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Emerson Enterprises, LLC v. Kenneth Crosby-New York

February 26, 2007

EMERSON ENTERPRISES, LLC, PLAINTIFF,
v.
KENNETH CROSBY- NEW YORK, INC., KENNETH CROSBY CO., INC., T.T. BEARINGCO., INC., ROCHESTER TOOL CORP., JASCO TOOLS, INC., JAYNE C. SUMMERS,CLARK WITBECK, INC., BRIAN J. CAIN, BARBARA GOODRICH AS EXECUTOR OF THE ESTATE OF VERNON GOODRICH, DEAN BRODIE, CURTIS S. KLING, THE HARTFORD INSURANCE CO., CONTINENTAL INSURANCE COMPANY, GLENS FALLS INSURANCE CO., FIREMEN'S INSURANCE COMPANY OF NEWARK, NJ, THE TRAVELERS INDEMNITY CO., PG INSURANCE CO. OF NEW YORK, JOHN DOE CORPORATIONS, JOHN DOES, AND JOHN DOE INSURANCE COMPANIES, DEFENDANTS.



The opinion of the court was delivered by: Charles J. Siragusa United States District Judge

DECISION AND ORDER

INTRODUCTION

This is an action pursuant to, inter alia, the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. § 9601, et seq., the New York Environmental Conservation Law ("ECL"), and New York Navigation Law. Now before the Court is plaintiff's motion [#166], pursuant to Rule 59(e) of the Federal Rules of Civil Procedure, for reconsideration of that portion of the Court's Decision and Order [#165] which granted summary judgment to defendants Glens Falls Insurance Co. ("Glens Falls"), Continental Insurance Co. ("Continental"), and Firemen's Insurance Co. of Newark, NJ ("Firemen's"), finding that they did not have a "duty to defend plaintiff from claims made by the New York State Department of Environmental Conservation ["NYDEC"]." For the reasons that follow, the application is stayed, to allow plaintiff to conduct further limited discovery.*fn1

BACKGROUND

The facts of this case were fully set forth in the Court's previous Decision and Order. For purposes of the subject motion, it is sufficient to note the following. This action involves environmental contamination of a parcel of land, owned by plaintiff, known as 640 Trolley Drive ("640 Trolley Drive," "the property," or "the site") in the Town of Gates, County of Monroe and State of New York. Prior to 1960, the property was vacant land. In or about 1960, a 12,300 square-foot masonry structure was constructed on 640 Trolley Drive, and since that time the various owners of the premises, including plaintiff, have leased out the premises for industrial purposes. Defendant Clark Witbeck, Inc. ("Clark Witbeck") leased the property from the early 1960s until 1992. Clark Witbeck's business involved distributing industrial tools and supplies, including abrasives, cutting tools, fasteners, and other products.

On or about October 27, 2000, plaintiff's current tenant discovered a dry well on the premises, a few feet behind the building, containing substances later determined to include polychlorinated biphenyls ("PCBs"), 1,1,1-trichloroethane ("TCA"), and other volatile organic compounds ("VOCs"), semi-volatile organic compounds ("SVOCs"), acetone, and petroleum (including xylene and other petroleum constituents.).

Upon being notified of the contamination, the NYDEC listed the property on the state's Registry of Inactive Hazardous Waste Disposal Sites, and arranged for the dry well to be removed in January 2002. The complaint in this action alleges that the NYDEC plans to conduct further investigation of the property, and if necessary further remedial work. Plaintiff additionally contends that the NYDEC has demanded that plaintiff pay for the investigation and remediation of the contamination at the property.

More specifically, by letter dated August 28, 2001, the NYDEC informed plaintiff of its intention to investigate and possibly seek costs to clean up the site. For purposes of the instant motion, the parties agree that this letter is the "underlying complaint," against which plaintiff seeks to have the defendant insurance companies provide a defense. The letter states, in relevant part:

As mandated by Section 27-1305 of the Environmental Conservation Law (ECL) . . . [the NYDEC] must investigate all inactive disposal sites suspected or known to contain hazardous wastes. We have information which leads us to suspect that hazardous waste has been disposed of at the following location: 640 Trolley Boulevard

***

This letter constitutes notification of the [NYDEC's] intention to investigate the validity of this suspicion. Should this study confirm that hazardous waste disposal has occurred, this site will be entered into the New York State Registry of Inactive Hazardous Waste Disposal Sites.

***

If the investigation reveals that hazardous waste disposal at a site poses a significant threat to the environment of public health, the Environmental Conservation Law provides the authority for the [NYDEC] to recover the costs for the investigation from the owners or others deemed to be responsible for the site. (Emphasis added). Significantly, the ECL defines "disposal" to mean, the abandonment, discharge, deposit, injection, dumping, spilling, leaking or placing of any substance so that such substance or any related constituent thereof may enter the environment. Disposal ...


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