The opinion of the court was delivered by: Hurley, Senior District Judge
Plaintiff Anwar Chitayat ("Plaintiff" or "Chitayat") commenced this action against Vanderbilt Associates ("Vanderbilt") and Walter Gross ("Gross") in 2003 pursuant to the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. § 9601 et seq., as well as state law,*fn1 seeking to recover response costs incurred in the remediation of tetrachloroethene ("PCE")and other contaminants at and emanating from 100 Oser Avenue, Hauppauge, New York (the "Site"). The Site is located within the Hauppauge Industrial Park and occupies approximately two acres of land.
Gross, one of Vanderbilt's general partners, thereafter commenced two third-party actions. One third-party action was commenced against Vanderbilt's three other partners: the Thomas F. Manno Revocable Trust U/A 13th Day of February 1990 (the "Manno Trust"), Wildoro Associates ("Wildoro") and Howard Rose ("Rose"). The second third-party action was commenced against Pall Corporation ("Pall"), Vanderbilt Generation, L.P. and Vanderbilt Generation II Corp.
Presently before the Court are motions (1) by Vanderbilt for summary judgment against Plaintiff (Dkt. No. 126); (2) by Pall for summary judgment against Plaintiff, as well as on the claims in the Third-Party Complaint (Dkt. No. 127); (3) by Gross, Wildoro, and Rose for summary judgment against Plaintiff (Dkt. No. 128) ; and (4) by Manno Trust for summary judgment against Plaintiff, or in the alternative for summary judgment dismissing the Third-Party Complaint (Dkt. No. 142). For the reasons set forth below, the motions for summary judgment against Plaintiff are granted.
The following facts are undisputed unless otherwise noted: Vanderbilt was created in 1966 as a partnership of four individuals: Gross, William D. Rechler, Thomas Manno and Rose. Gross and Rose both died during the pendency of the instant action and their personal representatives have been substituted in their place.*fn2 The Manno Trust became a general partner of Vanderbilt in or about July 1990 when Thomas Manno requested that the name of ownership be changed to the Manno Trust.*fn3 Wildoro is a New York general partnership which became a 25% general partner of Vanderbilt in or about December 1974 when William D. Rechler transferred his partnership interest to Wildoro.
Pall owns and occupies the property located at the corner of 225 Marcus Boulevard and Oser Avenue (the "Pall Property").*fn4 The Pall Property is upgradient*fn5 of the Site. According to Chitayat, Pall and its predecessor manufactured battery and other membrane products at the Pall Property. Pall used toluene, carbon tetrachloride, methacrylic acid and methylene chloride, as well as Safety Kleen, which has a trace amount of PCE; Pall also leased a portion of its facility to several tenants who may have used PCE. Investigations performed by Pall's consultants revealed PCE in outfalls located at the side of Pall's facility furthest away from the Site.
Vanderbilt acquired the Site in 1971. From at least 1981 until 1985, Vanderbilt leased the Site to Sands Textile Finishers, Inc. ("Sands").*fn6 Sands was a textile manufacturing and finishing operation that used chlorinated solvents for cleaning fabrics, which included PCE as well as other volatile organic substances ("VOCS"). To the extent there was any release of contamination at the Site during the period of ownership by Vanderbilt, the contamination was released by Sands. No contamination was released on-Site or elsewhere by Vanderbilt.
On June 17, 1985 Chitayat entered into a contract with Vanderbilt to buy the property. Prior to entering into that contract, on or about May 1, 1985 Chitayat's consultant received a letter from the Suffolk County Department of Health Services ("SCDOH") informing him that testing revealed contamination in the septic system on the Site. According to the letter, "These high levels of contamination present a threat to groundwater. The department recommends that [the cesspool] be pumped by a licensed industrial scavenger as soon as possible." The contents of the SCDOH's letter were sent to Chitayat by his consultant the next day. The contract of sale provided that Vanderbilt would clean up the hazardous substances from the septic system at the Site to the satisfaction of the SCDHS prior to transfer of title to Chitayat.*fn7 Both the contract of sale and the Rider thereto contain an "as is" clause. The contractual provision reads: "The purchaser has inspected the buildings standing on said premises and is thoroughly acquainted with their condition and subject to reasonable use, wear, tear, and natural deterioration between the date hereof and the closing of title." The rider provides that the "premises are sold and are to be conveyed subject to . . . [a]ll building, subdivision, land sales, securities, ecology, environmental protection and like laws, ordinances, rules and regulations of governmental authorities . . . ." It further provides:
Purchaser affirms that, except as expressly provided for in this agreement, seller has not made [n]or has purchaser relied upon any representation, warranty, or promise with respect to the subject matter of this agreement, including, without limitation, any warranties or representations, express or implied, as to the value, use, tax status, or physical condition of the premises, equipment or property, or any part thereof, repairs thereto . . . or any other matter or thing relating to the premises. Purchaser has had an opportunity to investigate the premises and such other matters it has deemed necessary or appropriate. Without limiting the generality of the foregoing, purchaser has examined the premises and agrees to accept them in "as is" condition and in their present condition, subject to those matters herein specified. In any event, the acceptance by purchaser of a deed conveying the premises shall constitute an acknowledgment by purchaser that all obligations of seller in respect of the premises or otherwise set forth in this agreement have been discharged in full; and upon such acceptance, the seller shall be released from any and all obligations by reason of this agreement, except only such obligations, if any, as are pursuant to the express provisions of this agreement to survive the delivery of the deed or the closing of title hereunder.
Pursuant to the contract of sale, Vanderbilt conveyed its interest in the Site to Chitayat on September 30, 1985.
