Cooper Crouse-Hinds, LLC v. City of Syracuse, New York et al
MEMORANDUM-DECISION AND ORDER granting in part and denying in part 29 Motion to Dismiss; granting in part and denying in part 30 Motion to Dismiss for Failure to State a Claim: The Court hereby ORDERS that Defendants' motions to dismiss (Dkt. Nos. 29, 30) are DENIED in part as to Plaintiffs' CERCLA claims and their contractual indemnification claim against the County, and GRANTED in part as to all other claims; and the Court further ORDERS Plaintiffs to file a supplemental brief within thirty (30) days explaining why CI's § 113 claim should not be dismissed for failure to state a claim; and the Court further ORDERS that the Clerk of the Court serve a copy of this Memorandum-Decision and Order on all parties in accordance with the Local Rules. Signed by U.S. District Judge Mae A. D'Agostino on 2/12/2018. (ban)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
COOPER CROUSE-HINDS, LLC, COOPER
CITY OF SYRACUSE, NEW YORK, COUNTY
OF ONONDAGA, NEW YORK,
SQUIRE PATTON BOGGS LLP
30 Rockefeller Plaza, 23rd Floor
New York, New York 10112-0015
Attorneys for Plaintiffs
BRIAN D. STARER, ESQ.
VICTOR GENECIN, ESQ.
SQUIRE PATTON BOGGS LLP
41 S. High Street, Suite 2000
Columbus, Ohio 43215
Attorneys for Plaintiffs
D. REES ALEXANDER, ESQ.
DANELLE M. GAGLIARDI, ESQ.
REBEKAH M. SINGH, ESQ.
VINCENT ATRIANO, ESQ.
HANCOCK ESTABROOK, LLP
1500 AXA Tower I
100 Madison Street
Syracuse, New York 13202
Attorneys for Defendant City of Syracuse
JOHN G. POWERS, ESQ.
HOLLY K. AUSTIN, ESQ.
PAUL J. TUCK, ESQ.
CITY OF SYRACUSE
233 East Washington Street
Room 300 City Hall
Syracuse, New York 13202
Attorneys for Defendant City of Syracuse
CHRISTINE M. GARVEY, ESQ.
DEPARTMENT OF LAW
John H. Mulroy Civic Center
421 Montgomery Street, 10th Floor
Syracuse, New York 13202
Attorneys for Defendant Onondaga County
BENJAMIN M. YAUS, ESQ.
THE WLADIS LAW FIRM, PC
6312 Fly Road
East Syracuse, New York 13057
Attorneys for Defendant Onondaga County
KEVIN C. MURPHY, ESQ.
Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
On March 31, 2017, Plaintiffs Cooper Crouse-Hinds, LLC ("CCH"), and Cooper
Industries, LLC ("CI"), filed the amended complaint in this action against Defendants City of
Syracuse (the "City") and County of Onondaga (the "County"). See Dkt. No. 26. This action
arises out of the disposal of hazardous waste at landfills in Syracuse, New York. Plaintiffs seek
relief pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act
("CERCLA"), the New York Hazardous Waste Disposal Site Remedial Program Law ("State
Superfund Law"), the New York Environmental Conservation Law, and the New York Oil Spill
Act ("Navigation Law"), as well as common law causes of action. The City and the County filed
separate motions to dismiss, which are presently before the Court. See Dkt. Nos. 29, 30. For the
following reasons, the motions are granted in part and denied in part.
The Crouse-Hinds Company, the predecessor to Plaintiffs, was founded in 1897 and
manufactured electronic equipment. See Dkt. No. 1 at ¶ 14. In approximately 1911, the CrouseHinds Company built a manufacturing facility in Syracuse, New York. See id. at ¶ 15. Between
1911 and 1948, the Crouse-Hinds Company acquired property (the "Site") adjacent to the
manufacturing facility that would later be used for the disposal of trash, including solid waste,
foundry sands and cores, scrap wood, and other debris. See id. at ¶¶ 16-17. That property was
divided into two separate landfills, each of which contained disposal facilities: the North Landfill,
which is located in the Town of Salina, and the South Landfill, which is located in the City of
Syracuse. See id. at ¶¶ 17-18. The North and South Landfills are bisected by Seventh North
Street, and the Ley Creek runs along the northwestern edge of the Site. See id. The North
Landfill was in use from the mid-1950s until 1989, and the South Landfill was in use from 1960
until 1969. See id. at ¶ 18. The Site is now owned by CCH. See id. at ¶ 19. In 1981, CI aquired
ownership of the Crouse-Hinds Company, and the two later merged into Cooper Industries, Inc.,
which is now CI. See id. at ¶ 14.
The City and the County
On November 4, 1960, the Crouse-Hinds Company and the City of Syracuse Department
of Public Works ("Syracuse DPW") entered into a written indenture agreement ("1960
Indenture") allowing Syracuse DPW to use the South Landfill for waste disposal at no cost. See
id. at ¶ 20. In the 1960 Indenture, Syracuse DPW agreed to
release, indemnify and save harmless the Owner from and against
any and all such loss, injury and damage and any and all claims
demands, actions, judgments, costs, expenses (including, without
limitation, reasonable counsel fees) and liabilities of every name
and nature which may arise or result directly or indirectly from or
by reason of any such loss, injury or damage or from or by reason
of the failure of the City fully to keep, perform, observe and fulfill
any of the covenants, conditions or restrictions herein contained to
be kept, performed, observed and fulfilled by the City.
See Dkt. No. 26-2 at 3. Pursuant to the 1960 Indenture, Syracuse DPW widened, deepened, and
cleaned out streams and culverts at the Site; it built and restored drainage ditches at the Site; and
it cleaned out the Ley Creek Channel. See Dkt. No. 26 at ¶¶ 22-23. In connection with that work,
Syracuse DPW dredged sediments and debris containing hazardous substances and petroleum,
and the sediments and debris were dumped at the Site. Seee id. at ¶ 25. From approximately
1961 through 1965, Syracuse DPW dumped a total of roughly 520,000 cubic yards of municipal,
commercial, and industrial wastes in the South Landfill, which accounts for approximately one
half of all waste dumped in the South Landfill. See id. at ¶ 27.
