser `need not intend or expect the damaging consequences of intrusion'; rather, he need only `intend the act which amounts to or produces the unlawful invasion.'" Id. (quoting Phillips v. Sun Oil Co., 307 N.Y. 328, 331, 121 N.E. 249 (1954)). In the context of "damage claims arising from the underground movements of noxious fluids," the New York Court of Appeals has held that

even when the polluting material has been deliberately put onto, or into, defendant's land, he is not liable for his neighbor's damage therefrom, unless he (defendant) had good reason to know or expect that subterranean and other conditions were such that there would be passage from defendant's to plaintiff's land
Phillips, 307 N.Y. at 331 (quoted in Scribner, 84 F.3d at 557). It is not disputed that G & T invaded Kara's property through the discharge of petroleum into the soil adjoining the Colgate Building. However, G & T argue that they did not knowingly or intentionally cause petroleum to seep into the Colgate Building. Several New York cases hold that the unintentional discharge of petroleum does not give rise to a claim of trespass. See Drouin v. Ridge Lumber, Inc., 209 A.D.2d 957, 959, 619 N.Y.S.2d 433 (4th Dep't 1994) (trespass claim dismissed where "requisite willful intent to intrude" not shown); Snyder v. Jessie, 164 A.D.2d 405, 412, 565 N.Y.S.2d 924 (4th Dep't 1990) superseded on other grounds by statute as stated in White v. Long, 85 N.Y.2d 564, 568, 626 N.Y.S.2d 989, 650 N.E.2d 836 (1995) (same); Chartrand v. State, 46 A.D.2d 942, 362 N.Y.S.2d 237 (3d Dep't 1974) (same); see also Hilltop Nyack Corp. v. TRMI Holdings, Inc., 272 A.D.2d 521, 523, 708 N.Y.S.2d 138 (2d Dep't 2000) (negligence, trespass and nuisance claims dismissed where plaintiff's failed to show an "intentional, reckless, or negligent act or omission" on defendant's part that caused or contributed to contamination).

  Kara has proffered no evidence which would indicate that G & T even knew about the petroleum contamination caused by the April 1997 spill, let alone that they intended to discharge petroleum into the soil. Kara, however, also argues that intentional invasion may be inferred from G & T's discovery in 1995 that petroleum had leaked into the soil when the old USTs were replaced and new ones were installed. At that time, 980 tons of contaminated soil was removed by G & T. According to Kara, the failure to undertake additional remediation in 1995, combined with G & T's alleged knowledge that the flow of groundwater would carry the contamination onto Kara's property, creates a material fact with respect to intent.

  Kara's evidence, however, is insufficient to create an inference of intentional action. As defendants persuasively argue, Kara has presented no evidence

  

that the petroleum found in the cellar of the Colgate Building [in 1997] was a result of the residual contamination that remained after excavation of 980 tons of contaminated soil in 1995. Moreover, there is no evidence that the residual contamination that remained in 1995 was of a quantity that migration onto [Kara's] property was inevitable.
Def.'s Opp. to Kara's Mot. for Partial Summ. J. at 27-28. Accordingly, Count Four is dismissed.

   Count Five — Nuisance

   To establish liability on a claim for private nuisance, Kara must show that G & T's conduct:

   is a legal cause of the invasion of the interest in the private use and enjoyment of land and such invasion is (1) intentional and unreasonable, (2) negligent or reckless, or (3) actionable under the rules governing liability for abnormally dangerous conditions or activities. Scribner, 84 F.3d at 559 (quoting Copart Indus. v. Consolidated Edison Co., 41 N.Y.2d 564, 568, 569, 394 N.Y.S.2d 169, 362 N.E.2d 968 (1977)). As discussed above, Kara is unable to establish that the petroleum contamination which resulted from the 1997 spill or from any pre-1995 conduct was intentional. Accordingly, Count Five is dismissed.

   Count Six — Negligence

   Kara argues that G & T are subject to negligence liability based on the doctrine of negligence per se, because G & T have violated several New York State environmental regulations, and one state environmental statute. It is not necessary to reach the issue whether G & T's conduct constitutes negligence per se, however, because "actual injuries or damages" are an "essential element" of a claim for negligence, Frank v. DaimlerChrysler Corp., 292 A.D.2d 118, 121, 741 N.Y.S.2d 9 (1st Dep't 2002) (citing Becker v. Schwartz, 46 N.Y.2d 401, 410, 413 N.Y.S.2d 895, 386 N.E.2d 807 (1978)), and, as discussed above, Kara has failed to establish actual damages. Accordingly, Count Six is dismissed.

   Count Seven — Gross Negligence

   "[G]ross negligence differs in kind, not only degree, from claims of ordinary negligence. It is conduct that evinces a reckless disregard for the rights of others or `smacks' of intentional wrongdoing." Colnaghi, U.S.A., Ltd. v. Jewelers Protection Svcs., Ltd., 81 N.Y.2d 821, 823-24, 611 N.E.2d 282, 595 N.Y.S.2d 381 (1993). As discussed above, G & T's conduct does not rise to the level of intentional wrongdoing, nor could it be said to "smack" of wrongdoing. Accordingly, Count Seven is Dismissed.

