Opinion
503400/20
11-19-2020
In the Matter of the Application of STATE of New York, New York State Department of Environmental Conservation, and Basil Seggos, as Commissioner of the New York State Department of Environmental Conservation, and Michael J. Ryan, as Director of the Division of Environmental Remediation of the New York State Department of Environmental Conservation, Petitioners, For an Order Pursuant to Environmental Conservation Law Articles 3 and 27 to Access Real Property Commonly known as 73 Bedford Avenue/12 Spencer Street, Brooklyn, New York v. 735 BEDFORD LLC, Respondent
In this petition filed by petitioners State of New York, New York State Department of Environmental Conservation (the DEC); Basil Seggos (Seggos), as the Commissioner of the DEC; and Michael J. Ryan (Ryan), as the Director of the Division of Environmental Remediation of the DEC (collectively, petitioners) against respondent 735 Bedford LLC, petitioners move, under motion sequence number one, pursuant to CPLR 411 and Environmental Conservation Law § 3-0301 (2) (g), § 27-1431 (1), and § 71-2727 (2) for an order: (1) requiring 735 Bedford LLC to give the DEC, or its designees, by no later than March 16, 2020, access to the subject property, identified on the City of New York Tax Map as Block 1715, Lot 29, and known as 12 Spencer Street, Brooklyn, New York (the property), for the purpose of physically inspecting the property, and performing an investigation which may include installing groundwater monitoring walls, taking soil samples and groundwater samples, and/or taking air samples for soil vapor intrusion testing until the DEC has obtained sufficient data and information to complete its investigation; (2) mandating that 735 Bedford LLC unlock any doors, gates, chains, padlocks, fences, or any other security devices that restrict access to the property at the noticed time of inspection, to facilitate the DEC's access to the property; (3) enjoining 735 Bedford LLC from hindering or interfering in any way with access to the property by the DEC or its designees, during the DEC's investigation; and (4) granting them such other and further relief as this court may deem just and proper. 735 Bedford LLC moves, under motion sequence number two, for an order, pursuant CPLR 404 (a), 3211 (a) (1), 3211 (a) (4), and/or 3211 (a) (7), dismissing the petition.
CPLR 411 provides that "[t]he court shall direct that a judgment be entered determining the rights of the parties to the special proceeding."
Facts and Procedural Background
735 Bedford LLC has been the owner of the property, which is a commercial property in Bedford-Stuyvesant, Brooklyn, since March 12, 2015. The property's western border fronts Bedford Avenue and its eastern border fronts Spencer Street. The neighboring property, 11 Spencer Street, is located on the eastern side of Spencer Street, and is directly across the street from the property.
In 2015, 11 Spencer Street was admitted into the Brownfield Cleanup Program by the DEC, following a 2014 investigation, after the owner's subsurface site investigations indicated that both groundwater and soil were contaminated by chlorinated volatile organic compounds (CVOCs), including tetrachloroethylene (also known as tetrachloroethene or PCE) and trichloroethylene. CVOCs are hazardous chemicals used as industrial solvents that have been linked to problems with the central nervous system, liver, kidneys, circulatory and immune systems, and, for some CVOCs, an increased risk of cancer. The CVOCs that contaminated the 11 Spencer Street site were either disposed there, disposed elsewhere and migrated there in groundwater, or partly disposed there and partly disposed elsewhere. The Brownfield Cleanup Program was statutorily created by the legislature in chapter 43-b, article 27, title 14 of the Environmental Conservation Law ( Environmental Conservation Law § 27-1401 et seq. ) in order "to encourage persons to voluntarily remediate brownfield sites for reuse and redevelopment" (Environmental Conservation Law § 27-104; see also Matter of Lighthouse Pointe Prop. Assoc. LLC v. New York State Dept. of Envtl. Conservation , 14 N.Y.3d 161, 164, 897 N.Y.S.2d 693, 924 N.E.2d 801 [2010] ). A "brownfield site" is broadly defined as "any real property where a contaminant is present at levels exceeding the soil cleanup objectives or other health-based or environmental standards, criteria or guidance adopted by the [DEC] that are applicable based on the reasonably anticipated use of the property in accordance with applicable regulations" ( Environmental Conservation Law § 27-1405 [2] ). The DEC has established groundwater standards for CVOCs, including tetrachloroethylene and trichloroethylene, to protect human health and the environment.
The Brownfield Cleanup Program provides tax and other benefits in order to encourage persons or entities to voluntarily undertake the cleanup of sites (see Environmental Conservation Law § 27-1419 [3] ). A person may enter the Brownfield Cleanup Program as either a volunteer or a participant. Environmental Conservation Law § 27-1405 (1) (a) defines a participant as follows:
" ‘Participant’ shall mean an applicant who either: (i) was the owner of the site at the time of the disposal or discharge of contaminants or (ii) is otherwise a person responsible according to applicable principles of statutory or common law liability, unless such person's liability arises solely as a result of such person's ownership or operation of or involvement with the site subsequent to the disposal or discharge of contaminants."
Environmental Conservation Law § 27-1405 (1) (b) defines a volunteer as follows:
" ‘Volunteer’ shall mean an applicant other than a participant, including without limitation a person whose liability arises solely as a result of such person's ownership or operation of or involvement with the site subsequent to the disposal or discharge of contaminants, provided however, such person exercises appropriate care with respect to contamination found at the facility by taking reasonable steps to:
(i) stop any continuing release;
(ii) prevent any threatened future release; and
(iii) prevent or limit human, environmental, or natural resource exposure to any previously released contamination."
The main advantage to being a volunteer, as opposed to a participant, in the Brownfield Cleanup Program, is a release from claims arising out of offsite contamination that emanated from the Brownfield site. Entry into the Brownfield Cleanup Program, as a volunteer or participant, requires the execution of a Brownfield Site Cleanup Agreement.
With respect to providing the DEC with access to property, Environmental Conservation Law § 27-1431 (1) (a), a provision under the Brownfield Cleanup Program provisions of the Environmental Conservation Law, provides as follows:
"The [DEC], by and through the commissioner, shall be authorized to:
1. Require that any person permit a duly designated officer or employee of the department or of a municipal corporation, or any agent, consultant, or contractor of the department or of a municipal corporation, or any other person, including an employee, agent, consultant, or contractor of an applicant acting at the direction of the department, so authorized in writing by the commissioner, to enter upon any property which has or may have been the site of the disposal or discharge of contaminants, and/or areas near such site , for the following purposes:
a. to inspect and take samples of such contaminants and/or environmental media, utilizing such sampling methods as may be necessary or appropriate, including without limitation soil borings and monitoring wells; provided, that no sampling methods involving the substantial disturbance of the ground surface of such property may be utilized until after a minimum of ten days' written notice thereof shall have been provided to the owner and operator and occupant of such property ..." (emphasis added).
A contaminant is defined as including "hazardous waste" ( Environmental Conservation Law § 27-1405 [7-a] ). "[A] contaminant is present or potentially present on real property when it does or may exist or be found within the property's limits" ( Matter of Lighthouse Pointe Prop. Assoc. LLC , 14 N.Y.3d at 176, 897 N.Y.S.2d 693, 924 N.E.2d 801 [emphasis added]).
