United States District Court, E.D. New York
November 18, 2004.
DORA HOMES, INC., Plaintiff,
STUART W. EPPERSON, EDWARD G. ATSINGER, and SALEM COMMUNICATIONS CORPORATION, Defendants.
The opinion of the court was delivered by: I. LEO GLASSER, Senior District Judge
MEMORANDUM AND ORDER
Plaintiff Dora Homes, Inc. ("Plaintiff" or "Dora Homes") brings
this diversity action against Defendants Stuart W. Epperson
("Epperson"), Edward G. Atsinger ("Atsinger") (Epperson and
Atsinger together are referred to as the "Individual
Defendants"), and Salem Communications Corporation ("SCC")
(collectively, the defendants are referred to as "Defendants").
This case arises out of the July 24, 1997 release of petroleum
(the "Petroleum Discharge") from undeveloped Staten Island real
property (the "Property") which Plaintiff purchased from Epperson
and Atsinger in a transaction that closed on August 29, 1996. The
New York State Department of Environmental Conservation
("NYSDEC") cleaned up the Petroleum Discharge. Thereafter,
Plaintiff voluntarily entered into a settlement agreement and
release with New York State pursuant to which it paid $250,000
(the "Settlement Money") to settle claims brought by the State
against Plaintiff for the cost it incurred to clean up the oil spill.
In this suit, Plaintiff seeks to recover the money that it paid
to the State as a result of the Petroleum Discharge and related
damages. In the complaint (the "Complaint" or "Compl."),
Plaintiff alleges statutory causes of action under the New York
State Navigation Law (the "Navigation Law"), and a common law
claim for indemnification.*fn1 Defendants now move for
summary judgment on Plaintiff's claims, arguing that the
Petroleum Discharge occurred when Plaintiff owned the Property,
they never had knowledge that underground oil tanks existed on
the Property, and there is no evidence that the oil leak started
prior to July 24, 1997. Plaintiff opposes Defendants' motion and
cross-moves for summary judgment on its Navigation Law claims,
asserting, inter alia, that the undisputed material facts
establish that Defendants' performance of an illegal demolition
on the Property in December 1990 constituted an "act or omission"
that caused the Petroleum Discharge, and that they are therefore
liable to Plaintiff for the Settlement Money.
For the reasons set forth below, Defendants' motion for summary
judgment is granted and Plaintiff's cross-motion for summary
judgment is denied.
II. FACTUAL BACKGROUND
The following genuine, material facts are undisputed. The
Property is located at Rumba Place and Powell Place in Staten
Island, New York and consists of approximately 13 acres of land.
(See Affidavit of Arnold Brown sworn to on March 13, 2003
("Brown 3/13/03 Aff.") ¶¶ 4-8). Relatively early in the twentieth
century, the Property was known as the "Rutherford Estate,"
because it was owned by Joseph Francis Rutherford, the second
president of the Watchtower Bible and Tract Society of
Philadelphia, of the Jehovah's Witnesses. (Id. ¶ 4). The
Jehovah's Witnesses had conducted certain of their activities on
the Property, and built a transmitter on it. (Id.; Gluckstern
Certification dated September 10, 2003 ("Gluckstern 9/10/03
Cert.") Exh. F). In or about 1959, the Jehovah's Witnesses sold
the Property to WPOW, a radio station, whose transmission
facilities were located on the Property.*fn2 (Brown 3/13/04
Aff. ¶ 5; Affidavit of John Linstra, sworn to on March 24, 2003
("Linstra 3/24/03 Aff.") ¶ 4).
According to Arnold Brown, who was employed by WPOW (and later
WNYM) as a broadcast engineer and program director and who worked
and lived on the Property between 1961 and 1990, and John
Linstra, who served as General Manager of WPOW (and later WNYM)
and worked on the Property between the early 1960's and 1985, no
one during this period knew of the following: (a) that
underground oil tanks existed on the Property; (b) that there had
been delivery of oil to an underground container on the Property;
and (c) that "appurtenances" existed on the Property to an
underground tank which would suggest to persons that an
underground tank was, or had been, present at any time on the
Property. (Brown Aff. ¶¶ 8, 12 sworn to on July 31, 2003 ("Brown
7/31/03 Aff."); Brown 3/13/03 Aff. ¶¶ 7-18; Linstra 3/24/03 Aff.
¶¶ 5-12). WNYM relocated its transmission facilities from the
Property in 1989 to a site in New Jersey. (Brown 3/13/03 Aff. ¶
10). Consistent with this background, neither Mr. Brown nor Mr.
Linstra informed the Individual Defendants that underground oil
tanks existed on the Property when it was sold to them. (Brown
3/13/03 Aff. ¶ 18; Linstra 3/24/03 Aff. ¶ 14). In fact, both Mr.
Brown and Mr. Linstra did not become aware of the existence of
the underground oil tanks until they spoke with Defendants'
counsel in late 2002 during the pendency of this case. (3/13/03
Brown Aff. ¶ 16; Linstra 3/24/03 Aff. ¶ 13). Similarly, until
late 2002, shortly before the initiation of this lawsuit,
Defendants were not aware that underground oil tanks existed on
the Property this was well after they had sold the Property to
Plaintiff. (Affidavit of Stuart Epperson sworn to on May 30, 2003
("Epperson 5/30/03 Aff.") ¶¶ 8, 11; Affidavit of Edward Atsinger
sworn to on May 30, 2003 ("Atsinger 5/30/03 Aff." ¶¶ 9, 11).
The Individual Defendants purchased the Property from WPOW
pursuant to a contract dated February 8, 1985. (Defs. Rule 56.1
Statement ("Defs. 56.1 Statement") ¶ 1; Gluckstern Aff. Exh. A).
Epperson and Atsinger entered into a lease of the Property with
Salem Media Corporation ("SMC"),*fn3 a California radio
broadcasting company, which operated a radio station on the
Property from February 1985 until September 1989, when it
terminated the lease and removed all of its equipment from the
Property. (Compl. ¶ 10; Brown 3/13/03 Aff. ¶ 10).
By agreement dated November 20, 1990, the Individual Defendants
contracted with Venstruct, Inc. (the "Contractor"), whose
principal was Anthony M. Ventura ("Ventura"), to demolish all building structures located on the
Property and to remove all debris from it. (Russo Aff. Exh. O).
The Contractor agreed that the demolition and removal of
structures from the Property "shall be done strictly in
compliance with all applicable federal, state and local laws,
ordinances, regulations, and rules currently in existence or
promulgated during the term of" the agreement. (Id. ¶ 6). In
addition, the Contractor represented that it would "obtain all
necessary permits, and arrange for all necessary inspections, as
may be required by applicable federal, state, and local agencies
having jurisdiction over the demolition project." (Id. ¶ 7).
