United States District Court, E.D. New York
December 20, 2004.
AMW MATERIALS TESTING, INC. and ANTHONY ANTONIOU, Plaintiffs,
TOWN OF BABYLON, and THE NORTH AMITYVILLE FIRE COMPANY, INC. Defendants.
The opinion of the court was delivered by: ARTHUR SPATT, District Judge
MEMORANDUM OF DECISION AND ORDER
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. § 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
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
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, exhibits,
interrogatory answers, and depositions, as to any material fact
from which an inference could be drawn in favor of the
non-movant, summary judgment is unavailable. See Lane v. New
York State Electric & Gas Corp., 18 F.3d 172, 176 (2d Cir.
Notably, "the trial court's task at the summary judgment motion
state of litigation is carefully limited to discerning whether
there are genuine issues of material fact to be tried, not to
decide them. Its duty, in short, is confined at this point to
issue-finding, it does not extend to issue resolution." Gallo v.
Prudential Residential Servs. Ltd., 22 F.3d 1219, 1224 (2d Cir.
1994); see Donohue v. Windsor Locks Board of Fire
Commissioners, 834 F.2d 54, 57 (2d Cir. 1987) (holding that on a
motion for summary judgment, the court "cannot try issues of
fact; it can only determine whether there are issues to be
The Comprehensive Environmental Response, Compensation, and
Liability Act (CERCLA), also known as the Superfund Law,
regulates the release of hazardous substances and the cleanup of
sites where hazardous substances have come to be located.
42 U.S.C. §§ 9601-75 (2004). CERCLA permits private parties to
"pursue contribution or indemnification from potentially
responsible parties for expenses incurred responding to
environmental threats." Commander Oil Corp. v. Barlo Equip.
Corp., 215 F.3d 321, 326 (2d Cir. 2000) (citation omitted);
42 U.S.C. § 9607(a)(4)(B). An "innocent" party may seek
indemnification for full recovery of costs under § 9607(a)(4)(B).
Bedford Affiliates v. Sills, 156 F.3d 416, 424 (2d Cir. 1998).
On the other hand, under § 9613(f)(1), a party that is itself
liable may seek contribution for those costs exceeding its pro
rata share of the cleanup expenditure. Bedford,
156 F.3d at 424.
The Plaintiffs' first amended complaint seeks recovery under
both § 9607 for indemnification and § 9613 for contribution.
However, the Plaintiffs' claim for contribution is not authorized
under the terms of § 9613. As recently held by the Supreme Court,
"contribution may only be sought subject to . . . specified
conditions, namely, `during or following' a specified civil
action." Cooper Indus. v. Aviall Servs., No. 02-1192, Slip Op.
at 6-7 (U.S. Dec. 13, 2004). CERCLA provides, "Any person may
seek contribution from any other person who is liable or
potentially liable under [§] 9607(a), during or following any
civil action under [§] 9606 of this title or under [§] 9607(a) of
this title." 42 U.S.C. § 9613. As stated in the statute,
specified civil actions include suits by the Government for
abatement under § 9606 and civil actions under § 9607 for
indemnification. The Court in Cooper explained that no
provision in CERCLA exists for maintaining an action for
contribution when the cleanup is purely voluntary. Cooper, Slip
Op. at 8. Here, the Plaintiffs voluntarily initiated cleanup of
the site and cannot satisfy the requirement of an existing
"specified civil action." As such, a claim for contribution under
§ 9613 is not permitted.
The Plaintiffs also seeks indemnification, or full recovery of
costs, under § 9607(a). In order to bring a claim under CERCLA
for indemnification, the plaintiff must be an innocent party
See Commander, 215 F.3d at 332. "[P]otentially responsible
parties may pursue only contribution claims against other
potentially responsible parties and may not seek
indemnification." Id. Potentially responsible parties are
barred from seeking indemnification because such a claim, if
successful, holds the other party liable for the entire cost of
the cleanup. Bedford, 156 F.3d at 423-24. Thus, if the
Plaintiffs are potentially responsible, they may not maintain an
action for indemnification.
