The opinion of the court was delivered by: Charles J. Siragusa United States District Judge
This environmental case is here under federal question jurisdiction pursuant to 28 U.S.C. § 1331, based on claims in the first cause of action made under the Resource Conservation and Recovery Act of 1976, as amended, and in particular the authorization for citizen lawsuits pursuant to 42 U.S.C. § 6972(a)(1)(B). Plaintiff has also alleged supplemental jurisdiction pursuant to 28 U.S.C. §1367 for the state law claims based on New York law. The matter is before the Court on Defendant Fisher Associates' application for summary judgment, seeking dismissal of the fifth and tenth causes of action, as well as all cross-claims, or, in the alternative, a limitation upon its liability to the contract terms. For the reasons stated below, the Court grants the motion.
Sylvan Enterprises, Corp. ("Sylvan"), is a closely-held corporation. Its officers and shareholders consist of Rabbi Noble and Robert Rosenblatt. Sylvan contracted with First Allied Shopping Center, L.P. ("First Allied"), to purchase the shopping center located at the intersection of East Ridge Road and Seneca Avenue in Rochester, New York. Sylvan retained Lawrence Palvino, Esq. ("Palvino"), member of a Rochester law firm, Harter, Secrest & Emery, LLP ("Harter"), to assist in its purchasing of the shopping plaza. On October 5, 2000, Palvino, acting on behalf of his client, Sylvan, contracted with defendant Fisher Associates ("Fisher") to complete a phase I environmental assessment report regarding the shopping center so that Sylvan could proceed with its purchase. The first paragraph on page five of the contract states as follows:
Harter and Sylvan acknowledge and agree that the report and the findings in the report shall not, in whole or in part, be disseminated or conveyed to any other party, or used or relied upon by any other party, except for the specific purpose and to the specific parties alluded to above, without the prior written consent of Fisher Associates. Fisher Associates would be pleased to discuss the conditions associated with any such additional dissemination, use or reliance by other parties. (Letter from Carl W. Eller, P.E., Fisher Associates P.E., L.S., P.C., to Lawrence R. Palvino, Esq., Harter, Secrest & Emery, LLP (Oct. 2, 2000), Docket No. 51-8, at 5.) Fisher maintains, and Plaintiffs do not dispute, that it never provided any written or oral consent for assignment of the contract. The last paragraph on page four of the contract provided that:
Fisher Associates' report will be prepared on behalf of and for the exclusive use of Sylvan and their legal counsel, Harter, Secrest & Emery. However, we acknowledge and agree that Sylvan and Harter may convey the report to the bank or lending institution that may be associated with this specific real estate transaction. Such parties' reliance upon the report shall be subject to the limitations set forth in the report. Fisher Associate's aggregate liability to all parties who may come to rely on the report is limited to the professional fee, and is not hereby expanded. (Id., at 4.) At the end of October 2000, Fisher completed its phase I environmental assessment report and submitted it to Palvino.
On February 16, 2001, Ridge Seneca Plaza, LLC ("Plaintiff") was formed. Sylvan Enterprises did not subsequently purchase the shopping plaza and, instead, assigned its purchase contract with First Allied to Plaintiff. Fisher claims*fn1 that it was unaware Sylvan did not purchase the shopping center or that Sylvan had assigned its contract to Plaintiff. Further, Fisher maintains that it was not even aware of Plaintiff's existence until about June 29, 2006.
In 2004, in order to refinance the mortgage on the property, Plaintiff had a phase 2 environmental assessment completed on the shopping center property by a company other than Fisher. During this assessment, contamination of the site was discovered.
Plaintiff's complaint, in the fifth cause of action, alleges that Fisher was negligent in its preparation of the phase I assessment report. In the tenth cause of action, the complaint alleges that Fisher committed professional malpractice with respect to its preparation of the phase I report. Fisher rases two arguments in support of its motion for summary judgment: (1) the fifth and tenth causes of action should be dismissed against it due to the lack of privity of contract; and (2) in the alternative, Fisher's liability is limited to the amount in the contract. The complaint makes claims under both Federal and New York law alleging that Fisher was negligent in its assessment by failing to discuss a 1999 spill report from a gasoline station directly east and upgradient from the shopping center.
In the week preceding the scheduled argument of Fisher's summary judgment motion, Plaintiff filed a motion to amend the complaint. (Docket No. 64.)
The standard for granting summary judgment is well established. Summary judgment may not be granted unless "the pleadings, depositions, answers to interroga-tories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). A party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). "[T]he movant must make a prima facie showing that the standard for obtaining summary judgment has been satisfied." 11 Moore's Federal Practice, § 56.11[a] (Matthew Bender 3d ed.). That is, the burden is on the moving party to demonstrate that the evidence creates no genuine issue of material fact. See Amaker v. Foley, 274 F.3d 677 (2d Cir. 2001); Chipollini v. Spencer Gifts, Inc., 814 F.2d 893 (3d Cir.1987) (en banc). Where the non-moving party will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing the evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the non-movant's burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322--23 (1986).
Once that burden has been met, the burden then shifts to the non--moving party to demonstrate that, as to a material fact, a genuine issue exists. Fed. R. Civ. P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A fact is "material" only if the fact has some affect on the outcome of the suit. Catanzaro v. Weiden, 140 F.3d 91, 93 (2d Cir. 1998). A dispute regarding a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. In determining whether a genuine issue exists as to a material fact, the court must view underlying facts contained in affidavits, attached exhibits, and depositions in the light most favorable to the non-moving party. U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962). Moreover, the court must draw all reasonable inferences and resolve all ambiguities in favor of the non-moving party. Leon v. Murphy, 988 F.2d 303, 308 (2d Cir.1993); Anderson, 477 U.S. at 248-49; Doe v. Dep't of Pub. Safety ex rel. Lee, 271 F.3d 38, 47 (2d Cir. 2001), rev'd on other grounds Connecticut Dept. of Public Safety v. Doe, 538 U.S. 1, 123 S.Ct. 1160 (2003); International Raw Materials, Ltd. v. Stauffer Chemical Co., 898 F.2d 946 (3d Cir. 1990). However, a summary judgment motion will not be defeated on the basis of conjecture or surmise or merely upon a "metaphysical doubt" concerning the facts. Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991) (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)); Knight v. United States Fire Ins. Co., 804 F.2d 9 (2d Cir. ...