White Plains Housing Authority v. BP Products North America Inc.
Filing
112
OPINION & ORDER re: 103 MOTION for Summary Judgment: For the foregoing reasons, Plaintiff's motion for summary judgment is GRANTED on the issue of liability. The case shall proceed to discovery on the determination of damages and available injunctive relief. The Court will issue an order of referral to Magistrate Judge Judith C. McCarthy for further discovery on the issue of damages and injunctive relief, and the parties are directed to contact Magistrate Judge McCarty within three days of that order to schedule such proceedings. The Clerk of Court is respectfully directed to terminate the motion at ECF No. 103. (Signed by Judge Nelson Stephen Roman on 8/27/2020) (jwh)
Case 7:17-cv-06250-NSR-JCM Document 112 Filed 08/27/20 Page 1 of 36
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
8/27/2020
WHITE PLAINS HOUSING AUTHORITY,
Plaintiff,
-againstBP PRODUCTS NORTH AMERICA INC.,
MARIANINA OIL CORP., and ATLANTIC
RICHFIELD COMPANY,
17-cv-6250 (NSR)
OPINION & ORDER
Defendants.
NELSON S. ROMÁN, United States District Judge
Plaintiff White Plains Housing Authority (“Plaintiff” or “WPHA”) brings this action
against Marianina Oil Corporation (“Defendant” or “Marianina”),1 asserting claims under the
Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. § 6901 et seq., and the New York
Navigation Law (“NYNL”), N.Y. Nav. Law § 181(5).2 (ECF No. 59.) Plaintiff also asserts state
common law claims for negligence, private nuisance, and trespass. (Id.) Plaintiff alleges that its
property was contaminated by discharges of gasoline and toxic-biproducts of gasoline emanating
from a former gasoline station at 34 East Post Road, White Plains, New York (the “Service
Station”), which is currently owned, and was formerly operated, by Defendant. (Id.)
Before the Court is Plaintiff’s motion for summary judgment on the issue of liability. (ECF
No. 103.) For the following reasons, Plaintiff’s motion is GRANTED.
1
2
By Stipulation and Order, dated November 19, 2019, Plaintiff’s claims against Defendants BP Products North
America, Inc., and Atlantic Richfield Company were dismissed with prejudice. (ECF No. 98.)
Upon commencing this action, Plaintiff filed a “Related Case Statement,” which indicated that this action is
related to another action before this Court: White Plains Housing Authority v. Getty Properties Corporation
et al., 13-cv-6282 (NSR) (JCM) (the “Getty Action”). By Stipulation and Order, dated November 30, 2017,
all remaining claims and crossclaims in the Getty Action were voluntarily dismissed.
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BACKGROUND
I.
Materials Considered by the Court
A. Defendant’s Failure to Comply with Local Rule 56.1
Plaintiff argues that this Court should deem as undisputed the facts in its Local Civil Rule
56.1 Statement. (Pl. Reply in Further Supp. of Mot. for Summ. J. (“Reply”), ECF No. 108, at 4.)
The Court agrees.
Local Civil Rule 56.1 provides that “[u]pon any motion for summary
judgment,” the moving party shall annex “a separate, short and concise statement, in numbered
paragraphs, of the material facts as to which the moving party contends there is no genuine issue
to be tried.” Local Civil Rule 56.1(a). The party opposing the motion is then to “include a
correspondingly numbered paragraph responding to each numbered paragraph in the statement of
the moving party, and if necessary, additional paragraphs containing a separate, short and concise
statement of additional material facts.” Id. 56.1(b). “Each statement by the movant or opponent .
. . including each statement controverting any statement of material fact, must be followed by
citation to evidence which would be admissible.” Id. 56.1(d). If the opposing party fails to submit
a responsive statement, then the facts set forth in the moving party’s 56.1 statement are deemed
admitted. Id. 56.1(c); see Cress v. Wilson, No. 06 Civ. 2717(JGK), 2008 WL 5397580, at *5
(S.D.N.Y. Dec. 29, 2008) (citing Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 73 (2d Cir. 2001)).
Here, Plaintiff filed a Statement of Undisputed Facts and accompanying declarations and
exhibits as required under Local Rule 56.1. (See Pl. 56.1 Statement of Undisputed Facts (“Pl.
56.1”), ECF No. 106.) Defendant, in response, failed to submit any responsive statement, and, in
fact, did not file an opposition to Plaintiff’s motion. Instead, Defendant, who is represented by
counsel, submitted a three-page affirmation signed by Defendant’s president, Frank Codella (the
2
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“Codella Affirmation”). (ECF No. 107.)3 Because Defendant failed to comply with Local Rule
56.1, the Court will deem as admitted those facts set forth in Plaintiff’s 56.1 Statement, to the
extent they are supported by the record.
B. Plaintiff’s Request to Preclude Portions of the Codella Affirmation
Plaintiff contends that, under Rule 37(c) of the Federal Rules of Civil Procedure,
paragraphs 13, 14, and 16 of the Codella Affirmation should be stricken from the record because
the facts therein had not been previously disclosed under Rule 26(e). (Reply 4-5.) In any event,
Plaintiff maintains, the Codella Affirmation does not dispute any material fact in Plaintiff’s
moving papers. (Id. at 3.)
Under Rule 26(e) of the Federal Rules of Civil Procedure, a party “who has responded to
a[] . . . request for production” must “supplement or correct its disclosure or response . . . in a
timely manner if the party learns that in some material respect the disclosure or response is
incomplete or incorrect.” Fed. R. Civ. P. 26(e)(1)(A). Here, Defendant apparently did not
previously disclose the facts regarding the City of White Plains’ stop work order until it “opposed”
Plaintiff’s motion for summary judgment. Such a failure to disclose is a clear violation of Rule
26(e). See Xiao Hong Zheng v. Perfect Team Corp., 739 F. App’x 658, 662 (2d Cir. 2018). The
question then is whether preclusion of the new factual assertions is warranted. The Court
concludes that it is.
If a party fails to provide information required under Rule 26(e), it may not “use that
information . . . to supply evidence on a motion . . . unless the failure was substantially justified”
or was harmless. Fed. R. Civ. P. 37(c)(1). The decision of whether to apply this “drastic remedy”
is up to the discretion of the court. Ebewo v. Martinez, 309 F. Supp. 2d 600, 607 (S.D.N.Y. 2004).
3
The affirmation was also docketed at ECF No. 111.
3
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In evaluating whether to preclude evidence, courts will look to “(1) the party’s explanation for the
failure to comply with the [disclosure requirement]; (2) the importance of . . . the precluded
[evidence]; (3) the prejudice suffered by the opposing party as a result of having to prepare to meet
the new [evidence]; and (4) the possibility of a continuance.” Capitol Records, LLC v. Escape
Media Grp., Inc., No. 12-CV-6646 (AJN), 2015 WL 1402049, at *22 (S.D.N.Y. Mar. 25, 2015)
(quoting Patterson v. Balsamico, 440 F.3d 104, 117 (2d Cir. 2006)).
A review of these factors reveals why preclusion is warranted. To begin, Defendant
provided no explanation for why this information is being provided for the first time in opposition
to Plaintiff’s motion. Meanwhile, although the factual assertions are not of great importance—
they do not even seem to raise a triable issue of fact—the prejudice to Plaintiff appears readily
apparent. Plaintiff was forced to file Freedom of Information Law requests to investigate and
respond to these previously undisclosed factual assertions in the middle of briefing its motion.
(See Reply Aff. of Norman W. Bernstein in Supp. of Pl.’s Mot. for Summ. J. (“Bernstein Reply
Aff.”), ECF No. 109, Ex. 3.) Finally, with discovery closed, continuance appears to be unfeasible.
Therefore, in resolving Plaintiff’s motion, the Court will not consider paragraphs 13, 14, and 16
of the Codella Affirmation. See Highland Cap. Mgmt., L.P. v. Schneider, 551 F. Supp. 2d 173,
181 (S.D.N.Y. 2008) (excluding an expert’s declaration and testimony because plaintiff provided
no explanation for its failure to supplement the expert disclosure under Rule 26(e), the information
was not of great importance, the filing was prejudicial, and continuance would have been
impracticable); see also Madden v. Town of Hempstead, No. 16-CV-6835(SJF)(AKT), 2019 WL
1439935, at *12 (E.D.N.Y. Mar. 29, 2019) (precluding affidavit of a witness who was not
previously identified under Rule 26 because plaintiff had “not offered any explanation . . . for her
failure to identify” the witness, the affidavit was cumulative and would not affect the court’s
4
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determination of the motion, the defendants would be prejudiced by the lack of an opportunity to
depose the witness, and the action was at the summary judgment stage).
C. Defendant’s Failure to File an Answer to the Second Amended Complaint
The operative complaint in this matter is Plaintiff’s Second Amended Complaint, which
was filed on November 30, 2018. (ECF No. 60.) Although it filed an answer to Plaintiff’s First
Amended Complaint (see ECF No. 23), Defendant did not file an answer to the Second Amended
Complaint. Plaintiff now requests that the Court conclude that Defendant has admitted all wellpleaded claims in the Second Amended Complaint. (Pl. Mem. of Law in Supp. of Mot. for Summ.
J. (“Mot.”), ECF No. 105, at 14.)
A review of the Second Amended Complaint reveals that Plaintiff largely just added claims
and allegations against the new defendant, Atlantic Richfield Company. In doing so, Plaintiff did
not meaningfully alter the allegations to which Defendant had previously answered.4 Given that
Defendant has essentially responded to the current allegations against it, the Court will construe
Defendant’s Answer to the First Amended Complaint as responding to the Second Amended
Complaint. See, e.g., CIT Bank, N.A. v. Vasquez, No. 17-CV-4654 (MKB)(PK), 2019 WL
4418883, at *1 n.2 (E.D.N.Y. Aug. 19, 2019), adopted by, 2019 WL 4415291 (E.D.N.Y. Sept. 16,
2019) (construing answer to initial complaint as an answer to amended complaint where amended
complaint only made clerical corrections and plaintiff did not seek default judgment).