Nonetheless, Plaintiff alleges that the demolition project was
conducted in violation of certain New York City regulations.
(Savo Aff. ¶ 4).
On May 1, 1996, Plaintiff's principals, through their
corporation, Sophia Homes, Inc., entered into a contract (the
"Contract") with Epperson and Atsinger to purchase the Property.
(Defs. 56.1 Statement ¶ 2; Gluckstern 6/9/03 Cert. Exh. B). In
relevant part, the Contract stated that Plaintiff "has inspected
the buildings on the Premises and the personal property included
in this sale and is thoroughly acquainted with their condition.
Purchaser agrees to purchase them `as is' and . . . shall have
the right, after reasonable notice to the Seller, to inspect them
before closing." (Gluckstern 6/9/03 Cert. Exh. B ¶ 21). The only
due diligence which Plaintiff conducted as part of the
transaction to purchase the Property consisted of a cursory
review of the vacant and overgrown Property, and review of one
survey which Defendants conducted in 1994 (the "1994 Survey").
(Pl. Rule 56.1 Statement ("Pl. 56.1 Statement") ¶ 2).
The addendum to the Contract stated that the Property is
conveyed subject to "[a]ny state of facts which an accurate
survey would show." (Gluckstern 6/9/03 Cert. Exh. B, Addendum ¶ 1(A)). After the parties executed the
Contract, the Individual Defendants presented Plaintiff with a
copy of the 1994 Survey. (Savo Aff. ¶ 4). That survey did not
reveal the existence of underground oil tanks on the Property.
(Id.) Plaintiff alleges that the Individual Defendants withheld
two surveys, one from 1956 (the "1956 Survey") and the other from
1974 (the "1974 Survey"). Plaintiff claims these surveys reveal
the existence of the two subsurface oil tanks on the Property
which caused the Petroleum Discharge. However, with respect to
the 1956 Survey, it was not discovered until 2002 by Mr. Linstra,
whose family once owned the Property, when he was asked by
Defendants' counsel to review documents in his possession
relating to the Property. (Affidavit of John Linstra sworn to on
August 8, 2003 ("Linstra 8/8/03 Aff.") ¶¶ 6-10). Further, neither
the 1956 Survey nor the 1974 Survey reveal the existence of two
underground oil tanks on the Property; rather they show the
existence of two underground water tanks once used by the
Jehovah's Witnesses when they owned the Property. (Russo. Aff.
Exhs. H & I; Gluckstern 9/10/03 Cert. Exh. H; Linstra 8/8/03 Aff.
¶¶ 5, 8). In any event, the "acceptance of a deed by the
purchaser shall be deemed to be a full performance and discharge
of every agreement and obligation on the part of the seller to be
performed pursuant to the provisions" of the Contract.
(Gluckstern 6/9/03 Cert. Exh. B, Addendum ¶ 6).
On July 24, 1997, a heavy rainstorm resulted in four or more
inches of rain falling in the New York City area. (Defs. 56.1
Statement ¶ 5). On July 24-25, 1997, a discharge of petroleum
entered a body of water located at the South Shore Golf Club,
which adjoins the Property. (Id. ¶ 8). South Shore employees
reported the petroleum discharge to government authorities.
(Id.) Because Plaintiff did not take immediate, appropriate action, the State of New York responded to and
cleaned up the spill. (Id.)
Miller Environmental Group ("MEG"), a consultant to the NYSDEC,
wrote a report, dated December 14, 1998, in which it determined
that the source of the spill was two underground tanks on the
Property containing petroleum. (Russo Aff. Exh. R). MEG reported
that each of the tanks had an approximate capacity of 18,000
gallons, and that one of the tanks was full and the other was
three-quarters empty. (Id.) The MEG Report concluded that the
"heavy rains on [July 24] somehow caused the oil release from the
underground storage tanks. MEG did not remove the tanks, which
was undertaken by the present property owner. Therefore, MEG does
not know if tank #2 had a sudden release, as indicated by the
liquid level in the tank." (Id.)
On or about November 19, 2001, the NYSDEC submitted to
Plaintiff an invoice in the amount of $260,068.30 for the costs
of the removal action. (Defs. 56.1 Statement ¶ 9). On October 2,
2002, Plaintiff, through one of its principals, Ottavio Savo,
settled New York State's claim against it by agreeing to pay
$250,000 to reimburse the State for the costs of cleanup and
removal. (Id. ¶ 10). Plaintiff received a release from all
liability due to the Petroleum Discharge from the State of New
York in consideration for its voluntary payment of the Settlement
Amount. (Id. ¶ 11). On May 17, 2002, Plaintiff, through its
counsel, notified Defendants by letter about the Petroleum
Discharge on the Property. (Id. ¶ 12; Gluckstern 6/9/03 Cert.
Exh. K). In that letter, Plaintiff put Defendants on notice that
it believed they were responsible for the Petroleum Discharge.
(Id.) This lawsuit was subsequently filed on September 23,
2002. III. DISCUSSION
A. Summary Judgment Standard
Federal Rule of Civil Procedure 56(c) provides that summary
judgment "shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits . . . show that there is no genuine
issue as to any material fact and that the moving party is
entitled to judgment as a matter of law." A genuine issue as to a
material fact exists when there is sufficient evidence favoring
the nonmoving party such that a jury could return a verdict in
its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249
(1986). Therefore, the nonmoving party "may not rest upon the
mere allegations or denials" of its pleadings; rather, its
response must go beyond the pleadings to "set forth specific
facts showing that there is a genuine issue for trial."
Fed.R.Civ. P. 56(e); see also Celotex Corp. v. Catrett,
477 U.S. 317, 324 (1986). However, when evaluating a motion for summary
judgment, "[t]he courts must view the evidence in the light most
favorable to the party against whom summary judgment is sought
and must draw all reasonable inferences in his favor." L.B.
Foster Co. v. American Piles, Inc., 138 F.3d 81, 87 (2d Cir.
1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986)).
B. Evidentiary Challenges
Before turning to the substantive arguments raised by the
parties with respect to their motions, the Court determines the
admissibility of the affidavits of Ottavio Savo (the "Savo
Affidavit") and John Cignatta (the "Cignatta Affidavit"), which
Plaintiff proffers to oppose Defendants' summary judgment motion.