In addition, the Environmental Conservation Law generally grants the DEC the authority to access property pursuant to Environmental Conservation Law § 3-0301 (2) (g), which provides that in order to further assist in carrying out the policy of this state as provided in Environmental Conservation Law § 1-0101 to prevent, abate, and control water, land, and air pollution, the DEC, by and through the commissioner, shall be authorized to "[e]nter and inspect any property or premises for the purpose of investigating either actual or suspected sources of pollution or contamination or for the purpose of ascertaining compliance or noncompliance with any law, rule or regulation which may be promulgated pursuant to ... chapter [43-b]."
Environmental Conservation Law § 1-0303 (19) defines "pollution" as follows:
" ‘Pollution’ shall mean the presence in the environment of conditions and or contaminants in quantities of characteristics which are or may be injurious to human, plant or animal life or to property or which unreasonably interfere with the comfortable enjoyment of life and property throughout such areas of the state as shall be affected thereby."
Environmental Conservation Law § 27-1301 (2) defines an "inactive hazardous waste disposal site" as meaning "any area or structure used for the long term storage or final placement of hazardous waste." CVOCs, including tetrachloroethylene and trichloroethylene, are hazardous wastes (see Environmental Conservation Law § 27-1301 [1] ; 6 NYCRR 371.4 [b] [1] ; 40 CFR 302.4 ).
Pursuant to Environmental Conservation Law § 27-1305 (1), the DEC lists inactive hazardous waste disposal sites on a registry of inactive hazardous waste disposal sites (the State Superfund Registry). Environmental Conservation Law § 27-1305 (2) (a) gives the DEC the authority to "conduct investigations of the sites" listed in the State Superfund Registry, and to "investigate areas or sites which it has reason to believe should be included" in the State Superfund Registry.
When a site has been listed on the State Superfund Registry, the DEC may require a remedial program to clean up the hazardous waste, and then oversee such remedial program (see Environmental Conservation Law § 27-1313 ). When a site has not yet been listed on the State Superfund Registry, the DEC may "investigate such areas or structures which it has reason to believe may need to be included in the [State Superfund] Registry and may establish an administrative category for such areas or structures" ( 6 NYCRR 375-2.7 [b] [4]). The DEC has established the "potential site" category for such "areas or structures which it has reason to believe may need to be included in the [State Superfund] Registry."
Environmental Conservation Law § 71-2727 (2) provides that "[t]he attorney general, on his [or her] own initiative, or at the request of the commissioner, may initiate any appropriate action or proceeding to enforce any provision of article 27 or 71 or any rule or regulation promulgated pursuant thereto and any order issued or penalty assessed pursuant to this title."
In February 2018, the DEC decided that the eastern half of the property (the site) was a potential inactive hazardous waste disposal site, and the potential source of an off-site groundwater plume (the Spencer Street plume) contaminated by CVOCs. By a letter dated February 22, 2018, Gerard Burke of the DEC informed 735 Bedford LLC that it had obtained information to suspect that hazardous waste had been disposed of at the site. This letter provided, in pertinent part, that:
"This letter constitutes [the] DEC's notification to you as the identified authorized representative of the property owner that this property is considered a potential inactive hazardous waste disposal site. If [the] DEC determines that hazardous waste has been disposed of on the property and that the hazardous waste poses a significant threat to public health or the environment, the property will be listed on the [State Superfund] Registry.
"If you have any information that may be relevant to our investigation and pending determination, please forward it to me as soon as possible. If you prefer to carry out this investigation yourself, you may do so under a legal agreement with [the] DEC and in accordance with [the] DEC's technical requirements ...Otherwise, [the] DEC will carry out any needed field investigation. If the site is determined to be an inactive hazardous waste disposal site and [the] DEC incurs costs to investigate or remediate the site, [the] DEC will seek to recover all costs from any responsible person."
Enclosed with the February 22, 2018 letter was a document entitled "Soil Sampling Analytical Results, Posted CVOC Concentrations (ug/L), July 2017" (Figure 3), taken from the "Subsurface Investigation Summary Report for Plume Track-Down of Dissolved Chlorinated Volatile Organic Compounds, October 2017," which was prepared for the DEC by its consultant, Environmental Assessments & Remediation (EAR). Figure 3 indicated that extraordinarily high concentrations of CVOCs were detected in soil at depths of 13.5-14 feet and 16-17 feet in a monitoring well (MW-3) located in the Spencer Street sidewalk, a location adjacent to the site's eastern border. It is undisputed that the sidewalk fronting the property revealed CVOC contamination in excess of normal levels. The DEC maintains that monitoring wells fixed at various areas near the property in 2017 also contained high levels of contaminants. According to EAR's calculation by its survey team, the groundwater flowed east across the property, i.e., from the site toward MW-3. The DEC thus contends that there is a plume of CVOCs flowing from the property in an easterly/southeasterly direction.
735 Bedford LLC asserts that based on the DEC's letter, it could either agree to investigate the site at its own cost; or, pursuant to the Environmental Conservation Law, the DEC would do so (apparently at a much greater cost), and then seek reimbursement from it. 735 Bedford LLC submitted to the DEC multiple environmental site assessments (ESAs), which it had received from the seller of the property, that had previously been performed for third parties prior to its acquisition of the property. 735 Bedford LLC asserts that according to those ESAs, there was no suspected or confirmed historic use of CVOCs at the site. 735 Bedford LLC claims that these ESAs provided evidence that the site was not contaminated in excess of applicable DEC standards, and that, therefore, no further investigation or cleanup was required, and the site could not be the source of the CVOC contamination in the Spencer Street plume.
In May 2018, in response to the DEC's demand for further investigation of the site, 735 Bedford LLC's environmental consultant, Environmental Business Consultants Inc., designed and then implemented, a subsurface investigation work plan to test both soil and groundwater at the site for CVOCs. Environmental Business Consultants Inc., on behalf of 735 Bedford LLC, then submitted the data collected through the subsurface investigation work plan to the DEC in a Phase II Investigation Report, which purportedly found no evidence of an onsite CVOC source. Due to the fact that the investigation which was the subject of this Phase II Investigation Report was made outside of the supervision of a DEC remedial program, the DEC would not review this report.
The DEC initially demanded that 735 Bedford LLC sign a consent order pursuant to which 735 Bedford LLC would be obligated to investigate the site fully (i.e., not only for the CVOCs found in the Spencer Street plume, but for a full spectrum of contaminants), and pay the DEC's oversight costs. 735 Bedford LLC declined, due to what it contended to be the time and cost involved. DEC then offered 735 Bedford LLC the alternative of applying to the Brownfield Cleanup Program, which, as noted above, provides tangible tax credits to the applicant.
On August 20, 2018, 735 Bedford LLC, applied to the Brownfield Cleanup Program as a volunteer. Under the definition of a volunteer, as set forth above, 735 Bedford LLC's obligation to investigate and remediate contamination would be limited to the site itself, and the DEC would be responsible for investigating and remediating offsite contamination. This is in contrast to a participant under the Brownfield Cleanup Program, who has the obligation to investigate and cleanup both contamination in groundwater passing beneath the site and offsite contamination in soil and groundwater, resulting in the imposition of a greater financial obligation, as compared to the obligation of a volunteer.
735 Bedford LLC asserts that it performed the comprehensive subsurface sampling (remedial investigation/site characterization) demanded by the DEC, and that the resulting remedial investigation report confirmed the findings of the pre-acquisition ESAs and the Phase II Investigation Report that the site was not the source of any CVOC contamination in the Spencer Street plume. 735 Bedford LLC claims that multiple site-specific and area-wide surveys of groundwater flow direction made by it in July and November 2018 uniformly demonstrated that groundwater flowed northwest, from the Spencer Street plume onto the site, making it "scientifically impossible" for the site to be the source of CVOC contamination in the Spencer Street plume. 735 Bedford LLC further claims that these survey results were independently confirmed by the evidence of contaminant concentration and distribution in groundwater, in that the highest CVOC concentrations were found in the Spencer Street plume adjacent to the site, and that these concentrations diminished to the northwest.