   Count Eight — "Intentionally Wrongful Conduct"

   Because Kara has not cited any authority showing that a cause of action for "intentionally wrongful conduct" exists, Count Eight is dismissed.

   Kara's Motion for Partial Summary Judgment

   Kara's sole remaining claim is Count Three for violation of § 181 of the Navigation Law. Summary judgment as to the other claims is denied as moot.

   Section 181(1) of the Navigation Law, discussed above, imposes strict liability on "[a]ny person who has discharged petroleum." N.Y. Navig. Law § 181(1). The discharge of petroleum is defined in Navigation Law § 172(8) as "any intentional or unintentional action or omission resulting in the releasing, spilling, leaking, pumping . . . emitting, emptying or dumping of petroleum into the waters of the state or onto lands from which it might flow or drain into said waters . . ." The term "waters" includes "bodies of surface or groundwater . . ." § 172(18); see also Niagara Mohawk Power Corp. v. Jones Chemical Inc., 315 F.3d 171, 175-76 (2d Cir. 2003) ("Judicial notice can be taken of the common knowledge that oil can seep through the ground into surface and groundwater. . . .") (quoting Domermuth Petroleum Equipment and Maintenance Corp. v. Herzog & Hopkins, Inc., 111 A.D.2d 957, 958, 490 N.Y.S.2d 54 (3d Dep't 1985)).

   The provisions of Article 12 of the Navigation Law should be construed "liberally to effect their legislative purpose" which is "to ensure swift, effective cleanup of petroleum spills that threaten the environment." State v. Green, 96 N.Y.2d 403, 406, 729 N.Y.S.2d 420, 754 N.E.2d 179 (2001). In particular, the scope of liability under § 181 extends both to "a landowner [that] can control activities occurring on its property and has reason to believe that petroleum products will be stored there," id. at 405, and to environmental contractors hired to remediate contaminated property who fail "to prevent the continuing contamination." Hilltop Nyack Corp. v. TRMI Holdings, Inc., 264 A.D.2d 503, 505, 696 N.Y.S.2d 717 (2d Dep't 1999) (finding Tyree defendants liable); see also Huntington Hosp. v. Anron Heating and Air Conditioning, Inc., 250 A.D.2d 814, 815 (2d Dep't 1998) (defendant's "status as [a] general contractor, responsible for overall supervision of the installation of the USTs, may subject it to liability as a `discharger' under [§ 181(1)]."). G & T have not contested liability on the Navigation Law claim, arguing only that Kara has failed to show damages. It has been held, for purposes of G & T's motion for summary judgment, that there is an issue of material fact as to whether Kara has demonstrated damages by G & T's failure to commit to a plan which would restore the Colgate Building to its pre-spill condition. See 6 N.Y.C.R.R. § 611.6(a)(4).

   For purposes of Kara's motion for summary judgment, however, all inferences must be drawn in favor of G & T, who have disputed that it can be inferred from the Stevens' testimony that G & T does not intend to restore the Colgate Building to its pre-spill condition. See Stevens Deposition, 2/25/03, at 49. Because Stevens is a consultant hired by G & T, it is possible that his testimony does not represent the considered position of G & T. It is therefore found, making all inferences in G & T's favor, that there is a genuine issue of material fact whether G & T's remediation plan will restore the Colgate Building to its pre-spill condition, and therefore whether Kara has shown the existence of damages, which is a prerequisite to a finding of liability on its Navigation Law claim. Summary judgment as to liability is therefore denied on Count Three, and Kara's motion for partial summary judgment is denied in its entirety. It remains to determine at trial whether the remediation plan will restore the Colgate Building to its pre-spill condition. If it is found that it will not, it must be determined what amount of damages will permit such a restoration.

   Island's Motion for Summary Judgment

   Island has moved for summary judgment to dismiss the complaint filed against it by G & T. G & T's complaint alleges claims against Island for contribution, indemnification, contributory negligence, violations of the warranty of merchantability, violation of the common law duty to remediate, and violation of New York Navigation Law. Island argues that the evidence offered by G & T is insufficient to dispute Island's claim that Mullane delivered each of the two compartments of premium gasoline aboard his truck into separate premium USTs on the morning of April 2, 1997. If Island can establish this fact, judgment in Island's favor would be warranted. In addition, Island argues that G & T are precluded from bringing a Navigation Law claim against it.

   Getty is Precluded from Bringing a Navigation Law Claim Against Island

   The strict liability provisions of the Navigation Law with respect to petroleum discharge are discussed above. Island argues that because § 172(3) of the Navigation law defines "claim" to mean either a claim by New York State or "any claim by an injured person, who is not responsible for the discharge," that G & T are precluded from bringing a claim under the statute. The Court of Appeals has confirmed that "persons `responsible for the discharge'" cannot bring a claim under § 181. White v. Long, 85 N.Y.2d 564, 569, 626 N.Y.S.2d 989, 650 N.E.2d 836 (1995); see also Green, 96 N.Y.2d at 408 ("Navigation Law § 181(5) allows a faultless landowner to seek contribution from the actual discharger . . .") (emphasis added); Hjerpe v. Globerman, 280 A.D.2d 646, 647, 721 N.Y.S.2d 367 (2d Dep't 2001).