Defendants argue that the Savo Affidavit, in whole or in part,
constitutes inadmissible hearsay, and that the Cignatta Affidavit is unreliable, and therefore the Court should
not consider them.
Under Fed.R. Civ. P. 56(e), an affidavit submitted in support
of or in opposition to a motion for summary judgment "shall set
forth such facts as would be admissible in evidence." It is
therefore well-established that a "hearsay affidavit is a nullity
on a motion for summary judgment." Schwimmer v. Sony Corp. Of
Am., 637 F.2d 41, 45 & n. 9 (2d Cir. 1980); see also
Amnesty America v. Town of West Hartford, 361 F.3d 113, 131 &
n. 12 (2d Cir. 2004) (district court deciding summary judgment
motion was required to disregard hearsay in affidavits because it
would be inadmissible at trial). Against this background, the
Savo Affidavit is addressed first.
1. Ottavio Savo Affidavit
Plaintiff proffers the affidavit of Ottavio Savo, President of
Dora Homes, in an effort to raise a disputed genuine issue of
material fact as to whether one or more of the Defendants had
knowledge of the existence of underground oil tanks on the
Property prior to entering into the Contract. In relevant part,
Mr. Savo testified that at some unspecified time in 2002, he had
conversations with Ventura, principal of Venstruct, who informed
Mr. Savo that the Individual Defendants told him that he should
leave the underground oil tanks on the Property while Ventura was
performing the demolition work on the Property in 1990.*fn4
(Savo Aff. ¶ 9). Further, Mr. Savo testified that an unnamed
"employee" of the Individual Defendants who resided on the
property told Ventura that oil tanks existed underground on the
Property and, subsequently, Ventura told Epperson of that fact.*fn5 (Id.) Mr. Savo also
asserts that John Reebe, who was a subcontractor to Ventura for
the demolition conducted at the Property, told Savo that he was
instructed by Ventura to demolish the surface structures but
leave the "subsurface tanks" in place.*fn6 (Id. ¶ 12).
In a footnote, Plaintiff's counsel argues that Mr. Savo's
testimony relating to the purported statements made by Ventura
and Reebe are admissible pursuant to Fed.R. Evid. 801(d)(2)
(admission of party opponent) and Fed.R. Evid. 804(b)(3)
(statement against party interest). Initially, the Court notes
that although Plaintiff claims in its motion papers that the
magistrate judge assigned to this case precluded it from deposing
either Ventura or Reebe, this is simply untrue. In fact, at the
hearing on the parties' respective motions, Plaintiff's counsel
conceded that he had ample opportunity during discovery to depose
Ventura (and Reebe) but elected not to.*fn7 (1/23/04 Tr. at
12-13, 20-21). Pursuant to Fed.R. Evid. 801(d)(2), a statement is not hearsay
if it is offered against a party and is "(C) a statement by a
person authorized by the party to make a statement concerning
the subject, or (D) a statement by the party's agent or servant
concerning a matter within the scope of the agency, made during
the existence of the relationship."*fn8 (emphasis added).
Neither of these exceptions to the hearsay rule is applicable to
Ventura's and Reebe's alleged statements to Savo.
Plaintiff has presented no support for the proposition that
Defendants authorized Ventura (or Reebe) to make a statement on
their behalf concerning the existence of underground oil tanks
under Fed.R. Evid. 801(d)(2)(C). "Courts have historically
applied agency law to determine whether the declarant was
authorized by the party to make the statement at issue."
Weinstein's Federal Evidence, § 801.32 at 801-68 (2d ed.
2004). Determining whether the purported statements by Ventura
(or Reebe) qualify as an exception to the hearsay rule depends
therefore on whether either or both individuals served as
Defendants' "agent" or "independent contractor." See generally
Iwachiw v. New York State Department of Motor Vehicles,
299 F. Supp. 2d 117, 123 (E.D.N.Y. 2004) (government entity, as a
principal, would "not [be] liable for the wrongs of an independent contractor or nonservant agent").
Generally, an independent contractor does not act as an agent of
the hiring principal. See, e.g., Teer v. Queens-Long Island
Med. Group, Inc., 303 A.D.2d 488, 490, 755 N.Y.S.2d 430, 432 (2d
Dep't 2003). Unlike an agent, whose acts are subject to the
principal's direction and control, In re Shulman Transp.
Enters., Inc., 744 F.2d 293, 295 (2d Cir. 1984), an independent
contractor is "one who, in exercising an independent employment,
contracts to do certain work according to his own methods, and
without being subject to the control of his employer, except as
to the product or result of his work." Cubby, Inc. v.
Compuserve, Inc., 776 F. Supp. 135, 142-43 (S.D.N.Y. 1991)
(citation and internal quotation marks omitted).
Here, no evidentiary proof in admissible form has been
presented to demonstrate that Defendants intended Ventura to act
as their agent for the demolition project. Rather, in their
affidavits, both Epperson and Atsinger expressly state that
Ventura's company "was an independent contractor hired to
accomplish the purposes and goals set forth in the 1990 contract
with Venstruct." (Epperson 8/13/03 Aff. ¶ 7; Atsinger 8/14/03
Aff. ¶ 6). Moreover, Plaintiff has not offered any evidence which
would demonstrate that Defendants exercised any direction or
control over Ventura or his firm (or Reebe, a subcontractor) in
connection with the demolition work he did on the Property, the
touchstone of an agency relationship. Murray Hill Films, Inc. v.
Martinair Holland, N.V., 1987 WL 14918, at * 3 (S.D.N.Y. July
17, 1987) (quotation and citation omitted). Therefore, pursuant
to Fed.R. Evid. 801(d)(2)(C), the Court finds that neither
Ventura nor Reese were authorized to make the alleged statements
on behalf of Defendants set forth in the Savo Affidavit. The alleged statements by Ventura and Reebe reported in the
Savo Affidavit also do not qualify for an exception to the
hearsay rule under Fed.R. Evid. 801(d)(2)(D). Under that rule, a
"sufficient foundation to support the introduction of vicarious
admissions" requires, among other things, that the alleged
statements were made during the course of the relationship.
Pappas v. Middle Earth Condo. Ass'n, 963 F.2d 534, 537 (2d Cir.
1992). Here, the alleged statements by Ventura and Reebe were not
made during their relationship with the Defendants in 1990, but
rather were purportedly made more than twelve years after Ventura
and Reebe completed the demolition work on the Property.
Therefore, for this reason alone, the statements do not qualify
for an exception to the hearsay rule pursuant to Fed.R. Evid.