II.
Factual Background
The following facts are derived from Plaintiff’s Rule 56.1 Statement and a review of the
record. As noted above, they have been deemed uncontested unless otherwise noted.
4
The new allegations in the Second Amended Complaint were delineated by the letters “AR” affixed to a
number. (See, e.g., ECF No. 60 ¶ 3AR (alleging that “Defendant ARCO is a domestic corporation organized
and existing under the laws of the State of Delaware”).)
5
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A. The Parties and the Service Station
i.
WPHA
WPHA is a municipal public housing authority that exists under the laws of New York.
(Pl. 56.1 ⁋ 1; Aff. of Norman W. Bernstein (“Bernstein Aff.”), ECF No. 106, Ex. 2.) Since 1949,
WPHA has owned and operated a multi-family residential public housing complex known as the
Winbrook Apartments, which is in downtown White Plains, New York. (Pl. 56.1 ⁋ 2; Bernstein
Aff. Ex. 1 (“Carter Dep. Tr.”) at 29:7-32:3.) The Winbrook Apartments contain five apartment
buildings, located at (1) 159 S. Lexington Avenue, (2) 135 S. Lexington Avenue, (3) 11 Fisher
Court, (4) 33 Fischer Court (“Building 33”),5 and (5) 225 Dr. Martin Luther King Jr. Blvd. (Pl.
56.1 ⁋ 3; Carter Dep. Tr. at 30:23-32:3; Bernstein Aff. Ex. 3 ⁋ 1.)
ii.
Marianina
Marianina is a domestic corporation, which was formed under the laws of the State of New
York. (Pl. 56.1 ⁋ 6.) Mr. Frank Codella (“Codella”) is Marianina’s owner and serves as its
President. (Id. ⁋ 7; Bernstein Aff. Ex. 7 ⁋ 1; id. Ex. 8 (“Codella Dep. Tr.”) at 20:6-20:16.) The
corporation was formed in 1986 for the purpose of purchasing the Service Station. (Pl. 56.1 ⁋ 8;
Bernstein Aff. Ex. 7 ⁋ 1.) Since June 24, 1987, Marianina has been the owner and/or operator of
the Service Station. (Pl. 56. 1 ⁋ 9; Bernstein Aff. Ex. 7 ⁋ 1.)
iii.
Proximity Between WPHA’s Property and Marianina
WPHA’s parking lot and Building 33 are directly adjacent to, and to the north/northwest
of, the Service Station. (Pl. 56.1 ⁋ 11; Carter Dep. Tr. 219:18-24; Bernstein Aff. Ex. 10 ⁋ 31.)
Similarly, the distance between the Service Station’s property line and Building 33 is
approximately 200 feet. (Pl. 56.1 ⁋ 12; Carter Dep. Tr. at 219:18-220:12; Bernstein Aff. Ex. 10 ⁋
5
Approximately 350 people, including elderly individuals and children, live in Building 33. (Pl. 56.1 ⁋ 5;
Bernstein Aff. Ex. 4 at 2.)
6
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29 & figs. 1 & 8.) Building 33 is in plain view from the Service Station. (Pl. 56.1 ⁋ 13; Bernstein
Aff. Ex. 13 (“Papitto Dep. Tr.”) at 93:22-94:1.)
The north/northwest location of WPHA’s property is on a down gradient from the Service
Station. (See Bernstein Aff. Ex. 11 (“Bendell II Dep. Tr.”) at 275:11-16.) Thus, the groundwater
flow direction under the Service Station is to the north and/or northwest. (Pl. 56.1 ⁋ 10; Bernstein
Aff. Ex. 9 (“Talimcioglu I Dep. Tr.”) at 116:13-23; id. Ex. 10 ⁋ 32 & fig. 8.)
iv.
The Service Station
The Service Station was built as Sinclair Gasoline Station by the predecessors of BP
Products North America Inc. in or about 1937.6 (Pl. 56.1 ⁋ 14; Bernstein Aff. Ex. 14 (“Reinhart
Dep. Tr.”) at 9:22-12:17.) Decades later, in or about 1978, four new single hull steel underground
storage tanks (“USTs”) were installed at the Service Station. (Pl. 56.1 ⁋ 15; Reinhart Dep. Tr.
41:24-46:5.) These USTs had no drip pans, spill buckets, catch basins, or containment sumps
under the pumps. (Pl. 56.1 ⁋ 15; Codella Dep. Tr. at 40:15-41:3, 206:7-208:12; Papitto Dep. Tr.
at 57:23-58:13; Reinhart Dep. Tr. at 30:7-23.) Critically, as testified to by Daniel Bendell, the
New York Department of Environmental Conservation (“NYSDEC”) Regional Spill Engineer
overseeing the Service Station, the lack of spill bucket was notable because gasoline spills “would
go onto the ground” in their absence (Pl. 56.1 ⁋ 19; Bernstein Aff. Ex. 16 (“Bendell I Dep. Tr.”)
at 63:5-10.)
As part of the 1978 UST installation, pipes and conduits were also installed. These pipes
and conduits were made of standard galvanized steel and lacked cathodic protection.
(Pl. 56.1 ⁋ 16; Talimcioglu I Dep. Tr. at 304:11-305:23; Reinhart Dep. Tr. at 32:6-32:13; see also
Bernstein Aff. Ex. 15 (“Castellano Dep. Tr.”) at 45:24-46:5.)
6
BP had acquired the property on March 4, 1969 from Atlantic Richfield Company, who had merged with
Sinclair. (Reinhart Dep. Tr. at 9:25-10:6, 11:18-12:14.)
7
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B. History of Contamination at the Service Station
i.
Marianina’s Initial Inspection of the Service Station
Marianina purchased the Service Station on or about June 24, 1987. (Bernstein Aff. Ex. 7
¶ 1; see also Codella Dep. Tr. at 22:10-13.) To obtain a mortgage to purchase the station,
Marianina had to conduct a tank test and a line test. (Codella Dep. Tr. at 22:14-23:12.) Codella
testified that the tank tests were to check for any leaks, while the line tests were to check the feed
lines into the tank. (Id. at 23:3-12.) Marianina, however, did not obtain any information about the
soils, groundwater, or any other environmental conditions at the Service Station. (Pl. 56.1 ¶ 20;
Codella Dep. Tr. at 23:15-24.)
From approximately 1987 to 1994, Marianina operated the Service Station. (Pl. 56.1 ⁋ 22;
Codella Dep. Tr. at 28:15-17.) During this period, the Service Station lacked any containment
devices under its tanks and did not have any leak detection or overfill protection. (Pl. 56.1 ⁋ 23;
Codella Dep. Tr. at 39:15-41:3, 206:7-208:12.) As a result, every time the Service Station had
received fuel deliveries, “there [was] always spillage” that “went into the ground.” (Pl. 56.1 ⁋ 24;
Codella Dep. Tr. 39:22-40:7, 66:15-67:3.)
ii.
The 1994 Excavation, Removal, and Replacement of the Service Station’s USTs
In 1994, Marianina determined that the Service Station’s USTs had to be changed due to
their age. (Codella Dep. Tr. 28:18-20.) Thus, in or around August or September 1994, Codella
retained Papitto Construction Co. (“Papitto Construction”) to excavate, remove, and replace the
USTs.7 (Pl. 56.1 ⁋ 25; Codella Dep. Tr. 30:9-14; Papitto Dep. Tr. at 19:6-21:20: Bernstein Aff.
Ex. 17.) Specifically, as stated in the parties’ contract, Papitto Construction was to remove the
four existing steel tanks and replace them with two 10,000-gallon underground double wall
7
The contract was officially signed on September 20, 2014. (Bernstein Aff. Ex. 17 at 2.)
8
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fiberglass tanks and one 6,000-gallon underground double wall fiberglass tank. (Bernstein Aff.
Ex. 17 at 1.) Papitto Construction then, via letter, notified NYSDEC of its intention to undertake
this project on April 8, 1995. (Pl. 56.1 ⁋ 26; Papitto Dep. Tr. at 104:25-107:9; Bernstein Aff. Ex.
18.) The purpose of the letter was to inform NYSDEC that Codella and Marianina were complying
with the state’s new regulations by replacing the USTs. (Papitto Dep. Tr. at 107:4-7.)
As the project began, Marianina retained P.W. Grosser Consulting Engineer and
Hydrologist, P.C. (“P.W. Grosser”) to perform environmental consulting. (Pl. 56.1 ⁋ 27.) P.W.
Grosser’s consulting work included oversight of test pits, collection and analysis of samples,
oversight of the UST removal, and endpoint sampling. (Id.; Castellano Dep. Tr. at 16:17-19:24,
69:14-17, 80:4-9, 83:6-14; Bernstein Aff. Ex. 19 (“P.W. Grosser Report”) at BPPL004495-4502;
id. Ex. 20.)
On August 16, 1994, Papitto Construction drilled four test pits to characterize the soil
quality around the existing tank pad. (Castellano Dep. Tr. at 39:6-15; P.W. Grosser Report at
BPPL004497-98.) A total of four test pits were created using a backhoe, and during the testing,
soils and ambient air were monitored for the presence of volatile organic compounds (“VOCs”).
(P.W. Grosser Report at BPPL004497-98.) During the testing, P.W. Grosser observed, in several
test pits, product that was eight feet below grade and floating on the water table. (Pl. 56.1 ⁋ 29;
Castellano Dep. Tr. at 29:18-30:11, Bernstein Aff. Ex. 21 at BPPL004639-41; P.W. Grosser
Report at BPPL004499.) P.W. Grosser also observed strong odor on the soil samples and elevated
photoionization detector (“PID”) readings at three of the test pits. (Pl. 56.1 ⁋ 30; Castellano Dep.
Tr. at 46:13-47:21; Bernstein Aff. Ex. 21 at BPPL004639; P.W. Grosser Report at BPPL004499.)