   It is not disputed that G & T discharged petroleum within the meaning of the law. Island argues that G & T contributed to the discharge because the tank overfill alarms were removed and the leak detector disabled at the time of the spill. G & T do not dispute that the overfill alarm probes were removed. Island also argues that a Tyree technician removed the overfill alarm probes without replacing them, and that only Tyree personnel had access to the sump where a uncovered pipe was discovered that was a means by which gasoline could escape the UST.

   The removal of the overfill alarm probes, and the failure to replace them before April 2, 1997, establishes as a matter of law that if an overfill occurred on that date which was the cause of the contamination of the Colgate Building, that G & T were at least partly responsible for the discharge. Accordingly, G & T may not bring a Navigation Law claim against Island "However, the Navigation Law is not the exclusive means by which defendant may seek to hold third-party defendants liable as persons ultimately responsible for the discharge. . . . The enactment of Navigation Law § 181 (5) `simply expanded the common-law right to recover damages which previously existed in favor of any party injured as a result of an oil discharge.'" White v. Long, 229 A.D. 178, 181, 655 N.Y.S.2d 176 (3d Dep't 1997) (quoting Leone v. Leewood Serv. Sta., 212 A.D. 2d 669, 671, 624 N.Y.S.2d 610 (2d Dep't 1995)). The dismissal of G & T's Navigation Law claim therefore does not affect the disposition of its other claims against Island

   Summary Judgment Is Denied With Respect to G & T's Remaining Claims against Island

   Island has also moved for summary judgment to dismiss all of G & T's remaining common-law claims. The crux of Island's argument is that no genuine issue of material fact with respect to whether Mullane delivered each of the two compartments of premium gasoline aboard his truck into separate premium USTs at the Station on the morning of April 2, 1997. Because it is held that a genuine issue of material fact does exist, Island's motion is denied.

   Island first argues that the expert testimony of Waldron and William Lahti ("Lahti") is inadmissible under the standards provided by Federal Rule of Evidence 702, which provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the case.
Fed.R. Evid. 702.

   The standard was the subject of extensive analysis by the Supreme Court in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999). Daubert charges "trial judges with the responsibility of acting as `gatekeepers,'" in light of the fact that "the Federal Rules of Evidence `assign to the trial judge the task of ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand'" United States v. Salim, 189 F. Supp. 2d 93, 99-100 (S.D.N.Y. 2002) (quoting Daubert, 509 U.S. at 597). Thus, "[t]he determination as to the relevance and reliability of such evidence is committed to the sound discretion of the trial court." Daubert, 509 U.S. at 591. In Kumho Tire Co. v. Carmichael, the Supreme Court clarified that this gatekeeper function applies to all expert testimony, not just scientific testimony. 526 U.S. at 147 (explaining that Rule 702 makes "no relevant distinction between `scientific' knowledge and `technical' or `other specialized' knowledge. It makes clear that any such knowledge might become the subject of expert testimony."). Waldron is a Tyree employee with 33 years experience dealing with the maintenance, construction and operation of mechanical equipment at gasoline stations, particularly Getty brand stations, including underground storage tanks. Waldron's primary responsibility at Tyree, for which he has received professional training, is responding to hazardous material spills, including petroleum spills. Waldron is also testifying as a fact witness in this case, as he was the first person to respond to the spill. Lahti is a licensed professional engineer who has designed hundreds of underground tank systems similar to the tanks at the Station.

   For the purposes of Island's motion for summary judgment, it is only necessary to rule on the admissibility of one portion of Waldron's expert testimony: Waldron's stated opinion that the gasoline found in the Colgate Building on the afternoon of April 2, 1997 was "fresh gas," meaning that it had been in the cellar "about a week, maybe a couple of days." Waldron Dep. at 116. Waldron also testified that the gasoline in the cellar "looked too clean to be sitting there for three days." Id. at 189.

   Waldron's first-hand observation of the gasoline in the cellar provides a sufficient factual basis for his opinion. His decades of experience responding to petroleum spills provides a sufficiently reliable method to approximate the amount of time that gasoline has accumulated in a cellar. See Kumho, 526 U.S. at 148-49 ("Experts of all kinds tie observations to conclusions through the use of what Judge Learned Hand called `general truths derived from . . . specialized experience.'") (quoting Hand, Historical and Practical Considerations Regarding Expert Testimony, 15 Harv. L. Rev. 40, 54 (1901)). Finally, there is no reason to believe that Waldron has not applied his experience reliably to his conclusion that the gasoline is fresh.

   Island argues that Waldron's conclusions should be considered suspect because Waldron never described the gasoline as fresh in his testimony as a fact witness. It would, however, have been inappropriate for Waldron to opine on how recently the gasoline had accumulated in the cellar, as it would require Waldron's expertise to make such a determination. Waldron's testimony that the gasoline was "fresh" is therefore admitted for the purposes of Island's motion. All other questions regarding the admissibility of Waldron's and Lahti's expert testimony shall be deferred until a Daubert hearing can be held prior to trial.