A party is potentially responsible under CERCLA for costs
associated with a toxic spill at a site, if: (1) the site is a
"facility;" (2) a release or threatened release of a "hazardous
substance" from the site has occurred; (3) the release or
threatened release has caused the plaintiff to incur response
costs; and (4) the defendant falls within at least one of the
four classes of responsible persons described in § 9607(a) of
CERCLA. 42 U.S.C. § 9607(a); U.S. v. Alcan Aluminum Corp.,
315 F.3d 179, 18 (2d Cir. 2003). The four classes of responsible
parties are (1) the current owner and operator of the facility;
(2) the owner or operator of the facility at the time hazardous
substances were disposed there; (3) any person who generated or
arranged for the treatment or disposal of a hazardous substance
at the facility; and (4) any person who transported hazardous
substances to the facility. 42 U.S.C. § 9607(a)(1)-(4); see
also Commander, 215 F.3d at 326; B.F. Goodrich Co. v.
Murtha, 958 F.2d 1192, 1198 (2d Cir. 1992). Potentially
responsible persons are held strictly liable for cleanup costs
incurred by any other person. B.F. Goodrich v. Betkoski,
99 F.3d 505, 514 (2d Cir. 1996); New York v. Shore Realty Corp.,
759 F.2d 1032, 1042 (2d Cir. 1985). Thus, under the plain
language of the statute, it would appear that the Plaintiffs are
potentially responsible under § 9607(a).
CERCLA provides a limited number of affirmative defenses.
"Liability under § 9607(a) is precluded only by a defense that
the release or threatened release was caused solely by an act of
God, an act of war, or certain acts or omissions of third parties
other than those with whom a defendant has a contractual
relationship." Murtha, 958 F.2d 1192, 1198 (2d Cir. 1992);
see 42 U.S.C. § 9607(b). Despite the inapplicability of these
defenses, the Plaintiffs set forth three theories as to why they
are not potentially responsible parties: (1) the site was not a
"facility" within the meaning of CERCLA until the Fire Company
responded; (2) AMW was not an "operator" of the site within the
meaning of CERCLA; and (3) Antoniou was an innocent owner.
a. "Facility" Defense
The term "facility" is defined in section 101 of CERCLA.
"Facility" means "any site or area where a hazardous substance
has been deposited, stored, disposed of, or placed, or otherwise
come to be located." 42 U.S.C. § 9601(9). "Hazardous substance"
is defined to include any element, compound, mixture, solution,
or substance designated by the Environmental Protection Agency
(EPA) as presenting substantial danger to the public health or
welfare or the environment when released to the environment.
Id. § 9601(14). Thus, to establish that a site is a "facility"
under CERCLA, one need only show that a hazardous substance has
been placed there or has otherwise come to be located at the
The Plaintiffs' argument that the site was not a facility under
CERCLA defies logic. A critical element to the Plaintiffs' claim
for indemnification is that hazardous substances contaminated the
site. The Plaintiffs admit that their business used and stored
various types of hazardous chemicals, including sodium chromate,
Ammonium Flouride, Chromic Acid, Sodium Benzoate, Boric Acid,
Aluminum Sulfate, Oakite 164 and 160, Sulfuric Acid, Nitirc Acid
Reagent, Zyglo-Bentinite, and Methyl Ethyl Ketone (MEK).
Moreover, the Plaintiffs admit that the property contained a 1000
gal Chromic Acid tank, a 1000 gal Sulfuric Acid tank, and a 1000
gal Alodine Anodize tank. Based upon the storage of these
hazardous substances alone, the site was clearly within the
definition of a "facility" in CERCLA before the fire started.
b. Operator Defense
The gravamen of the Plaintiffs' claim is that the Defendants,
and not AMW, actually operated the facility under the meaning of
the CERCLA provisions. It is well-settled that both current
operators of a facility and operators at the time of release are
responsible parties regardless of who caused the release of
hazardous substances. New York v. Nat'l Servs. Indus. Inc.,
352 F.3d 682, 684 (2d Cir. 2003); Shore Realty, 759 F.2d at 1044.
The term "operator" in the case of a facility means: "any person
who . . . operated, or otherwise controlled activities at such
facility immediately beforehand." 42 U.S.C. § 9601(20)(A). Under
CERCLA, "any person who operates a polluting facility is directly
liable for the costs of cleaning up the pollution." U.S. v.