Based on these observations, P.W. Grosser reported a gasoline spill to the NYSDEC on August
17, 1994, and the site was subsequently assigned NYSDEC Spill No. 94-06684. (Pl. 56.1 ⁋ 31;
9
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Castellano Dep. Tr. at 46:13-47:23; P.W. Grosser Report at BPPL004495, BPPL004498; Bernstein
Aff. Ex. 23.)
Papitto Construction went on to remove a total of 1,601.11 tons of petroleum contaminated
soil as part of the site excavation. (Pl. 56.1 ⁋ 33; Papitto Dep. Tr. at 28:10-25.) During the
excavation process, P.W. Grosser observed stained soils and elevated PID readings above and
below the four USTs. (Pl. 56.1 ⁋ 32; Castellano Dep. Tr. at 185:23-186:20; P.W. Grosser Report
at BPPL004500.) However, as revealed by P.W. Grosser’s drawings, the excavation only involved
the portion of the Service Station that was in the immediate vicinity of the USTs. (Pl. 56.1 ⁋ 34;
Bernstein Aff. Ex. 20; see also Castellano Dep. Tr. at 118:13-17; Bernstein Aff. Ex. 21 at
BPPL004642, BPPL004651, BPPL004655.) And, in some areas, the excavation was only 3-4 feet
deep. (Pl. 56.1 ⁋ 35; Codella Dep. Tr. at 311:10-314:3.) Moreover, as testimony made clear, only
the soil within the area of excavation was remediated. (Pl. 56.1 ⁋ 36; Codella Dep. Tr. 78:1880:14.) No groundwater remediation was performed during the replacement project. (Pl. 56.1 ⁋
41; Papitto Dep. Tr. at 68:6-71:6; Castellano Dep. Tr. at 194:7-15.) This resulted in substantial
contamination being left behind. (Pl. 56.1 ⁋ 34; Castellano Dep. Tr. at 235:2-240:23.)
On October 12 and 19, 1994, P.W. Grosser collected eight endpoint soil samples at the
perimeter of the excavation to confirm the conditions of the soil left behind. (Pl. 56.1 ⁋ 37;
Castellano Dep. Tr. at 151:14-152:25; P.W. Grosser Report at BPPL004501-02.) The endpoint
analysis indicated that gasoline contaminated soil still remained at the Service Station at several
locations, including the northern portion of the excavation near Building 33’s parking lot.8
8
Specifically, the soil at Endpoint #4 contained 460 parts per billion (“ppb”) xylenes (against a NYSDEC soil
cleanup standard of 100 ppb), 130 ppb 1,3,5-trimethylbenzene (against a NYSDEC soil cleanup standard of
100 ppb), and 410 ppb 1,2,4-trimethylbenzene (against a NYSDEC soil clean up standard of 100 ppb). (Pl.
56.1 ⁋ 39; Castellano Dep. Tr. at 240:10-20; P.W. Grosser Report at BPL004503.) Endpoints #1 and #8 also
showed evidence of remaining gasoline contamination. (Pl. 56.1 ⁋ 40; P.W. Grosser Report at BPPL004503.)
10
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(Pl. 56.1 ⁋⁋ 38-39; Castellano Dep. Tr. at 193:8-194:2, 223:24-224:15, 239:24-240:23; P.W.
Grosser Report at BPPL004502-03.) Despite these findings, neither soil nor groundwater samples
were taken from outside of the excavation area to check for contamination. (Castellano Dep. Tr.
at 118:7-12.)
iii.
Marianina Leases the Service Station
Upon completion of the tank replacement project, Marianina leased the Service Station to
Barrier Oil Corporation (“Barrier”). (Pl. 56.1 ⁋ 42; Codella Dep. Tr. at 27:5-28:5; Bernstein Aff.
Ex. 22 ⁋ 31.) Barrier operated the Service Station for approximately five years between 1995 and
2000. (Pl. 56.1 ⁋ 43; Codella Dep. Tr. at 27:14-16; Bernstein Aff. Ex. 22 ⁋ 31.) After the Barrier
lease ended, Marianina leased the Service Station to 34 Post Rd. Gasmart, Inc. (“Gasmart”) from
approximately 2007 to 2017. (Pl. 56.1 ⁋ 44; Bernstein Aff Ex. 22 ⁋ 33; id. Ex. 24 (“Ibrahim Dep.
Tr.”) at 15:17-17:21, 28:24-30:8.)
During this timeframe, Gasmart operated the Service Station. (Pl. 56.1 ⁋ 45.) Pursuant to
the lease, however, Marianina was responsible for maintaining the Service Station’s USTs,
underground pipes, and Veeder-root system. (Id. ⁋ 46; Ibrahim Dep. Tr. at 84:21-85:3, 131:13132:6; Bernstein Aff. Ex. 25 at BPPL003430.) In or about late May or early June 2017, Gasmart
stopped operating at the Service Station. (Pl. 56.1 ⁋ 94; Ibrahim Dep. Tr. at 139:2-15.) Although
Gasmart vacated the Service Station, gasoline and diesel remained in the tanks. (Pl. 56.1 ⁋ 95;
Ibrahim Dep. Tr. at 156:9-157:24.) Much of the remaining fuel could only be removed through a
pump or hose in the tank. (Ibrahim Dep. Tr. at 157:13-24.)
iv.
WPHA’s 2014 Investigation of Soil and Groundwater Contamination
In or about September 2014, Tyree Environmental Corporation (“Tyree”), a consultant to
Getty Properties Corporation, installed two temporary monitoring wells, MW-110 and MW-111,
to collect groundwater samples in the Brookfield Street sidewalk immediately adjacent to the east
11
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side of the Service Station. (Pl. 56.1 ⁋ 48; Talimcioglu I Dep. Tr. at 302:10-303:4; Bernstein Aff.
Ex. 27 at GTKS_009155, GTKS_009157.) The monitoring wells were installed as part of a preexcavation assessment. (Bernstein Aff. Ex. 27 at GTKS_009155.)
Thereafter, between September 8 and 19, 2014, First Environmental, Inc. (“FE”), WPHA’s
environmental consultant, took split samples of the soil and groundwater at MW-110 and MW111. (Pl. 56.1 ⁋ 49; Talimcioglu I Dep. Tr. at 302:17-303:4; Bernstein Aff. Ex. 28 (“2014 FE
Report”) at WPHA002859.) FE’s Remedial Investigation and Split Sampling Results report (the
“Report”) revealed that the soil samples for MW-110 included (1) 280 ppb of benzene, which
exceeded NYSDEC’s soil cleanup levels of 60 ppb, and (2) 79,000 ppb of 1,2,4-trimethylbenzene,
which exceeded NYSDEC’s soil cleanup levels of 3,600 ppb. (Pl. 56.1 ⁋ 50; 2014 FE Report at
WPHA002862.) As to MW-111, the Report indicated that soil samples contained exceedances for
chemicals such as xylene and n-propylbenzene. (Pl. 56.1 ⁋ 51; 2014 FE Report at WPHA002862.)
The Report further provided groundwater results for MW-110 and MW-111.
The
groundwater at MW-110 contained 240 ppb of benzene (against a NYSDEC standard of 1 ppb)
and 3,900 ppb of 1,2,4-trimethylbenzene (against a NYSDEC standard of 5 ppb). (Pl. 56.1 ⁋ 52;
2014 FE Report at WPHA002864.) Meanwhile, the groundwater at MW-111 contained 1,400 ppb
of benzene and 83 ppb of 1,2,4-trimethylbenzene, both of which were amounts that exceeded
NYSDEC’s groundwater standards. (Pl. 56.1 ⁋ 53; 2014 FE Report at WPHA002864.)
v.
The 2015 Site/Remedial Investigation of WPHA’s Property
In April 2015, FE conducted a site and remedial investigation at portions of WPHA’s
property, including at Building 33, that were adjacent to the Service Station. (Pl. 56.1 ⁋ 55;
Bernstein Aff. Ex. 30 at BPPL000503.) As part of the investigation, FE installed six temporary
monitoring wells, TWB-1 through TWB-6, to the north and northwest of the Service Station. (Pl.
12
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56.1 ⁋ 56; Bernstein Aff. Ex. 30 at BPPL000510, BPPL00516.). FE also sampled the existing
monitoring well at MW-106. (Pl. 56.1 ⁋ 56.)
Thereafter, FE issued its October 2015 Site Investigation and Remedial Investigation
Report (the “Oct. 2015 SI/RI Report”). FE had found gasoline-associated VOCs at levels above
NYSDEC’s standards in the soil and groundwater migrating from the Service Station to WPHA’s
property. (Pl. 56.1 ⁋ 57; Bernstein Aff. Ex. 30 at BPPL000513-14.) For example, soil samples
from TWB-2, which was to the north and downgradient of the Service Station (Reinhart Dep. Tr.
at 67:22-68:6), contained 33,000 ppb of 1,2,4-trimethylbenzene (against NYSDEC’s standard of
3,600 ppb), and 2,100 ppb of xylenes (against NYSDEC’s standard of 260 ppb). (Pl. 56.1 ⁋ 60;
Bernstein Aff. Ex. 30 at BPPL000517.) Meanwhile, soil samples for TWB-5, which was also to
the north and downgradient of the Service Station (Reinhart Dep. Tr. at 68:7-11), contained 23,000
ppb of 1,2,4-trimethylbenenzen and 9,700 ppb of xylenes, both of which were amounts that
exceeded NYSDEC’s soil cleanup levels. (Pl. 56.1 ⁋ 61; Bernstein Aff. Ex. 30 at BPPL000517.)
Regarding the groundwater samples, results from TWB-2 revealed contamination level of
(1) 30 ppb of benzene (against NYSDEC’s water quality standard of 1 ppb), (2) 2,600 ppb of 1,2,4trimethylbenzene (against NYSDEC’s water quality standard of 5 ppb), and (3) 2,700 ppb of m&pxylenes (against NYSDEC’s water quality standard of 260 ppb). (Pl. 56.1 ⁋ 62; Bernstein Aff. Ex.