   Waldron's testimony that the gasoline found in the cellar on April 2 was fresh provides circumstantial evidence sufficient to create a genuine issue of material fact whether Mullane dropped his entire load of premium gasoline into one tank, thereby overfilling it and causing the petroleum contamination in the Colgate Building. See Gayle v. Gonyea, 313 F.3d 677, 684 (2d Cir. 2002) ("[C]ircumstantial evidence may be, and we think that in this case it is, sufficient to raise a genuine issue of material fact precluding the grant of summary judgment.").

   Island argues that Waldron's testimony fails to exclude all other possible sources of the gasoline, including the 5,100 gallons of premium gasoline that were delivered to the Station on March 30, 1997. However, in defending against a motion for summary judgment, G & T do not yet have the burden of establishing liability, but only of showing that there is a legitimate dispute on a critical factual issue. G & T has done so here.

   Island further points to the testimony of Mullane that he dropped his load into two separate USTs, and the measurements taken by Mullane which apparently confirm this fact. As G & T argue, however, each of these issues depends on assessment of Mullane's credibility, which is not appropriate on a motion for summary judgment. See Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 520 (1991) ("On summary judgment, we must draw all justifiable inferences in favor of the nonmoving party, including questions of credibility and of the weight to be accorded particular evidence.").

   Finally, Island cites Niagara Mohawk for the proposition that because multiple alternate theories explain the presence of gasoline in the Colgate Building, summary judgment must be granted. In Niagara Mohawk, the Second Circuit upheld a grant of summary judgment to the defendant, agreeing with the district court that there was a "lack of evidence implicating [defendant] in the discharge of the petroleum into the waters of the harbor and the peninsula." 315 F.3d at 176. Plaintiff challenged the ruling, arguing, inter alia, that some evidence permitted the inference that the defendant was the source of the contamination. Id. at 177. The court, however, held that "because there is no evidence that points to one party rather than another, the only basis for such a jury finding would be impermissible speculation." Id.

   Niagara Mohawk is distinguishable, however, because if Waldron's statement that the gas was too clean to have been sitting there three days is credited, as it must be on a motion for summary judgment, there is at least some evidence which points to Island alone as the source of the petroleum contamination. Accordingly, summary judgment is inappropriate.

   Motion for Sanctions

   Finally, Kara has moved for discovery sanctions against Getty Petroleum, Getty Properties, Getty Realty, Leemilt's and Tyree, as well as against second third-party defendants Tyree Bros., Larry Tyree, Tyree Maintenance and Tyree Engineering. Kara requests full litigation costs, expenses, expert fees and attorneys' fees related to all sanctions motions, disciplinary sanctions against the defendants' former attorney Robert Del Gadio ("Del Gadio"), among other sanctions. For the following reasons, the motion is granted in part and denied in part.

   Although Kara has stated that it is joining the sanctions motion with its motion for partial summary judgment "because both represent Defendants' disdain for fair compliance with applicable law," Kara's Aff. in Support of Mot. for Sanctions at 6, the motion for sanctions will be considered separately pursuant to Federal Rule of Civil Procedure 11(c)(1)(A). Failure to make a Rule 11 motion as a separate motion may be grounds for denial. See Daniel v. Safir, 135 F. Supp. 2d 367, 378 (E.D.N.Y. 2001). However, because Kara has brought its sanctions motion in a separate filing, the appropriate remedy is to consider the motions in isolation from one another, and to disregard arguments in the motion for sanctions which pertain to the merits of the motion for partial summary judgment. See Jawbone, LLC v. Donoghue, 01 Civ. 8066, 2002 WL 1424587, at *6 (S.D.N.Y. June 28, 2002) (Rule 11 motions "should not be employed . . . to test the legal sufficiency or efficacy of allegations in the pleadings. . . . Nor should Rule 11 motions be prepared to emphasize the merits of a party's position. . . .") (quoting Fed.R. Civ. P. 11, Advisory Committee Note on 1993 Amendments).

   Federal Rule of Civil Procedure 11 provides in relevant part that [a] motion for sanctions under this rule . . . shall be served as provided in Rule 5, but shall not be filed with or presented to the court unless, within 21 days after service of the motion . . . the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected.

  Fed.R. Civ. P. 11(b)(1)(A). Kara, however, filed its Rule 11 motion before the 21-day safe harbor notice had been provided to defendants. Failure to do so is grounds for the denial of the motion. See Hadges v. Yonkers Racing Corp., 48 F.3d 1320, 1327-1329 (2d Cir. 1995); see also Ridder v. City of Springfield, 109 F.3d 288, 296 (6th Cir. 1997) ("Rule 11 cases emerging in the wake of the 1993 amendments have found the `safe harbor' provision to be an absolute requirement."). In its reply papers, Kara acknowledges the safe-harbor requirement, but requests that the Court impose Rule 11 sanctions on its own initiative.