On multiple occasions in the early 1960s, the Crouse-Hinds Company notified Syracuse
DPW that it was disposing of waste in a manner that did not comply with the 1960 Indenture. See
id. at ¶¶ 28-31. In August 1965, Syracuse DPW ceased disposal activities at the South Landfill,
but it did not address the conditions at the Site as required by the1960 Indenture. See id.
Subsequently, Syracuse DPW leased a property that is adjacent to the North Landfill and was
owned by a separate company. See id. at ¶ 32. To facilitate use of that property, the CrouseHinds Company transferred a 100-foot-wide strip of land along the edge of the North Landfill to
Syracuse DPW. See id. at ¶ 33. Syracuse DPW built a road to access the new property using fill
that included contaminated sediments. See id. Syracuse DPW dumped waste at that property
from approximately 1965 through 1970. See id. at ¶ 32.
On August 30, 1972, the Crouse-Hinds Company entered into an Option Agreement with
Onondaga County that transferred to the County a 1.4-acre strip of property located on the
western border of the North Landfill and adjacent to Ley Creek. See id. at ¶ 36. The agreement
also granted the County a right of way along the western side of the South Landfill, and it allowed
the County to widen and deepen the Ley Creek channel. See id. As part of that work, the County
spread contaminated dredged spoils from Ley Creek over portions of the South Landfill, which
released hazardous substances including PCBs and petroleum at the Site. See id. at ¶ 37. The
1972 Option Agreement provided that
the County shall defend, save harmless and indemnify CrouseHinds from and against any and all claims against Crouse-Hinds
and any and all loss, costs, damages or expenses (including without
limitation reasonable counsel fees) which Crouse-Hinds may suffer,
sustain or incur by reason of bodily injury (or claims thereof) to any
persons whomsoever, or any damages to the real or personal
property of Crouse-Hinds or of any other person, firm or
corporation (or claims thereof) arising or which shall be claimed to
have arisen out of the County's use of the premises described
See Dkt. No. 26-3 at 6. In the early 1970s, the Crouse-Hinds Company notified the County that
the County had improperly disposed of dredged spoils contaminated with PCBs and other
hazardous substances at the Site, as well as locations upstream of the Site that led to further
contamination of the Site. See id. at ¶¶ 43-46.
The Crouse-Hinds Company and its successors did not use PCBs in their operations. See
id. at ¶ 43. Therefore, all of the PCB contamination of the Site was a result of actions taken by
the City and the County. See id. Due to Defendants' disposal of contaminated sediments at and
near the Site, the United States Environmental Protection Agency ("EPA") has identified both the
City and the County as "potentially responsible parties" under CERCLA. See id. at ¶ 46.
In 1985, the New York State Department of Environmental Conservation ("NYSDEC")
designated the Site as a Class 2 Inactive Hazardous Waste Disposal Site under the State
Superfund Program. See id. at ¶ 47. On May 14, 2004, CI entered into a Consent Order with
NYSDEC ("2004 Order") pursuant to which CI undertook sampling investigations and studies, as
well as interim response measures at the Site. See id. at ¶ 48. CCH was not a party to the 2004
Order, but it may have incurred costs related to the 2004 Order's implementation. See id. at
¶¶ 48-49. CI's investigatory work included obtaining and analyzing samples from various
locations at the Site, including surface soils, surface water, groundwater, and leachate. See id. at
¶ 51. The sampling revealed sediment exceeding NYSDEC standards for numerous hazardous
substances, including benzene, chlorobenzene, 1,4-dichlorobenzene, PCBs, benzo(a)anthracene,
benzo(b)fluoranthene, benzo(k)fluoranthene, benzo(a)pyrene, chrysene, indeno(1,2,3,-cd)pyrene,
phenol, arsenic, cadmium, and chromium. See id. at ¶ 54. CI's interim response measures
included preventing the migration of contaminated sediments, evaluating and removing freephase petroleum product, and installing a security fence. See id. at ¶ 52.
On February 27, 2011, NYSDEC held a public meeting attended by representatives of the
County and the City where it discussed a Proposed Remedial Action Plan for the Site. See id. at
¶ 55. On March 31, 2011, NYSDEC issued a decision summarizing its findings and outlining a
remediation plan for the Site. See id. at ¶ 56. CCH agreed to the plan and entered into a consent
order with NYSDEC ("2011 Order") on August 29, 2011, but CI was not a party to the
agreement. See id. at ¶ 57. The 2011 Order included language providing for release of CCH's
liability to the state "[u]pon the Department's issuance of a Certificate of Completion." See id. at
57. Plaintiffs took action in accordance with the 2011 Order and began remediation work in
October 2012. See id. at ¶ 59. Between December 2012 and November 2013, Plaintiffs
undertook significant work, including the excavation and offsite disposal of approximately 650
tons of PCB-contaminated waste and 5,150 tons of petrolium-impacted soils. See id. at ¶¶ 59, 63.
In April 2014, NYSDEC approved an additional Remedial Design plan for the Site, which
required the capping of the North and South landfills, the creation of buffer zones protecting Ley
Creek and wetland areas, the excavation and disposal of hot spots, and the restoration of wetlands
and drainage channels. See id. at ¶ 64. CCH disposed of an additional 825 tons of PCBcontaminated waste from the North Landfill in 2015, and the capping of the North and South
Landfills is now complete. See id. at ¶¶ 65-66. To date, Plaintiffs have spent $11.9 million to
investigate and remediate contamination at the Site, and long-term operation and maintenance
over the next thirty years are estimated to cost an additional $1.14 million. See id. at ¶ 68.
Prior to filing the complaint in this action, Plaintiffs attempted to secure contributions
from the City and the County. See id. at ¶ 70. During those negotiations, CCH, the City, and the
County entered into an agreement tolling all "potential legal and contractual claims" for the
period from August 25, 2014 through October 3, 2016. See id. at ¶ 70. To date, neither the City
nor the County has made any financial contribution to remediating contamination at the Site. See
id. at ¶ 69.
On October 4, 2016, CCH filed the complaint in this action. See Dkt. No. 1. On March
31, 2017, Plaintiffs filed the amended complaint, which named CI as a Plaintiff. See Dkt. No. 26.