Moreover, because, as noted above, Ventura (and Reebe) were
independent contractors of Defendants, this is a separate and
independent reason why Fed.R. Evid. 801(d)(2)(D) does not apply
to their alleged statements to Savo. See, e.g., Weinstein's
Federal Evidence, 801.33[b] at 801-74 (2d ed. 2004)
("statements of a party's independent contractors typically do
not come within Rule 802(d)(2)(D)") (citations omitted).
Plaintiff also argues that Ventura's and Reebe's statements as
recounted in the Savo Affidavit are not hearsay pursuant to
Fed.R. Evid. 804(b)(3). That rules provides that a statement is not
excluded by the hearsay rule where the declarant is unavailable
and, "at the time of its making [it was] so far contrary to the
declarant's pecuniary or proprietary interest, or so far tended
to subject the declarant to civil or criminal liability, or to
render invalid a claim by the declarant against another, that a
reasonable person in the declarant's position would not have made
the statement unless believing it to be true." Fed.R. Evid. 804(b)(3). Here, Plaintiff has not shown
that either Ventura or Reebe was "unavailable," for example,
because at the time of the submission of this motion, either
witness was dead, incapacitated or outside the subpoena power of
the Court. To the contrary, Ventura spoke to both Plaintiff's and
Defendants' counsel during discovery, and thus Ventura was
clearly "available" to be deposed and within the subpoena power
of the Court. (1/23/04 Tr. at 12); see also Deutsche Asset
Management, Inc. v. Callaghan, 2004 WL 758303, at * 13 (S.D.N.Y.
Apr. 7, 2004) (statements are hearsay and do not qualify for the
exception in Fed.R. Evid. 803(b)(4) and thus the court does not
consider them on a summary judgment motion where party offering
statements did not demonstrate that witnesses were unavailable).
In addition, Plaintiff has failed to show how the alleged
statements made by Ventura and Reebe were against their interest.
Indeed, the reason that Plaintiff seeks to introduce these
statements in this case is to support its claim that Defendants
(and neither Ventura nor Reebe) are liable in this case for the
Settlement Money. Therefore, Plaintiff has failed to satisfy the
elements necessary to gain the exception to the hearsay rule in
Fed.R. Evid. 803(b)(4).
As such, the Court strikes the Savo Affidavit to the extent
that it is predicated on the hearsay statements of Anthony
Ventura and John Reebe.
2. John Cignatta Affidavit
Plaintiff proffers the affidavit of its expert, John Cignatta
("Cignatta Affidavit"), to demonstrate, inter alia, the
presence of a disputed issue of material fact as to when the
underground oil tanks began leaking. Based on the limited
evidence that he reviewed, and his "experience with military
fueling and other facilities," Cignatta concluded that the Property was once a military site, that the
tanks were "likely to have been installed in the 1940's," and
that "it is almost certain that the mechanical integrity of these
tanks would have been compromised by soil-side corrosion by the
1970's or 1980's" and "likely began discharging petroleum before
1997." (Cignatta Aff. ¶¶ 9, 20, 21). Cignatta also testified that
Defendants were required to register, test, upgrade or
permanently close the tanks pursuant to regulations that came
into force between 1985 and 1989, when they still owned the
Property. (Cignatta Aff. ¶ 23). Because Defendants failed to do
so, Cignatta claims that this was a contributing factor to the
Petroleum Discharge. (Id.)
Defendants assert that the Court should not consider the
Cignatta Affidavit because it is unreliable and therefore
inadmissible. Rule 702 of the Federal Rules of Evidence governs
the admissibility of expert testimony. It provides "[i]f
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." As explained by Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and
Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), district
courts are "gatekeepers" for expert testimony and must ensure
that "(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 facts of the case." Fed.R. Evid. 702.
Therefore, this Court must determine whether Cignatta's expert
testimony "is relevant to the task at hand" and "rests on a
reliable foundation." See, e.g., In re Rezulin Prods.
Liability Litigation, 309 F. Supp. 2d 531, 540 (S.D.N.Y. 2004). Although Rule 702 sets forth specific criteria
for the district court's consideration, these criteria are not
exhaustive. The Court may consider a number of other factors in
determining the reliability of the proffered testimony,
including: (1) whether a theory or technique has been or can be
tested; (2) whether the theory or technique has been subjected to
peer review and publication; (3) the technique's known or
potential rate of error and the existence and maintenance of
standards controlling the technique's operation; and (4) whether
a particular technique or theory has gained general acceptance in
the relevant scientific community. See Wills v. Amerada Hess
Corp., 379 F.3d 32, 48 (2d Cir. 2004) (citing Daubert,
509 U.S. at 593-94).
Cignatta is a licensed professional engineer who specializes in
corrosion and environmental engineering. (Cignatta Aff. ¶ 2).
Cignatta does not purport to have any experience with, or claim
to be an expert regarding, the NYSDEC regulations that came into
effect between 1985 and 1989, and also does not claim to be an
expert on military facilities.*fn9 (Id.) The opinions
contained in Cignatta's affidavit are based on his evaluation of
the following: (a) the MEG Report, which attaches photographs
taken during the removal of the underground oil tanks in 1997;
(b) affidavits of Arnold Brown and John Linstra; (c) the 1956
Survey and the 1974 Survey; and (d) analysis of a soil sample
received from the Property by one of Plaintiff's employees nearly
six years after the Petroleum Discharge. (Id. ¶¶ 2-3.)
After conducting a careful analysis of the Cignatta Affidavit,
the Court concludes that it is unreliable under Fed.R. Evid. 702
and the principles articulated in Daubert and its progeny, and therefore the Court will not consider it in
deciding the pending motions. Initially, the Court notes that
instead of supporting his purported opinions through use of
scientific principles, he qualifies his opinions throughout his
affidavit with language which limits, and in some cases, negates
his opinions. See, e.g., Cignatta Aff. ¶ 5 ("it is apparent
to me"); ¶ 9 ("it is almost certain . . . that these tanks would
have been compromised"); ¶ 21 ("the underground petroleum storage
tanks . . . were most likely on the property since the World War
II era"). Equally troubling, Cignatta does not support his
opinions with any methodology which the Court can analyze to
determine whether his affidavit has the benchmarks of reliability
which all expert testimony is required to satisfy.
Nothing in either Daubert or the Federal Rules of Evidence
requires the Court to admit opinion evidence, such as Cignatta's,
that is connected to existing data only by the ipse dixit of
the expert. Amorgianos v. National Railroad Passenger Corp.,
303 F.3d 256, 266 (2d Cir. 2002) (citations and internal
quotations omitted). Therefore, the Court concludes, as discussed
below in detail, that there is simply too great an analytical gap
between the data and the opinions which Cignatta proffers for the
affidavit to be deemed competent evidence.