30 at BPPL000519.) Similarly, groundwater results from TBW-5 revealed contamination levels
of 2,900 ppb of 1,2,4-trimethylbenzene and 5,100 ppb of m&p-xylenes, both of which were
amounts that exceeded acceptable water quality standards.9 (Pl. 56.1 ⁋ 63; Bernstein Aff. Ex. 30
at BPPL000519.)
9
According to the Oct. 15 SI/RI Report, the groundwater at TWB-4 and TWB-6 contained chemicals such as
1,2,4-trimethylbenzene, 1,3,5-trimethylbenzene, ethylbenzene, and m&p-xylenes, all at levels above
NYSDEC’s acceptable water quality standards. (Pl. 56.1 ⁋ 64; Bernstein Aff. Ex. 30 at BPPL000519.)
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As the report concluded, “the results of the field investigation indicate[d] a larger area of
impact than previously believed.” (Bernstein Aff. Ex. 30 at BPPL000514.) The report further
explained that “based on the [s]ite geology, the horizontal and vertical extent of petroleum impacts
in soil groundwater, and the fact that the area is adjacent to the BP station,” it was reasonable to
assume that the investigated area was “impacted by the [Service Station].” (Id.)
Relying on the results from FE’s 2014 and 2015 investigations, WPHA served Marianina
a RCRA Notice of Endangerment, which provided notice of actual and threatened endangerments,
releases, injuries, and damages emanating from the Service Station on to WPHA’s property.
(Pl. 56.1 ⁋ 66; Bernstein Aff. Exs. 31 & 32.)
vi.
FE’s December 2015 Site Investigations
Around December 2015, FE installed five monitoring wells to better define the
groundwater flow direction and the extent of the contamination plume migrating from the Service
Station. (Pl. 56.1 ⁋ 68; Bernstein Aff. Ex. 10 ⁋ 10 & fig. 8.) As reflected in FE’s Groundwater
Flow Direction map, one monitoring well, MW-201, was located directly between the Service
Station and Building 33, on the southwest corner of the Building 33 parking lot, while a separate
monitoring well, MW-203, was located between the Service Station and Building 33, near the
southern wing of Building 33. (Pl. 56.1 ⁋⁋ 69-70; Bernstein Aff. Ex. 10 at fig. 8.)
The groundwater analytical results from the December 2015 sampling found gasoline
related compounds in MW-201 and MW-203. (Pl. 56.1 ⁋⁋ 71-73; Bernstein Aff. Ex. 10 ⁋ 33 &
tbl. 2.) Specifically, the results revealed that the groundwater in both monitoring wells were
contaminated with 1,2,4-trimethylbenzene, 1,3,5-trimethylbenzene, ethylbenzene, and m&pxylenes at levels that exceeded NYSDEC’s water quality standards. (Pl. 56.1 ⁋⁋ 72-73; Bernstein
Similarly, groundwater results for TWB-3 exceeded NYSDEC’s acceptable water quality standards for 1,2,4trimetyhlbenzene. (Pl. 56.1 ⁋ 65; Bernstein Aff. Ex. 30 at BPPL000519.)
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Aff. Ex. 10 ⁋ 33 & tbl. 2.) Lead was identified in all five groundwater monitoring wells. (Bernstein
Aff. Ex. 10 ⁋ 33.) Ultimately, based on the sampling data collected on April 2015 and December
2015, FE determined that the migration of the contamination plume was seemingly moving
northwesterly from the Service Station to WPHA’s property. (Id. ⁋ 33 & fig. 9.)
vii.
The November 2016 Remedial Investigation Report
In or around August 2016, FE conducted additional groundwater and soil investigations on
portions of WPHA’s property in the vicinity of Building 33 and adjacent to the Service Station.
(Pl. 56.1 ⁋ 76.) The results of that August 2015 investigation were published in FE’s November
29, 2016 Remedial Investigation Report (the “Nov. 2016 Report”). (Bernstein Aff. Ex. 37 at
BPPL000334.) As described in the Nov. 2016 Report, the August 2016 groundwater sampling
results for MW-201 reflected significant exceedances for benzene, 1,2,4-trimethylbenzene, 1,3,5trimethylbenzene, ethylbenzene, and m&p-xylenes. (Pl. 56.1 ⁋ 77; Bernstein Aff. Ex. 37 at
BPPL000367.) Similarly, the August 2016 groundwater sampling results for MW-203 revealed
significant exceedances for 1,2,4-trimethylbenzene, 1,3,5-trimethlybenzene, ethylbenzene, and
m&p-xylenes. (Pl. 56.1 ⁋ 78; Bernstein Aff. Ex. 37 at BPPL000367.) Relying on its previous
three investigations, FE confirmed that the groundwater plume continued to migrate from the
Service Station onto WPHA’s property, moving in the direction of Building 33. (Pl. 56.1 ⁋ 79;
Bernstein Aff. Ex. 37 at BPPL000355, BPPL000374.)
On December 16, 2016, Nazmi Talimcioglu, a senior associate at FE, sent the Nov. 2016
Report to NYSDEC. (Bernstein Aff. Ex. 38 ⁋ 2.) Thereafter, on December 20, 2016, after
receiving the report, NYSDEC issued a spill report, Spill Number 1608924, for the Service Station.
(Pl. 56.1 ⁋ 81; Bernstein Aff. Ex. 39 at BP-WPHA004480.) The spill report indicated that there
was “[s]ignificant soil and groundwater identified off-site” at the station. (Pl. 56.1 ⁋ 82; Bernstein
Aff. Ex. 39.) Specifically, the spill report explained, “[s]amples collected in September 2014,
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December 2015, and August 2016 reveal[ed] soil and groundwater contamination down gradient
of [the Service Station].” (Pl. 56.1 ⁋ 83; Bernstein Aff. Ex. 39 at BP-WPHA004480.)
On December 21, 2016, NYSDEC advised Marianina of Spill Number 1608924.
(Pl. 56.1 ⁋ 84; Bernstein Aff. Ex. 40.) The letter stated that NYSDEC considered Marianina “a
potential responsible party” for the “contaminants in both the soil and groundwater down gradient”
of the Service Station.10 (Bernstein Aff. Ex. 40.) NYSDEC indicated that it would require a site
assessment at the facility, followed by appropriate remedial actions. (Id.) To that end, NYSDEC
directed Marianina to prepare and submit a Site Assessment Work Plan by January 11, 2017. (Id.)
viii.
HES’s 2017 Subsurface Investigation
In or about January 2017, Marianina hired HydroEnvironmental Solutions, Inc. (“HES”)
to perform a subsurface investigation of the Service Station. (Pl. 56.1 ⁋ 86; Bernstein Aff. Ex. 41
(“HES Report”) at BPPL002532-33; see also Codella Dep. Tr. at 81:2-18.) To facilitate its
investigation, HES installed seven soil borings and three temporary groundwater monitoring wells
across the property. (HES Report at BPPL002533.) HES also collected soil and groundwater
samples. (Id. at BPPL002533-34.)
During its sampling, HES observed free product in both soil and groundwater underneath
the Service Station. (Pl. 56.1 ⁋ 88; HES Report at BPPL002535.) As a result, on January 19,
2017, Timothy Bishop, HES’s Project Manager, informed Codella of “significant soil and
groundwater impacts from gasoline at multiple locations across the site.” (Pl. 56.1 ⁋ 89; Bernstein
Aff. Ex. 42.) Bishop also noted that “borings designated 1 through 5 and 7 were all impacted from
8-12 feet below grade, which [was] consistent with the depth of the saturated zone.” (Bernstein
10
Bendell testified that “groundwater down gradient of [the] facility” meant that the groundwater was traveling
“north, northwest” onto WPHA’s property. (Bendell II Dep. Tr. at 275:3-16.)
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Aff. Ex. 42.) As Bishop later testified, this indicated that “the contamination . . . impacted both
soil and groundwater at those locations.” (Bernstein Aff. Ex. 12 at Tr. 29:10-30:8.)
As later reflected in its report, HES’s investigation found petroleum-related contamination
in the soil under the Service Station at concentrations exceeding NYSDEC’s soil clean up levels
for
ethylbenzene,
isopropylbenzene,
n-propylbenzene,
1,2,4-trimethylbenzene,
1,3,5-
trimethylbenzene, and xylenes. (Pl 56.1 ⁋ 90; HES Report at BPPL002539.) Meanwhile,
groundwater results at the boring immediately adjacent to WPHA’s property revealed the presence
of numerous petroleum-related contaminants at concentrations that exceeded NYSDEC’s Ambient
Water Quality Standards. (Pl. 56.1 ⁋ 91; HES Report at BPPL002541.) HES concluded that the
“[s]oil screening and laboratory analyses . . . indicate[d] that petroleum hydrocarbon impacts exist
in the soil and groundwater beneath” the Service Station.11 (Pl. 56.1 ⁋ 93; HES Report at
BPPL002536.) HES also determined that the hydrocarbon impacts were “related to gasoline and
not diesel fuel.” (HES Report at BPPL002536.)
C. NYSDEC’s Consent Order and Attempts to Compel Remediation
On September 27, 2017, after this action had commenced, NYSDEC sent Codella a Notice
of Violation, which informed him that NYSDEC considered him “as the Responsible Party for
open petroleum Spill No. 16-08924.” (Pl. 56.1 ⁋⁋ 96-97; Bernstein Aff. Ex. 46 at BPPL002774.)
The letter indicated that Codella had “exceeded the allowable time to submit a Remedial Work
Action Plan” for the Service Station. (Bernstein Aff. Ex. 46 at BPPL002774.) NYSDEC therefore
intended to hire a contractor to conduct a site assessment and complete appropriate remedial
11
Specifically, HES had found, inter alia, (1) elevated volatile organic vapors, (2) “concentrations of VOCs
and SVOCs in two of the soil samples” that were “above their respective NYSDEC Unrestricted Use Soil
Cleanup Objectives,” and (3) “concentrations of VOC and SVOC constituents”—particularly petroleum
hydrocarbons—in the groundwater that exceeded NYSDEC’s standards. (HES Report at BPPL002535-36.)