In the amended complaint, Plaintiffs state the following causes of action: (1) cost recovery under
CERCLA, (2) contribution under CERCLA, (3) declaratory relief under CERCLA and New York
law, (4) breach of contract and contractual indemnity against the City, (5) breach of contract and
contractual indemnity against the County, (6) contribution under the New York State Superfund
Law, (7) strict liability under the New York Spill Act, (8) contribution under the New York
Navigation Law, and (9) unjust enrichment. See Dkt. No. 26 at ¶¶ 72, 86, 93, 97, 110, 122, 128,
137, 143. Defendants filed two separate motions to dismiss. See Dkt. Nos. 29, 30. The City
adopted all applicable arguments made in the County's brief, and the County did the same in
regard to the City's brief. See Dkt. No. 30-1 at 25; Dkt. No. 29-1 at 21. Plaintiffs opposed the
motions, see Dkt. Nos. 33, 34, and Defendants filed replies, see Dkt. Nos. 35, 36.
III. LEGAL STANDARD
Motion to Dismiss
A motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil
Procedure 12(b)(6) tests the legal sufficiency of the party's claim for relief. See Patane v. Clark,
508 F.3d 106, 111-12 (2d Cir. 2007). In considering the legal sufficiency, a court must accept as
true all well-pleaded facts in the pleading and draw all reasonable inferences in the pleader's
favor. See ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (citation
omitted). This presumption of truth, however, does not extend to legal conclusions. See Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). Although a court's review of a motion to
dismiss is generally limited to the facts presented in the pleading, the court may consider
documents that are "integral" to that pleading, even if they are neither physically attached to, nor
incorporated by reference into, the pleading. See Mangiafico v. Blumenthal, 471 F.3d 391, 398
(2d Cir. 2006) (quoting Chambers v. Time Warner, Inc., 282 F.3d 147, 152-53 (2d Cir. 2002));
see also Sutton ex rel. Rose v. Wachovia Secs., LLC, 208 Fed. Appx. 27, 29-30 (2d Cir. 2006)
(noting that, on a motion to dismiss, a court may take judicial notice of documents filed in another
To survive a motion to dismiss, a party need only plead "a short and plain statement of the
claim," see Fed. R. Civ. P. 8(a)(2), with sufficient factual "heft to 'sho[w] that the pleader is
entitled to relief,'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007) (quotation omitted).
Under this standard, the pleading's "[f]actual allegations must be enough to raise a right of relief
above the speculative level," id. at 555 (citation omitted), and present claims that are "plausible
on [their] face," id. at 570. "The plausibility standard is not akin to a 'probability requirement,'
but it asks for more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 556
U.S. at 678 (citation omitted). "Where a complaint pleads facts that are 'merely consistent with' a
defendant's liability, it 'stops short of the line between possibility and plausibility of "entitlement
to relief."'" Id. (quoting Twombly, 550 U.S. at 557). Ultimately, "when the allegations in a
complaint, however true, could not raise a claim of entitlement to relief," Twombly, 550 U.S. at
558, or where a plaintiff has "not nudged [its] claims across the line from conceivable to
plausible, the complaint must be dismissed," id. at 570.
Statute of Limitations
The statute of limitations is an affirmative defense, and it is well established that
"[c]omplaints need not anticipate, or attempt to plead around, potential affirmative defenses."
High Falls Brewing Co., LLC v. Boston Beer Corp., 852 F. Supp. 2d 306, 310 (W.D.N.Y. 2011).
"Requiring plaintiffs to allege in a complaint facts sufficient to overcome a statute of limitations
affirmative defense would shift the burden to raise and prove the affirmative defense from
defendants, as the burden is allocated and imposed by Rule 8(c)(1) of the Federal Rules of Civil
Procedure, to plaintiffs." Kattu v. Metro Petroleum, Inc., No. 12-CV-54, 2013 WL 4015342, *4
(W.D.N.Y. Aug. 6, 2013).
Therefore, a statute of limitations defense must generally wait until after the motion-todismiss stage. See id. However, a complaint may be dismissed under Federal Rule of Procedure
12(b)(6) as barred by a statute of limitations where the complaint clearly shows that the plaintiff's
claim is barred. See Messeroux v. Maimonides Med. Ctr., No. 11-CV-5343, 2013 WL 2414690,
*1 (citing Leonhard v. United States, 633 F.2d 599, 609 n.11 (2d Cir. 1980)); see also Harris v.
City of New York, 186 F.3d 243, 250 (dismissing claims as time-barred at the pleading stage is
"appropriate only if a complaint clearly shows the claim is out of time").
Enacted in 1980 in response to New York's Love Canal Disaster,1 CERCLA "is a remedial
statute 'designed to encourage prompt and effective cleanup of hazardous waste sites' by 'assuring
that those responsible for any damage, environmental harm, or injury from chemical poisons bear
the costs of their actions.'" MPM Silicones, LLC v. Union Carbide Corp., 931 F. Supp. 2d 387,
392-93 (N.D.N.Y. 2013) (quoting Niagara Mohawk Power Corp. v. Chevron U.S.A., Inc., 596
F.3d 112, 120 (2d Cir. 2010)). "In furtherance of these purposes, the statute imposes strict
liability on owners and facility operators, on persons who arranged for the disposal or treatment
of hazardous waste at the relevant site, and on persons who transported hazardous waste to the
site." Price Trucking Corp. v. Norampac Indus., Inc., 78 F.3d 75, 80 (2d Cir. 2014) (citing 42
U.S.C. § 9607(a)(1)–(4)).
Under CERCLA, States and the federal government may "initiate comprehensive cleanups
and . . . seek recovery of expenses associated with those cleanups" from property owners, who are
strictly liable for the hazardous materials on their property. Niagara Mohawk, 596 F.3d at 120.
To relieve the burden on property owners, CERCLA permits them to "seek reimbursement of
their cleanup costs from others in the chain of title or from certain polluters—the so-called
potentially responsible parties ('PRPs')." Id. citing (42 U.S.C. § 9607(a)). That recourse is
available through three separate provisions in CERCLA: §§ 107(a), 113(f)(1), and 113(f)(3)(B).
After serving as a dumping ground for toxic waste, a canal was filled and sold to the city
of Niagara Falls and used as the site for a elementary school and playground—decades later state
and federal government investigations revealed that the toxic waste had caused pervasive health
problems, leading then-President Carter to declare a federal emergency. See Niagara Mohawk,
596 F.3d at 120 n.5 (citing Michael H. Brown, Love Canal and the Poisoning of America,
ATLANTIC MONTHLY, Dec. 1979, at 33).