   Kara is correct that the Court may impose sanctions sua sponte for violation of Rule 11. See Fed.R. Civ. P. 11(c)(1)(B). However, Rule 11(d) specifically "excludes from the purview of Rule 11 sanctions, discovery responses and motions that are subject to the provisions of Rules 26 through 37 of the Federal Rules of Civil Procedure." Baffa v. Donaldson, Lufkin & Jenrette Sec. Corp., 222 F.3d 52, 57-58 (2d Cir. 2000). Because of Kara's failure to abide by the 21-day safe-harbor requirement, and because the conduct complained of by Kara relates either to the merits of its summary judgment motion, or to discovery conduct and alleged violation of discovery orders. Rule 11 sanctions will not be imposed. Standards for Discovery Sanctions

   Kara has requested discovery sanctions under Rules 26(g)(3), 37(b)(2), 37(c)(1) and the inherent powers of the Court. Rule 26(g)(1) requires an attorney or party to certify that all disclosures made pursuant to Rule 26(a)(1) or (a)(3) are complete and correct. Rule 26(g)(3) permits the district court to impose "appropriate sanctions" if a certification is made in violation of the rule. The imposition of sanctions for a violation of Rule 26(g) is mandatory, although a court has discretion over "which sanction it must impose." Chambers v. NASCO, Inc., 501 U.S. 32, 51 (1991) (emphasis in original). However, "sanctions under Rule 26(g) . . . are not appropriate when a party has not been harmed by the failure of his adversary." Clark v. Westchester County, 96 Civ. 8381, 1998 WL 709834, at *9 (S.D.N.Y. Oct. 9, 1998) (citing Sheets v. Yamaha Motors Corp., 891 F.2d 533, 538-39 (5th Cir. 1990); Adkins v. Mid-America Growers, Inc., 141 F.R.D. 466, 469 (N.D. Ill. 1992)).

   A court may impose sanctions pursuant to Rule 37(b)(2) for failure "to obey an order to provide or permit discovery. . . ." Fed.R. Civ. P. 37(b)(2). Sanctions may include an order prohibiting the sanctioned party "from introducing designated matters into evidence." Rule 37(b)(2)(B). "Provided that there is a clearly articulated order of the court requiring specified discovery, the district court has the authority to impose Rule 37(b) sanctions for noncompliance with that order." Daval Steel Products v. M/V Fakredine, 951 F.2d 1357, 1363 (2d Cir. 1991).

   Federal Rule of Civil Procedure 37(c)(1) provides that

[a] party that without substantial justification fails to disclose information required by Rule 26(a) or 26(e)(1), or to amend a response to discovery as required by Rule 26(e)(2), is not, unless such failure is harmless, permitted to use as evidence at trial, at a hearing, or on a motion any witness or information not so disclosed.
Fed.R. Civ. P. 37(c)(1). The rules are designed "to avoid `surprise' or `trial by ambush.'" American Stock Exchange, LLC v. Mopex, Inc., 215 F.R.D. 87, 93 (S.D.N.Y. 2002) (quoting Transclean Corp. v. Bridgewood Servs., Inc., 77 F. Supp.2d 1045, 1061 (D. Minn. 1999), aff'd in relevant part, 290 F.3d 1364 (Fed. Cir. 2002)).

   The sanction of preclusion under Rule 37(c)(1) is "automatic absent a determination of either substantial justification or harmlessness." Id. (citations omitted). Substantial justification means "justification to a degree that could satisfy a reasonable person that parties could differ as to whether the party was required to comply with the disclosure request." Id. (quoting Henrietta D. v. Giuliani, No. 95 Civ. 0641, 2001 WL 1602114, at *5 (E.D.N.Y. Dec. 11, 2001)). "The test of substantial justification is satisfied `if there exists a genuine dispute concerning compliance.'" Id., at *5 (quoting Nguyen v. IBP, Inc., 162 F.R.D. 675, 680 (D. Kan. 1995)). A violation of the Rule is harmless "when there is no prejudice to the party entitled to the disclosure." Id. (quoting Nguyen, 162 F.R.D. at 680). The burden of proving either substantial justification or harmlessness rests with the party which has failed to disclose information. Id. (citing Wright v. Aargo Sec. Servs., Inc., 99 Civ. 9115, 2001 WL 1035139, at *2 (S.D.N.Y. Sept. 7, 2001)).

   However, despite the "automatic" nature of Rule 37(c)(1), "the imposition of sanctions under the rule is a matter within the trial court's discretion." Id. (quoting Jockey Int'l, Inc. v. M/V "Leverkusen Express", 217 F. Supp. 2d 447, 452 (S.D.N.Y. 2002)). Further, "[p]reclusion of evidence is generally a disfavored action." Id. The preclusion of evidence not disclosed in discovery is "a drastic remedy and will apply only in situations where the failure to disclose represents . . . flagrant bad faith and callous disregard of the rules." Johnson Elec. North America, Inc. v. Mabuchi North America Corp., 77 F. Supp.2d 446, 458 (S.D.N.Y. 1999).

   Except for the Navigation Law claim, summary judgment has been entered dismissing Kara's complaint for failure to show: 1) that Kara has suffered damages; 2) that G & T had acted intentionally in causing the discharge of petroleum; 3) that Kara's remediation plan is necessary to abate the danger caused by the petroleum contamination; and 4) that Kara has standing to bring a CWA claim. Accordingly, for purposes of Kara's motions for sanctions pursuant to Rules 26(g)(3) and 37(c)(1), both of which excuse harmless discovery failures, sanctions may only be imposed if Kara can substantiate its allegations of the defendants' misconduct and if that misconduct would have enabled Kara to demonstrate standing, damages, intentional conduct, or that its proposed remediation plan is necessary to prevent imminent endangerment of the environment. The burden of demonstrating harmlessness is on the defendants. See Henrietta D., 2001 WL 1602114, at *5. While defendants have not specifically addressed the question of harmlessness, their opposition papers do argue that many of the documents Kara argues it did not receive or should have received earlier are not relevant to Kara's claims.