Bestfoods, 524 U.S. 51, 65, 118 S. Ct. 1876, 1886 (1998). "This
is so regardless of whether that person is the facility's owner,
the owner's parent corporation or business partner, or even a
saboteur who sneaks into the facility at night to discharge its
poisons out of malice." Id. (citation omitted). For purposes of
CERCLA, the Supreme Court has held that "an operator must manage,
direct, or conduct operations specifically related to pollution,
that is, operations having to do with the leakage or disposal of
hazardous waste, or decisions about compliance with environmental
The actions of a Government entity at a site may give rise to
operator liability. "CERCLA expressly includes municipalities,
states, and other political subdivisions within its definition of
persons who can incur such liability under § 9607." Murtha,
958 F.2d at 1198. State and local governments are held to the strict
liability standard in the same manner as any other potentially
responsible party. However, if the Government has acquired
ownership or control of the facility involuntarily, as a result
of its sovereign function, or the entity was responding to an
emergency caused by the release of hazardous substances from a
facility owned by another party, the State or local government is
only liable for gross negligence or willful misconduct.
42 U.S.C. § 9607(d)(2); see Murth, 958 F.2d at 1198.
In order to establish that a Government entity is subject to
strict liability as an operator, a plaintiff must show some nexus
to the site other than its statutory obligation to respond to an
emergency. See Stilloe v. Almy Bros., Inc., 782 F. Supp. 731,
736 (N.D.N.Y. 1992) (holding that the State was not liable as an
operator for responding to a site to conduct clean-up
activities). Mere regulatory oversight by the Government is also
insufficient to create operator status. See, e.g., United
States v. Dart Indus., Inc., 847 F.2d 144, 146 (4th Cir. 1988)
(holding that a state agency was not an operator solely by
conducting inspections and issuing permits); United States v.
New Castle County, 727 F. Supp. 854, 854 (D. Del. 1989) (holding
that a state's regulation of a hazardous waste site did not make
it an "operator" of the site).
Here, the Plaintiffs argue that the Fire Company operated the
facility because it exercised authority over the property during
the course of the fire. The Plaintiffs do not allege any
activities that the Defendants conducted in connection with the
facility other than responding to emergencies and issuing of
permits for the storage and use of hazardous substances. Instead,
the Plaintiffs urge the Court to find that the Defendants
operated the facility under CERCLA because the Defendants were in
exclusive control of the property during the fire; conducted
"operations" at the site; and prohibited the Plaintiffs from
reentering the facility during the course of the fire. For
example, Chief Tutt directed the placement of water streams into
the fire; told Antoniou to relocate to a safe location off the
property; and directed the use of payloaders during the fire.
These allegations alone are insufficient to support the claim
that the Defendants were operators of the facility. The
Plaintiffs' argument misconstrues the term "operator of a
facility" to have the same meaning as conducting firefighting
operations at the facility. The Fire Company, pursuant to its
contract with the Town to provide fire protection, may regulate
the conduct at a scene where it is extinguishing a fire. See
N.Y. Town Law § 130 (McKinney 2004). In addition, a person may be
charged with a crime if she intentionally and unreasonably
obstructs the efforts of firefighting operations. See N.Y.
Penal Law § 195.15 (McKinney 2004). In order to safely and
effectively respond to an emergency, responding parties, like
fire departments, need to have some control over emergency
situations. Failure to control the fire scene would be considered
negligent, and could subject the fire department to liability.