On or about December 17, 2018, the DEC declared 735 Bedford LLC's Brownfield Cleanup application to be complete. By letter dated February 19, 2019, signed by Ryan, the DEC accepted 735 Bedford LLC's application to enter the site into the Brownfield Cleanup Program, but rejected its volunteer status, and, instead, stated that 735 Bedford LLC's acceptance into the Brownfield Cleanup Program was as a participant, as defined by Environmental Conservation Law § 27-1405 (1) (a). This letter attached a Brownfield Cleanup Agreement, and required that 735 Bedford LLC execute it and return it to the DEC within 60 days or 35 Bedford LLC's application would be considered withdrawn and the offer to enter the Brownfield Cleanup Program rescinded. The Brownfield Cleanup Agreement required 735 Bedford LLC, as a participant, to pay past and future state cleanup costs.
735 Bedford LLC points out that (as discussed above) while a volunteer in the Brownfield Cleanup Program is required to investigate and remediate only within the metes and bounds of the site, a participant is required to investigate and remediate not only the Brownfield Cleanup Program site, but also any contamination that migrated from the Brownfield Cleanup Program site. 735 Bedford LLC asserts that by classifying it as a participant, the DEC was imposing upon it the financial and legal responsibility of cleaning up the Spencer Street plume, which, it claims, could potentially cost it millions of dollars.
On May 22, 2019, 735 Bedford LLC had a meeting with the DEC, during which the status of 735 Bedford LLC as a participant versus a volunteer in the Brownfield Cleanup Program was discussed. In an email dated May 30, 2019, an attorney for the DEC informed 735 Bedford LLC's attorney that the DEC had reviewed the documentation submitted by 735 Bedford LLC, and that the DEC's position remained that 735 Bedford LLC had not shown that it exercised "appropriate care," as required by Environmental Conservation Law § 27-1405 (1) (b) (iii). Subsequently, 735 Bedford LLC prepared and submitted to the DEC a detailed summary of its evidence. By a June 7, 2019 email from DEC attorney, Jennifer Andaloro, Esq., to 735 Bedford LLC's attorney, Jon Schuyler Brooks, Esq., the DEC reiterated its position that it would not classify 735 Bedford LLC as a volunteer, and that unless it executed the Brownfield Cleanup Agreement by June 17, 2019, agreeing to its status as a participant, the DEC would designate the site an inactive hazardous waste disposal site under the State Superfund law, and list the site on the State Superfund Registry. 735 Bedford LLC asserts that this would attach a stigma to the property and would impair its value since it would diminish its ability to sell and/or lease the property. 735 Bedford LLC did not sign the Brownfield Cleanup Agreement.
735 Bedford LLC's decision not to execute the Brownfield Cleanup Agreement, the offer to 735 Bedford LLC to enter the Brownfield Cleanup Program as a participant, has been withdrawn. In order to be eligible for the Brownfield Cleanup Program, 735 Bedford LLC would apparently have to submit a new application.
On June 25, 2019, 735 Bedford LLC, as the petitioner, commenced a proceeding against the DEC, Ryan, and Seggos, as respondents (Matter of 735 Bedford LLC v. New York State Dept. of Envtl. Conservation , Sup. Ct., Kings County, Index No. 514027/19) (the Bedford proceeding). 735 Bedford LLC's petition in the Bedford proceeding contained four causes of action. The first cause of action alleged that the DEC acted arbitrarily and capriciously in denying 735 Bedford LLC the status of a volunteer. The second cause of action asserted that the DEC acted in violation of a lawful procedure. The third cause of action alleged that the DEC's determination was affected by one or more errors of law in denying it the status of a volunteer. The fourth cause of action sought a permanent injunction, enjoining the DEC from listing the site and/or the property as an inactive hazardous waste disposal site.
The petition in the Bedford proceeding sought an order (i) annulling and/or vacating the DEC's February 19, 2019 decision to deny it the status of a volunteer under the Brownfield Cleanup Program, and (ii) directing Seggos and Ryan to approve its application to the Brownfield Cleanup Program as a volunteer, and to enter into a Brownfield Cleanup Agreement with it for the site, nunc pro tunc , as of no later than February 19, 2019. 735 Bedford LLC, as mentioned above, also sought an injunction, enjoining the DEC and its officers and employees from proceeding to designate the site as an inactive hazardous waste disposal site and/or listing it on the State Superfund Registry. 735 Bedford LLC further sought a declaration that the DEC was liable for its damages and costs, including attorneys' fees, arising from or relating to the DEC's decision to deny its status as a volunteer, to insist it enter the Brownfield Cleanup Program as a participant, and to designate the site as an inactive hazardous waste disposal site, and/or arising from or relating to the Bedford proceeding.
On August 5, 2019, the DEC, Ryan, and Seggos filed a motion to dismiss the Bedford proceeding, contending that: (1) it was time-barred under the four-month statute of limitations of CPLR 217 (1) because it was not commenced prior to June 24, 2019; (2) 735 Bedford LLC failed to timely complete service on it, pursuant to CPLR 306-b, within 15 days of the expiration of the statute of limitations, and completed service on them on July 15, 2019; and (3) 735 Bedford LLC's fourth cause of action failed to state a viable claim because DEC had not yet listed the site and/or property on the State Superfund Registry, and that if it decided to do so in the future, pursuant to its statutory authorization to take such an action, 735 Bedford LLC could then pursue it, but must first exhaust the various administrative and judicial remedies available to challenge such a listing.
On August 14, 2019, 735 Bedford LLC, by an order to show cause under motion sequence number three in the Bedford proceeding, sought a temporary restraining order and a preliminary injunction, enjoining the DEC and its officers and employees from designating or listing the property and/or the site as an inactive hazardous waste disposal site during the pendency of the Bedford proceeding. The court denied the temporary restraining order, and on December 31, 2019, 735 Bedford LLC withdrew its motion for a preliminary injunction in the Bedford proceeding.
By an email sent to 735 Bedford LLC on November 4, 2019, the DEC attached a copy of a letter dated November 1, 2019 (the November 1, 2019 letter) from Ryan addressed to 735 Bedford LLC's principal, Yoel Schwimmer. This letter stated that the DEC was preparing to conduct further investigation of the known CVOC contaminated Spencer Street plume, and that the property was located up-gradient of this plume. The letter also stated that Environmental Conservation Law § 3-0301 (2) (g) authorized the DEC or its authorized agents "to enter upon any site, areas near such site, or area on which it has reason to believe that contaminants were disposed or discharged for purposes of inspection, sampling, testing, implementing a remedial program, long-term operation and maintenance, and temporary occupancy." The letter set forth that its purpose was to notify 735 Bedford LLC of the DEC's "intent to exercise its right to access [the] property ... pursuant to th[is] statutory authority." The letter informed 735 Bedford LLC that the DEC regarded it "as potentially liable for a remedial program and/or for payment of costs incurred by the State in performing a remedial program at the site." The November 1, 2019 letter advised 735 Bedford LLC that the DEC was requesting its cooperation in entering upon the property. It stated that the DEC was entering on the site "to implement the required investigation." It specified that the DEC had retained EAR to perform the required work, and that the contractor would be entering upon the property after a minimum of 10 days notice for "the purpose of performing additional investigation" by a site characterization, which is a "tool used to determine if the area in question is part of an inactive hazardous waste disposal site." It explained that this work required "the collection of samples of various environmental media," and that in order to take such samples, the DEC may use sampling methods, including, but not limited to, "soil sampling, soil borings, test pits, monitoring wells and geophysical studies."