Section 107(a) authorizes parties—including the United States, a state, or a PRP—to seek
reimbursement for costs incurred remediating pollution at a property. See 42 U.S.C. § 9607(a)(4).
However, parties may recover remediation costs only if the actions they take are consistent with
the National Contingency Plan, which is "the federal government's roadmap for responding to the
release of hazardous substances." Niagara Mohawk, 596 F.3d at 121. Section 113(f)(3)(B), on
the other hand, "provides a right of contribution to PRPs that have settled their CERCLA liabilty
with a state or the United States through either an administrative or judicially approved
settlement." Id. (citing 42 U.S.C. § 9613(f)(3)(B)). Finally, § 113(f)(1) provides a right of
contribution to PRPs that have been sued under §§ 106 or 107. See 42 U.S.C. § 9613(f)(1).
Plaintiffs may seek reimbursement of remedial costs under either § 107(a) or § 113(f) but
not both. "Each CERCLA right of action carries with it its own statutory trigger, and each is a
distinct remedy available" to persons in different situations. Bernstein v. Bankert, 733 F.3d 190,
202 (7th Cir. 2013); see also MPM Silicones, 931 F. Supp. 2d at 394 ("[T]he remedies in §§
107(a) and 113(f) complement each other by providing causes of action 'to persons in different
procedural circumstances'") (quoting United States v. Atl. Research Corp., 551 U.S. 128, 139
(2007)). If a PRP has been sued under §§ 106 or 107, it may recover contributions pursuant to
§ 113(f)(1). See Bernstein, 733 F.3d at 202. If a PRP has resolved its liability to the federal or
state government in an administrative or judicially approved settlement, it may recover
contributions pursuant to § 113(f)(3)(B). See id. Only if neither of those two conditions are
present may a PRP bring a cost recovery action under § 107. See id.; see also DMJ Assocs.,
L.L.C. v. Capasso, 181 F. Supp. 3d 162, 169 (E.D.N.Y. 2016) ("Accordingly, some of the
[plaintiffs'] costs are recoverable only under § 107, while some are separately recoverable only
under § 113. Consistent with the Supreme Court's holding in [United States v. Atlantic Research
Corp., 551 U.S. 128 (2007)], none of the listed costs are recoverable under both sections
1. Availability of §§ 107 and 113(f)(3)(b)
Defendants argue that Plaintiffs are precluded from bringing certain claims under § 107 in
this case. See Dkt. No. 29-1 at 6. In particular, Defendants argue that the 2004 Order resolved
CI's liability for the costs incurred in complying with that order, which constitutes a statutory
trigger requiring CI to proceed under § 113(f)(3)(B), not § 107. See id. at 13. Similarly,
Defendants argue that CCH cannot bring a § 107 claim for costs related to the 2011 Order
because the 2011 Order resolved CCH's liability for those costs, and CI may therefore only
recover those costs through a claim under § 113(f)(3)(B). See id. at 11-12.
a. The 2004 Order
In 2004, CI entered into a Consent Order with NYSDEC in which CI agreed to investigate
the contamination at the Site and implement interim response measures to address contamination.
See Dkt. No. 26 at ¶ 48. CI incurred response costs in complying with the 2004 Order. See id.
at 49. Defendants argue that the 2004 Order resolved CI's liability for response actions taken in
relation to the 2004 Order. See Dkt. No. 29-1 at 13. However, Defendants do not cite to any
language in the order resolving CI's liability; indeed, it appears that no such language exists. As
Plaintiffs point out, the 2004 Order specifically states, "Nothing contained in this Order shall be
construed as barring, diminishing, adjudicating, or in any way affecting any of the Department's
rights." Dkt. No. 29-3 at 13.
As the Court notes above, § 113(f)(3)(B) is the proper procedural mechanism for a
"person who has resolved its liability to the United States or a state for some or all of a response
action or for some or all of the costs of such action in an administrative or judicially approved
settlement." 42 U.S.C. § 9613(f)(3)(B). But a consent order with the federal or state government
does not necessarily qualify as an "administrative or judicially approved settlement" that would
require a PRP to proceed under § 113(f)(3)(B). If, for example, a PRP enters into a consent order,
but "the consent order [does] not purport to resolve CERCLA liability," then the consent order
does "not qualify as an administrative settlement under § 113." Niagara Mohawk, 596 F.3d at
125; HLP Props., LLC v. Cons. Edison Co. of N.Y., Inc., No. 14-CV-1383, 2014 WL 6604741, *7
(S.D.N.Y. Nov. 21, 2014) ("[A] consent order is an administrative settlement of liability for
purposes of § 113 where the plaintiff undertook to remediate a contaminated site in exchange for
an express resolution of liability under CERCLA and the DEC's covenant not to sue under 'State
or Federal statutory or common law'") (quoting Niagara Mohawk, 596 F.3d at 126). Because the
2004 Order does not resolve CI's liability, CI may proceed under § 107.
b. The 2011 Order
In 2011, CCH entered into a consent order with NYSDEC to address the contamination at
the Site. See Dkt. No. 26 at ¶¶ 56-58. Under the 2011 Order, CCH agreed to take actions to
investigate, remove, and safely dispose of hazardous waste in the short term, as well as to take
long-term remedial actions at the Site. See id. at ¶ 58. CCH has incurred financial costs in
carrying out the actions outlined in the 2011 Order. See id. Unlike the 2004 Order, the 2011
Order contains language potentially resolving CCH's liability under CERCLA. Specifically, the
2011 Order states, "Upon the Department's issuance of a Certificate of Completion as provided at
6 NYCRR 375-1.9 and 375-2.9, Respondent [CCH] shall obtain the benefits conferred by such
provisions, subject to the terms and conditions described therein." Dkt. No. 29-4 at 6.2 Under the
Among other provisions, 6 NYCRR section 375-2.9(a) states: "Upon receipt of the
certificate of completion and subject to subdivision (b) of this section, the parties named on such
certificate shall not be liable to the department upon any statutory or common law cause of action,
2011 Order, CCH's release from liability is conditional in that it only occurs "[u]pon the
Department's issuance of a Certificate of Completion." See id. Thus far, CCH has not received a
certificate of completion from NYSDEC. See Dkt. No. 33 at 10. The question, then, is whether a
conditional release from reliability is sufficient to trigger the requirement that a PRP proceed
under § 113(f)(3)(B). Or is liability resolved only after the certificate of completion is issued?