However, under the rubric of CERCLA, these powers do not confer
"operator" status on the fire department while its members
extinguish a fire inside the facility. CERCLA requires that one
"manage, direct, or conduct operations specifically related to
pollution . . . or decisions about compliance with environmental
regulations." Bestfoods, 524 U.S. at 65, 118 S. Ct. at 1886.
The uncontroverted evidence reveals that the Plaintiffs, and not
the Defendants, were operating the facility immediately before
the release; during the release; and are currently operating the
facility within the meaning of the CERCLA statute.
It is undisputed that the release or threatened release
occurred while AMW's employees were cleaning a tube with MEK.
Antoniou testified at his deposition that the fire started as a
result of MEK igniting inside the facility. Once ignited, the MEK
threatened release into the environment. By attempting to
extinguish the fire themselves, the Plaintiffs took steps to
control and prevent the release of hazardous materials. The
ensuing fire destroyed the premises and released other hazardous
substances into the environment. This undisputed evidence shows
that, as a matter of law, AMW was operating the facility
immediately before the release of the hazardous substance and
during the release.
Finally, although AMW has not conducted a profitable business
operation at the facility after the fire, it has been the
"operator" within the meaning of CERCLA as interpreted by the
Supreme Court in Bestfoods. During the fire, AMW hired a
contractor to coordinate the disposal efforts at the facility.
After the fire, AMW continued to pay for the disposal of the
hazardous substances. In fact, AMW is seeking recovery of those
costs and lost profits. Therefore, the Court finds that AMW is
and has been operating the facility by directing operations
relating to disposal of hazardous waste. See id. Accordingly,
the Court finds that the Plaintiffs' have offered no material
evidence that the Fire Company or the Town was the operator of
the facility under CERCLA. Since the Defendants were not
operators of the facility, they may only be liable for gross
negligence or willful misconduct under § 9607(d)(2). Later in
this opinion, the Court will analyze the Plaintiffs' claims
relating to negligence.
c. Innocent Owner Defense
Antoniou claims that he is not a responsible party under CERCLA
because he is an innocent owner. CERCLA provides for an innocent
owner defense under §§ 9607(b)(3) and 9601(35). See Westwood
Pharmaceuticals v. National Fuel Gas Distribution Corp.,
964 F.2d 85, 89-91 (2d Cir. 1992). "To qualify for that defense, a
defendant must establish, inter alia, that it acquired the site
`after the disposal' of hazardous chemicals." ABB Indus.
Systems, Inc. v. Prime Technology, Inc., 120 F.3d 351, 358 (2d
Cir. 1997) (citation omitted). Here, there is no dispute that
Antoniou owned the property before, during, and after the release
of hazardous chemicals. As such, Antoniou cannot assert the
innocent owner defense.
The Court finds that the Plaintiffs have not raised any dispute
of material fact relating to the CERCLA claim and that the
Defendants are entitled to judgment as a matter of law. The
Plaintiffs were the owner and operator of the facility at the
time the hazardous substances were released into the environment.
The Defendants cannot be considered "operators" of the facility
by merely responding to and extinguishing a fire at the site. The
Plaintiffs, as responsible parties, may not maintain an action
for indemnification under CERCLA. The Plaintiffs claims for
contribution must also fail because they voluntarily initiated
clean-up of the site, and thus cannot meet the requirement of a
preexisting civil action. For these reasons, the motion of the
Defendants for summary judgment dismissing the Plaintiffs' CERCLA
claims is granted.