735 Bedford LLC asserts that the DEC, by stating, in the November 1, 2019 letter, that it needed to conduct a site characterization of the property, involving "the collection of samples of various environmental media" in order "to determine if the [site wa]s part of an inactive hazardous waste disposal site," was admitting that it still needed to determine whether the site caused or contributed to "the known chlorinated volatile organic [compound] (CVOC) contaminant plume," i.e., the Spencer Street plume. 735 Bedford LLC claimed that by admitting the need to conduct a site characterization, the DEC was effectively conceding that it lacked a basis in fact in February 2019 to find that the site caused or contributed to the Spencer Street Plume. 735 Bedford LLC also maintained that in the absence of a basis in fact to find that the site caused or contributed to the Spencer Street plume, DEC lacked a basis in law to determine in February 2019 that it did not qualify as a volunteer under the Brownfield Cleanup Program. 735 Bedford LLC also disputed the statement in the November 1, 2019 letter that the site was located up-gradient of the Spencer Street plume, and claimed that the site was located down-gradient of the Spencer Street plume.
By an email dated November 26, 2019, the DEC advised 735 Bedford LLC that the DEC, working with its consultant, EAR, planned to install three monitoring wells on the property, and sought "to arrange access to [the p]roperty on [December 4, 2019] to determine what drilling methods [we]re feasible within the building." By an email dated November 29, 2019, 735 Bedford LLC requested that the DEC provide, among other things, "a draft access agreement pursuant to which EAR w[ould] perform the proposed scope of work." By emails dated December 3, 2019, the DEC rejected 735 Bedford LLC's request, stating that it was its position that access to the property on December 4, 2019 was "not contingent on an access agreement being in place," and specifying that the DEC had the right to access the property under Environmental Conservation Law § 27-1305 (2) (a) and § 27-1309 (3) and (4). 735 Bedford LLC's counsel unsuccessfully tried to enter into a stipulation with the DEC regarding access to the property and the testing to be performed, which the DEC did not agree to sign. Apparently, 735 Bedford LLC did not provide the DEC access to the property on December 4, 2019.
On December 31, 2019, 735 Bedford LLC filed an amended petition in the Bedford proceeding. 735 Bedford LLC's amended petition contained seven causes of action. 735 Bedford LLC's first cause of action in its amended petition sought a declaratory judgment that, based upon all available data, the Environmental Conservation Law and its associated regulations did not require remedial action at the site and/or the property because: (1) of the limited nature and extent of onsite contamination; and (2) the "capped" nature of the site and the property, provided by the existing foundations and sidewalks, together reduced any risks to public health and the environment.
735 Bedford LLC's second cause of action in its amended petition in the Bedford proceeding sought a declaratory judgment that Environmental Conservation Law § 27-1309 (3) did not provide the DEC with a right of access because the site was not an "inactive hazardous waste disposal site[s]" or an area "near such site[s]." 735 Bedford LLC's third cause of action in its amended petition in the Bedford proceeding sought a declaratory judgment that the DEC did not have a right of investigation because the site was not an area or site which the DEC had reason to believe should be included in the State Superfund Registry pursuant to Environmental Conservation Law § 27-1305 (2) (a).
735 Bedford LLC's fourth cause of action in its amended petition sought an injunction preventing the DEC from entering upon the property, as of right, on the basis that the site is an inactive hazardous waste disposal site or an area near such a site. 735 Bedford LLC asserted that it needed this injunction to prevent the DEC from acting beyond the scope of its statutory authority and/or statutory duty. 735 Bedford LLC's fifth cause of action in its amended petition in the Bedford proceeding sought an injunction preventing the DEC from investigating the property, as of right. 735 Bedford LLC alleged that its property was neither a site listed in the State Superfund Registry nor an area or site which the DEC has reason to believe should be included in the State Superfund Registry, and, therefore, the DEC acted beyond the scope of its statutory authority, and beyond its statutory duty, in attempting to investigate the property.
735 Bedford LLC's sixth cause of action in its amended petition in the Bedford proceeding sought a declaratory judgment that the DEC's issuance of the November 1, 2019 letter, in which the DEC conceded that additional environmental testing of the property was required to determine whether the property is the source the Spencer Street plume, and its other efforts in this regard, meant that the DEC's prior determinations that the site was the source of the Spencer Street plume and, therefore, that it was not a volunteer under the Brownfield Cleanup Program, were not final and binding. 735 Bedford LLC's seventh cause of action in its amended petition in the Bedford proceeding sought, in the alternative, a judgment, pursuant to CPLR article 78, that the DEC acted arbitrarily and capriciously and/or in violation of a lawful procedure and/or was affected by one or more errors of law in denying it the status of a volunteer under the Brownfield Cleanup Program.
On February 10, 2020, the DEC, the State of New York, and Ryan and Seggos, in their official capacities, as the petitioners, filed the instant proceeding, by a petition and notice of petition (under motion sequence number one), against 735 Bedford LLC, as the respondent, pursuant to Environmental Conservation Law articles 3 and 27, to access the property for purposes of inspection. On June 24, 2020, 735 Bedford LLC filed its instant motion to dismiss the petition.
In their petition, petitioners assert that in December 2019, EAR installed new monitoring wells on a public right-of-way near the property, including one on the sidewalk on the western side of Spencer Street fronting the property. As reported by EAR in May 2020, the results from groundwater samples collected on or around December 18 to 19, 2019, showed total CVOC concentrations above 298,000 parts per billion at one monitoring well (MW-3), and over 13,000 parts per billion at another monitoring well (MW-5). Petitioners note that these aggregated CVOC concentrations are thousands of times greater (at MW-3) and hundreds of times greater (at MW-5) than the New York State standards that establish permissible CVOC contaminant levels.
In addition, petitioners assert that soil vapor data reported in a May 2020 EAR report revealed the presence of high levels of CVOC vapors in the subsurface soil adjacent to the property. Petitioners specify that the 41000µg/1 tetrachloroethylene soil vapor concentration reported at Vapor Monitoring Point 2, which was installed adjacent to the property on Spencer Street and sampled on December 12, 2019, suggested that those reported tetrachloroethylene soil vapor levels could result in unacceptable soil vapor intrusion exposures to commercial workers within the building at the property.
By order to show cause dated July 2, 2020, petitioners moved (motion sequence number three) for a preliminary injunction in this proceeding. On August 3, 2020, the court, after oral argument, granted petitioners a preliminary injunction requiring 735 Bedford LLC to not interfere and permit the DEC access to the property, for the period of 45 days following entry of that order, for the purpose of physically inspecting the property and conducting a soil vapor intrusion investigation, including the collection of indoor air, outdoor (ambient) air grid sub-slab soil vapor samples for analysis, in accordance with the New York State Department of Health Guidance for Evaluating Soil Vapor Intrusion in the State of New York, October 2006, as amended, upon reasonable notice by the DEC.