There is a great deal of inconsistency among the cases addressing consent orders that
conditionally resolve a PRP's CERCLA liability and whether those consent orders trigger the
requirement to proceed under § 113(f)(3)(B). Indeed, there is a circuit split on this issue.
Compare Fla. Power Corp. v. FirstEnergy Corp., 810 F.3d 996, 1001 (6th Cir. 2015) (holding
that consent orders in the case "do not resolve plaintiff's liability because resolution of liability is
conditioned on plaintiff's performance and does not take immediate effect"); and Bernstein v.
Bankert, 733 F.3d 190, 210 (7th Cir. 2013) (holding that the plaintiff had not resolved its liability
with the EPA because the consent order's release of liability was conditioned the plaintiff's
complete performance); with Asarco LLC v. Atl. Richfield Co., 866 F.3d 1108, 1125 (9th Cir.
2017) (holding that a PRP resolves its liability to the government where a settlement agreement
decides the PRP's obligations with certainty and finality, and a "covenant not to sue or release
from liability conditioned on completed performance does not undermine such a resolution").
The Second Circuit has not yet weighed in on the issue,3 and district courts in this circuit
except for one for natural resource damages . . . ."
Defendants argue that the Second Circuit resolved the issue in Niagara Mohawk and held
that a consent order with a conditional release of liability is sufficient to resolve liability for the
purposes of § 113(f)(3)(B). See Dkt. No. 36 at 2. Indeed, the court in Niagara Mohawk stated
that "NiMo settled its CERCLA liability with DEC by agreeing to identify and to remediate some
of the hazardous substances." Niagara Mohawk, 596 F.3d at 128. While this sentence implies
that the act of agreeing was sufficient to trigger § 113(f)(3)(B), the court goes on to say that
"[o]nce NiMo completed the Consent Order responsibilities, Nimo was 'deemed to have resolved
have come to differing conclusions. Compare DMJ Assocs., 181 F. Supp. 3d at 167 ("Since no
final report was issued due to the [consent order's] termination prior to the completion of all
remedial action, the [plaintiffs] had not been released from liability" and therefore could proceed
under 107(a)); with HLP Props., 2014 WL 6604741, at *5 ("[A]greements providing for future
resolution of CERCLA liability constitute administrative settlements for purposes of § 113"); and
Chitayat v. Vanderbilt Assoc., 702 F. Supp. 2d 69, 81 (E.D.N.Y. 2010) (finding that a consent
order resolved liability even though it did "not offer [the plaintiff] a present release from liability
but rather the release [was] contingent upon years of Compliance with the Consent Order").
Perhaps because the circuit split arose after the motions to dismiss were fully submitted,
the parties did not thoroughly address the issue in their briefs. Furthermore, the question of
whether CCH resolved its liability through the 2011 Order necessarily involves contract
interpretation. See Bernstein, 733 F.3d at 213 ("Whether or not liability is resolved through a
settlement simply is not the sort of question which can or should be decided by universal rule.
Instead, it requires a look at the terms of the settlement on a case-by-case basis"); Asarco, 866
F.3d at 1122 (holding that an agreement must "decide with finality the scope of a PRP's legal
exposure and obligations" in order to resolve liability). The parties did not brief that issue.
Therefore, at this time the Court declines to determine whether the 2011 Order resolved CCH's
liability and requires it to proceed under § 113(f)(3)(B).
2. Failure to State a Claim Under § 107
Defendants also seek to partially dismiss CCH's claim for cost recovery under § 107. See
Dkt. No. 29-1 at 12-13. In particular, Defendants argue that CCH fails to allege that it incurred
its liability to the State for purposes of contribution protection provided by CERCLA Section
113(f)(2)' and thus was 'entitled to seek contribution.'" Id. at 126 (emphasis added). Therefore,
the Court does not agree that Niagara Mohawk resolved the question at hand.
any costs outside of the costs incurred complying with the 2011 Order. See Dkt. No. 36 at 4.
Indeed, CCH was not a party to the 2004 Order, and the amended complaint alleges only that
"CCH also may have incurred response costs in connection with implementation of the 2004
Consent Order." Dkt. No. 26 at ¶ 49. Therefore, Defendants argue, CCH fails to state a claim for
cost recovery under § 107 as to any costs other than the costs incurred in complying with the
To make a prima facie case for liability under § 107, a plaintiff must show that: "(1) the
defendant is an 'owner' or is otherwise liable under 42 U.S.C. § 9607(a)(1)-(4); (2) the site is a
'facility' as defined by 42 U.S.C. § 9601(9); (3) there has been a release or threatened release of
hazardous substances at the facility; (4) the plaintiff incurred costs responding to the release or
the threat; and (5) the costs and response conform to the National Contingency Plan." Price
Trucking Corp. v. Norampac Indus., Inc., 748 F.3d 75, 80 (2d Cir. 2014).
Here, Defendants argue that CCH failed to plead a necessary element of its § 107 claim
because it failed to identify with certainty or specificity any costs incurred under the 2004 Order.
But CCH does not need to specifically identify costs related to the 2004 Order at this stage; CCH
separately established the fourth element of a § 107 claim by alleging that it incurred costs under
the 2011 Order. Therefore, Defendants motion to dismiss CCH's § 107 claim as to costs related
to the 2004 Order is denied.
3. Statute of Limitations
Under CERCLA, there are different statute of limitations periods for claims under §§ 107
and 113. The statute of limitations for a contribution claim under § 113 is three years, while the
limitations period for cost recovery claims under § 107 is six years. See 42 U.S.C. § 9613(g).4
Defendants argue that CI's § 113 claim is time-barred because it is based on costs incurred in
complying with the 2004 Order.