   As the question of damages is posed in the case, such information is uniquely within Kara's knowledge. The damage inquiry turns on questions of the market or rental value of the Colgate Building, and any expenses that Kara has incurred. None of the alleged discovery abuses that Kara raises concern the question of damages.

   To determine whether G & T had acted intentionally in contaminating the cellar of the Colgate Building with petroleum, the crucial inquiry was whether G & T knew that it was discharging the petroleum that ended up in the cellar on April 2, 1997. Despite providing a long list of Getty's environmental regulation violations, Kara has not alleged that G & T's conduct in discharging the petroleum was deliberate. Any allegedly deliberate conduct by G & T in 1995 in not performing a more extensive remediation of the soil surrounding the USTs was held to be irrelevant because Kara has submitted no evidence establishing a causal link between any failure to remediate more extensively at that time and the 1997 contamination. Kara's motion for sanctions does not concern any alleged misconduct which would have an impact on its ability to demonstrate that G & T's conduct in causing the petroleum contamination of the Colgate Building was intentional.

   The dismissal of Kara's RCRA claim turned on the stated satisfaction of NYSDEC with the remediation plan which G & T currently have in place. Finally, the CWA claim was dismissed because Kara could not show that it used or enjoyed the Bronx River. Only information within Kara's knowledge could have substantiated Kara's claims on these counts. Any alleged discovery violations were therefore harmless because prompter or more complete discovery could not have prevented the dismissal of Kara's complaint on the grounds stated. Discovery sanctions will accordingly not be imposed pursuant to Rules 26(g)(3) and 37(c)(1).

   Rule 37(b)(2) does not contain an exception for harmless conduct because a violation of this subsection is not only a failure to uphold the discovery obligations owed to the opposing party, but a failure to obey a court order. In fact, one of the remedies for a violation of this subsection is to treat the failure to obey a discovery order "as a contempt of court . . ." Fed.R. Civ. P. 37(b)(2)(D). Kara has alleged that the defendants have disobeyed, at least in part, six separate discovery orders issued by this Court from June 2001 to January 2003. Each order is considered in turn.

   The June 26, 2001 and November 6, 2001 Orders

   The Order signed on June 26, 2001 (the "6/26/01 Order") and the Order signed on November 6, 2001 (the "11/6/01 Order") are substantively nearly identical. "The November 6, 2001 order was entered based on plaintiff's motion that the defendants and third-party defendants failed to comply earlier with the order of this Court dated June 26, 2001. Thus this Court will treat the allegations under both orders together." Kara II, 2002 WL 475125, at *4.

   Item 2 of the 6/26/01 Order specifies that the defendants "shall provide testimony and documents, to the extent that such documents exist, which relate to any settlement agreements, agreements of interrelationship and joint defense agreements." Kara argues that documents produced by the defendants on May 1, 2002, which include a lease agreement, master lease, unit cost agreement and a service agreement between various individual defendants, all of which were executed years before this litigation began, fall within the scope of item 2, and that the failure to produce them earlier is a violation of the 6/26/01 Order. While these documents could conceivably be construed as "agreements of interrelationship," it is clear from the context that Kara is requesting documents which relate to this or other litigation. The same is true with respect to the environmental indemnification agreement, which the defendants produced as part of the master lease dated November 2, 2000.

   Kara further argues that the defendants violated the 6/26/01 by refusing to permit Scott Hanley ("Hanley") to testify respecting other spills at his deposition. Because Hanley's deposition took place on May 30, 2001, defendants' actions could not have violated the 6/26/01 Order.

   Item 3 of the 6/26/01 Order states that defendants "shall provide testimony and substantive documents . . . regarding settlement of the [NYSDEC] complaint against any defendant." On August 28, 2002, defendants produced a series of documents to Kara under the heading "Correspondence between our office and the New York State Department of Environmental Conservation in connection with the pending administrative matter bearing DEC index number R2-0373-98-02." However, on December 10, 2001, before Kara filed its Rule 37(b)(2) motion for sanctions on January 18, 2002,

Defendants submitted an affidavit . . . noting their compliance with the November 6, 2001 order. Defendants noted that they had already sent all documents in their possession related to the issues labeled (2) and (3).
Kara II, 2002 WL 475125, at *4. In resisting this motion, defendants contend that "the settlement agreement with the NYSDEC was timely produced in August 2002 . . ." Def.'s Opp. to Pl.'s Mot. for Sanctions at 17. In view of this chronology, it is found that defendants violated the 6/26/01 and 11/6/01 Orders by withholding the settlement with the NYSDEC until August 2002 and misrepresenting their compliance with Item 3.