Cignatta first testified that the Property "once housed a U.S.
Army World War II" command, control and communications facility.
(Cignatta Aff. ¶¶ 5-7). However, Cignatta did not cite to any
specific research for his opinion, but rather relied only on his
general experience with "military fueling and other facilities"
and his review of the MEG Report, which does not discuss whether
or not the Property once housed military buildings.*fn10 To the contrary, with respect to the use of
the Property during or prior to the 1940's, the MEG Report states
that the radio station that once stood on the Property "was under
construction July 24, 1923 by the Peoples Pulpit Association for
the purpose of broadcasting religious programs." (Russo Aff. Exh.
R at 3). Further, Defendants' counsel's made a request for
information relating to the Property to the Department of the
Army. In response, the Department of the Army submitted a letter
stating that the Property "was never owned or controlled by" the
Department of Defense or any other "military
component."*fn11 (Gluckstern 9/10/03 Cert. Exh. G).
Therefore, Cignatta's "opinion" in this respect is predicated
simply on his "experience," and nothing more, and is in
opposition to the well-documented facts. See, e.g., Mink
Mart, Inc. v. Reliance Ins. Co., 65 F. Supp. 2d 176, 180
(S.D.N.Y. 1999) ("In order for an expert's opinion to be reliable
and thus admissible, it must be grounded on verifiable
propositions of fact") (citations omitted), aff'd, 2000 WL
33223395 (2d Cir. May 30, 2000).
Next, Cignatta testified that based on his review of
photographs of the underground oil tanks appended to the MEG
Report, and his analysis of a soil sample gathered from the
Property at least six years after the spill, the tanks were
"likely to have been installed in the 1940's, [and] it is almost
certain that the mechanical integrity of these tanks would have
been compromised by soil-side corrosion by the 1970's." (Cignatta Aff. ¶¶ 8-9). However, the Court observes that a
reputable engineer would be hard pressed to offer an opinion
about the structural integrity of two underground oil tanks
solely by analyzing photographs taken of the tanks by a third
party (MEG), and which were appended to a report that did not
reach any conclusions about whether the oil tanks began leaking
prior to 1997.*fn12 (Russo Aff. Exh. R, Appendix F
(attaching photographs)). This is exactly what Cignatta does.
J.B. Hunt Transport, Inc. v. General Motors Corp.,
243 F.3d 441, 444 (8th Cir. 2001) (affirming district court's refusal
to consider expert testimony under Daubert that "fails to
qualify as scientifically valid" because it "was premised
primarily upon [the expert's] impressions of the photographs of
the scratches in the paint of the vehicles involved in the
Further, Cignatta reaches these speculative conclusions even
though he did not inspect or independently evaluate the oil tanks
that leaked in 1997. In fact, the MEG Report notes that Plaintiff
removed the tanks after the Petroleum Discharge, see Russo Aff.
Exh. R at 4, and thus to the extent that anyone could have
conducted tests to determine the origin of the leaks in the
tanks, it was the Plaintiff. Apparently, Plaintiff chose not to,
and Cignatta certainly did not do so either.
In this respect, Cignatta does not indicate that he reviewed
the testimony of Christopher Tomasello, who between February,
1988 and July, 2000, worked for the NYSDEC and was responsible
for petroleum spill response from, among other places, Staten
Island. (Tomasello Aff. ¶ 2). Mr. Tomasello was the NYSDEC case
manager assigned to the Property and was primarily responsible
for its cleanup. (Tomasello Aff. ¶ 4). Based on Mr. Tomasello's "observations and examination of the
tanks and the soil surrounding them at the time of their actual
excavation and removal from the property, [he] observed nothing
which would indicate that a discharge of oil onto the South Shore
Golf Course Property on or around July 25, 1997 was caused by
tank failure prior to" that day. (Tomasello Aff. ¶ 10).
Therefore, in reaching his conclusions, Mr. Tomasello relied on
observations he made of the tanks immediately after the Petroleum
Discharge. In contrast, Cignatta relied on at least six-year-old
photographs of the tanks.
Further, Mr. Tomasello makes clear to the Court that the soil
sample that Cignatta analyzed has no relevance to this case. Mr.
Tomasello, who reviewed the Cignatta affidavit, states
persuasively as follows: "Mr. Cignatta makes no reference to when
the soil sample analyzed was taken. He does not establish by
means of chains of custody or his own personal knowledge that the
soil sample is of the same soil which was present on the property
in 1997, let alone that the sample he refers to is of soil which
was present in the immediate vicinity of the tanks excavated in
1997. Only soil where the tanks actually were buried in and prior
to 1997 would be of chemical or engineering relevance in the type
of exercise Mr. Cignatta claims he is performing." (Tomasello
Aff. ¶ 8).
Next, Cignatta declares that Defendants failed to register the
two underground oil tanks pursuant to NYSDEC regulations that
came into effect between 1985 and 1989. (Cignatta Aff. ¶¶ 10-15).
Cignatta opines that the regulations required Defendants to
survey the Property to determine if it contained any underground
tanks, and if such tanks were found, to remove all liquids
(presumably including oil) from the tanks. (Id. ¶ 13). However,
Cignatta does not purport to be an expert qualified to give an
opinion on the NYSDEC regulations. In addition, even if he was qualified to
give such an opinion, he blindly assumes that these regulations
applied to Defendants and required them to conduct an
investigation to determine whether oil tanks existed on the
Property. Cignatta does not provide the Court with a citation to
the regulations to support this conclusion, and neither does
Plaintiff's counsel. (Pl. Mem. at 26). In fact, the Court's
review of the regulations did not uncover a requirement as
urged by Cignatta (and Plaintiff) obligating every property
owner in the State of New York to conduct a survey to determine
whether underground oil tanks exist below the surface.
Finally, the Court observes that Cignatta did not explain what
scientific "theories" he used in his affidavit, and thus it
cannot determine whether his "theories" are generally accepted in
the scientific community. Similarly, it is clear from the
Cignatta Affidavit that his "theories" were the product of his
own experience rather than scientific testing or peer review.
Cignatta also did not state a known or potential error rate for
Against this background, Cignatta's expert "opinions" are
patently devoid of reliability. His opinions rest upon nothing
more than subjective belief and unsupported speculation, and are
based on data and a methodology which are simply inadequate to
support the conclusions he reaches, or contrary to the documented
facts. Thus, the Court finds that Cignatta's expert opinion
testimony is inadmissible given the total lack of scientific
rigor with which he reached his conclusions. See generally
Zaremba v. General Motors Corp., 360 F.3d 355, 358-60 (2d Cir.