The statute of limitations on a § 113(f)(3)(B) claim begins to run at the time that a PRP
settles its CERCLA liability with the state or federal government. See 42 U.S.C. § 9613(g)(3);
see also HLP Props., 2014 WL 6604741, at *7 (noting that for a claim under § 113, "the
'triggering event' for the statute of limitations period was the date that the [plaintiffs] 'resolved
their CERCLA liability'"). In this case, however, Plaintiffs clearly allege that CI did not resolve
any liability through either the 2004 Order or the 2011 Order. CI was a party to the 2004 Order,
but Plaintiffs allege that the 2004 Order "did not contain any language purporting to resolve
Plaintiffs' potential liability to the State with respect to the Site." Dkt. No. 26 at ¶ 48. As for the
2011 Order, Plaintiffs admit in their opposition that any release of liability would "apply only to
CCH (the "Respondent") and not to CCH's affiliates such as CI." Dkt. No. 33 at 10. Since
neither agreement resolves CI's liability, the statute of limitations for any potential § 113 claim
has not yet been triggered.
But this raises a separate issue regarding CI's § 113 claim: there do not appear to be any
facts alleged in the amended complaint that support a § 113 on CI's behalf. Nothing in the
complaint indicates that CI has—or even could—resolve its liability through either the 2004
Order or the 2011 Order. Therefore, it appears that Plaintiffs have failed to state a § 113(f)(3)(B)
claim on CI's behalf. A court may dismiss a complaint sua sponte for failure to state a claim on
The six-year statute of limitations under § 107 applies only to "remedial actions," which
are "generally long-term or permanent containment or disposal programs." Schaefer v. Town of
Victor, 457 F.3d 188, 195 (2d Cir. 2006). On the other hand, "removal efforts," which are
"typically short-term cleanup arrangements," are subject to a three year statute of limitations. See
which relief can be granted, but "it may not properly do so without giving the plaintiff an
opportunity to be heard." Thomas v. Scully, 943 F.2d 259, 260 (2d Cir. 1991). Therefore, the
Court orders Plaintiffs to provide a supplemental brief to the Court explaining why CI's § 113
claim should not be dismissed for failure to state a claim. See MPM Silicones, LLC v. Union
Carbide Corp., 931 F. Supp. 2d 387, 396 (N.D.N.Y. 2013) (dismissing the plaintiff's § 113(f)
claim sua sponte after requesting supplemental briefing from the plaintiff explaining why its
113(f) claim was not barred). Plaintiffs must submit the supplemental brief within thirty (30)
days of the date of this Memorandum-Decision and Order.
State Law Claims
1. Notice of Claim
The general rule in federal court is that "state notice-of-claim statutes apply to state-law
claims." Hardy v. N.Y.C. Health & Hosp. Corp., 164 F.3d 789, 793 (2d Cir. 1999) (citing Felder
v. Casey, 487 U.S. 131, 151 (1988)). A notice-of-claim statute generally provides that no action
may be brought on or maintained against certain government entities without first providing
written notice of the claim. New York's notice-of-claim statute requires a plaintiff to serve a
notice of claim "within ninety days after the claim arises," N.Y. Gen. Mun. Law § 50-e(1)(a), and
that notice must state the nature of the claim, as well as "the time when, the place where and the
manner in which the claim arose," id. § 50-e(2). Nowhere in the amended complaint do Plaintiffs
allege that they filed any notice of claim or otherwise complied with a notice-of-claim statute.
a. City of Syracuse
The City begins by arguing that Plaintiffs' breach of contract and indemnification claims
should be dismissed because Plaintiffs failed to file a notice of claim. See Dkt. No. 30-1 at 15.
Again, Plaintiffs do not assert that they filed any notice of claim in this case. Instead, they make
three different arguments for why the notice-of-claim requirement does not apply to their contract
claims: (1) compliance with notice-of-claim statutes is an affirmative defense; (2) the New York
notice-of-claim statute does not apply to breach of contract claims; and (3) applying the notice-ofclaim requirements in the Syracuse Charter would violate the Contracts Clause of the United
States Constitution. See Dkt. No. 34 at 13-16.
As for their first assertion, Plaintiffs are incorrect—compliance with notice-of-claim
statutes is a pleading requirement, not an affirmative defense. "Service of a notice of claim . . . is
a condition precedent to commencing an action . . . ." Maxwell v. City of New York, 29 A.D.3d
540, 541 (2d Dep't 2006). "New York's law requires a plaintiff to plead in the complaint that: (1)
the plaintiff has served the notice of claim; (2) at least thirty days have elapsed since the notice
was filed (and before the complaint was filed); and (3) in that time the defendant has neglected to
or refused to adjust or to satisfy the claim." Hardy, 164 F.3d at 793. "Notice of claim
requirements 'are construed strictly by New York state courts,'" and the "[f]ailure to comply with
these requirement ordinarily requires a dismissal for failure to state a cause of action." Id. at 79394 (quoting Murray v. LeRoy Cent. Sch. Dist., 67 N.Y.2d 775, 775 (1986)).
Plaintiffs' second argument also misses the mark. Plaintiffs correctly note that the New
York General Municipal Law does not require plaintiffs to file a notice of claim in a breach of
contract action. See N.Y. Gen. Mun. Law § 50-e(a) ("In any case founded upon tort where a
notice of claim is required by law as a condition precedent . . . ." (emphasis added)); see also
Finke v. City of Glen Cove, 55 A.D.3d 785, 786 (2d Dep't 2008) ("The plaintiff's breach of
implied contract and breach of license causes of action, however, are not subject to the notice of
claim requirement"). For example, in Strauss v. City of Glens Falls, 140 A.D.3d 1411 (3d Dep't
2016), the court declined to dismiss a breach of contract claim because of the plaintiff's failure to
file a notice of claim. In that case, the court noted that the notice of claim provisions in the
Charter of the City of Glens Falls, like those of the General Municipal Law, did not apply to
breach of contract claims. See id. at 1412.
In this case, however, Plaintiffs are subject to the notice-of-claim provision in Syracuse
City Charter § 8-115(3), which states:
No action or special proceeding, for any cause whatever, except as
hereinafter provided, relating to city property or involving the rights
or interests of the city shall be prosecuted or maintained against the
city unless it shall appear by and as an allegation in the complaint
or necessary moving papers that a written verified claim upon
which such action or special proceeding is founded was served on
the city, in the same manner as a summons under the CPLR, within
three (3) months after the accrual of such claim. The provisions of
this section shall not apply to an action or special proceeding
founded upon tort which shall be governed by the provision of
sections 50-i and 50-e of the General Municipal Law.
