APPEAL by the defendants Frank Casalino, Anthony Casalino, and Joseph Casalino, in an action, inter alia, to recover damages for common-law indemnity, public nuisance, and restitution, pursuant to, among other things, Administrative Code of City of NY § 16-131.3, as limited by their brief, from so much of an order of the Supreme Court (Augustus C. Agate, J.), entered October 23, 2006, in Queens County, as granted that branch of the plaintiffs' motion which was for summary judgment on the seventh cause of action insofar as asserted against them and denied their cross motion pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against them as barred by the statute of limitations and the doctrines of collateral estoppel and accord and satisfaction or, in the alternative, for summary judgment dismissing the third, fifth, sixth, and seventh causes of action insofar as asserted against them.
The opinion of the court was delivered by: Dillon, J.P.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
MARK C. DILLON, J.P., HOWARD MILLER, WILLIAM E. McCARTHY & CHERYL E. CHAMBERS, JJ.
We are presented with an appeal involving a $16.5 million claim by the City of New York, John J. Doherty, Commissioner of the Department of Sanitation of the City of New York, and the Department of Sanitation of the City of New York (hereinafter collectively the City), arising out of their remediation of a site in College Point, where the defendants allegedly dumped, or caused or permitted the dumping of, debris in violation of provisions of the Environmental Conservation Law. This appeal involves a matter of public interest and raises unique issues regarding causes of action that implicate CPLR 213-b, collateral estoppel, accord and satisfaction, common-law indemnity, and restitution.*fn1
The defendant, College Point Sports Association, Inc. (hereinafter CPSA), leased 22 acres of real property (hereinafter the College Point site) from the plaintiff City of New York, which were to be developed into a community sports complex. CPSA entered into a contract with the defendant, Enviro-Fill, Inc. (hereinafter Enviro-Fill), to construct the complex, which mandated delivery to the College Point site of approximately 140,000 cubic yards of clean fill material. Enviro-Fill did not charge any of the parties for the work it performed, as its revenue was instead derived from contractors who were permitted to dump fill at the College Point site in exchange for payments to Enviro-Fill in the sum of $8 to $10 per cubic yard.
Inspectors of the City's Department of Sanitation (hereinafter the DOS) thereafter discovered that fill dumped at the College Point site was not "clean" earth, gravel, or sand, as it included asphalt, wood, metal drums, plastic, processed construction and demolition waste, and other materials that emitted a stench. Indeed, the City later alleged that Enviro-Fill accepted improper debris and waste from companies controlled by the defendants Frank Casalino, Anthony Casalino, and Joseph Casalino (hereinafter collectively the Casalino defendants), charging the Casolino defendants more than $13 per cubic yard for the right to dump materials at the College Point site.
On October 31, 1997, the DOS issued an initial order directing CPSA and Enviro-Fill to close the College Point site and remove unacceptable material. Enviro-Fill challenged the DOS order before the New York City Office of Administrative Trials and Hearings (hereinafter OATH) pursuant to Administrative Code of City of NY § 16-131.2(b)(3). After a hearing, OATH issued a report and recommendation dated March 12, 1998, confirming the initial DOS order. The DOS thereafter issued a final determination and order dated March 24, 1998, which directed, inter alia, that unacceptable fill material be removed from the College Point site to the satisfaction of the City, and also that any "expense[s] incurred by [the DOS] in performing such work shall be a debt recoverable from the parties to [the] final order," namely CPSA and Enviro-Fill. CPSA and Enviro-Fill unsuccessfully challenged the DOS final order via a CPLR article 78 proceeding (see Matter of Enviro-Fill, Inc. v Doherty, 269 AD2d 529).
CPSA and Enviro-Fill never complied with either the initial DOS order or the final DOS determination and order. Consequently, between December 1999 and March 2001, the DOS removed and disposed of 211,168 tons of unacceptable fill from the College Point site. The cost of the remediation to the City was approximately $16.5 million. The City claimed that it incurred costs in the sum of $10,641,978 for the removal and disposal of unclean fill, plus an additional sum of $5,847,357 to regrade the land and construct athletic fields at the College Point site.
On May 7, 2001, the Casalino defendants and three corporations they controlled were indicted by the Queens County District Attorney. The indictment alleged that the named criminal defendants dumped dangerous materials at the College Point site to save on carting and dumping expenses. The indictment contained 734 counts that included charges of, inter alia, offering a false instrument for filing in the first and second degrees, falsifying business records in the first degree, conspiracy in the fifth degree, the release into the environment of more than 70 cubic yards of solid waste, and the release into the environment of more than 10 but less than 70 cubic yards of solid waste, on various dates between March 1996 and October 1997.
The Casalino defendants cooperated with the District Attorney's office, agreeing after the indictment to provide information to prosecutors and to testify against others if required, in exchange for each criminal defendant pleading guilty to one count of the indictment in full satisfaction of the 734 counts. On September 24, 2001, the Casalino defendants each pleaded guilty before the Supreme Court, Queens County (Eng, J.), to count 443 of the indictment, admitting that, on November 22, 1996, they "knowingly [caused] the release of more than 70 cubic yards of solid waste into the environment as defined in the [E]nvironmental [C]onservation [L]aw" (ECL 71-2703[c][i]), a class A misdemeanor. The Casalino defendants were subject to an extensive voir dire and were represented by legal counsel at the time of the pleas of guilty. By prior agreement with the prosecution, the sentences were deferred pending continuing cooperation by the Casalino defendants, and the prosecution's sentence recommendations were dependent upon the nature and extent of that cooperation. Additionally, the Casalino defendants agreed to pay total aggregate restitution, divided between them on a pro rata basis, in the sum of not less than $250,000 nor more than $1,000,000.
The City commenced the instant civil action by the filing of a summons and complaint; it thereafter filed an amended summons and amended complaint dated October 20, 2003. In its amended complaint, the City sought to recover damages in the sum of approximately $16.5 million for funds that it expended in removing and replacing unacceptable fill at the College ...