By an order dated August 13, 2020, the court found that CPLR 2512 exempted the DEC from providing an undertaking under CPLR 6312 (b), but that, pursuant to CPLR 2512 (1), the court was required to fix the limit of the DEC's liability for damages if it should be determined that the DEC was not entitled to the preliminary injunction. The court fixed damages at $40,000, given 735 Bedford LLC's reasonable and legitimate concerns about damage to the property. Further, by Decision and Order dated August 20, 2020, the Court denied 735 Bedford LLC's application for a stay pursuant to CPLR 5519(a)(6). The Court held that the access permitted to DEC by Decision and Order dated August 3, 2020, as discussed above, did not constitute a "delivery" or "transfer" of the subject property and therefore, 735 Bedford LLC's application for a stay pursuant to CPLR 5519(a)(6) was without merit. The application was denied.
Discussion
In support of its motion, 735 Bedford LLC contends that the relief sought can no longer be granted because petitioners sought access to the property no later than March 16, 2020. 735 Bedford LLC argues that the petition must be dismissed as moot based upon an "impossibility of fact" due to the passage of the date.
This argument is rejected. The notice of petition and the petition were dated February 10, 2020, and the date of March 16, 2020 was simply sought by petitioners to expedite the granting of the relief sought by them and to provide 735 Bedford LLC with a sufficient time period for notifying it before obtaining access. The granting of relief by this date, however, was obviated by events beyond petitioners' control. Specifically, the Clerk's Office, sua sponte , adjourned the petition to March 25, 2020, and then an order of the Chief Administrative Judge suspended civil court filings for nearly two months during the height of the COVID-19 pandemic.
The date provided by petitioners does not restrict the court from granting appropriate relief beyond this date. Both the notice of petition and the petition specifically requested "such other and further relief as this [c]ourt may deem just and proper." Moreover, CPLR 3026 provides that "[p]leadings shall be liberally construed," and that "[d]efects shall be ignored if a substantial right of a party is not prejudiced." Here, no substantial right of 735 Bedford LLC has been prejudiced by the fact that the March 16, 2020 access date has passed, and the court may exercise its equitable discretion and liberally construe the petition as allowing for a later date of access. Furthermore, this access proceeding was not rendered moot by the passage of time. The same issue which is the subject of the petition persists and must be resolved, and no purpose would be served by requiring petitioners to serve a new petition and notice of petition with revised dates. Indeed, compelling petitioners to re-file with a new date for which access is sought would waste judicial resources while issues allegedly related to public health remain unaddressed. 735 Bedford LLC further argues that the Bedford proceeding is a prior action pending, which requires that the instant petition be dismissed pursuant to CPLR 3211 (a) (4). The court has, in a separate decision and order, issued on even date herewith, dismissed the first, sixth, and seventh causes of action in Bedford's Petition and permitted the DEC to interpose an Answer, within a reasonable time, with respect to the remaining causes of action. What remains is not sufficiently similar to this proceeding and a dismissal of the instant petition pursuant to CPLR 3211(a)(4) would be improper. Feldman v. Harari , 183 A.D.3d 629, 122 N.Y.S.3d 664 [2d Dept. 2020] ; 21st Mortgage Corporation v. Ahmed , 173 A.D.3d 951, 105 N.Y.S.3d 467 [2d Dept. 2019] ; and Brestin v. LaBianca , 144 A.D.3d 722, 41 N.Y.S.3d 244 [2d Dept. 2016]. Bedford's petition seeks declaratory and injunctive relief and challenges DEC's actions pursuant to ECL 27-1305(2)(a) and 27-1309(3) and (4). This petition does not seek access pursuant to those provisions.
735 Bedford LLC contends that the access sought by petitioners is beyond the scope of the DEC's statutory authority. 735 Bedford LLC asserts that the DEC, in its prior communications with it and in submissions filed in the Bedford proceeding, originally premised its statutory authority to seek access to the property upon the State Superfund Law, namely Environmental Conservation Law § 27-1305 (2) (a) and § 27-1309 (3) and (4). 735 Bedford LLC asserts that the Spencer Street plume, the property, and the site are not currently listed as an inactive hazardous waste disposal site in the State Superfund Registry or the DEC Environmental Site Remediation Database. 735 Bedford LLC notes that petitioners are now seeking to access the property under title 14 of the Environmental Conservation Law, namely, Environmental Conservation Law § 27-1431, pursuant to the Brownfield Cleanup Program, which authorizes the DEC to inspect property near a suspected source of contamination. 735 Bedford LLC argues that this is inconsistent with petitioners' prior position that they were seeking access under the State Superfund Law. Bedford LLC contends that pursuant to the doctrine of judicial estoppel, petitioners must be precluded from arguing that the DEC has authority to inspect the property under Environmental Conservation Law § 27-1431 (1) (a) because the DEC did not rely on that authority in its prior communications with it or in submissions filed in the Bedford proceeding.
Bedford challenges the scope of the DEC's right of access under the State Superfund Law, pointing out that this right does not extend to all properties, but only those already listed on the State Superfund Registry and sites which the DEC has reason to believe should be included in the State Superfund Registry. The court notes, however, that the property's potential inclusion in the State Superfund Registry remains a possibility. Paragraph 7 of the petition states that "[i]f the DEC determines that CVOCs were disposed on the [p]roperty, the [p]roperty will be added to the [State Superfund] Registry ... and the DEC will determine what remediation is required."
This argument must be rejected. "Under the doctrine of judicial estoppel, also known as estoppel against inconsistent positions, a party may not take a position in a legal proceeding that is contrary to a position he or she took in a prior proceeding" ( Re/Max of New York, Inc. v. Weber , 177 A.D.3d 910, 914, 112 N.Y.S.3d 769 [2d Dept. 2019] ). However, this doctrine only applies "where the party secured a judgment in his or her favor [in the prior proceeding] by adopting a certain position and then has sought to assume a contrary position in another action simply because his [or her] interests have changed" ( Matter of State Farm Mut. Auto. Ins. Co. v. Allston , 300 A.D.2d 669, 670, 751 N.Y.S.2d 795 [2d Dept. 2002] ; see also Tilles Inv. Co. v. Town of Oyster Bay , 207 A.D.2d 393, 394, 615 N.Y.S.2d 895 [2d Dept. 1994] ). Such doctrine "rests upon the principle that a litigant ‘should not be permitted ... to lead a court to find a fact one way and then contend in another judicial proceeding that the same fact should be found otherwise’ " ( Re/Max of New York, Inc. , 177 A.D.3d at 914-915, 112 N.Y.S.3d 769, quoting Ford Motor Credit Co. v. Colonial Funding Corp. , 215 A.D.2d 435, 436, 626 N.Y.S.2d 527 [2d Dept. 1995] ). Here, this doctrine is wholly inapplicable because petitioners do not seek to secure the dismissal of the Bedford proceeding based upon any prior inconsistent statements made by them with respect to the statutory authority permitting access to the property. Petitioners' citation of a different section of the Environmental Conservation Law, which was not previously expressly mentioned by them in the Bedford proceeding or certain earlier communications with 735 Bedford LLC, is not an inconsistent position. Petitioners may cite multiple alternative authorities for relief, and there is nothing inconsistent about seeking access under Environmental Conservation Law § 27-1431 (1) (a), which is now raised in the petition and notice of petition.