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actions. (Id.) The letter directed Codella and his attorney to attend a settlement conference, which
was scheduled for October 6, 2017. (Id. at BPPL002775.)
Several months later, on February 2, 2018, Marianina and NYSDEC entered into a consent
order for Marianina’s alleged violations of the Navigation Law (the “First Consent Order”). (Pl.
56.1 ⁋ 108; Bernstein Aff. Ex. 49 at BPPL004739, BPPL004744; Bendel I Dep. Tr. at 83:1885:21.) The First Consent Order required Marianina to “conduct an investigation and remediation
of the petroleum contamination at and emanating from” the Service Station. (Pl. 56.1 ⁋ 109;
Bernstein Aff. Ex. 49 at BPPL004739.) To that end, Marianina was directed to “submit to
[NYSDEC] a workplan, with a schedule of implementation, to conduct further investigation and
remediation at [the Service Station] and off-site.” (Bernstein Aff. Ex. 49 at BPPL004740.)
However, on November 30, 2018, NYSDEC served Marianina with a Notice of Hearing
and Complaint. (Pl. 56.1 ⁋ 110; Bernstein Aff. Ex. 50 at BPPL008134, BPPL008138.) NYSDEC
alleged that Marianina had not substantially complied with the First Consent Order by failing to
submit a workplan, not replying to NYSDEC’s requests to meet, and failing to clean the facility,
thereby causing petroleum contamination to remain on site.
(Bernstein Aff Ex. 50 at
BPPL008138-8140.) The following month, on December 18, 2018, NYSDEC met with Marianina
to discuss Marianina’s violation of the First Consent Order and the on and off-site investigation
and remediation that NYSDEC had requested Marianina perform. (Pl. 56.1 ⁋ 113; Bernstein Aff.
Ex. 53 at MOC 42; Bendell II Dep. Tr. at 231:25-234:10.) During the meeting, NYSDEC asked
Marianina “to remediate the contamination on and off their site” and to submit a work plan to
address the scope of the on and off-site investigation and remediation. (Bendell II Dep. Tr. at
232:19-233:23.) Two days later, on December 20, 2018, NYSDEC provided Marianina with a
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new consent order (the “Second Consent Order”) for Marianina’s signature. (Pl. 56.1 ⁋ 114;
Bernstein Aff. Ex. 53 at MOC 41.)
On January 7, 2019, NYSDEC reminded Marianina that it had not yet received the signed
Second Consent Order. (Pl. 56.1 ⁋ 115; Bernstein Aff. Ex. 53 at MOC 40.) Marianina replied that
it had decided to undertake the remediation of its property and the adjoining property, and that
Codella had planned to secure additional funds to perform the cleanup. (Pl. 56.1 ⁋ 116; Bernstein
Aff. Ex. 53 at MOC 33, MOC 39.) The next month, on January 17, 2019, NYSDEC provided
Marianina with a revised Second Consent Order, which now required Marianina to perform the
cleanup work and pay a $50,000 penalty. (Pl. 56.1 ⁋ 117; Bernstein Aff. Ex. 53 at MOC 30.)
NYSDEC informed Marianina’s counsel that failure to comply would result in another $100,000
penalty and NYSDEC’s undertaking of the remediation. (Bernstein Aff. Ex. 53 at MOC 30.) On
January 25, 2019, Marianina’s submitted a work plan to NYSDEC, but, in the absence of a signed
consent order, NYSDEC informed Marianina that it would not review the work plan. (Pl. 56.1 ⁋⁋
118-19; Bernstein Aff. Ex. 53 at MOC 22, MOC 30.) Marianina replied that same day with
proposed revisions to the Second Consent Order, which were rejected by NYSDEC. (Pl. 56.1 ⁋⁋
120-123; Bernstein Aff. Ex. 53 at MOC 116-20.) To date, although it has pushed for these rejected
revisions to the Second Consent Order, Marianina has ultimately failed to provide a signed consent
order to NYSDEC and still does not have a NYSDEC-approved work plan to commence
remediation. (Pl. 56.1 ⁋⁋ 124-29, 134; Bernstein Aff. Ex. 53 at MOC 87-102, MOC 113-116.)
D. Marianina’s State Action
On December 13, 2017, Marianina filed a verified complaint in the Supreme Court of the
State of New York, Westchester County, against Gasmart, Barrier, and Fawzi Ibrahim (the” State
Action”). (Pl. 56.1 ⁋ 100; Bernstein Aff. Ex. 22 at BP-WPHA000777.) The complaint, which was
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sworn to by Codella, alleged that Gasmart, Barrier, and Ibrahim had caused “the spill, release and
continuing migration of gasoline and its breakdown products including benzene and other solid
wastes and hazardous substances . . . on to adjoining properties.” (Pl. 56.1 ⁋ 102; Bernstein Aff.
Ex. 22 ⁋⁋ 58-62.) Specifically, Marianina maintained, the “discharge of gasoline” at the Service
Station had migrated “onto the [WPHA’s] property in the vicinity of building 33 and its adjacent
areas,” which were the proximate cause of damage to WPHA. (Pl. 56.1 ⁋⁋ 103, 105; Bernstein
Aff Ex. 22 ⁋⁋ 50, 61.)
E. Alleged Impact of Contamination on WPHA’s Property
i.
Direct Impact of Contamination to WPHA
According to WPHA, FE estimates that remediating the contaminated portion of WPHA’s
property will cost between $558,300.00 and $614,150.00. (Pl. 56.1 ⁋ 135; Bernstein Aff. Ex. 58
at 1.) Meanwhile, in approximately 6.6 years, the plume from the Service Station will reach
Building 33 at concentrations that will cause vapor intrusion to tenants. (Pl. 56.1 ⁋ 138; Bernstein
Aff. Ex. 59 (“Talimcioglu II Dep. Tr.”) at 226:3-13, 272:9-273:23.) As Talimcioglu has testified,
it would not be safe to simply do nothing to remediate the area between the Service Station and
Building 33. (Pl. 56.1 ⁋ 139; Talimcioglu I Dep. Tr. at 303:19-304:10.)
ii.
Economic Impact of Contamination to WPHA
WPHA is currently involved in a long-term project to replace the buildings at the Winbrook
Apartments with new, modern, energy efficient buildings. (Pl. 56.1 ⁋ 142; Bernstein Aff. Ex. 63
at BPPL004898.) The original proposal from Trinity Financial, Inc. (“Trinity”) to WPHA,
submitted in 2016, included a replacement for Building 33. (Pl. 56.1 ⁋ 146; Bernstein Aff. Ex. 62
(“Bigby Dep. Tr.”) at 201:13-203:19; Bernstein Aff. Ex. 63 at BPPL004908.) However, in a later
proposal, Building 33 was removed from the project’s plans. (Pl. 56.1 ⁋ 148; Bigby Dep. Tr. at
203:20-205:4; Bernstein Aff. Ex. 64; Aff. of Norman W. Bernstein as to Confidential Materials
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Ex. 1 at BPPL010561(submitted under seal).) This reduced the total number of units that would
be developed under the project from 776 units to 530 units. (Pl. 56.1 ⁋⁋ 145, 152; Bigby Dep. Tr.
at 201:13-202:10.) Because the number of public-housing-rate units WPHA may offer for rent is
fixed at approximately 360 units, the reduction will result in WPHA losing a disproportionate
amount of higher income-producing rental units. (Pl. 56.1 ⁋ 154; Bigby Dep. Tr. at 205:1-24.)
The reason Building 33 was removed from the development plan was due to the
contamination in the vicinity of building. (Pl. 56.1 ⁋ 149; Bigby Dep. Tr. at 208:6-12, 210:9-21,
211:17-212:2, 215:25-219:25, 221:19-222:14.) Specifically, Trinity believed that it would be costprohibitive to develop in the contaminated area. (Pl. 56.1 ⁋ 151; Bigby Dep. Tr. at 53:22-55:19.)
Testimony indicates that, if there was no contamination, Building 33 could be placed back in the
master development plan. (Bigby Dep. Tr. at 220:8-221:15.)12
LEGAL STANDARD
Summary judgment is appropriate only where “there is no genuine issue as to any material
fact and . . . the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c).
Thus, summary judgment will not lie where there is a “dispute[] over facts that might affect the
outcome of the suit under the governing law” and “the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). “The Supreme Court has made clear that ‘at the summary judgment stage the judge’s
12
Separately, on August 20, 2019, the City of White Plains Urban Renewal Agency (“WPURA”) gave notice
to property owners along a portion of East Post Road, including Marianina and WPHA, that it was
considering initiating condemnation proceedings for several parcels of land, including the Service Station
and a small portion of WPHA. (Pl. 56.1 ⁋ 130; Bernstein Aff. Ex. 54 at 1-2.) The portion of WPHA’s land
at issue included the soil and groundwater contamination area. (Pl. 56.1 ⁋ 131; Bernstein Aff. Ex. 54 at 5.)
Several months later, on December 5, 2019, WPURA announced, via Resolution 05-2019, its intention to
move forward with condemnation proceedings, if necessary. (Pl. 56.1 ⁋ 113; Bernstein Aff. Ex. 56 at 1.) In
a separate resolution, Resolution 06-2019, adopting WPURA’s Determination and Findings pursuant to New
York’s Eminent Domain Procedure Law, WPURA again reiterated that any acquisition of property by
condemnation would be done “if necessary.” (Bernstein Reply Aff. Ex. 8 at 9.)
