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John E. Fitzgibbons v. City of Oswego

December 13, 2011


The opinion of the court was delivered by: Scullin, Senior Judge



Plaintiff John E. Fitzgibbons seeks past and future environmental investigation and remedial costs and an injunction requiring further investigation and cleanup of his property, which he claims Defendants have contaminated. Plaintiff filed his initial complaint on August 26, 2010. In lieu of filing an answer, Defendant County of Oswego (the "County Defendant") moved to dismiss the complaint in its entirety on January 18, 2011.*fn1 On March 22, 2011, Plaintiff filed papers in opposition thereto, which included a motion to amend the complaint.*fn2

Plaintiff brings eleven causes of action against the County Defendant,*fn3 pursuant to (1) the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA") § 107, (2) the Resource Conservation and Recovery Act ("RCRA") § 7002(a)(1)(B), (3) New York Environmental Conservation Law ("ECL") Article 37, (4) negligence, (5) strict liability for ultrahazardous activity, (6) public nuisance, (7) restitution, (8) trespass, (9) private nuisance, (10) New York State Navigation Law § 181(5), and (11) New York State Navigation Law § 176(8).

Upon identification of any John Does, John Doe Corporations, or John Doe Insurance Companies, Plaintiff intends to seek to amend his complaint accordingly. See Dkt. No. 26, Exh. A attached thereto, "Amended Complaint,"at ¶ 13.


Plaintiff is the owner of the allegedly contaminated property at issue, located on George Street, in the City of Oswego, County of Oswego, and State of New York (the "George Street Property"). See Amended Complaintat ¶¶ 1, 15. A landfill (the "Landfill") located adjacent to the George Street Property, which the County Defendant acquired from Niagara Mohawk Power Corporation ("NiMo") in or around 1975, has been used as a waste disposal facility since the 1940s. See id. at ¶¶ 16, 18.

According to Plaintiff, approximately 1.22 acres of the northeast portion of the George Street Property (the "Trespass Area") were used as a portion of the Landfill during the 1960s and 1970s and hazardous wastes were dumped there. See id. at ¶¶ 2-3, 19. Plaintiff became aware of this dumping of hazardous wastes in May of 2009.*fn4 See id. at ¶ 20. The Landfill, which the County Defendant still owns and/or operates, continues to function as a transfer station (the "Transfer Station") for municipal waste materials and construction and demolition debris and is currently accepting metals, used oil, and dried paint. See id. at ¶¶ 21-22.

As a result of the dumping, the releases, and the contamination, the value of the George Street Property has diminished; furthermore, Plaintiff has undertaken environmental investigation and response actions and it will be necessary for Plaintiff to continue to incur additional costs to investigate, remove, remediate, clean up and respond to the contamination and wastes on the Property. See id. at ¶¶ 3, 23, 30.

Currently before the Court are two motions: Defendant County of Oswego's motion to dismiss the complaint in its entirety and Plaintiff's cross-motion to amend the complaint and to strike the affidavits that Defendant County of Oswego submitted.


A. Plaintiff's motion for leave to amend the complaint

Plaintiff's proposed amended complaint is substantively nearly identical to his initial complaint, except that it addresses two alleged deficiencies that the County Defendant raised: (1) Plaintiff's failure to join a necessary party, NiMo, in his initial complaint and (2) Plaintiff's nonexistent or deficient notice of claim ("Notice of Claim").

Pursuant to Federal Rule of Civil Procedure 15(a), which governs a party's ability to amend its pleadings after responsive pleadings have been served, a court should liberally grant a party leave to amend its pleadings "when justice so requires." Fed. R. Civ. P. 15(a). A court should only deny leave to amend "for such reasons as 'undue delay, bad faith, futility of the amendment, and perhaps most important, the resulting prejudice to the opposing party.'" Richardson Greenshields Sec., Inc. v. Lau, 825 F.2d 647, 653 n.6 (2d Cir. 1987) (quoting State Teachers Retirement Bd. v. Fluor Corp., 654 F.2d 843, 856 (2d Cir. 1981)). Further, "'[t]he rule in this Circuit . . . [is] to allow a party to amend its pleadings in the absence of a showing by the [non-movant] of prejudice or bad faith.'" State v. Panex Indus., Inc., No. 94-CV-0400E(H), 1997 WL 128369, *2 (W.D.N.Y. Mar. 14, 1997) (quoting Block v. First Blood Associates, 988 F.2d 344, 350 (2nd Cir. 1993)). The party opposing the requested relief has the burden of establishing that granting leave to amend would be unduly prejudicial. See id. (citing Saxholm AS v. Dynal, Inc., 938 F. Supp. 120, 123 (E.D.N.Y. 1996)).