735 Bedford LLC further contends that the DEC cannot gain access to the property under Environmental Conservation Law § 27-1309 (3) under the State Superfund law, and that because of this, it also is prohibited from gaining access to the property pursuant to Environmental Conservation Law § 27-1431 (a) (1) under the Brownfield Cleanup law. 735 Bedford LLC argues that this is because Environmental Conservation Law § 27-1431 is more restrictive in granting access than Environmental Conservation Law § 27-1309 (3). 735 Bedford LLC cites to New York State Assembly, Memorandum in Support of Legislation, Bill No. A9120, § 1 at page 5, which stated that:
"A new E[nvironmental] C[onservation] L[aw] § 27-1431 is added to authorize D[EC] access to affected sites and records relative to the contamination at or emanating from such affected sites for activities conducted under ... Title [14]. The access provision is similar to that provided under Title 13 of this Article."
735 Bedford LLC argues that this legislative history makes clear that the access granted is limited: (a) to "affected sites," (b) relative to contamination at or emanating from them, and (c) for activities under the Brownfield Cleanup Program.
735 Bedford LLC's argument is unavailing. The legislative history cited by 735 Bedford LLC does not support its contention that Environmental Conservation Law § 27-1431 is more restrictive than Environmental Conservation Law § 27-1309 (3). Indeed, as set forth above, this legislative history expressly states that "[t]he access provision is similar to that provided under Title 13 of this Article [i.e., article 27]."
Moreover, "the text of a provision ‘is the clearest indicator of legislative intent and courts should construe unambiguous language to give effect to its plain meaning’ " ( Matter of Albany Law School v. New York State Off. of Mental Retardation and Dev. Disabilities , 19 N.Y.3d 106, 120, 945 N.Y.S.2d 613, 968 N.E.2d 967 [2012], quoting Matter of DaimlerChrysler Corp. v. Spitzer , 7 N.Y.3d 653, 660, 827 N.Y.S.2d 88, 860 N.E.2d 705 [2006] ). The meaning of the terms in this provision presents a question of "pure statutory reading" ( Matter of Lighthouse Pointe Prop. Assoc. LLC , 14 N.Y.3d at 176, 897 N.Y.S.2d 693, 924 N.E.2d 801 [internal quotation marks omitted]). As set forth above, Environmental Conservation Law § 27-1431 (1) (a) expressly provides that the DEC, by and through its commissioner, is authorized to require any person to permit its representative, acting at its direction, "to enter upon any property which has or may have been the site of the disposal or discharge of contaminants, and/or areas near such site ," "to inspect and take samples of such contaminants and/or environmental media" (emphasis added).
It is undisputed that the 11 Spencer Street site is contaminated with CVOCs, which were either disposed there or migrated there from another property. As previously discussed, CVOCs are a hazardous waste, and, therefore, constitute a contaminant (see 6 NYCRR 371.4 ; Environmental Conservation Law § 27-1431 [1] [a] ). The property is directly across the street from the 11 Spencer Street site, and, thus, is undeniably "near" the 11 Spencer Street site. The DEC has shown that the property "may have been" the site of the disposal or discharge of the CVOCs based on the undisputed findings as a result of investigations in and around the property. Consequently, pursuant to the plain and unambiguous meaning of Environmental Conservation Law § 27-1431 (1) (a), the DEC has express statutory authority under Environmental Conservation Law § 27-1431 (1) (a) to enter and inspect the property to investigate CVOC contamination, including soil vapor intrusion.
Courts have repeatedly recognized the broad authority of the DEC and its designees to access private property under the closely related statutory authority given to the DEC and its designees under Environmental Conservation Law § 27-1309 (3) (see e.g. Matter of State of New York v. Lawrence Aviation Indus. , 263 A.D.2d 511, 512, 693 N.Y.S.2d 627 [2d Dept. 1999], lv denied 94 N.Y.2d 752, 700 N.Y.S.2d 425, 722 N.E.2d 505 [1999] [recognizing the DEC's "broad powers" to enter property, inspect it, and take samples under Environmental Conservation Law § 27-1309 (3) ]; Matter of Kohilakis v. New York State Dept. of Envtl. Conservation , 171 A.D.2d 870, 871, 567 N.Y.S.2d 796 [2d Dept. 1991] [similarly recognizing the DEC's "broad powers" to enter property, inspect it, and take samples under Environmental Conservation Law § 27-1309 (3) ]; New York State Dept. of Envtl. Conservation v. Damico , 130 A.D.2d 974, 974, 516 N.Y.S.2d 153 [4th Dept. 1987] [compelling the property owner to provide the DEC with access to its property since the DEC "is authorized by law to inspect, investigate and take samples to enable it to classify" a site pursuant to Environmental Conservation Law article 27). Environmental Conservation Law § 27-1309 (3) contains similar language to Environmental Conservation Law § 27-1431, pertaining to areas near affected sites. Specifically, Environmental Conservation Law § 27-1309 (3) grants the DEC and its designees access "to enter any inactive hazardous waste disposal site and areas near such sites and inspect and take samples of wastes, soils, air, surface water and ground water" (emphasis added).
In Matter of New York State Dept. of Envtl. Conservation v. Cox , 12 Misc. 3d 995, 999, 815 N.Y.S.2d 810 (Sup. Ct., Rensselaer County 2006), the Supreme Court, Rensselaer County, directly addressed a situation where the subject property was near the affected site, and, construing the "areas near such sites" language in Environmental Conservation Law § 27-1309 (3), held that Environmental Conservation Law § 27-1309 (3) "clearly authorize[s the] DEC and its designees to go upon land that is 'near' designated waste sites even if the land in question has not been determined to have contamination." The Court explained that Environmental Conservation Law § 27-1309 (3) expressly authorized the DEC and its authorized agents "to enter upon both inactive hazardous waste disposal sites as well as nearby areas for the purpose of inspecting, taking samples (including digging into the soil and creating monitoring wells) and remediating hazardous waste contamination," noting that this statute was "quite clear in this regard" ( id. at 997-998 ). It further held that property owners were prohibited from either obstructing or attempting to obstruct the DEC or its authorized agents, acting under the Environmental Conservation Law, to enter upon their property, and imposed a $10,000 civil penalty on the uncooperative property owner ( id. at 998-1000 ).
Moreover, as set forth above, Environmental Conservation Law § 3-0301 (2) (g) gives the DEC, by and through the commissioner, the express authority to "[e]nter and inspect any property or premises for the purpose of investigating either the actual or suspected sources of pollution or contamination" in order to carry out the state's policy, as set forth in Environmental Conservation Law § 1-0101, which includes preventing, abating, and controlling water, land and air pollution (emphasis added).
The DEC, based on the data available to it and provided in support of its petition, sets forth that it reasonably suspects that CVOCs were disposed on the property and that the property is, therefore, a source of CVOC contamination. Therefore, since the property is a suspected source of contamination, Environmental Conservation Law § 3-0301 (2) (g) provides it with statutory authority to access, enter, and inspect the property.
735 Bedford LLC also contends that the DEC's claimed right of access to the property under either title 13 or title 14 of the Environmental Conservation Law violates the constitutional prohibitions of the Fourth Amendment of the United States Constitution and article I, § 12 of the New York State Constitution. 735 Bedford LLC characterizes the DEC's attempt to access the property as an attempt to conduct a warrantless search and seizure of the property. However, the DEC is not attempting to seize the property or meaningfully interfere with 735 Bedford LLC's possessory interest in the property. There is no property transfer sought, but merely reasonable, focused, and limited access, pursuant to the Environmental Conservation Law, for a legitimate and important public purpose, in furtherance of public health and safety, the control and abatement of contaminants, and environmental protection.