It is well-established that a municipality may not be held
liable for injuries resulting from negligence in the performance
of a governmental function, unless the plaintiff can establish
the existence of a special relationship between the injured party
and the public entity. Apostolakis v. Centereach Fire District,
300 A.D.2d 516, 516, 752 N.Y.S.2d 691, 692 (2d Dep't 2002); see
also Cuffy v. City of New York, 69 N.Y.2d 255, 260,
505 N.E.2d 937, 939-40, 513 N.Y.S.2d 372, 374 (1987); Howell v. Massapequa
Fire District, 306 A.D.2d 317, 318, 760 N.Y.S.2d 679, 679 (2d
Dep't 2003). "In order to successfully invoke the `special duty'
exception . . ., a plaintiff must establish that, through
affirmative acts, the municipality has lulled him or her into
foregoing other available avenues of protection or that it has
voluntarily assumed a duty separate from that which is owed to
the public generally." Bishop v. Bostick, 141 A.D.2d 487, 488,
529 N.Y.S.2d 116, 117-18 (2d Dep't 1988).
The Plaintiffs in this case argue that a special relationship
existed based on previous contact with the Defendants and
detrimental reliance. The previous contact that the Plaintiffs
assert includes personal conversations with Town and Fire Company
officials; site visits by Town Fire Marshals; previous responses
by the Fire Company to the facility for false alarms; and the
submission of site plans to the Town. As for reliance, the
Plaintiffs submit that Chief Tutt had visited the facility on
prior occasions, had knowledge of the hazardous chemicals in the
building, and at the fire, Chief Tutt ordered the Plaintiffs off
the premises. The Plaintiffs argue that, had they not listened to
Chief Tutt, the Plaintiffs could have used fork lifts to remove
materials during the fire and minimized the damage to the land.
The Court finds that any visits to or knowledge of the property
prior to the fire is immaterial to the issue of whether the
Defendants' assumed a special duty other than the one owed to the
general public. "Since the Fire [Company's] act of arriving at
the scene of what was then only a potential disaster constituted
nothing more than the performance of a duty owed to the public
generally, that act alone is insufficient to create a special
duty to the respondents." Bishop, 141 A.D.2d at 488,
529 N.Y.S.2d at 118. Similarly, knowledge of hazardous substances,
prior visits, and the issuance of valid permits constitute
nothing more than the performance of duties owed to the public in
general. Furthermore, by the time the Defendants arrived at the
Plaintiffs' business, the fire had already extended throughout
the building, making any prior knowledge of the hazardous
substances irrelevant to the Plaintiffs' claim for damages to the
Plaintiffs' detrimental reliance argument is absurd. Antoniou
argues that a special relationship exists because he relied on
Chief Tutt's direction to stay out of the building and keep a
safe distance from the fire. Incredibly, Antoniou claims that
absent those instructions he would have ordered his employees
back into a fully fire-engulfed building that was about to
collapse. A special relationship requires reliance to the
claimant's detriment. De Long v. Erie County, 60 N.Y.2d 296,
305-06, 469 N.Y.S.2d 611, 616-17, 457 N.E.2d 717, 721 (1983). As
a matter of law, fact, and common sense, Antoniou's reliance on
Chief Tutt's instructions not to send employees back into a
burning building filled with hazardous and flammable chemicals
cannot be considered detrimental.
In addition, even if a special duty was present, a fire
department is not chargeable with negligence for failure to
exercise perfect judgment in discharging the governmental
function of fighting fires. Harland Enterprises, Inc. v.
Commander Oil Corp., 64 N.Y.2d 708, 709, 475 N.E.2d 104, 105,
485 N.Y.S.2d 733, 734 (1984). In Harland, the plaintiff brought
an action against the fire department for alleged negligence in
the methods it used to fight the fire. The Harland Court held
that "[t]he fire department's discretionary efforts in attempting
to extinguish the fire . . . are not grounds for liability."
Harland, 64 N.Y.2d at 709, 475 N.E.2d at 105,
485 N.Y.S.2d at 734. That principle applies here. Chief Tutt exercised sound
judgment in ordering that the fire be fought from a safe distance
with copious amounts of water. This tactic achieved the Fire
Company's primary goals of preserving life and extinguishing the
fire, and thus cannot be considered negligent.
The Chief also took remedial action after the fire was
extinguished. The Chief ordered the Town to use pay loaders to
move debris in order to help extinguish the fire. The Chief also
ordered sand trucks to help dyke the toxic runoff. These actions,
as a matter of law, cannot be considered grossly negligent.
