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December 20, 2004.


The opinion of the court was delivered by: ARTHUR SPATT, District Judge


This case arises out of a fire at an industrial facility that resulted in the release of toxic chemicals into the environment. The Town of Babylon ("Town") and the North Amityville Fire Company, Inc. ("Fire Company" or "NAFC") (collectively, the "Defendants"), responded to extinguish the fire. The land owner, Anthony Antoniou and the business, AMW Materials Testing, Inc. ("AMW") (collectively, the "Plaintiffs"), whose use of a highly flammable solvent caused the fire, seek contribution, indemnification, and damages from the Defendants under federal and state law. In an apparent case of first impression, the Plaintiffs claim, among other things, that the Town and the Fire Department are liable under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. ยง 9607 (2004), as "operators" of the facility. Presently before the Court are motions by the Defendants for summary judgment and by the Plaintiffs for partial summary judgment.


  AMW operated an industrial facility located within the Town and the NAFC fire protection district. At its facility, AMW performed non-destructive testing, anodizing, alodine coating, and painting of parts for the aircraft industries. Some of the chemicals used at the AMW facility were hazardous substances as defined under CERCLA. According to the Plaintiffs, some of these chemicals included: sodium chromate, Ammonium Flouride, Chromic Acid, Sodium Benzoate, Boric Acid, Aluminum Sulfate, Oakite 164 and 160, Sulfuric Acid, Nitirc Acid Reagent, MX Carrier (Kerosene), Zyglo-Bentinite, and Methyl Ethyl Ketone (MEK). The facility also had three 1000 gallon storage tanks for Chromic Acid, Sulfuric Acid, and Alodine Anodize.

  AMW was authorized by the Suffolk County Health Department to store certain toxic chemicals and the facility was allegedly in compliance with all Town fire codes. AMW also applied for and received permits for the storage tanks and for the use of certain hazardous materials. In accordance with the Town code, the facility had a specially constructed paint room to minimize the risk of fire. The paint room had a concrete floor; double 5/8" fire resistant wallboard on the walls and ceilings; two spray booths with filters and exhaust fans; and spark resistant electrical appliances. The Plaintiffs believed that these precautions were necessary to ensure that, in the event of a fire, it would take more than an hour for it to burn through to the other parts of the building, and to reduce the possible sources of fire such as electric spark. For these improvements, AMW applied for and received annual Fire Prevention Permits from the Town.

  On October 9, 2000, sometime before 3:00 p.m., a fire broke out at the AMW facility inside the paint room. At that time, AMW employees were cleaning a long tube with MEK in the paint room. Antoniou, who owns the land and also is the President of AMW, entered the paint room and noticed a small flame on the floor. Antoniou and the AMW employees then attempted to extinguish the fire themselves. Antoniou retrieved a chemical fire extinguisher located outside the paint room while the employees used one that was located in the room. All of them attempted to extinguish the flames, but their efforts failed. The flames began to ignite the large filters in the paint room's ventilation system. Antoniou recognized that they would not be able to extinguish the flames by themselves and ordered the employees out of the building.

  Sometime while the Plaintiffs were attempting to extinguish the flames, AMW's automatic fire alarm company contacted AMW to notify them that the alarm system indicated a fire in the building. The AMW secretary confirmed the existence of a fire in the building and then left the building with the other employees. At 3:05 p.m., the automatic fire alarm company notified Babylon Central Fire & Rescue Alarm Corporation ("Babylon Fire Rescue") about the fire at AMW, which was located at 666 Albany Avenue in the North Amityville Fire Protection District. At the same time, a Suffolk County Police Department police officer on patrol noticed the fire and notified Babylon Fire Rescue. Having been alerted, Babylon Fire Rescue dispatched the NAFC, the volunteer fire department responsible for responding to fire emergencies in the North Amityville Fire Protection District.

  The following summary of fire scene communications from Babylon Fire Rescue generally describes how the fire evolved. At 3:08 p.m., the First Assistant Chief of the NAFC arrived on the scene and confirmed that the facility was on fire. At 3:10 p.m., the Chief of the NAFC, Willie Tutt ("Chief"), arrived and assumed command and control of the fire scene. At 3:12 p.m., the first fire engine arrived and the Chief requested that additional fire departments, the Town Fire Marshals, the Town Fire Coordinators, and the New York State Department of Environmental Conservation respond. At 3:22 p.m., a Town fire marshal confirmed that there was a toxic spill and advised that there were no toxic fumes at the fire scene. At 3:34 p.m., two fire departments were requested to respond to help in evacuations. In total, four additional fire departments responded to the fire with numerous fire apparatus, including, the North Lindenhurst Fire Department, East Farmingdale Fire Company, Lindenhurst Fire Department, and Copaigue Fire Department.