735 Bedford LLC claims that the DEC is attempting to access the property, in the absence of a reasonable belief that hazardous waste was disposed there, and that it requires a warrant to access the property, which is private commercial property that is not part of a highly regulated industry. 735 Bedford LLC states that the DEC lacks probable cause to enter the property. 735 Bedford LLC argues that because the petition fails to allege the elements necessary to bring the property within the ambit of Environmental Conservation Law § 27-1309 (3), and also fails to allege the elements necessary to allow the DEC to make a warrantless administrative search and seizure of the property, the petition fails to state a claim and must be dismissed pursuant to CPLR 3211 (a) (7).
735 Bedford LLC's argument lacks merit. Courts have consistently rejected claims that DEC inspections undertaken on private property without a warrant to address contamination are unconstitutional (see Matter of Murtaugh v. New York State Dept. of Envtl. Conservation , 42 A.D.3d 986, 988, 841 N.Y.S.2d 189 [4th Dept. 2007], lv dismissed 9 N.Y.3d 971, 848 N.Y.S.2d 10, 878 N.E.2d 592 [2007] ; Matter of New York State Dept. of Envtl. Conservation , 12 Misc. 3d at 999, 815 N.Y.S.2d 810 ). In Matter of Murtaugh , 42 A.D.3d at 988, 841 N.Y.S.2d 189, the Appellate Division, Fourth Department, held that the DEC's authority to "enter, inspect and remediate contaminated property" where petroleum was believed to have been discharged "without first obtaining a warrant or other court order d[id] not conflict with ... [the] federal and state constitutional rights [of the petitioners therein] against unreasonable searches and seizures." The Environmental Conservation Law sections at issue here similarly do not violate the proscription against unreasonable searches and seizures contained in the Fourth Amendment of the United States Constitution or article I, § 12 of the New York State Constitution (see Matter of New York State Dept. of Envtl. Conservation , 12 Misc. 3d at 999, 815 N.Y.S.2d 810 ). 735 Bedford LLC's argument that a probable cause requirement applies to the DEC's access to the property is rejected. The DEC's requested inspection of the property is administrative, and does not involve a criminal proceeding. Under the statutory scheme of the Environmental Conservation Law, the DEC's entry upon the property is sought "in furtherance of the substantial governmental interest in environmental protection and remediation, rather than in furtherance of criminal investigation and prosecution" ( Matter of Murtaugh , 42 A.D.3d at 989, 841 N.Y.S.2d 189 ). 735 Bedford LLC claims that it is not part of a "highly-regulated industry," and, therefore, it has a right to absolute privacy with respect to the property. However, this argument is unavailing since contaminated and potentially contaminated sites are highly regulated by the DEC under Environmental Conservation Law article 27 and DEC regulations. Moreover, the DEC has attempted to obtain 735 Bedford LLC's consent and then, upon 735 Bedford LLC's refusal to consent, sought relief from this court authorizing such access, pursuant to its petition and notice of petition.
735 Bedford LLC additionally argues that the petition must be dismissed based upon documentary evidence. It claims that data collected over four years through its multiple independent ESAs demonstrates conclusively that the property is not the source of the CVOCs found in the Spencer Street Plume. It asserts that historical building and insurance records fail to identify any manufacturing at the property, and that the ESAs fail to identify any source material. It further asserts that two soil vapor intrusion investigations found nothing of concern at the property. It also claims that multiple rounds of groundwater mapping confirm that the groundwater flow direction is to the northwest, meaning that the contamination migrates from the Spencer Street plume to the property.
In support of its motion, 735 Bedford LLC has submitted the affidavit of Charles B. Sosik, a professional geologist licensed in the State of New York, and the principal of Environmental Business Consultants Inc. Mr. Sosik opines that there is no need to conduct any additional sampling at the property for purposes of identifying the source of contamination. He further opines that the data from the August 2019 remedial investigation by his company, Environmental Business Consultants Inc., demonstrates consistently and conclusively that the property is not the source of the CVOC plume beneath Spencer Street, and that the source is located beneath the sidewalk, up-gradient of 735 Bedford LLC's building. He states that he has confirmed that the groundwater flow direction at the property is to the northwest.
735 Bedford LLC also relies upon a November 6, 2019 affidavit of Craig Werle, P.G., a professional geologist licensed by the State of New York, and a principal hydrologist at Roux Associates, Inc., and Mr. Werle's expert report. Mr. Werle sets forth that, and as set forth in greater detail in his expert report, that it is his independent professional opinion, that the site is not, and could not be, the source of any part of the CVOC contamination discovered offsite at MW-3. Mr. Werle predicates his opinion on: (1) the lack of any prior history of CVOC use by any prior owner or operator at the site; (2) the limited contamination found on the site as demonstrating the lack of CVOC use on the site; and (3) the groundwater flow direction is to the northwest, from MW-3 to the site, meaning contamination could not migrate from the site to MW-3. Mr. Werle opines, in his expert report, that any suggestion in earlier reports that the groundwater flow direction was other than to the northwest: (1) ignored known geological and hydro-geological conditions of the area in which the site is located; (2) was based on insufficient sampling data; and (3) is thoroughly discredited by multiple rounds of more extensive sampling. Mr. Werle further opines that the site itself "lacks sufficient contamination to require remediation of any type."
735 Bedford LLC contends that its experts' opinions constitute documentary evidence which conclusively show that the property is not the source of the contamination, and that this data decisively decimates the State's allegation of a need to do more testing at the property. 735 Bedford LLC asserts that this documentary evidence provides a complete defense to the DEC's claims reflected in the petition. It argues that the petition must, therefore, be dismissed based upon this documentary evidence, pursuant to CPLR 3211 (a) (1).
735 Bedford LLC's argument is rejected. " ‘A motion pursuant to CPLR 3211 (a) (1) to dismiss the complaint on the ground that the action is barred by documentary evidence may be granted only where the documentary evidence utterly refutes the plaintiff's [or the petitioner's] factual allegations, thereby conclusively establishing a defense as a matter of law’ " ( Karpovich v. City of New York , 162 A.D.3d 996, 997-98, 80 N.Y.S.3d 364 [2d Dept. 2018], quoting Mawere v. Landau , 130 A.D.3d 986, 987, 15 N.Y.S.3d 120 [2d Dept. 2015] ; see also Goshen v. Mutual Life Ins. Co. of NY , 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190 [2002] ). "To constitute " ‘documentary’ " evidence, the evidence must be ‘unambiguous, authentic, and undeniable’ " ( Karpovich , 162 A.D.3d at 998, 80 N.Y.S.3d 364, quoting Granada Condominium III Assn. v. Palomino , 78 A.D.3d 996, 996-997, 913 N.Y.S.2d 668 [2d Dept. 2010] ; see also Phillips v. Taco Bell Corp. , 152 A.D.3d 806, 807, 60 N.Y.S.3d 67 [2d Dept. 2017] ). "Documents that qualify as documentary evidence include judicial records, mortgages, deeds, and contracts" ( Porat v. Rybina , 177 A.D.3d 632, 633, 111 N.Y.S.3d 625 [2d Dept. 2019] ; see also Karpovich , 162 A.D.3d at 998, 80 N.Y.S.3d 364 ; Hartnagel v. FTW Contr. , 147 A.D.3d 819, 820, 47 N.Y.S.3d 96 [2d Dept. 2017] ; Phillips , 152 A.D.3d at 807, 60 N.Y.S.3d 67 ). "An affidavit is not documentary evidence because its contents can be controverted by other evidence, such as another affidavit" ( Phillips , 152 A.D.3d at 807, 60 N.Y.S.3d 67 ; see also Porat , 177 A.D.3d at 633, 111 N.Y.S.3d 625 ).