2004) (expert testimony that was speculative and unreliable
properly not considered by the district court on summary
judgment); Rubinstein v. Marsh, 1987 WL 30608 at *7 (E.D.N.Y.
1987) ("[w]hen expert witnesses become partisans, objectivity is sacrificed to the need
to win. Testimony which is prompted by that need and that goal
may deprive an injured plaintiff of the compensation that may be
justly due him or wreak havoc upon the reputation and financial
condition of the defendant") (Glasser, J.).
C. New York Navigation Law Claims
In opposing Defendants' summary judgment motion on Plaintiff's
claims under the New York Navigation Law, Plaintiff relies on the
following to demonstrate that Defendants had knowledge that the
underground oil tanks were on the Property and that they were
leaking when Defendants owned or controlled the Property: (a) the
Cignatta Affidavit and Savo Affidavit, discussed above; (b) the
1956 Survey and 1976 Survey, as well as the closing statement
from the Individual Defendants' purchase of the Property; (c)
Defendants' failure to comply with NYSDEC regulations; and (d)
Defendants' failure to obtain permits for the demolition of the
Property in 1990. Based on this "evidence," Plaintiff claims that
Defendants caused and contributed to the discharge of petroleum
on July 25, 1997. As discussed below, Plaintiff has failed to
create a genuine issue of material fact on its two claims under
the New York Navigation Law, under § 181(5) and § 176(8),
1. Claim Under Section 181(5) of the Navigation Law
Plaintiff's first cause of action in the Complaint seeks
recovery against Defendants under § 181(5) of the Navigation Law.
(Russo Aff. Exh. D, attaching Complaint ¶¶ 37-42). Article Twelve of the New York Navigation
Law, commonly known as the Oil Spill Act, imposes strict
liability upon "any person who has discharged petroleum . . .
without regard to fault, for all cleanup and removal costs and
all direct and indirect damages, no matter by whom sustained."
N.Y. Nav. Law § 181(1).*fn14 The statute defines "discharge"
as "any intentional or unintentional action or omission resulting
in the releasing, spilling, leaking, pumping, pouring, emitting,
emptying or dumping of petroleum into the waters of the state or
onto lands from which it might flow. . . ." Id. at § 172(8).
The term "waters" includes both surface and groundwater. Id. at
It is well-established under the Navigation Law that the State
of New York was authorized to seek full reimbursement of the
costs of the cleanup resulting from the Petroleum Discharge based
on Plaintiff's ownership of the Property at the time of the oil
spill. White v. Regan, 171 A.D.2d 197, 200-01,
575 N.Y.S.3d 375, 377 (3d Dep't 1991) (strict liability has been imposed on
owners of real property on which a petroleum discharge occurs,
even when the owner "unwittingly took title to property
containing one or more undisclosed underground storage tanks"),
appeal denied, 79 N.Y.2d 754, 589 N.E.2d 1263,
581 N.Y.S.2d 281 (1992).*fn15 A property owner who is held strictly
liable for the costs of a petroleum discharge under the Navigation Law
is authorized to bring a claim as an "injured person" for the
cost of cleanup and removal against a prior owner, or any other
party, who actually caused or contributed to the discharge. See
N.Y. Navigation Law § 181(5); White v. Long, 85 N.Y.2d 564,
568-69, 650 N.E.2d 836, 838, 626 N.Y.S.2d 989, 991 (1995)
(subdivision (5) of the Navigation Law was "added by amendment in
1991 specifically to establish a private right of action under
the statute") (hereinafter "Long"); Mendler v. Federal Ins.
Co., 159 Misc.2d 1099, 1105, 607 N.Y.S.2d 1000, 1004 (Sup.Ct.
New York Co. 1993) (plaintiff's "status as a discharger would not
prevent him from seeking recovery under § 181(5) from other
persons or entities which might fall within the definition of
However, a party pursuing an action under § 181(5) of the
Navigation Law must be faultless, as Section 172(3) defines
"claim" as "any claim by an injured person, who is not
responsible for the discharge, seeking compensation for cleanup
and removal costs incurred or damages sustained as a result of
the petroleum discharge." (emphasis added). Therefore, once it is
established that a property owner caused or contributed to a
spill, the property owner will be precluded from seeking
contribution from another discharger under § 181(5). Hjerpe v.
Globerman, 280 A.D.2d 646, 647, 721 N.Y.S.2d 367 (2d Dep't 2001)
(citing e.g., Long).
It is undisputed that Plaintiff owned the Property at the time
of the Petroleum Discharge, and subsequently entered into a
settlement agreement with the State of New York, through the
Attorney General's office, concerning Plaintiff's voluntary
payment for the remediation of the Petroleum Discharge. As such,
the Court finds that Plaintiff has not set forth any facts which
would allow a reasonable juror to conclude that it lacked all culpability for the Petroleum Discharge. See White,
171 A.D.2d at 200-01, 575 N.Y.S.2d at 377 (property owner "most
likely to be in position to halt the discharge, to effect an
immediate cleanup, or to prevent a discharge in the first
In fact, while Plaintiff attempts to point the finger at
Defendants for the different omissions or actions they undertook
or failed to undertake which should have alerted them to the
existence of the underground oil tanks on the Property, courts
analyzing Navigation Law claims in New York have held that a
purchaser of Property, like Plaintiff in this case, "cannot rely
on his or her limited knowledge of a discoverable condition a
situation that has been aptly termed `conscious ignorance,' as a
basis for recovery." Vandervort v. Higginbotham,
222 A.D.2d 831, 832, 634 N.Y.S.2d 800, 801 (3d Dep't 1995) (citing
Restatement (Second) of Contracts § 154, comment c). Here, as
noted above, the Contract which Plaintiff's principal signed,
acknowledged that Plaintiff's acceptance of a deed . . . shall be
deemed to be a full performance and discharge of every agreement
and obligation on the part of the seller to be performed pursuant
to the provisions" of the Contract. (Gluckstern 6/9/03 Cert. Exh
B, Addendum ¶ 6). The addendum to the Contract also states that
the Property is conveyed subject to "[a]ny state of facts which
an accurate survey would show." (Id. ¶ 1(A)). At no time prior
to its purchase of the Property, did Plaintiff ask Defendants
whether any surveys existed other than the 1994 survey which
Defendants performed and provided to Plaintiff. Further, at no
time did Plaintiff ever conduct a survey to determine whether the
Property complied with all environmental laws and regulations as
it alleges Defendants were required to do. As such, Plaintiff has
failed to present evidence which would allow a reasonable jury to
conclude that it was "faultless" with respect to the Petroleum
Discharge. Therefore, Plaintiff's claim under § 181(5) of the Navigation
Law is dismissed.