  The descriptions of the fire from the affidavits and depositions of both the Plaintiffs and the Defendants provide more detail. Antoniou states in his affidavit that almost immediately after he exited the building the Chief had already arrived. The Plaintiffs informed the Chief about the details and location of the fire and offered to help. The Chief declined the offer and requested that Antoniou and his employees move to a safe location. The Chief testified at his deposition that when he arrived at the scene the building had become "fully involved," that is, fire and heavy smoke were coming out of the entire building. According to affidavits from the first firefighters to arrive, their fire truck had to inch down the street as they approached due to the heavy smoke condition in the immediate area. Once on the scene, they began to enter the structure to search for victims and attempt to extinguish the fire but were unable to apply any water on the fire due to the thick black smoke and high heat. Firefighters determined that the fire had extended to such a point that there was a serious risk that the building would collapse, which could cause serious injury or death. Pictures taken from outside the building during this time confirm the firefighters' descriptions of the intense fire throughout the building and the imminent signs of collapse.

  Due to the intensity of the fire, Chief Tutt decided to abandon attacking the fire from the inside of the structure. Chief Tutt ordered that the fire be extinguished by way of "defensive operations," which involves applying large caliber streams of water from elevated platforms operated from a safe distance. By the time these devices were operational, the roof had reportedly collapsed and the flames were burning well above the top of the building. As the fire continued to burn, a storage trailer located adjacent to the building disintegrated. The trailer contained 55 gallon drums that exploded causing them to shoot into the air.

  Eventually the fire darkened down, but remained burning under the partially collapsed building. At 4:26 p.m., Chief Tutt requested a pay loader from the Town to aid in extinguishing the fire and to take down the remaining walls that threatened to collapse. At 5:42, Chief Tutt requested that the Town provide a sand truck to help build a dyke to contain the runoff of water that contained toxic chemicals. Babylon Fire Rescue records show that the NAFC remained at the facility until approximately 1:00 a.m.

  As a result of the fire, virtually all of the building and its contents were destroyed and contaminated with hazardous materials. Post-fire testing of the property by the Suffolk County Department of Health Services showed that the soil was contaminated with numerous toxic substances. In addition, tests performed by the New York State Department of Environmental Conservation revealed that numerous nearby storm drains and a recharge basin were adversely impacted by the runoff of the water used to control the fire. AMW claims that it has spent in excess of one million dollars in response, removal, and containment efforts. AMW has not resumed the business after the fire and the clean up of the site is still not complete.

  During the fire, Plaintiffs retained Chemical Pollution Resources, Inc. to evaluate and direct the disposal of the hazardous materials. Thereafter, Plaintiffs voluntarily undertook cleanup efforts by contracting with Allied-All City Plumbing and Long Island Analytical Laboratories, Inc. to carry out the disposal of the hazardous substances. It appears that all removal and remediation activities at the site were undertaken in accordance with applicable laws and regulations. The New York State Department of Environmental Conservation, as well as local County and Town officials monitored the cleanup but never took judicial or administrative measures to compel cleanup.

  On June 22, 2001, the Plaintiffs commenced this action seeking to hold the Defendants liable for the damages that resulted from the fire. Some of the losses include the cost of environmental remediation that the Plaintiffs undertook by reason of the escape of hazardous and toxic materials from the AMW facility during the fire. Plaintiffs also seek damages due to lost profits and punitive damages. Plaintiffs assert causes of action under sections 107 and 113 of CERCLA, common law negligence, strict liability for ultrahazardous activity, and joint and several liability under the New York Navigation Law. Presently before the Court are the Defendants' motion for summary judgment pursuant to Fed.R.Civ.P. 56 and Plaintiffs' motion for partial summary judgment on the New York Navigation Law claim.


  A. Summary Judgment Standard

  A motion for summary judgment should be granted only when "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2550 (1986). The moving party bears the burden of establishing the absence of a genuine issue of material fact. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S. Ct. 2505, 2514 (1986). "When a movant demonstrates through competent evidence that no material facts are genuinely in dispute, the non-movant `must set forth specific facts showing that there is a genuine issue for trial.'" Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990) (quoting Fed.R.Civ.P. 56(e)) see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed.2d 538 (1986). "The non-movant cannot escape summary judgment merely by vaguely asserting the existence of some unspecified disputed material facts, or defeat the motion through mere speculation or conjecture." Id. (internal quotations and citations omitted); see Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998). "The `mere existence of a scintilla of evidence' supporting the non-movant's case is also insufficient to defeat summary judgment." Niagara Mohawk Power Corp. v. Jones Chemical Inc., 315 F.3d 171, 175 (2d Cir. 2003) (quoting Anderson, 477 U.S. at 252, 106 S. Ct. 2505).

  In deciding a motion for summary judgment, the Court must view the evidence in the light most favorable to the non-moving party and must draw all permissible inferences from the submitted affidavits, exhibits, interrogatory answers, and depositions in favor of that party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 155, 106 S. Ct. 2505, 2513-14 (1986); Van v. City of New York, 72 F.3d 1040, 1048-49 (2d Cir. 1995). Disputed facts that are not material to the issue at hand will not defeat summary judgment. See Anderson, 477 U.S. at 248, 106 S. Ct. at 2610. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of judgment." Id. A dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. If there is evidence in the record, including affidavits, ...

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