Given the early stage of this litigation and the fact that neither bad faith nor undue prejudice can be shown, the Court grants Plaintiff leave to amend his complaint to add NiMo as a defendant.Next, with regard to the sufficiency of the Notice of Claim, Plaintiff attached a copy of a purportedly timely and sufficient Notice of Claim to his proposed amended complaint. See Dkt. 26-3, Amended Complaint, Exh. B attached thereto, ("Notice of Claim").*fn5

County Law § 52 provides, in part, that [a]ny claim or notice of claim against a county for damage, injury or death, or for invasion of personal or property rights, of every name and nature . . . arising at law or in equity . . . alleged to have been caused or sustained in whole or in part by or because of any misfeasance, omission of duty, negligence or wrongful act on the part of the county . . . must be made and served in compliance with section fifty-e of the general municipal law. . . .

N.Y. County Law § 52. A plaintiff is required to serve such Notice "within ninety days after the claim arises[.]" N.Y. Gen. Mun. Law § 50-e(1)(a). Among other things, the Notice of Claim must state the nature of the claim and "the time when, the place where and the manner in which the claim arose[.]" N.Y. Gen. Mun. Law § 50-e(2); Phillipps v. N.Y. City Transit Auth., 68 A.D.3d 461, 462 (1st Dep't 2009) (quotation omitted). The Notice need not provide that information with "'literal nicety or exactness'"; rather, the test is whether the Notice provides facts sufficient to enable the defendant to investigate. Phillips, 68 A.D.3d at 462 (quotations omitted). Further, the municipal defendant has "'an obligation to obtain the missing information if that can be done with a modicum of effort rather than rejecting a notice of claim outright[.]'" Id. (quotation omitted).

Here, Plaintiff's Notice of Claim identified the nature of the claim as, among other things, negligence, public nuisance, private nuisance, trespass and de facto taking and deprivation of property . . . as a result of . . . actions, omissions, and/or knowledge of . . . the County [Defendant], including utilizing Claimant's property . . . at Tax Parcel ID # 128.27-02-03, in the City of Oswego, County of Oswego and State of New York as a municipal landfill without a permit or the permission of Claimant, interfering with the use and/or value of the [George Street] Property, and causing contamination. Upon information and belief, the waste could include hazardous wastes.

See Notice of Claim. Furthermore, Plaintiff sufficiently provided the time, place, and manner in which the claim arose:

[A]pproximately 1.22 acres in the northeast portion of the [George Street] Property was historically utilized as a municipal dump, first by the City in about the 1960s and early 1970s, and then by the County in the 1970s . . . in conjunction with operations of the adjacent dump. The claims continue to accrue, since municipal waste is still currently located on the [George Street Property].

See id.

In his proposed amended complaint, Plaintiff alleges that he served the Notice within 90 days after the claim arose, as § 50-e requires. See Amended Complaint at ¶ 32. Although Plaintiff must ultimately show that he did not have knowledge of contaminants on the George Street Property prior to May 28, 2009, i.e., 90 days before he served the Notice of Claim, this timeliness determination requires a more developed record. As alleged, Plaintiff timely served a Notice of Claim on the County Defendant.*fn6

Although it was not improper for Plaintiff to leave out his federal statutory claims in his Notice of Claim, Plaintiff failed to sufficiently notify the County Defendant of several of his state-law claims. "[I]n a federal court, state notice-of-claim statutes apply to state-law claims." Hardy v. N.Y.C. Health & Hosps. Corp., 164 F.3d 789, 793 (2d Cir. 1999) (citations omitted). The state-law claims to which Plaintiff did not specifically refer in the Notice were (1) ECL Article 37, (2) strict liability for ultrahazardous activity, (3) restitution, (4) New York Navigation Law § 181(5), and (5) New York Navigation Law § 176(8). New York County Law § 52 applies to any claim for damages against a county, not just tort claims; thus, Plaintiff was required to notify the County Defendant of each of his state-law claims.*fn7 See Rice v. Wayne Cnty., No. 09-CV-6391T, 2010 WL 4861556, *4-*5 (W.D.N.Y. Nov. 30, 2010); Crippen v. Town of Hempstead, No. 07-CV-3478, 2009 WL 803117, *15 (E.D.N.Y. Mar. 25, 2009). "Notice of claim requirements 'are construed strictly by New York state courts,'" and a "[f]ailure to comply with these requirements ordinally requires a dismissal for failure to state a cause of action." Hardy, 164 F.3d at 793-94 (quotation and other citations omitted).

Accordingly, the County Defendant's motion to dismiss Plaintiff's third (ECL Article 37), fifth (strict liability), seventh (restitution), tenth (Navigation Law § 181(5)), and eleventh (Navigation Law § 176(8)) causes of action is granted for failure to include these state-law claims in Plaintiff's Notice of Claim.*fn8 Finally, for the above-stated reasons, the Court grants Plaintiff's motion for leave to file and serve an amended complaint consistent with this Memorandum-Decision and Order.