2. Claim under Section 176(8) of the Navigation Law
A party, like Plaintiff, who is found to be a "discharger,"
may, however, seek contribution from others who bear culpability.
Section 176(8) of the Navigation Law provides that "every person
providing cleanup [or] removal of discharge of petroleum . . .
shall be entitled to contribution from any other responsible
party." Therefore, in order to prevail on its statutory claim for
contribution, Plaintiff must establish that Defendants are
"dischargers" under Section 172 and are a "responsible
party."*fn16 The New York Court of Appeals has held that the
statutory definition of "discharge" in § 172(8) does not require
"proof of fault or knowledge" and therefore may extend to include
landowners "who have both control over activities occurring on
their property and reason to believe that their tenants will be
using petroleum products." State v. Green, 96 N.Y.2d 403,
406-07, 754 N.E.2d 179, 182, 729 N.Y.S.2d 420, 423 (2001);
Lambrinos v. Exxon Mobil Corp., 2004 WL 2202760, at *7
(N.D.N.Y. Sept. 29, 2004) (same); Roosa v. Campbell,
291 A.D.2d 901, 902, 737 N.Y.S.2d 461, 462 (4th Dep't 2002) (same); N.Y.
Nav. Law § 172(8) ("discharge" means "any intentional or
unintentional action or omission" resulting in an oil leak).
In this case, however, Plaintiff has failed to offer any
evidence that Defendants reasonably knew about the underground
oil tanks on the Property. Based on the New York Court of
Appeals' holding in Green, in which it explicitly tied
liability under § 172(8) and § 176(8) of the Navigation Law to a party's
"knowledge" that property would contain petroleum products,
Defendants are granted summary judgment for this reason alone.
See also Hilltop Nyack Corp. v. TRMI Holdings, Inc.,
272 A.D.2d 521, 523, 708 N.Y.S.2d 138, 140 (2d Dep't 2000) (affirming
dismissal of certain claims where "the plaintiffs have failed to
come forward with evidence of any intentional, reckless, or
negligent act or omission on [defendant's] part that arguably
caused or contributed to the contamination of their property").
Further, courts have dismissed claims under, inter alia, §
172(8) and § 176(8) of the Navigation Law where the evidence
failed to establish that the petroleum discharge started during
the time a property owner actually owned the property in
question, because in that situation, the former property owner
was not "responsible" for the leak. See, e.g., Kozemko v.
Griffith Co., 256 A.D.2d 1199, 1200, 682 N.Y.S.2d 503, 504
(4th Dep't 1998) (denial of motion to dismiss reversed where
the "documentary evidence established that the underground tanks
were not leaking prior to transfer of title to the gas station in
1991, and thus plaintiffs failed to state a cause of action under
the Navigation Law"); Fuchs & Bergh, Inc. v. Lance Enterprises,
Inc., 2004 WL 2403564, at * 5 (Sup.Ct. Suffolk Co. Aug. 24,
2004) (granting summary judgment on Navigation Law claim for
indemnification where "defendants merely speculate, without
providing any admissible evidence in support, that Tank No. 1 had
a leak from the oil filter or a crack that could have exacerbated
the spill and that said condition may have been known by
defendants Hoffman and for which they may have been
responsible"). That is the exact situation in this case as
Plaintiff has failed to come forward with evidence that the
Petroleum Discharge began prior to July 24, 1997. Further, as discussed above, the Court cannot consider the
Cignatta Affidavit as evidence that the oil leak on the Property
began during the time when the Individual Defendants owned the
Property. Moreover, Plaintiff states that Defendants had actual
or constructive knowledge about the existence of the oil tanks on
the Property due to the 1956 Survey, the 1976 Survey, the closing
document relating to the Individual Defendants' purchase of the
Property, the fact that permits were not obtained to perform the
demolition work on the Property, and because Defendants were not
in compliance with NYSDEC regulations. However, even accepting
these allegations as true, they do not offer any factual support
for the proposition that the oil leak began under Defendants'
watch, when they owned or leased the Property. Indeed, as
indicated above, Plaintiff has come forward with no admissible
evidence indicating that the Petroleum Discharge occurred prior
to July 24, 1997. To the contrary, Defendants have offered the
testimony of Mr. Tomasello, the case manager working for NYSDEC
who had responsibility for the remediation of the Property, who
testified unequivocally that based on the "excavation around the
source of the oil, the discovery of the underground tanks, and
the excavation of those tanks and appurtenant soil," there is
nothing to "indicate that a discharge of oil onto the South Shore
Golf Course property on or around July 25, 1997 was caused by
tank failure prior to July 25, 1997." (Tomasello Aff. ¶ 10).
Plaintiff's argument that had Defendants complied with NYSDEC
regulations and "obtained the requisite demolition permit, the
tanks would have been discovered and the discharge to the golf
course that occurred in 1997 would have been avoided," see Pl.
Mem. at 30 fails because it is not supported by any admissible
evidence. Plaintiff argues, based solely on the Cignatta
Affidavit, that had Defendants not conducted the demolition of the surface structures of the Property in 1990,
"the vent hatches and pipes attached from the tanks to these
buildings would have [been] made evidenct [sic] to [a] potential
purchaser, like Dora that tanks were present. Had the demolition
been performed properly, the tanks would have been discovered in
the course of removing the foundations of the buildings and the
concrete slab above the tanks. Under either scenario, the tanks
would have been discovered, and the 1997 discharge could have
been prevented." (Pl. Mem. at 34) (citing Cignatta Aff. ¶ 23).
However, as discussed above, the Cignatta Affidavit is not
admissible and therefore Plaintiff's argument lacks any support.
Moreover, Plaintiff's argument is also based purely on
conjecture that if Defendants had complied with applicable law,
Plaintiff, during its inspection of the Property prior to
closing, would have learned about the existence of the two
underground oil tanks and they would have been removed. However,
a party, such as Plaintiff, cannot validly support its opposition
to a summary judgment motion with conjecture and surmise, which
is what it does here. See, e.g., Niagara Mohawk Power Corp.
v. Jones Chem, Inc., 315 F.3d 171, 177 (2d Cir. 2003) (affirming
grant of summary judgment on Navigation law claims and noting
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").
