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KARA HOLDING CORP. v. GETTY PETROLEUM MARKETING

United States District Court, S.D. New York


January 5, 2005.

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

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

MEMORANDUM OPINION

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 summary judgment.

  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 now.

  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. 1996).

  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.

20050105

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