B. Defendant's motion to dismiss the complaint for lack of subject matter jurisdiction

As stated, the County Defendant has moved to dismiss Plaintiff's claims pursuant to Rule 12(b)(1). Plaintiff bears the burden of establishing subject matter jurisdiction by a preponderance of the evidence; and, "before a federal court can consider the merits of a legal claim, the person seeking to invoke the jurisdiction of the court must establish the requisite standing to sue." Whitmore v. Arkansas, 495 U.S. 149, 154 (1990); see also Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). Unlike a Rule 12(b)(6) motion, when considering a Rule 12(b)(1) motion to dismiss, the court "may consider affidavits and other materials beyond the pleadings to resolve the jurisdictional issue, but [it] may not rely on conclusory or hearsay statements contained in the affidavits." J.S. ex rel. N.S. v. Attica Cent. Schs., 386 F.3d 107, 110 (2d Cir. 2004) (citations omitted); see also Makarova, 201 F.3d at 113 (citation omitted).

Although courts are free to treat a motion to dismiss for lack of subject matter jurisdiction as solely a motion to dismiss for failure to state a claim, thereby precluding the court's consideration of affidavits and other materials outside the pleadings, the Court need not do so in this case because the County Defendant's lack-of-subject-matter-jurisdiction argument is not unreasonable. The County Defendant has submitted affidavits to support its argument that Plaintiff lacks standing to sue.

To establish standing, a plaintiff must show that (1) he has suffered an injury-in-fact, (2) the defendant's complained-of conduct caused the injury-in-fact, and (3) it is likely that the relief requested will redress his injury. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 102-03 (1998) (quotations and other citations omitted). Taking the affidavits into consideration for purposes of the County Defendant's jurisdictional challenge, the affidavits*fn9 assert that Plaintiff cannot show any causal connection between the County Defendant's ownership of the Landfill and his alleged injury.*fn10

Contrary to the County Defendant's affidavits, Plaintiff alleges that the County Defendant is the current owner of the Landfill, which it acquired from NiMo in or around 1975, and that approximately 1.22 acres of the George Street Property had been used as a portion of the Landfill "during the 1960s and 1970s and wastes were dumped there." See Amended Complaint at ¶¶ 18-22, 44-45. Plaintiff further alleges that discharges, spills, releases, and the disposal of various contaminants at the Landfill caused the contamination of the George Street Property. See id. at ¶¶ 3, 23-28.

Given "the liberal threshold applied to standing challenges in the context of environmental citizen suits," Solvent Chem. Co. v. E.I. Dupont De Nemours & Co., 242 F. Supp. 2d 196, 218 (W.D.N.Y. 2002) (citations omitted), the Court finds that there is a sufficient nexus for causation purposes between the County Defendant's ownership of the Landfill and Plaintiff's alleged injury to withstand a motion to dismiss.*fn11 Whether Plaintiff's claims may ultimately be fairly attributed to the County Defendant is better reserved for a motion for summary judgment should such a motion prove to be appropriate following discovery.

For these reasons, the Court denies the County Defendant's motion to dismiss on the basis of a lack of subject matter jurisdiction.

C. Defendant's motion to dismiss for failure to state a claim

Rule 8(a)(2) requires that a pleading contain "a short and plain statement of the claim showing that the pleader is entitled to relief[.]" Fed. R. Civ. P. 8(a)(2). This pleading standard does not require "detailed factual allegations," but it does require "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action . . . ." Bell Atl. Corp. v. Twombly, 550 U.S 544, 555 (2007) (citation omitted). The complaint must tender more than mere "'naked assertion[s]' devoid of 'further factual enhancement.'" Ashcroft v. Iqbal, 556 U.S. 662, ---, 129 S. Ct. 1937, 1949 (2009) (quoting [Twombly, 550 U.S.] at 557, 127 S. Ct. 1955).

To survive a motion to dismiss pursuant to Rule 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quotation omitted). A court must draw all reasonable inferences in favor of the nonmoving party. See Gorman v. Consol. Edison Corp., 488 F.3d 586, 591-92 (2d Cir. 2007) (citation omitted).

Finally, "on a motion to dismiss unrelated to subject matter jurisdiction, the court may only consider the pleading itself, documents that are referenced in the complaint, documents that the plaintiff relied on in bringing suit . . . and matters of which judicial notice may be taken." New York v. West Side Corp., 790 F. Supp. 2d 13, 18 (E.D.N.Y. 2011) (citations omitted).

1. First cause of action: Strict liability under CERCLA § 107

The County Defendant contends that Plaintiff cannot maintain a CERCLA cause of action against it because it is not a covered person and it is exempt. See County Defendant's Memorandum of Law at 10-12. It further contends that Plaintiff's CERCLA claim is barred by the applicable statute of limitations, conditions precedent,*fn12 (i.e., filing a Notice of Claim), and the doctrine of laches. Pursuant to CERCLA § 107(a), 42 U.S.C. § 9607, Plaintiff, on the other hand, contends that the County Defendant is strictly liable for the ...

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