See Dkt. No. 30-7 at 73. New York courts have consistently held that this provision applies to
claims for breach of contract. In Davis-Wallbridge, Inc. v. City of Syracuse, 71 N.Y.2d 842, 843
(1988), the New York Court of Appeals dismissed the plaintiff's breach of contract claim because
the plaintiff admittedly failed to comply with the notice-of-claim provision. See id; see also Tom
L. La Mere & Assoc., Inc. v. City of Syracuse Bd. of Educ., 48 A.D.3d 1050, 1051 (4th Dep't
2008) (applying Syracuse's notice of claim provisions to a breach of contract claim). In this case,
it is undisputed that Plaintiffs have not complied with Syracuse's notice of claim provision.
Finally, Plaintiffs argue that applying the Syracuse City Charter's current notice-of-claim
provision would violate the Contracts Clause of the United States Constitution. According to
Plaintiffs, the notice-of-claim provision in the Syracuse City Charter was not amended to apply to
breach of contract claims until "1978 or 1981," well after the City entered into the 1960 Indenture
with the Cooper Crouse Company. See Dkt. No. 34 at 14. Therefore, Plaintiffs argue, the
Contracts Clause requires that claims in this case be subject to the version of the Syracuse City
Charter that was in effect in 1960, prior to the amendment of the notice-of-claim provision. See
The United States Supreme Court considered and rejected a similar argument in Oshkosh
Waterworks Co. v. City of Oshkosh, 23 S. Ct. 234 (1903). In that case, the plaintiff entered into a
contract with the city of Oshkosh in 1883, eight years before the city amended its charter to
include a notice-of-claim provision. See id. at 234. The plaintiff sued the city in 1900, but the
suit was dismissed because the plaintiff failed to file a notice of claim. See id. The Court upheld
the dismissal, holding that "the changes made by the revised charter of Oshkosh, in respect of
remedies for the enforcement of claims against that city, provided for its creditors a substantial
and adequate remedy, and therefore did not impair the obligation of contracts with that municipal
corporation." See id. at 447. It is now well established that "a plaintiff's claim is governed by the
notice of claim statute in effect when his or her claim accrued." Aponte v. Bellevue Hosp. Ctr.,
183 A.D.2d 594, 595 (1st Dep't 1992); see also Ganess v. City of New York, 207 A.D.2d 765, 767
(2d Dep't 1994) ("Because the infant plaintiff's cause of action accrued in 1973, the present case
is governed by those provisions which were contained in the version of General Municipal Law §
50-e which was in effect prior to a 1976 amendment"). Therefore, Plaintiffs' breach of contract
claim against the City must be dismissed.
Later in its motion to dismiss, the City goes on to argue that "all of Plaintiffs' state law
claims against the City" should be dismissed due to Plaintiffs' failure to file a notice of claim. See
Dkt. No. 30-1 at 18. Plaintiffs do not address this contention, but the Court agrees and dismisses
each of Plaintiffs' state law claims against the City because the Syracuse City Charter clearly
states that a notice of claim must be filed where a party seeks to bring an action "for any cause
whatever." Syracuse City Charter § 8-115(3).
b. County of Onondaga
In New York, suits against counties are also subject to notice-of-claim requirements. New
York County Law § 52 ("Section 52") provides that
[a]ny claim or notice of claim against a county . . . for damages
arising at law or in equity . . . alleged to have been caused in whole
or in part by or because of any misfeasance, omission of duty,
negligence, or wrongful act on the part of the county, its officers,
agents, servants or employees, must be made and served in
compliance with section fifty-e of the general municipal law. . . .
Every Action upon such claim shall be commenced pursuant to the
provisions of section fifty-i of the general municipal law.
The text of Section 52 thus incorporates the notice of claim requirements of New York General
Municipal Law §§ 50-e and 50-i, but it also broadens their scope. See Anderson v. Nassau Cty.
Dep't of Corrs., 558 F. Supp. 2d 283, 303 (E.D.N.Y. 2008) ("N.Y. County Law § 52(1) has
broader application than General Municipal Law § 50-e"). Unlike Section 50-e, which applies
only in "any case founded upon tort," Section 52 applies to "any claim . . . of every name and
nature." N.Y. County Law § 52(1).
The plain language of the statute seems to indicate that it applies to "any claim," including
a claim for breach of contract. Indeed, at least one federal district court has come to that
conclusion. See Crippen v. Town of Hempstead, No. 07-CV-3478, 2009 WL 803117, *16
(E.D.N.Y. 2009) (dismissing a breach of contract claim due to the plaintiff's failure to comply
with Section 52's notice-of-claim provision). However, New York courts have determined that
Section 52 "does not require a filing of a notice of claim in compliance with General Municipal
Law § 50-e where the claim is for breach of contract." Copece Contracting Corp. v. Erie County,
115 A.D.2d 320, 320 (4th Dep't 1985); see also Smith v. Rise E. Sch., 120 A.D.2d 726, 726 (2d
Dep't 1986) ("We do not believe the Court of Appeals . . . intended to construe County Law § 52
as requiring the serving of a notice of claim in actions to recover damages for breach of
contract"); O'Connell v. Onondaga County, No. 09-CV-364, 2012 WL 12895022, *14 (N.D.N.Y.
Feb. 9, 2012) ("[E]ven though County Law § 52 generally applies to any claim for damages
against a county, breach-of-contract claims are not subject to the notice-of-claim requirements of
County Law § 52" (citations omitted)).
Therefore, all of Plaintiffs state law claims against the County, except for their breach of
contract claim, are subject to Section 52's notice-of-claim requirements and must be dismissed.
See e.g. Bartley v. County of Orange, 111 A.D.3d 772, 773-74 (2d Dep't 2013) ("The assertion of
a Navigation Law . . . cause of action against the County, which could result in the County being
held strictly liable for all cleanup costs and damages resulting from a discharge of petroleum, is
subject to the broad notice-of-claim requirements of County Law § 52").
The Court dismisses the following claims due to Plaintiffs' failure to comply with the
relevant notice-of-claim requirements: declaratory relief under New York Law (third cause of
action), breach of contract and contractual indemnity against the City (fourth cause of action),
contribution under the state superfund law (sixth cause of action), claims under the New York
Navigation Law (seventh and eighth causes of action), and unjust enrichment (ninth cause of
action). Therefore, Plaintiffs' only remaining state law claim is their fifth cause of action: breach
of contract and contractual indemnity against the County.