Accordingly, the Defendants are entitled to summary judgment
dismissing all of the Plaintiffs' negligence claims.
D. Ultrahazardous Activity
The Plaintiffs claim that the Defendants engaged in
ultrahazardous activity by applying high pressure water to the
fire. This claim alleges that the application of water caused the
fire to spread, ignited chemicals within the building, and caused
the flow of contaminated water onto the premises and adjoining
properties. The general rule is that those who engage in
ultrahazardous activity are subject to strict liability for the
cost of harm caused on the innocent. Doundoulakis v. Town of
Hempstead, 42 N.Y.2d 440, 448, 368 N.E.2d 24, 27,
398 N.Y.S.2d 401, 404 (1977). Determining whether an activity is
ultrahazardous involves an analysis of multiple factors, such as:
"`(a) existence of a high degree of risk of some harm to the
person, land or chattels of others; (b) likelihood that the harm
that results from it will be great; (c) inability to eliminate
the risk by the exercise of reasonable care; (d) extent to which
the activity is not a matter of common usage; (e)
inappropriateness of the activity to the place where it is
carried on; and (f) [the] extent to which its value to the
community is outweighed by its dangerous attributes.'" Searle v.
Suburban Propane Div. of Quantum Chemical Corp., 263 A.D.2d 335,
339, 700 N.Y.S.2d 588, 591 (3d Dep't 2000) (quoting
Doundoulakis, 42 N.Y.2d at 448, 398 N.Y.S.2d 401,
368 N.E.2d 24).
In this case, the sixth factor, the value to the community, is
particularly instructive. Although firefighting is an extremely
dangerous activity, the value to the community outweighs the
inherent dangers of the activity. If the fire department had not
extinguished the fire, the risk of it spreading to nearby
structures would have put the entire community in great danger.
The fifth element, inappropriateness of the activity to the place
where it is carried on, demonstrates the weakness of the
Plaintiffs' claim. It is illogical to claim that it is
inappropriate to carry out firefighting at the site of a fire.
Thus, the Court finds the claim for strict liability meritless
and should be dismissed.
E. The New York Navigation Law
Plaintiffs move for partial summary judgment against the Town
on their claim under the New York Navigation Law. The Plaintiffs
assert that the Town had actual knowledge that MX/MG Carrier II,
commonly known as kerosene, was stored on the property and that
as a result of the Town's role in fighting the fire, the kerosene
was released during the course of the fire. Generally, "any
person who has discharged petroleum shall be strictly liable,
without regard to fault, for all cleanup and removal costs and
all direct and indirect damages. . . ." N.Y. Nav. Law § 181(1)
(McKinney 2004). However, volunteer fire companies and their
members are exempt from strict liability and only liable for
willful or gross negligence. Id. § 181(6).
Antoniou testified at his deposition that he observed a Town
Highway Department front end loader being used after the fire
within the building knocking over containment vessels. The
Defendants do not dispute that the Town was moving debris around
after the fire, but it is undisputed that the Town was acting at
the direction of Chief Tutt and the Fire Company in their effort
to extinguish the fire. As such, the Town is covered under the
volunteer firefighter exemption to strict liability and is only
liable for gross negligence. Regardless of the standard, after
being subject to an intense fire for several hours, it is highly
improbable that any kerosene remained in the containers by the
time the Town was using the pay loader, especially considering
the testimony that some time during the fire explosions were
heard inside the facility. As discussed above, the Court finds
that the Defendants did not act negligently in extinguishing the
fire or by ordering the use of pay loaders. Therefore, the Court
finds that the Defendants are entitles to summary judgment on the
Plaintiffs' claim under the New York Navigation Law.
Based on the foregoing, it is hereby
ORDERED, that the Plaintiffs' cross motion for partial
summary judgment is DENIED; and it is further
ORDERED, that the Defendants' motion for summary judgment is
hereby GRANTED and the complaint is dismissed in its entirety;
and it is further
ORDERED, that the Clerk of the Court is directed to close the
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