D. Plaintiff's Common Law Indemnification Claim
Defendants also argue that they are entitled to judgment as a
matter of law on Plaintiff's common claim for indemnification.
Plaintiff asserts that it is seeking reimbursement from
Defendants on the same basis that it seeks contribution under the Navigation Law, namely that it is a faultless landowner held
strictly liable to the State for the costs of clean up of the
Property, and Defendants are liable as "dischargers." Because
Plaintiff's Navigation Law claim is dismissed, so too must the
common law claim for indemnification.
A common law duty to indemnify is created by express or implied
contract. McDermott v. City of New York, 50 N.Y.2d 211, 216,
406 N.E.2d 460, 428 N.Y.S.2d 643 (1980). A third party action for
indemnity (or contribution) "does not lie against one who has not
violated a duty owed to plaintiff in the primary action."
Garrett v. Holiday Inns, Inc., 86 A.D.2d 469, 470,
450 N.Y.S.2d 619, 620 (4th Dep't 1982), aff'd, 58 N.Y.2d 253 (1983).
Plaintiff has failed to show that Defendants owed it a duty with
respect to the Petroleum Discharge. See, e.g., Mitchell v.
Suburban Propane Gas Corp., 182 A.D.2d 934, 936-37,
581 N.Y.S.2d 927, 930 (3d Dep't 1992) (no breach of duty to warn found where
gas leaked out of underground tank where there was no "evidence
in the record to show that defendant knew or should have known of
the underground tank on plaintiffs' property and its dangerous
condition"). In fact, Plaintiff expressly acknowledged in the
Contract between the parties that Defendants had complied with
all obligations they owed to Plaintiff in connection with the
transfer of the Property to Plaintiff.
A claim for indemnity may also exist if the loss sustained by
one party results in unjust enrichment to another party.
Garrett, 86 A.D.2d at 470, 450 N.Y.S.2d at 620. The New York
Court of Appeals has characterized the "classic indemnification
case" as one in which:
the one seeking indemnity had committed no wrong, but
by virtue of some relationship with the tort-feasor
or obligation imposed by law, was nevertheless held
liable to the injured party. In other words, where
one is held liable solely on account of the negligence of another,
indemnification, not contribution, principles apply
to shift the entire liability to the one who was
Glaser v. M. Fortunoff of Westbury Corp., 71 N.Y.2d 643, 646,
524 N.E.2d 413, 529 N.Y.S.2d 59 (1988) (citations omitted).
In order to prevail on its common law indemnification action
against Defendants, Plaintiff must show that "it may not be held
responsible in any degree" for the petroleum discharge. Glaser,
71 N.Y.2d at 647. This standard is the same as that required in a
contribution action under the Navigation Law.*fn17 See
N.Y. Nav. Law §§ 181(5), 172(3).
Because Plaintiff has failed to present admissible evidence to
support its assertion that Defendants are liable under the
Navigation Law, no disputed issues of material fact exist, and
Defendants are entitled to summary judgment as a matter of law on
Plaintiff's common law claim for indemnification.
E. Plaintiff's Motion for Partial Summary Judgment
Plaintiff moves for partial summary judgment on its Navigation
Law claims, asserting that the undisputed material facts
establish that Defendants' performance of an illegal demolition
on the property in December 1990 constituted an "act or omission"
that caused the Petroleum Discharge in July 1997, and that they
are therefore liable to Plaintiff for the funds Plaintiff has
paid to the State to reimburse the cost of the State's cleanup
effort. Plaintiff argues that even if the petroleum tanks did not begin
leaking prior to the discharge that occurred in July 1997, that
Defendants are liable because their 1990 demolition "set in
motion" a chain of events that led to the discharge. Plaintiff
asserts that if Defendants had conducted a lawful demolition,
they would have excavated the foundations and necessarily would
have discovered the petroleum tanks and been required to empty
and remove them. Plaintiff also argues that had Defendants not
performed the demolition at all, the tanks would have been
discovered by Plaintiff during its inspection of the property
through the visibility of vent hatches and pipes attached from
the tanks to the above-ground structures that were demolished.
Under either scenario, Plaintiff argues, the tanks would have
been discovered and the 1997 discharge could have been prevented.
The cases relied upon by Plaintiff to support its motion,
Domermuth Petroleum Equip. and Maintenance Corp. v. Herzog &
Hopkins, 111 A.D.2d 957, 490 N.Y.S.2d 54 (3rd Dep't 1985) and
State v. Cronin, 186 Misc.2d 809, 717 N.Y.S.2d 828 (Sup.Ct.
Albany Co. 2000), addressed the narrow question of liability of
petroleum suppliers under the Navigation Law. Domermuth held
that a supplier could be held liable when a fuel tank it had
recently serviced ruptured and discharged fuel into the basement
of a residence. The court there found that "[i]t is sufficient
and uncontested that [the petroleum supplier], as the deliverer
of the oil and the repairer of the tank, set in motion the events
which resulted in the discharge." Domermuth, 111 A.D.2d at 959
(citations omitted). In Cronin, the court refused to extend
liability on the basis of a petroleum supplier's status alone,
holding that "it would be unduly burdensome to extend liability
for petroleum discharges to petroleum suppliers in the absence of
some evidence that the supplier either caused or contributed to the discharge or
that it possessed the ability to anticipate and/or prevent the
discharge." Cronin, 186 Misc.2d at 812-13. The petroleum
discharge in Cronin was discovered more than two years after
the supplier had ceased providing fuel and other services to the
plaintiff. The court found that unlike the discharge in
Domermuth, there was no evidence that the supplier "set in
motion" the events which resulted in the discharge. Id. at 812.
Read together, the holdings of Domermuth and Cronin
indicate that evidence of a contemporaneous link between a
party's actions and the petroleum discharge is relevant to
finding liability. Although Plaintiff argues that Defendants
"possessed the ability to anticipate and/or prevent the
discharge," as contemplated by Cronin, the undisputed facts it
offers in support of its motion do not allow a reasonable juror
to come to such a conclusion. While it is undisputed that
Defendants performed a demolition on the property in 1990 without
obtaining the requisite permits and without removing the
foundations, Plaintiff provides no legal authority, nor can any
be ascertained, for holding Defendants liable for the subsequent
discharge from the petroleum tanks on this basis. Plaintiff's
motion for summary judgment on its Navigation Law claims is
therefore denied. CONCLUSION
For the foregoing reasons, Defendants' motion for summary
judgment is granted and Plaintiff's motion for partial summary
judgment is denied. The Clerk of Court is accordingly directed to
close this case.