At the time Chitayat purchased the Site, he also owned 110 Oser Avenue and the Anorad Corporation ("Anorad"). Anorad manufactured precision motion machinery for the automation industry and was located at 110 Oser Avenue beginning in or about 1980. Anorad expanded its operations into the building at the Site in or about 1986 after Chitayat renovated the building. Anorad used the Site mainly as a warehouse, as well as for software and research and development personnel, its accounting department and certain executive offices. For a short time Anorad also used the Site for the manufacture of small linear motors, the assembly of PC boards, and the use of a wave soldering machine.*fn8
According to Chitayat, he first became aware of contamination at the Site in 1989. Pall had a spill of hazardous substance on the southwest side of its property in March 1988 and Chitayat was informed that Pall retained Donnelly Engineering to respond to the spill. In 1989, Donnelly Engineering, with Chitayat's permission, placed three wells on the west side of the building at the Site in order to test the groundwater downgradient to find out if the hazardous substances had migrated onto the Site from the Pall Property.*fn9 Samples from these wells revealed elevated concentrations of PCE at the Site. Chitayat then retained the environmental consulting firm of Fanning Phillips & Molnar (FPM") to investigate the contamination for purposes of remediation.*fn10 According to Chitayat, while FPM investigated the contamination and proposed alternative remediation measures, none of these measures were implemented because the DEC took over the investigation and remediation of the contamination. According to defendants, FPM began construction of a soil vapor extraction system at the Site.
On August 28, 1998, Chitayat entered into an administrative order on consent (the "Consent Order") with the New York State Department of Environmental Conservation ("DEC") regarding the Site. The Consent Order recites that it is "issued pursuant to the Department's authority under, inter alia, ECL Article 27, Title 13 and ECL3-0301 and constitutes an administrative settlement for purposes of 42 USC 9613(f), with the investigation and remediation of contamination existing on the Site as of the effective date of this Order being the matter addressed by such settlement." The Consent Order provides, inter alia, that Chitayat is to make payments to the DEC for expenses it incurred in the investigation and remediation of the Site, with the payments in any one year not to exceed $125,000.00. "Upon the [DEC's] receipt of the last payment by [Chitayat] . . . and the [DEC's] acknowledgment that it has received in full all of the State's costs incurred concerning the Site . . ., the [DEC's] acknowledgment shall constitute a full and complete release for each and every claim, demand, remedy or action whatsoever against [Chitayat], [and] the Anorad Corporation . . . which the [DEC] has or may have pursuant to . . . the Comprehensive Environmental Response, Compensation and Liability Act of 1980 . . . relative to or arising from the disposal of hazardous waste at the Site that occurred on or before the effective date of this Order. . . ." The Consent Order also provides:
The provisions of this Order do not constitute and shall not be deemed a waiver of any right [Chitayat] otherwise may have to seek and obtain contribution and/or indemnification from other potentially responsible parties . . . for payments made previously or in the future for response costs. To the extent authorized under 42 USC 9613 or any other applicable law [Chitayat] shall not be liable for any claim, now or in the future, in the nature of contribution by potentially responsible parties concerning contamination existing on the Site as of the effective at of this Order. In any future action brought by [Chitayat] against a potentially responsible party under [CERCLA] the provisions of 42 USC 9613(f)(3) shall apply.
After execution of the Consent Order, all site investigation and remediation were undertaken by the DEC or its contractors, not by Chitayat. While Pall contends that the DEC did not rely upon the site investigation undertaken by Anorad Corporation and/or Chitayat as the basis for its selection of a remedy, Chitayat contends that the DEC specifically referred to a number of FPM investigations and reports.
Additional facts shall be put forth as pertinent to the discussion at hand.
I. Summary Judgment Standard
Summary judgment pursuant to Federal Rule of Civil Procedure 56 is only appropriate where admissible evidence in the form of affidavits, deposition transcripts, or other documentation demonstrates both the absence of a genuine issue of material fact and one party's entitlement to judgment as a matter of law. See Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 309 (2d Cir. 2008); Viola v. Philips Med. Sys. of N. Am., 42 F.3d 712, 716 (2d Cir. 1994). The relevant governing law in each case determines which facts are material; "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see SCR Joint Venture L.P. v. Warshawsky, 559 F.3d 133, 137 (2d Cir. 2009); Coppola v. Bear Stearns & Co., 499 F.3d 144, 148 (2d Cir. 2007). No genuinely triable factual issue exists when the moving party demonstrates, on the basis of the pleadings and submitted evidence, and after drawing all inferences and resolving all ambiguities in favor of the non-movant, that no rational jury could find in the non-movant's favor. See SCR Joint Venture, 559 F.3d at 137; Chertkova v. Conn. Gen'l Life Ins. Co., 92 F.3d 81, 86 (2d Cir. 1996) (citing Fed. R. Civ. P. 56(c)).
II. The Defendants' Contentions
Pall maintains that it is entitled to summary judgment on the following grounds: (1) Chitayat has no § 107(a) claim because he has not implemented remedial actions himself but rather is obligated to reimburse the DEC; (2) Chitayat may not maintain a § 113(f)(3)(B) claim because (a) the Consent Order was not entered under the authority of CERCLA and does not resolve CERCLA claims and therefore cannot serve as a predicate for such a contribution claim, and (b) the claim is time-barred under the three year statute of limitations applicable to contribution actions; and (3) Chitayat does not have a valid claim for response costs incurred prior to the Consent Order because any such claim is barred by the statute of limitations and because those costs were incurred by Anorad and not Chitayat; and (4) the claim for restitution is pre-empted by CERCLA.
Gross, Rose and Wildoro assert the grounds raised by Pall and also claim they are entitled to summary judgment because Chitayat ...