   One item which appears in the 11/6/01 Order but not in the 6/26/01 Order is the provision that the defendants shall "provide documents relating to any violations issued by NYCDEP or Department of Buildings . . ." In its sanctions motion filed January 18, 2002, Kara argued that defendants had failed to specify any violations. Before the Order signed March 28, 2002, "the defendants noted other violations issued by the NYS Department of Environmental Protection and Department of Buildings." Kara II, 2002 WL 475125, at *5. In the opposition to Kara's sanctions motion, defendants stated that "[i]n all respects Getty and Tyree have complied with this Court's orders of June 26, 2001 and November 6, 2001." Aff. in Opposition to Kara's Mot. for Rule 37(b) Sanctions, dated January 28, 2002, ¶ 7 (Docket # 62). However, the defendants subsequently produced further documents relating to violations in November 2002. It is found that defendants violated the 11/6/01 Order by failing to produce all documents relating to violations until well after the issuance of the 11/6/01 Order and the Order dated March 28, 2002 (the "3/28/02 Order"), and representing to the Court that its disclosure of violations in January 2002 constituted full compliance with this section of the 11/6/01 Order.

   The March 28, 2002 Order

   The 3/28/02 Order adds little to the defendants' discovery obligations, and primarily orders the defendants to produce documents "if there remains any directive in the order left unfulfilled," and warns the defendants that "failure to do so could result in the type of harsh sanctions asked for here." Kara II, 2002 WL 475125, at *5. The 3/28/02 Order, however, does direct defendants to allow a limited deposition of Stephen Tyree, president of Tyree Bros. to determine if he had personal knowledge of the facts in this case. See id. at *4.

   Kara argues that defendants knowingly submitted a false affidavit from Stephen Tyree stating that he has "no personal knowledge of the facts relating to plaintiff's claims in this action." See Exh. 56 to Kara's Sanctions Motion. As evidence, Kara has submitted a number of documents containing Stephen Tyree's handwriting which concern attempts to determine the proportional liability to be borne by the Getty entities, the Tyree entities and Xerxes. See Exh. 51 to Kara's Sanctions Motion. None of these documents, however, establish that Stephen Tyree has personal knowledge of the facts in this case, but only that he was informed of the facts sufficient to make liability determinations.

   The July 24, 2002 Order

   The order dated July 24, 2002 (the "7/24/02 Order") was issued in response to a further motion by Kara for discovery sanctions and to disqualify Del Gadio from representing and defendant or second third-party defendant in this action. See Kara III, 2002 WL 1684365, at *1. The Order states that "[i]t appears that the defendants have complied with the [3/28/02 Order] to extent that they were able." Id., at *3. It further states that "[p]laintiff's counsel failed to identify to defense counsel any specific documents that had not been produced prior to the filing of this motion." Id. However, as noted above, the defendants produced further documents responsive to earlier order subsequent to the issuance of the 7/24/02 Order.

   The November 7, 2002 Order

   The Order dated November 7, 2002 (the "11/7/02 Order") stated that the defendants, inter alia, shall make available documents providing information related to spills occurring prior to April 1997, as it pertains to various documents previously produced, including master leases, an environmental indemnity agreement, and a master service agreement between Getty Realty and Delta Environmental Consultants, Inc. ("Delta Environmental") (the "Delta Agreement"). 11/7/02 Order, Item 1a. Defendants were also directed to "provide testimony relating to other . . . spill sites where such spills occurred" before April 1997. Id., Item 1b. The Order also specifies that "[d]efendants shall provide related building violation documents as referred to in the [NYCDEP] letter of June 10, 2001 . . ." Id., Item 1c.

   Kara alleges that defendants violated the 11/7/02 Order by failing to timely produce certain schedules and attachments to the Delta Agreement, and documents regarding the NYCDEP violation, and by submitting a false affidavit by Kevin Shea ("Shea") on January 22, 2002, stating that Shea had no personal knowledge of the facts relating to Kara's claims.

   The defendants did not provide all of the requested schedules and attachments to the Delta Agreement until January 22, 2003, one week after the discovery deadline then in place. Defendants argue that the production of these documents required a time consuming search.

   Defendants argue that they timely produced the NYCDEP violation documents on November 11, 2002. In relation to the 11/7/02 Order, the production is timely. However, as discussed above, defendants had been ordered to produce these documents since the 11/6/01 Order, and had represented to the Court in January 2002 that it had already produced all violation-related documents.

   Regarding the affidavit of Shea, Kara argues that Shea falsely stated that he had "no knowledge" of the facts relating to this case. Shea in fact stated that he had "no personal knowledge" of the facts. Kara has not demonstrated that this is false by showing that Shea oversaw remediation on behalf of Getty and was in contact with one of Getty's experts. As with the affidavit of Stephen Tyree, Kara has only shown that Shea may have had second-hand knowledge of the case.

   The January 21, 2003 Order

   The order dated January 21, 2003 (the "1/21/03 Order") provides that Del Gadio "shall provide an Affidavit from his client that no petroleum was present in the ground during the period 1993 to April 1997 for [96 sites], which site files were not made available for inspection and copying. . . ." 1/21/03 Order, ¶ 3. The plaintiffs submitted an affidavit from Scott Hanley, dated February 12, 2003, which stated that there were no unreported petroleum spills from January 1993 through April 1997, and that all files for that period have been made available for inspection and copying. Kara alleges that "the affidavit has no basis in fact and is intentionally unfounded." Kara's Mot. for Sanctions, ¶ 135. The only evidence Kara presents for the falsehood of the affidavit is a list of Getty station sites, in each of which Kara alleges that "petroleum was found in the ground when the tanks were removed." Id. While Kara has provided no supporting evidence for this claim, it is notable that each listed station is accompanied by a Spill Number which was presumably issued by a governmental entity when the spill was reported. Kara has therefore not shown that the list provided by defendants does not accurately state the "spills of petroleum prior to April 1997 that were not reported to the appropriate governmental agency." Aff. of Scott Hanley, ¶ 2.

