United States District Court, S.D. New York
January 5, 2005.
KARA HOLDING CORP., Plaintiff,
GETTY PETROLEUM MARKETING, INC., GETTY PROPERTIES CORP., GETTY REALTY CORP., LEEMILT'S PETROLEUM INC., and THE TYREE ORGANIZATION LTD., Defendants. v. ISLAND TRANSPORTATION CORP. and XERXES CORPORATION, Third-Party Defendants. XERXES CORPORATION, Second/Third-Party Plaintiff, v. TYREE BROTHERS ENVIRONMENTAL SERVICES, INC., LARRY E. TYREE COMPANY, INC., TYREE MAINTENANCE CO., INC., and TYREE ENGINEERING, P.C., Second/Third-Party Defendants.
The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge
Plaintiff Kara Holding Corp. ("Kara") has moved pursuant to
Local Rule 6.3 for reconsideration and reargument of the August
12, 2004 opinion, Kara Holding Corp. v. Getty Petroleum
Marketing, Inc., No. 99 Civ. 275 (RWS), 2004 WL 1811427
(S.D.N.Y. August 12, 2004) (the "Opinion"), dismissing Kara's claims under the
Resource Conservation and Recovery act of 1976 and the Solid
Waste Amendments of 1984 ("RCRA") 6-972(a)1.-(A), § 6972(a)(1)
(B), the Clean Water Act ("CWA"), and for trespass, nuisance,
negligence, and gross negligence.
The Opinion was based upon submissions in support of and in
opposition to defendants' and plaintiff's motions for summary
judgment. Kara submitted two briefs in support of its motion for
partial summary judgment totaling more than 60 pages, a separate
32-page brief in opposition to defendants' motion for summary
judgment, a 74-page Rule 56.1 Statement, and a 72-page motion for
sanctions which was filed in conjunction with its motion for
Where, as here, a motion to reargue "largely restates the
arguments that [parties] made to the Court in their submissions
and at oral argument of their motion for summary judgment, and
which this Court addressed in its Memorandum Opinion," and where
the court did not overlook any argument, but rather, rejected it,
the motion must be denied. Range Road Music, Inc. v. Music Sales
Corp., 90 F. Supp. 2d 390, 392 (S.D.N.Y. 2000). Because a motion
to reargue is predicated on the court having overlooked a
controlling fact or law, "[a] party in its motion for reargument
`may not advance new facts, issues, or arguments not previously
presented to the court.'" In re Houbigant, Inc.,
914 F. Supp. 997, 1001 (S.D.N.Y. 1996) (quoting Litton Indus., Inc. v. Lehman
Bros. Kuhn Loeb, Inc., No. 86 Civ. 6447 (JMC), 1989 WL 162315 at
*3 (S.D.N.Y. Aug. 4, 1989)).
Reconsideration With Respect To The Dismissal Of The §
6972(a)(1)(A) Claim Is Denied
In dismissing plaintiff's § 6972(a)(1)(A) claim, the Opinion
noted that a RCRA claim pursuant to 42 U.S.C. § 6972(a)(1)(A)
requires a violation of "a specific `permit, standard,
regulation, condition, requirement, prohibition, or order' under
the RCRA." Opinion, 2004 WL 1811427 at *9 (quoting United States
EPA v. Port Authority of New York and New Jersey,
162 F. Supp. 2d 173, 190 (S.D.N.Y. 1990)).
Plaintiff, for the first time on this motion, contends that it
identified specific violations in its Notice of Intent and that
such violations were incorporated by reference into the
complaint. This argument is prohibited by Local Rule 6.3 which
governs reargument motions. See, e.g., Range Road Music,
Inc. v. Music Sales Corp., 90 F. Supp. 2d 390, 392 (S.D.N.Y.
2000) (stating that "a motion for reconsideration is appropriate
only where the movant demonstrates that the Court has overlooked
controlling decisions or factual matters that were put before it
on the underlying motion . . . and which, had they been
considered, might have reasonably altered the result before the
court.") (internal quotation omitted). Nor can Kara rely on past interrogatory responses as a
substitute for a properly pled claim. Plaintiff did not raise
this argument in its prior submissions and therefore cannot do so
Reconsideration With Respect To Dismissal of the §
697(a)(1)(B) Claim Is Denied
With respect to plaintiff's claim under
42 U.S.C. § 6972(a)(1)(B), Kara recognizes that the Court found that a
question of material fact exists regarding whether the conditions
at plaintiff's property present an "imminent and substantial
endangerment" to health or the environment. Plaintiff's Local
Rule 6.3 Motion at 3. The Opinion granted defendants' summary
judgment because Kara failed to identify any action that
defendants could be ordered to take that is not already underway
and would improve the situation. See Opinion, 2004 WL 1811427
at *11-12. Plaintiff's attempt to reargue that an "imminent and
substantial endangerment" exists ignores the basis for the
Court's ruling. See id. "[R]econsideration will generally be
denied unless the moving party can point to . . . [overlooked]
matters . . . that might reasonably be expected to alter the
conclusion reached by the court." See Shrader v. CSX Transp.,
Inc., 70 F.3d 255, 257 (2d Cir. 1995).
As to damages, Kara contends the Opinion overlooked its expert
fees and alleged repair expenses. Opinion, 2004 WL 1811427 at
*14-15. It is too late to raise this contention, which was not
overlooked but rather not raised. Reconsideration With Respect To Dismissal Of The Remaining
Claims Is Denied
Plaintiff has failed to show that the Court overlooked any
controlling fact regarding the finding that defendants lacked the
requisite intent to sustain a common-law tort claim. Kara has
reiterated the same facts that it argued on its motion for
summary judgment without identifying any that were overlooked.
In the Opinion, the Court found that plaintiff failed to meet
its burden to show that defendants were even aware of the
discharge of petroleum at the Colgate Building site. See
Opinion, 2004 WL 1811427 at *17. None of the facts reasserted by
plaintiff in this motion constitute evidence of intent to
discharge petroleum at the Colgate Building. Accordingly, this
Court's finding should not be disturbed. Anglo American Ins.
Group, P.L.C. v. CalFed Inc., 940 F. Supp. 554, 557 (S.D.N.Y.
With respect to the CWA claim, the Opinion held that (1) Kara,
the corporate plaintiff, could not allege any injury in fact so
as to satisfy constitutional standing requirements, in part,
because a corporation cannot suffer the same "aesthetic" offense
that a natural person can, and (2) even if Kara could show any
injury in fact, it failed to show that the petroleum spill at
defendants' station seeped into the Bronx River. Opinion, 2004 WL
1811427 at *13. Beyond the fact that plaintiff has suffered no injury so as to
confer standing, the Opinion also found that plaintiff had failed
to show that the petroleum spilled from the Getty station seeped
into the Bronx River. Id.
Kara has contended that the testimony of its expert, Dr.
Aulenbach, had been overlooked. However, Dr. Aulenbach's
affidavit does not alter the Opinion's determination that
plaintiff had failed to present evidence to establish
contamination of the Bronx River by the defendants. Id. Without
such contamination, any river backup does not provide the injury
to property necessary to confer standing.
For these reasons, the motion for reconsideration is denied.
It is so ordered.
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