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function is not [] to weigh the evidence and determine the truth of the matter[.]’” Westinghouse
Elec. Corp. v. N.Y.C. Trans. Auth., 735 F. Supp. 1205, 1212 (S.D.N.Y. 1990) (quoting Anderson,
477 U.S. at 249). Rather, the relevant inquiry is “whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so one-sided that one party must
prevail as a matter of law.” Anderson, 477 U.S. at 251-52. In deciding a motion for summary
judgment, courts must “constru[e] the evidence in the light most favorable to the non-moving party
and draw[] all reasonable inferences in its favor.” Fincher v. Depository Tr. & Clearing Corp.,
604 F.3d 712, 720 (2d Cir. 2010) (internal citation and quotations omitted).
The moving party bears the initial burden of pointing to evidence in the record “which it
believes demonstrate[s] the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). The moving party may also support an assertion that there is no genuine
dispute by showing “that [the] adverse party cannot produce admissible evidence to support the
fact.” Fed. R. Civ. P. 56(c)(1)(B). If the moving party fulfills its preliminary burden, the onus
shifts to the non-moving party to identify “specific facts showing that there is a genuine issue for
trial.” Anderson, 477 U.S. at 248 (internal citation and quotation marks omitted).
The party asserting that a material fact is genuinely disputed must support his or her
assertion by “citing to particular parts of materials in the record” or “showing that the materials
cited do not establish the absence . . . of a genuine dispute.” Fed. R. Civ. P. 56(c)(1). “Statements
that are devoid of any specifics, but replete with conclusions, are insufficient to defeat a properly
supported motion for summary judgment.” Bickerstaff v. Vassar Coll., 196 F.3d 435, 452 (2d Cir.
1999). In addition, “[t]he mere existence of a scintilla of evidence in support of the [non-moving
party’s] position will be insufficient; there must be evidence on which the jury could reasonably
find for [that party].” Anderson, 477 U.S. at 252.
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DISCUSSION
Plaintiff moves for summary judgment on the issue of liability as to its RCRA, NYNL, and
state common law claims. (Mot. 2.) The Court will first address Plaintiff’s RCRA claim. The
Court will then turn to Plaintiff’s state law claims.
I.
Plaintiff’s RCRA Claim
“RCRA is a ‘comprehensive environmental statute that governs the treatment, storage, and
disposal of solid and hazardous waste.’” Simsbury-Avon Pres. Club, Inc. v. Metacon Gun Club,
Inc., 575 F.3d 199, 205 (2d Cir. 2009) (quoting Meghrig v. KFC W., Inc., 516 U.S. 479, 483
(1996)). The statute’s “primary purpose . . . is to reduce the generation of hazardous waste and to
ensure the proper treatment, storage, and disposal of that waste . . . ‘so as to minimize the present
and future threat to human health and the environment.’” Meghrig, 516 U.S. at 483 (quoting 42
U.S.C. § 6902(b)).
RCRA contains a citizen suit provision, 42 U.S.C. § 6972, “which permits private citizens
to enforce its provisions in some circumstances.” Meghrig, 516 U.S. at 484. As relevant here, to
prevail on a claim brought under 42 U.S.C. § 6972(a)(1)(B), a plaintiff must establish that
(1) the defendant was or is a generator or transporter of solid or hazardous waste or
owner or operator of a solid or hazardous waste treatment, storage or disposal
facility, (2) the defendant has contributed or is contributing to the handling, storage,
treatment, transportation, or disposal of solid or hazardous waste, as defined by
RCRA, and (3) [] the solid or hazardous waste in question may pose an imminent
and substantial endangerment to health or the environment.
Prisco v. A & D Carting Corp., 168 F.3d 593, 608 (2d Cir. 1999); accord Kara Holding Corp. v.
Getty Petroleum Mktg., Inc., No. 99 Civ. 0275(RWS), 2004 WL 1811427, at *10 (S.D.N.Y. Aug.
12, 2004).
Regarding the first element, RCRA defines “disposal” as
the discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid
waste or hazardous waste into or on any land or water so that such solid waste or
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hazardous waste or any constituent thereof may enter the environment or be emitted
into the air or discharged into any waters, including ground waters
42 U.S.C. § 6903(3). Relatedly, the term “solid waste” includes “discarded material, including
solid, liquid, semisolid, or contained gaseous material resulting from industrial, commercial,
mining, and agricultural operations.” Id. § 6903(27). Gasoline and “[p]etroleum [are] considered
a hazardous and solid waste under RCRA.” Bologna v. Ker-McGee Corp., 95 F. Supp. 2d 197,
201 (S.D.N.Y. 2000); United States v. Hill, No. 95-CV-1716 (RSP/GJD), 1998 WL 278291, at *3
(N.D.N.Y. May 20, 1998) (“[L]eakage of gasoline from an underground storage tank into the
surrounding soil constitutes disposal of a solid waste under RCRA”); see also Emerson Enters.,
LLC v. Kenneth Crosby N.Y., LLC, 781 F. Supp. 2d 166, 176 (W.D.N.Y. 2011) (“Courts in this
Circuit have held that petroleum is a ‘solid or hazardous waste.’”).
Turning to the second element, the “term ‘contributed to’ is not defined under RCRA, so
courts have looked to its ordinary meaning.” Hudson Riverkeeper Fund, Inc. v. Atlantic Richfield
Co., 138 F. Supp. 2d 482, 487 (S.D.N.Y. 2001) (internal citation omitted). To this end, “relevant
legislative history supports a broad, rather than a narrow, construction of” the term. Fitzgibbons
v. City of Oswego, No. 5:10-CV-1038 (FJS/ATB), 2011 WL 6218208, at *12 (N.D.N.Y. Dec. 13,
2011) (internal quotations and citation omitted); Aiello v. Town of Brookhaven, 136 F. Supp. 2d
81, 112 (E.D.N.Y. 2001) (“‘Although RCRA’s contemporaneous legislative history is not very
helpful . . . subsequent reports which reviewed the statute after enactment expressly state that
‘contributing to’ is to be liberally construed.’”). And in favoring this broad construction, other
federal circuits have concluded that the “term for RCRA purposes means that a defendant must
‘be actively involved in or have some degree of control over,’ ‘have a share in any act or effect,’
or ‘act as a determining factor.’”13 Fresh Air for the Eastside, Inc. v. Waste Mgmt. of N.Y., L.L.C.,
13
The Court has not identified any Second Circuit case interpreting the term “contribute” under RCRA.
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405 F. Supp. 3d 408, 436 (W.D.N.Y. 2019) (collecting cases); see also Cox v. City of Dallas Tex.,
256 F.3d 281, 295 (5th Cir. 2001) (“[W]e follow our sister circuits’ lead and interpret ‘contribute’
to mean ‘have a part or share in producing an effect.’”).
As it relates to the third element, a plaintiff may bring a suit “only upon a showing that the
solid or hazardous waste at issue ‘may present an imminent and substantial endangerment to health
or the environment.’” Meghrig, 516 U.S. at 485 (quoting 42 U.S.C. § 6972(a)(1)(B)). Regarding
the imminency of an endangerment, “this language implies that there must be a threat which is
present now, although the impact of the threat may not be felt until later.” Id. at 486; see also
Simsbury-Avon, 575 F.3d at 210 (explaining that “‘imminency’ requires a showing that a ‘risk of
threatened harm is present’”). But “liability under 42 U.S.C. § 6972 is not ‘limited to emergencytype situations.’” Simsbury-Avon, 575 F.3d at 210 (quoting Dague v. City of Burlington, 935 F.2d
1343, 1356 (2d Cir. 1991), rev’d in part on other grounds, 505 U.S. 557 (1992)). Nor does a
finding of imminency “require a showing that actual harm will occur immediately.” Dague, 935
F.2d at 1356. Instead, an “‘imminent hazard’ may be declared at any point in a chain of events
which may ultimately result in harm to the public.” Id. (quoting Envtl. Defense Fund v. Envtl.
Prot. Agency, 465 F.2d 528, 535 (D.C. Cir. 1972)). Meanwhile, for the endangerment to be
“substantial,” there must be “reasonable cause for concern that someone or something may be
exposed to risk of harm if prompt remedial action is not taken.” Fresh Air for the Eastside, 405
F. Supp. 3d at 438 (quoting Lewis v. FMC Corp., 786 F. Supp. 2d 690, 707 (W.D.N.Y. 2011)); see
also Simsbury-Avon, 575 F.3d at 211 (explaining that there is “reasonable prospect of future harm”
if “the threat is near-term and involves potentially serious harm”).
Here, Plaintiff has established Defendant’s liability under RCRA. To begin, the undisputed
evidence proffered by Plaintiff makes clear that Defendant was an owner of a storage and/or
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disposal facility of solid or hazardous waste as defined under the statute. Indeed, Defendant
owned, and at times operated, a gas station that contained several USTs holding gasoline. (See Pl.
56.1 ⁋⁋ 6-8; Bernstein Aff. Ex. 17 at 1.)
As to Defendant’s contribution to the storage and disposal of solid or hazardous waste, the
undisputed record further reveals that at various points throughout its ownership, Defendant was
aware of contaminants in the soil and groundwater under the Service Station that were moving
toward Plaintiff’s property. (See Pl. 56.1 ⁋⁋ 38-40, 89-93; Castellano Dep. Tr. at 118:7-12; HES
Report at BPPL002536.) Yet, although it remained responsible for maintaining the Service
Station’s USTs, underground pipes, and Veeder-root system (Pl. 56.1 ⁋ 46), Defendant did not
take any remedial action to clear up the existing contamination (see id. ⁋⁋ 129, 134). This
undisputed evidence in the record allows the Court to conclude that Defendant is a contributor
under RCRA. See N.Y. Cmtys. for Change v. N.Y.C. Dep’t of Educ., No. 11 CV 3494(SJ), 2012
WL 7807955, at *25-26 (E.D.N.Y. Aug. 29, 2012) (concluding, on a motion to dismiss, that “as
in the context of UST leaks, defendants may be liable for their more passive conduct with respect
to the PCB ballasts based on their authority and control over the fixtures”); Zands v. Nelson, 797
F. Supp. 805, 810 (S.D.N.Y. 1992) (concluding, under a liberal interpretation of contribution, that
“owners and operators contribute to the contamination if the contamination is the direct result of
activities related to the operation of a gas station”).