   Kara is correct, however, in pointing out that it may be inferred from the discovery of petroleum contamination in the area of USTs which were unearthed and replaced after April 1997 that, at a least some station sites, there was "petroleum . . . present in the ground during the period 1993 to April 1997." 1/21/03 Order, ¶ 3. Under federal regulations, see 40 C.F.R. § 280.21, USTs were required to be upgraded by December 1998. The defendants' compliance with the 1/21/03 Order was incomplete, therefore, to the extent that spills reported after April 1997 showed evidence of petroleum contamination dating to the period covered by the Order. The defendants' noncompliance is minimal, however, and, if deemed necessary by Kara, could have been remedied by a letter to the defendants rather than by requesting sanctions months later. Harsh Sanctions Are Not Appropriate

   As a remedy for the defendants' conduct, Kara requests "full litigation costs, expenses, expert fees and attorneys' fees related to all sanctions motions . . . including hearings and appearance and other activity and expenses which gave rise to such motions." Kara's Mot. for Sanctions, ¶ 162(a). In addition, Kara requests disciplinary sanctions against Del Gadio, "judicial penalties" against the defendants, preclusion of evidence, and relief from the "the constraint of any Rules" which have impaired Kara's prosecution of this action.

   Rule 37(b)(2) provides that the court may make such orders in regard to a discovery failure "as are just," including (1) an order striking out the pleadings or rendering a judgment by default; (2) an order of contempt; and (3) an order requiring the disobedient party to pay the reasonable expenses, including attorney's fees, caused by the disobedient party's failure. Fed.R. Civ. P. 37(b)(2). "Rule 37(b)(2) sanctions must be applied diligently both to penalize those whose conduct may be deemed to warrant such a sanction, [and] to deter those who might be tempted to such conduct in the absence of a deterrent." Roadway Express Inc. v. Piper, 447 U.S. 752, 763-64, 100 S. Ct. 2455, 2463, 65 L. Ed.2d 488 (1980) (quoting Nat'l Hockey League v. Metro. Hockey Club, 427 U.S. 639, 643, 96 S. Ct. 2778, 2781, 49 L. Ed.2d 747 (1976)); see also Update Art, Inc. v. Modin Publ'g Ltd. v. Allied Artists Pictures Corp., 602 F.2d 1062, 1066 (2d Cir. 1979).

   The Court has wide discretion in imposing sanctions. Strong sanctions should be imposed only for serious violations of court orders, however, such as "when the failure to comply with a court order is due to willfulness or bad faith or is otherwise culpable." Id. at 1367; see also New Pacific Overseas Group (USA) Inc. v. Excal Int'l Dev. Corp., 99 Civ. 2436, 99 Civ. 3591, 2000 WL 97358, at *4 (S.D.N.Y. Jan. 27, 2000) ("Courts ordinarily impose such extreme sanctions only where there has been willfulness, bad faith, or any fault in the course of discovery." (citations and internal quotation marks omitted)).

   As discussed above, Kara has not shown that any discovery-related misconduct on the defendants' part could have prevented the dismissal all but one count of its complaint for failure to show damages and intentional action. Sanctions such as the preclusion of evidence are therefore unwarranted. Kara has also not shown that it was not eventually provided with all evidence which was the subject of the six discovery orders considered in relation to the instant motion.

   The violations by defendants of the Court's order each consist in a representation that all discovery related a particular item in an Order had been reproduced, followed by the further production of documents responsive to that same item months later. Such conduct is inappropriate, and demonstrates either a lack of diligence on defendants' part, or a willingness to drag out the litigation by forcing Kara to seek multiple redundant discovery orders. Accordingly, pursuant to Rule 37(b)(2), defendants are ordered to pay the attorneys' fees and expenses related to the instant sanctions motion only. Such an award constitutes "reasonable expenses" within the meaning of the Rule because even though defendants have been found to have violated the same orders that were raised in previous sanctions motions, the bulk of the instant motion contains meritless accusations, allegations of misconduct which have not harmed Kara, or inappropriate argument on the merits of the underlying claim. The payment of attorneys' fees and expenses for this motion is both a measurable and a proportionate sanction.

   Conclusion

   For the reasons stated above:

• The motion by G & T for summary judgment dismissing Kara's complaint is granted, except that summary judgment on the Navigation Law claim is denied.
• Kara's motion for partial summary judgment on liability is denied. A trial will be held on the issue of whether G & T's remediation plan will restore the Colgate Building to its pre-spill condition and whether an award of damages is needed to achieve this goal. • The motion by Island dismissing the third-party complaint is denied, except that the Navigation Law claim is dismissed.
• The sanctions motion brought by Kara is granted in part and denied in part. The defendants are ordered to pay the attorneys' fees and expenses incurred by Kara in bringing the current sanctions motion.
It is so ordered.
20040813

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