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Olindo Enterprises, Inc. v. City of Rochester

March 7, 2008




Olindo Enterprises, Inc. ("Olindo Enterprises"), Olindo's Import Foods, Inc. ("Olindo's Import"), Olindo Properties, Inc. ("Olindo Properties") and Olindo DiFrancesco ("Olindo") (collectively "plaintiffs") brought this suit pursuant to CERCLA, New York State Environmental Conservation Law, and New York State common law, seeking reimbursement for the costs of remediating environmental contamination (the "Contamination"), including hazardous heavy metals, contained in a layer of ash and cinders at least three feet thick from property they own and occupy, located at 1510 Lyell Avenue in the City of Rochester ("the Site"). Plaintiffs contend that the defendant, City of Rochester ("defendant" and/or the "City") arranged for disposal of the ash and cinder at the Site prior to 1930.

Defendant moves for summary judgment dismissing the complaint, arguing that there is no evidence to support CERCLA liability and plaintiffs are unable to establish a genuine dispute as to any material question of fact. In addition, defendant contends that opinion testimony of plaintiff's expert, S. Bruce Kohrn ("Kohrn") must be precluded. The City argues that his opinion is inadmissible under the Federal Rules of Evidence since it is not based on scientific, technical or other specialized knowledge and does not assist the trier of fact in reaching a decision or determining a fact at issue. Plaintiffs object to the summary judgment motion and also bring a motion in limine, requesting that the Court exclude the opinion testimony and affidavits of the City's proposed witnesses Tim O'Connell ("O'Connell") and Mark Gregor ("Gregor"), alleging that their proposed testimony is essentially expert opinion based on speculation and insufficient facts, and therefore inadmissible as unreliable.

For the reasons set forth below, (1) defendant's request to preclude the testimony of plaintiffs' expert witness is denied; (2) defendant's motion for summary judgment dismissing the complaint is denied; (3) plaintiffs' motion in limine to exclude the opinion testimony of O'Connell is denied and (4) plaintiffs' motion to preclude the opinion testimony of Gregor is granted in part and denied in part.


Plaintiffs are the current owners of a two-acre parcel of property located at 1510 Lyell Avenue, Rochester, New York ("the Site"). On August 3, 1982, Joseph Stern and Sons, Inc. sold the Site to Olindo. See Complaint ¶ 13. On February 25, 1999, Olindo sold the Site to John Sexton & Company ("Sexton") and transferred the food business to Sexton. See id. at ¶ 15. On January 10, 2002, Sexton conveyed both the Site and the food business to Olindo Enterprises, which currently owns and operates them. See id. at ¶ 16. In 2000, Olindo, Olindo Import and Sexton entered into a Voluntary Cleanup Agreement (the "VCA") with the New York Department of Environmental Conservation ("DEC"). Pursuant to the authority of the DEC and ECL Article 27, Title 13 and CERCLA, Olindo, Olindo Import and Sexton agreed to investigate and remediate the Contamination found at the Site.

On or about May 6, 2004, plaintiff served a Notice of Claim upon the City pursuant to New York General Municipal Law §50-h. The City contends that at the 50-h hearing, Olindo testified that when remediation at the Site was proceeding, "old people" informed him that the City used to dump at the Site. See Matthew Brown Affidavit ("Brown Aff.), Ex. A, Olindo Tr. 19:4-25. Accordingly, defendant argues that Olindo's self-serving testimony does not even rise to the level of hearsay, but is only based on rumor at best. See Brown Aff. at ¶ 16. Further, the City claims that the testimony of Stuart Bobry ("Bobry") also does not provide support for plaintiffs claim. See id. at ¶ 17. According to the City, Bobry stated that he did not recall ever being told how ash got on the Site. See Brown Aff., Ex. B, Bobry Tr. 12:12-13:2. Thus, the defendant argues that plaintiffs have adduced no evidence that the City dumped anything at the Site.

Defendant has also provided the Affidavit of O'Connell*fn1 and the Affidavit of Gregor*fn2 to show that the City did not dispose of and has no record of dumping ash and/or cinder at the Site. Defendant contends however that the City has records of landfilling at the former Emerson Street Landfill between 1930 and 1972.*fn3 Further, there is no indication in any City records that the City disposed of any ash South of the Railroad, North of Lyell Avenue, or West of Mount Reed Boulevard. See Brown Aff., Ex. C, ¶ 5. Plaintiffs argue that while the City claims that the absence of records of disposal prior to 1930 proves something, it does not provide a favorable inference since the City had no reliable records of disposal, and the reports it did have only provided anecdotal information. See Alan J. Knauf Affidavit ("Knauf Aff."), ¶ 16.*fn4

In addition, the City claims that the only City incinerator in operation prior to 1930 was the Fall Street Incinerator, which was actually a garbage reduction plant that "cooked" rather than burned garbage. Moreover, the City contends that the Fall Street incinerator was located on the west bank of the Genesee River in downtown and it would be highly unlikely that ash would be transported from the Fall Street plant to the Site or if ash from Fall Street was transported that far, it is highly unlikely that it would not have been disposed at the Emerson Street landfill. See Brown Aff., Ex. C, ¶ 6, Ex. D, ¶ 6.

According to the City, there are other possible sources of the ash that was found at the Site. As an example, there was a Delco Plant and an Atkins operation, which could have generated ash or cinders from their boilers that could have been dumped at the Site. In addition, the City states that there were a number of private entities that could have disposed of ash or cinders at the Site including the large boilers operating at the University of Rochester, Rochester Gas and Electric, Bausch & Lomb, Kodak and Gleason Works. See id., Ex. C, ¶ 7, Ex. D, ¶ 7. Further, defendant states that private boilers would burn household trash for people during the relevant time frame, which could have been responsible for the ash at the Site. See id., Ex. C, ¶ 8, Ex. D, ¶ 8. There were also other non-City reduction plants where people took their household trash to be burned during this time and those reduction plants could have disposed of the ash found at the Site. See id., Ex. C, ¶ 9, Ex. D, ¶ 9.

Moreover, during the time period at issue, the City claims people burned their own household trash and private contractors disposed of the trash, which could have generated the ash at the Site. See id., Ex. C, ¶ 10. During this period, land owners sought fill materials including ash from various sources for use to fill in and level low areas such as ravines and gullies. See id., Ex. C, ¶ 11. However, plaintiffs argue that both Stephen DeMeo ("DeMeo") and Kohrn opine that the ash found on the Site originated from household waste disposed no later than during the 1930s, since it contained historical domestic items like cork-top bottles. However, it did not resemble fly or bottom ash or slag from boilers, and it was beneath the layer of waste from the scrap operation that took place in the late 1920s.*fn5 See Knauf Aff., ¶ 7; Kohrn Aff. and DeMeo Aff. In addition, plaintiffs contend that Kohrn found that based on his historic research, the only known source of such large quantities of household ash at that time was the City of Rochester, which as of 1917 was disposing 228,000 tons of waste per year and was filling low areas in convenient locations for the horse-drawn wagons hauling ash from the Falls Street reduction plant.


I. Defendant's Request to Exclude Plaintiffs' Expert Opinion

The admissibility of expert testimony is governed by Federal Rule of Evidence ...

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