2. Breach of Contract Against the County
Plaintiffs' breach of contract action against the County arises from the County's alleged
failure "to fully keep, perform, observe, and fulfill its respective covenants, conditions, and/or
restrictions" under the 1972 Option Agreement with the Crouse-Hinds Company. Dkt. No. 26 at
¶ 116. The amended complaint appears to assert separate claims for breach of contract and
contractual indemnity under what is labeled as the fifth cause of action. Essentially, Plaintiffs
seem to allege that the County breached the 1972 Option Agreement by dumping contaminated
dredged spoils at the Site, and that the County is also liable under the 1972 Option Agreement's
indemnity clause because it failed to save CI harmless from loss, costs, damages, or expenses.
See id. at ¶¶ 117-19. Defendants move to dismiss the breach of contract and contractual
indemnity claims against the County as (1) barred by the statute of limitations and (2) preempted
a. Statute of Limitations
A claim for breach of contract is subject to a six-year statute of limitations. See N.Y.
C.P.L.R. § 213(2). "In New York, a breach of contract cause of action accrues at the time of the
breach," even when "no damage occurs until later." Ely-Cruikshank Co., Inc. v. Bank of
Montreal, 81 N.Y.2d 399, 402 (1993). Furthermore, "[k]nowledge of the occurrence of the wrong
on the part of the plaintiff is not necessary to start the Statute of Limitations running in [a]
contract [action]." Id. (alterations in original) (quoting Varga v. Credit-Suisse, 5 A.D.2d 289, 292
(1st Dep't 1958)). A claim for indemnification, on the other hand, is subject to a six-year statute
of limitations that begins to run "when the loss is suffered by the party seeking indemnity."
McDermott v. City of New York, 50 N.Y.2d 211, 215 (1980); see also Patel v. Exxon Corp., 284
A.D.2d 1007, 1008 (4th Dep't 2001) (an indemnification cause of action for recovery of
remediation costs "will not commence until the cleanup costs are incurred"). Additionally,
"[e]ach payment of remediation costs . . . incurs a new loss for a plaintiff, creating a new
indemnity claim with its own new statute of limitations (it does not, however, reset the clock on
an already-expired indemnity claim)." In re Methyl Tertiary Butyl Ether (MTBE) Prods. Liab.
Litig., No. 04-CV-5424, 2007 WL 1601491, *16 (S.D.N.Y. June 4, 2007).
To the extent that Plaintiffs assert a breach of contract claim against the county that is
separate from the indemnification claim, that claim is barred by the statute of limitations. The
amended complaint alleges that the County disposed of contaminated dredge spoils at or upstream
from the Site in the "1970s and/or 1980s," but the amended complaint does not allege any more
recent breaches of the 1972 Option Agreement. See Dkt. No. 26 at ¶¶ 39-45. Therefore, it is
clear from the face of the amended complaint that Plaintiffs' breach of contract claim is timebarred.
As for Plaintiffs' indemnification claim, Plaintiffs' complaint was filed on October 4,
2016, and Plaintiffs allege that they repeatedly incurred remediation costs in the six years before
the amended complaint was filed. See id. at ¶¶ 55-68. Therefore, Plaintiffs' indemnification
claim is timely with respect to at least some of the costs incurred. While other costs may be
barred by the statute of limitations, it is not appropriate for the Court to determine which costs are
time-barred at this stage in the proceedings. See Kattu v. Metro Petroleum, Inc., No. 12-CV-54,
2013 WL 4015342, *4 (W.D.N.Y. Aug. 6, 2013).
"The Supremacy Clause of the United States Constitution 'invalidates state laws that
interfere with, or are contrary to federal law.'" Bonilla v. Semple, No. 15-CV-1614, 2016 WL
4582038, *5 (D. Conn. Sept. 1, 2016) (quoting U.S. Const. art VI, cl. 2). There are three different
types of preemption:
(1) express preemption, where Congress has expressly preempted
local law; (2) field preemption, where congress has legislated so
comprehensively that federal law occupies an entire field of
regulation and leaves no room for state law; and (3) conflict
preemption, where local law conflicts with federal law such that it
is impossible for a party to comply with both or the local law is an
obstacle to the achievement of federal objectives.
N.Y. SMSA Ltd. P'ship v. Town of Clarkstown, 612 F.3d 97, 104 (2d Cir. 2010) (citations and
quotations omitted). CERCLA does not expressly preempt state law, nor is it so comprehensive
as to preempt state law by occupying the entire field. See Niagara Mohawk, 596 F.3d at 138.
CERCLA may, however, preempt state law where there is "preemption by conflict." See id. In
particular, PRPs should not "have both a federal and a state law based claim for recovery of the
same response expenditures." Id.; see also MPM Silicones, 931 F. Supp. 2d at 406 ("[W]hether
state-law claims are preempted by CERCLA boils down to whether double recovery . . . will
At this stage in the litigation, it remains unclear which costs Plaintiff will be able recover
under CERCLA, or even whether Plaintiffs will recover under §§ 107 or 113. Therefore, a
finding that Plaintiffs' contract claim is preempted by CERCLA would be premature.
Confronting a similar situation, the court in Fitzgibbons found that
the record does not establish that recovery would be identical under
Plaintiff's CERCLA and state-law claims; and, even assuming
arguendo that the recovery would be identical, the possibility still
exists that Plaintiff would ultimately be unable to recover under
CERCLA. Accordingly, "it would seem imprudent to dismiss state
law claims outright on Rule 12 because of a mere potential for
Fitzgibbons, 2011 WL 6218208, at *14 (quoting New York v. W. Side Corp., 790 F. Supp. 2d 13,
26 (E.D.N.Y. 2011)). Thus, the Court declines to address the possibility of preemption at this
After carefully reviewing the entire record in this matter, the parties' submissions and the
applicable law, and for the above-stated reasons, the Court hereby
ORDERS that Defendants' motions to dismiss (Dkt. Nos. 29, 30) are DENIED in part as
to Plaintiffs' CERCLA claims and their contractual indemnification claim against the County, and
GRANTED in part as to all other claims; and the Court further
ORDERS Plaintiffs to file a supplemental brief within thirty (30) days explaining why
CI's § 113 claim should not be dismissed for failure to state a claim; and the Court further
ORDERS that the Clerk of the Court serve a copy of this Memorandum-Decision and
Order on all parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: February 12, 2018
Albany, New York
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