Finally, as to the existence of an imminent and substantial endangerment, recent
investigations into the Service Station’s soil and groundwater had uncovered petroleum-related
contamination at concentrations substantially exceeding NYSDEC’s soil and groundwater
standards (HES Report at BPPL002539, BPPL002541), and these contaminants have not been
remediated to date (Pl. 56.1 ¶¶ 129, 134). Moreover, the various soil and groundwater samples
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taken between 2014 through 2016 have shown that the contamination plume containing these
exceedances is migrating from the Service Station onto Plaintiff’s property. (Bernstein Aff. Ex.
10 ⁋ 33, tbl. 2, fig. 9; id. Ex. 37 at BPPL000355, BPPL000374; id. Ex. 39 at BP-WPHA004480.)
To be sure, this existing contamination may not be affecting Plaintiff’s tenants today, but testimony
in the record indicates that it would plainly be unsafe to do nothing. Indeed, in approximately 6.6
years the contamination plume will reach Building 33 at concentrations that will cause vapor
intrusion to tenants. (Talimcioglu II Dep. Tr. at 226:3-13, 272:9-273:23; Talimcioglu I Dep. Tr.
at 303:19-304:10.) Accordingly, under RCRA, the contamination emanating from Defendant’s
property poses an imminent and substantial endangerment to the health and environment of
Plaintiff and its community. See 87th St. Owners Corp. v. Carnegie Hill-87th St. Corp., 251 F.
Supp. 2d 1215, 1218 (S.D.N.Y. 2002) (recognizing that “[e]vidence of ground water
contamination by oil . . . could [] support a finding of environmental harm”); Nashua Corp. v.
Norton Co., 116 F. Supp. 2d 330, 357 (N.D.N.Y. 2000) (finding that imminent and substantial
endangerment existed where there were “substantial remnants from [a chemical] leak in both the
groundwater and the soil” emanating from contaminated wells that was “reasonably close” in
proximity to residential neighborhood).
In sum, Plaintiff has established Defendant’s liability under section 6972(a)(1)(B) of
RCRA. The Court GRANTS Plaintiff’s motion for summary judgment on its RCRA claim.
II.
Plaintiff’s NYNL Claim
NYNL § 181 provides that “[a]ny person who has discharged petroleum shall be strictly
liable, without regard to fault, for all cleanup and removal costs and all direct and indirect damages,
no matter by whom sustained.” NYNL § 181(1). An injured entity may bring a claim “directly
against the person who has discharged [] petroleum” for the “costs of cleanup and removal and
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direct and indirect damages based on the strict liability imposed” by the statute. Id. § 181(5).
“This includes costs incurred from investigation and remediation of petroleum,” Niagara Mohawk
Power Corp. v. Chevron U.S.A., Inc., 596 F.3d 112, 137 (2d Cir. 2010) (citing New York v. LVF
Realty Co., 59 A.D.3d 519, 521 (2d Dep’t 2009)), as well as “damages for either temporary or
permanent injury to real property, or both.” Sunoco, Inc. (R & M) v. 175-33 Horace Harding
Realty Corp., 969 F. Supp. 2d 297, 309 (E.D.N.Y. 2013) (citing Hanna v. Motiva Enters., LLC,
839 F. Supp. 2d 654, 679 (S.D.N.Y. 2012)).
To establish liability under NYNL § 181, a plaintiff must demonstrate that “(1) defendants
are dischargers under the statute; (2) a discharge occurred; and (3) the discharge contaminated
plaintiff[’s] property.” Lambrinos v. Exxon Mobil Corp., No. 1:00-CV-1734, 2004 WL 2202760,
at *7 (N.D.N.Y. Sept. 29, 2004) (summarizing New York State law). Under the statute, “a
‘discharge’ includes ‘any intentional or unintentional action or omission resulting in’ the spilling
of petroleum.”14 State v. Green, 96 N.Y.2d 403, 406-07 (2001). “Nothing in the statutory language
requires proof of fault or knowledge,” and “the language is sufficiently broad to include
landowners . . . who have both control over activities occurring on their property and reason to
believe that their tenants will be using petroleum products.” Id. at 407. This also encompasses
“both prior owners and successor-owners of gasoline stations and underlying property.” See
Scarsdale Cent. Serv. Inc. v. Cumberland Farms, Inc., No. 13-cv-8730 (NSR), 2015 WL 678761,
at *7 (S.D.N.Y. Feb. 13, 2015) (citing State v. Speonk Fuel, Inc., 3 N.Y.3d 720, 724 (2004); Sunrise
Harbor Realty, LLC v. 35th Sunrise Corp., 86 A.D.3d 562, 565 (2d Dep’t 2011)). Ultimately,
14
As defined by the statute, a discharge “means any intentional or unintentional action or omission resulting in
the releasing, spilling, leaking, pumping, pouring, emitting, emptying or dumping of petroleum into the
waters of the state or onto lands from which it might flow or drain into said waters.” NYNL § 172(8).
Petroleum is defined as “oil or petroleum of any kind and in any form including, but not limited to, oil,
petroleum, fuel oil, oil sludge, oil refuse, oil mixed with other wastes and crude oils, gasoline and kerosene.”
Id. § 172(15). Finally, “waters” is defined as, inter alia, “bodies of surface or groundwater, whether natural
or artificial.” Id. § 172(18).
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liability on a potentially responsible party is predicated on the party’s “capacity to take action to
prevent an oil spill or to clean up contamination.” Speonk, 3 N.Y.3d at 724; State v. B & P Auto
Serv Ctr., Inc., 29 A.D.3d 1045, 1047 (“[T]he question of whether an otherwise faultless owner is
liable as a discharger turns on the owner’s ‘capacity to take action to prevent an oil spill or to clean
up contamination resulting from a spill.’”). Such expansiveness comports with the mandate that
the statute be “liberally construed to effect its purposes.” NYNL § 195.
Here, Plaintiff has established Defendant’s liability under NYNL § 181. As an initial
matter, the record indicates that there was gasoline/petroleum-related contamination of the soil and
groundwater under the Service Station, and that, even with some past remediation efforts, the
contamination continued to persist in excessive quantities. (Pl. 56.1 ⁋⁋ 38-39; P.W. Grosser Report
at BPPL004502-03; HES Report at BPPL002536.) Regardless of whether the contamination was
intentional or unintentional, this plainly constitutes a discharge under the statute. See Green, 96
N.Y.2d at 406-7; NYNL § 172(8), (15).
Moreover, as noted above, Defendant was an owner who had control over the activities
occurring on its gas station, was seemingly aware of the existence of contamination on its property,
but yet took no actions to, at the very least, effect an immediate cleanup of all areas of known
contamination. (See Pl. 56.1 ¶¶ 23-24, 38-40, 46 89-93; Codella Dep. Tr. at 39:15-41:3, 66:1567:3, 206:7-208:12; Castellano Dep. Tr. at 118:7-12; HES Report at BPPL002536.) Accordingly,
the Court has no trouble finding that Defendant is a discharger under the statute. See State v. C.J.
Burth Servs., Inc., 79 A.D.3d 1298, 1301 (3d Dep’t 2010) (concluding that defendant was a
discharger because it did nothing despite knowing that the storage system on its property had
discharged petroleum, that the property was contaminated, and that cleanup was needed);
Lambrinos, 2004 WL 2202760 at *7 (“The New York Courts of Appeals has assigned discharger
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status, and thus liability, to landowners who ‘can control activities occurring on its property and
have reason to believe petroleum products will be stored there.’”).
Finally, there is sufficient, undisputed evidence in the record (as noted above) that the
plume emanating from the Service Station has resulted in the contamination of the groundwater
and soil underneath Plaintiff’s property. (Pl. 56.1 ¶¶ 79, 83; Bernstein Aff. Ex. 37 at BPPL000355,
BPPL000374; id. Ex. 39 at BP-WPHA004480.) Therefore, the record supports a conclusion that
Defendant’s discharge is what contaminated Plaintiff’s property. See Lambrinos, 2004 WL
2202760 at *8 (concluding that summary judgment as to liability warranted where “there [was]
evidence of a plume of contamination flowing from the area of the former septic tank over which
[defendant] exercised control”).
At bottom, there is no material dispute of fact in the record regarding Defendant’s liability
under NYNL § 181. The Court GRANTS Plaintiff’s motion for summary judgment as to the issue
of liability on its NYNL claim.
III.
Plaintiff’ State Common Law Claims
A. Negligence
Under New York law, “a plaintiff must establish three elements to prevail on a negligence
claim: ‘(1) t existence of a duty on defendant's part as to plaintiff; (2) a breach of this duty; and
he
(3) injury to the plaintiff as a result thereof.’” Alfaro v. Wal-Mart Stores, Inc., 210 F.3d 111, 114
(2d Cir. 2000) (quoting Akins v. Glens Falls City Sch. Dist., 53 N.Y.2d 325, 333 (1981)); see also
McCarthy v. Olin Corp., 119 F.3d 148, 161 (2d Cir. 1997) (“To state a cause of action for
negligence, the plaintiffs must show: (1) that Olin owed them a ‘duty, or obligation, recognized by
law’, (2) a breach of the duty, (3) a ‘reasonably close causal connection between [defendant’s]
conduct and the resulting injury’ and (4) loss or damage resulting from the breach.”). “The
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existence of a duty is [the] sine qua non of a negligence claim: ‘[i]n the absence of a duty, as a
matter of law, no liability can ensue.’” Alfaro, 210 F.3d at 114 (quoting McCarthy, 119 F.3d at
156). This is ultimately a “question of law for the court[].” Am. Med. Distribs. v. Macdonald
Tuskey, No. 16-CV-6016 (VSB), 2018 WL 1478301, at *3 (S.D.N.Y. Mar. 23, 2018).
A duty “may arise from a special relationship that requires the defendant to protect against
the risk of harm to plaintiff.” 532 Madison Ave. Gourmet Foods, Inc. v. Finlandia Ctr., Inc., 96
N.Y.2d 280, 289 (2001). To this end, a landowner has “a duty to exercise reasonable care in the
maintenance of [] leased premises to prevent foreseeable injury that might occur on the plaintiffs’
adjoining property.” Plainview Props. SPE, LLC v. Cty. of Nassau, 181 A.D.3d 731, 734 (2d Dep’t
2020); see also In re Methyl Tertiary Butyl Ether (MTBE) Prods. Liability Litig., 725 F.3d 65, 117
(2d Cir. 2013) (concluding that the evidence supported a negligence verdict where the record
contained evidence of “gasoline spills and leaks at [defendant]-controlled stations” that traveled
into the surrounding environment and defendant “could have taken [steps] to prevent, or at least
mitigate the damage from, the[] contamination incident”). This “duty arises not only when a
landowner creates a dangerous condition on the land, but also when a third-party or force majeure
creates it and the landowner knowingly fails to cure it.” White Plains Housing Auth v. Getty Props.
Corp., No. 13-CV-6282 (NSR), 2014 WL 7183991, at *16 (S.D.N.Y. Dec. 16, 2014) (citing 532
Madison Ave., 96 N.Y.2d at 288-89). “[T]he mere failure to abate a known dangerous condition
is a cognizable breach of duty. Id.
Here, all three elements of Plaintiff’s negligence claim have been established. First,
Defendant’s property was adjacent to Plaintiff’s property. (Pl. 56.1 ¶¶ 11-12; Carter Dep. Tr.
219:18-24; Bernstein Aff. Ex. 10 ¶ 31.) And as the adjacent property owner, Defendant had a duty
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to keep its lands safe and free of contamination that could directly impact Plaintiff’s property. See
Plainview Props., 181 A.D.3d. at 734.
Second, there is no material dispute that Defendant breached this duty. As early as 1994,
Defendant was aware of soil and groundwater contamination on its property and near Plaintiff’s
property, but it did not take steps to fully remediate these areas of known contamination. (See Pl.
56.1 ⁋⁋ 38-39; Castellano Dep. Tr. at 193:8-194:2, 223:24-224:15, 239:24-240:23; P.W. Grosser
Report at BPPL004502-03.) Rather, the unrefuted record indicates that these areas of known
contamination were left unaddressed by the time Defendant leased its property to Barrier and then
Gasmart. Then, by 2015 and 2016, Defendant had become aware that this contamination had, in
fact, been migrating onto Plaintiff’s property. (See Bernstein Aff. Exs. 31 & 32; id. Ex. 39 at BPWPHA004480.) Indeed, Defendant seemingly acknowledged as much in the State Action.15 (Id.
Ex. 22 ⁋⁋ 58-62.) But, despite this apparent awareness, Defendant has failed to take any action to
ameliorate the situation. Its persistent failure to remediate the contamination on its property or the
migration of contamination on the Plaintiff’s property plainly constitutes a breach of Defendant’s
duty to Plaintiff.
Finally, the undisputed record supports a conclusion that Defendant’s breach of duty
proximately caused Plaintiff’s injuries.
As revealed by the various investigations into the
groundwater and soil of the Service Station and Plaintiff’s property, the discharges at issue
originated from the Service Station, which, in turn, migrated in a north/northwest direction onto
Plaintiff’s property. (Id. Ex. 10 ⁋ 33 & fig. 9.) Those investigations further revealed that the
15
In the State Action, Defendant maintained it was the third parties’ conduct that contaminated Plaintiff’s
property. But the undisputed record in this case indicates (as noted above), that Defendant was ultimately
the entity in control of underground instruments that led to the contamination. (See Bernstein Aff. Ex. 25 at
BPPL003430.) Thus, Defendant could still be liable here even if another entity’s conduct that caused the
harm. See Getty, 2014 WL 7183991, at *16
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groundwater and soil contamination on the portions of Plaintiff’s property adjacent to the Service
Station contained various chemicals—many of which had also been found below the Service
Station—that exceeded NYSDEC’s applicable standards.16 (Compare id. Ex. 37 at BPPL000367
with HES Report at BPPL002539, BPPL002541.) The uncontested evidence also indicates that
this contamination will have physical and economic impacts to Plaintiff and its property.
In short, the Court concludes that Plaintiff has met its burden of establishing the absence
of a material issue of fact surrounding Defendant’s liability under a negligence theory. The Court
therefore GRANTS Plaintiff’s motion for summary judgment on its negligence claim.
B. Private Nuisance
To establish a private nuisance under New York law, a plaintiff must show that a
defendant’s conduct “is a legal cause of the invasion of the interest in the private use and enjoyment
of land and such invasion is (1) intentional and unreasonable, (2) negligent or reckless, or (3)
actionable under the rules governing liability for abnormally dangerous conditions or activities.”
Scribner v. Summers, 84 F.3d 554, 559 (2d Cir. 1996) (quoting Copart Indus. v. Consol. Edison
Co., 41 N.Y.2d 568, 569 (1977)). If the nuisance claim “has its origin in negligence, negligence
must be proven.” Murphy v. Both, 84 A.D.3d 761, 763 (2d Dep’t 2011) (collecting cases).
Conversely, if its nuisance claim is based on an “intentional and unreasonable” invasion, a plaintiff
must establish that (a) the defendant acted for the purpose of causing the invasion, or (b) knew that
it was resulting or was substantially certain to result from the defendant's conduct. Scribner, 84
F.3d at 559 (quoting Copart, 41 N.Y.2d at 571). A defendant’s failure to act can support a private
nuisance claim, particularly where a defendant had learned of the nuisance and had a reasonable
16
In fact, Defendant acknowledged the contamination was the proximate cause of Plaintiff’s harm in the State
Action. (Bernstein Aff. Ex. 22 ⁋ 61.)
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opportunity to abate it. See State of New York v. Shore Realty Corp., 759 F2.d 1032, 1050-51 (2d
Cir. 1985).
Here, there is no dispute that there was an “invasion” of Plaintiff’s private use and
enjoyment of its property by way of contamination. And as more thoroughly explained in the
Court’s negligence analysis, there is no material dispute that (1) Defendant was negligent in its
handling of the underground contaminants emanating from its property and (2) this negligence was
the proximate cause of Plaintiff’s injuries. In any event, Defendant’s failure to act also amounts
to “intentional and unreasonable” conduct resulting in the invasion of Plaintiff’s use and enjoyment
of its property. As the record establishes, over twenty years had passed since Defendant learned
of remaining contamination on its property, four years had passed since Defendant received
Plaintiff’s RCRA endangerment notice, three years had passed since NYSDEC issued its spill
number to Defendant regarding the contamination on Plaintiff’s property, and two and a half years
had passed since the HES Report confirmed the continued presence of substantial contamination
at the Service Station. Yet, to date, the contamination—of which Defendant is plainly aware—
has remained unaddressed. On this record, then, there is no material dispute that Defendant had
reasonable opportunities to act. Its failure to do so, in turn, has harmed Plaintiff.
As Plaintiff has established that Defendant is liable for private nuisance, the Court
GRANTS Plaintiff’s motion for summary judgment on its private nuisance claim.
C. Trespass
“Under New York law, trespass is the intentional invasion of another’s property.”
Scribner, 84 F.3d at 557. “To be liable, the trespasser need not intend or expect the damaging
consequences of his intrusion; ‘rather, he need only intend the act which amounts to or produces
the unlawful invasion.’” Hanna, 839 F. Supp. 2d at 671 (quoting Scribner, 84 F.3d at 557 (internal
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quotations omitted)). “When trespass claims arise from the movement of noxious liquids from
one property to another, the appropriate standard is whether defendants: (1) intended the act which
amounts to or produces the unlawful invasion, and (2) had good reason to know or expect that
subterranean and other conditions were such that there would be passage of the contaminated water
from defendants’ to plaintiffs’ land.” Id. The “intentional act” requirement for trespass is more
stringent than the requirement for a private nuisance claim. See Getty, 2014 WL 7183991 at *14.
Here, Plaintiff contends that, for purposes of its trespass claim, the “intentional act” that
caused the unlawful invasion onto Plaintiff’s property was Defendant’s ownership and operation
of the Service Station. (Mot. 24.) But Plaintiff’s position is better construed as premising trespass
liability on Defendant’s failure to act once it was aware of contaminants on its property. (See id.
(“Marianina had good reason to know, and in fact did know, that unless effectively controlled the
contamination on the [Service] Station would migrate onto the adjacent [] Property.”).) When
viewed under this lens, the Court agrees that Plaintiff has satisfied the intention requirement of its
trespass claim. Although there is no evidence in the record that Defendant intended or even caused
the initial contamination identified in 1994, the undisputed evidence reveals that Defendant
repeatedly failed to fully remediate the contamination once it became aware of it. Cf. Hanna, 839
F. Supp. 2d at 671 (dismissing trespass claim where plaintiff failed to adduce evidence that
“defendants intentionally, or negligently, took any action after the original release that caused the
hydrocarbons from that release to migrate to, or failed to prevent the hydrocarbons from migrating
to, plaintiffs’ property”). Because Defendant also had good reason to know that the contamination
at the Service Station would migrate to Plaintiff’s property, the Court GRANTS Plaintiff’s motion
for summary judgment as to Defendant’s liability for trespass.
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CONCLUSION
For the foregoing reasons, Plaintiff’s motion for summary judgment is GRANTED on the
issue of liability. The case shall proceed to discovery on the determination of damages and
available injunctive relief. The Court will issue an order of referral to Magistrate Judge Judith C.
McCarthy for further discovery on the issue of damages and injunctive relief, and the parties are
directed to contact Magistrate Judge McCarty within three days of that order to schedule such
proceedings.
The Clerk of Court is respectfully directed to terminate the motion at ECF No. 103.
Dated: August 27, 2020
White Plains, New York
SO ORDERED:
________________________________
NELSON S. ROMÁN
United States District Judge
36
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