Mr. Sosik's expert opinion is not the type of evidence which constitutes documentary evidence that is "essentially undeniable." Mr. Sosik's statements that his investigation of the property in July 2018 and EBC's area-wide groundwater elevation survey in November 2018 "confirmed that the groundwater flow direction at 12 Spencer Street is to the northwest" is based exclusively on his analysis of 2018 sampling and measurements. However, Heide-Marie Dudek, a professional engineer licensed in the State of New York, who is employed by the DEC in the Division of Environmental Remediation, in her affidavit, states that Mr. Sosik's statement, rather than confirming anything, actually "contradicts the easterly groundwater flow direction that [he] himself posited in 2016 when he was consulting on a Brownfield site across the street from the [p]roperty," and is contrary to "the findings of [the] DEC's consultant from October 2017 and in 2020 based on groundwater sampling adjacent to the [p]roperty."
Ms. Dudek specifically sets forth that the DEC disagrees with Mr. Sosik's statement that the information about groundwater elevation provided to the DEC in 2018 as part of 735 Bedford LLC's application confirms the direction of groundwater flow. She asserts that since the 2018 contour maps from Mr. Sosik were inconsistent with earlier evidence of the easterly flow of groundwater previously presented to the DEC, first by Mr. Sosik and then by EAR, "the 2018 information by no means eliminates the existing scientific basis for a DEC-directed investigation of the [p]roperty as a [p]otential [inactive hazardous waste disposal s]ite."
Ms. Dudek further points to EAR's May 2020 report presenting the results of sampling at monitoring wells around the perimeter of the property in December 2019, which suggest an easterly or north-easterly direction of groundwater flow emanating from the property. She points out that the EAR contour map depicts dissolved concentrations of tetrochloroethylene in groundwater sampled on December 18, 2019 at four monitoring wells near the property.
Ms. Dudek also points to Mr. Sosik's statements regarding the historic use of the property. She notes that while Mr. Sosik states that there is "no evidence" that electrical manufacturing took place on the property, he offers no explanation for a Delta Metal Products" sign photographed on the property in 2009 that establishes a link with a known manufacturer of electrical products that had operated across the street from the property.
Ms. Dudek further points to Mr. Sosik's statement that "historic documentation including Sanborn fire insurance maps show the use of the [p]roperty as a warehouse." However, Mr. Sosik fails to set forth that information from the Sanborn fire insurance maps, which he and the DEC had reviewed and discussed in 735 Bedford LLC's 2018 application to the Brownfield Cleanup Program, indicated that for 12 years from 1977 to 1989, the property was used for manufacturing.
Mr. Werle relies upon the same sources as Mr. Sosik in forming his expert opinion. His affidavit also does not constitute documentary evidence, and the evidence upon which he relies in forming his expert opinion is the same evidence disputed by Ms. Dudek.
Thus, 735 Bedford LLC has not established, as a matter of law, that the property could not be a source of CVOC contamination, and has, therefore, not negated that there is a necessity for the DEC's access to and testing at the property. The opinions of 735 Bedford LLC's experts and the submissions fail to conclusively establish a defense as a matter of law nor do they utterly refute petitioners' factual allegations. In fact, the inconsistency of the evidence supports the need for an investigation of the property by the DEC. Consequently, 735 Bedford LLC is not entitled to dismissal of the petition based upon CPLR 3211 (a) (1). Therefore, 735 Bedford LLC's motion to dismiss the petition must be denied in its entirety.
In turning to whether petitioners' notice of petition and petition should be granted, the court finds that although the experts vehemently disagree as to the source and direction of the flow, 735 Bedford LLC does not dispute the existence of high levels of contaminant in the area around the property and acknowledges that 11 Spencer Street is a Brownfields property. Thus, the fact remains that contamination has been detected in and around the property and that 11 Spencer Street is a Brownfields site. There can be no question that petitioners have met the basic statutory requirements of the Environmental Conservation Law in order for the Court to permit the DEC's access to and testing at the property.
735 Bedford LLC argues that if the court finds the conflicting expert opinions and evidence relied upon by the experts to be inconsistent, then there should be a trial on each issue pursuant to CPLR 410. The court rejects this argument. A trial is unnecessary since the requirements to gain access and test the property have been demonstrated by petitioners, and the testing performed will actually serve to resolve the issues. As such, the Court, in its discretion, shall not permit the Respondent to interpose an answer, pursuant to CPLR404(a). The motion has been fully briefed with exhibits, including expert reports, and the parties have had an opportunity to address the Court during extensive oral argument. See Huber v. Mones , 235 A.D.2d 421, 653 N.Y.S.2d 353 [2d Dept. 1997]. Consequently, the petition is granted under the conditions specified herein below.
CPLR 410 provides that "[i]f triable issues of fact are raised they shall be tried forthwith and the court shall make a final determination thereon."
Conclusion
Accordingly, 735 Bedford LLC's motion to dismiss is denied. The petition is granted as follows:
(1) 735 Bedford LLC shall allow the DEC and/or its designee(s) access to the property, upon reasonable notice
"Reasonable notice" shall mean an email to 735 Bedford LLC's agents sent no less than 72 hours prior to the DEC seeking access to the property for particular days. The DEC shall not seek access to the property for any time after noon on a Friday, or any time on a Saturday or a Sunday. For the purposes of providing reasonable notice, 735 Bedford LLC's agents shall mean the following three individuals (with their respective email addresses identified): Yoel Schwimmer (xxxxx); Charles Sosik (xxxxx); and Jon S. Brooks, Esq. (xxxxx).
by the DEC, for the period of 45 days after entry of this order, for the purpose of physically inspecting the property, and performing an investigation that may include installing groundwater monitoring wells, taking soil samples and groundwater samples, and/or taking air samples for soil vapor intrusion testing until the DEC has obtained sufficient data and information to complete its investigation;
(2) 735 Bedford LLC's agents shall unlock any doors, gates, chains, padlocks, fences or other security devices that restrict
access to the property by the DEC and/or its designees on the date(s) and time(s) which the DEC has provided reasonable notice in order to facilitate the DEC's access to the property for the investigation;
(3) 735 Bedford LLC shall not hinder nor interfere in any way with access to the property by the DEC or its designees which is reasonably necessary to conduct the investigation on the date(s) and time(s) for which the DEC has provided reasonable notice;
(4) Beginning at least 24 hours prior to the DEC and/or its designees first accessing the property for the investigation, and for an additional period of at least 54 consecutive hours while the investigation is ongoing, 735 Bedford LLC shall ensure that the HVAC system in the building on the property is operating, and that any windows and outside doors on the property are closed, and shall further ensure that if the HVAC system has a variable outdoor air return, the outdoor air return should be turned to the lower variable level. This order shall not hinder or otherwise affect the use of outside doors being used in the normal course by 735 Bedford LLC and others for purposes of ingress and egress to and from the building on the property;
(5) 735 Bedford LLC's agents, designees, and employees shall wear face coverings
in the immediate presence of any DEC employees or DEC designees during the investigation, and 735 Bedford LLC shall instruct its tenants to have their employees who work in the building on the property to do the same. Any DEC employees or DEC designees shall similarly wear face coverings at all times while present on the property for investigation;
(6) 735 Bedford LLC and/or its designees may be present during the testing, provided their presence does not hinder nor interfere with the DEC's access, testing or operation generally; and
(7) Notwithstanding any term herein to the contrary, the parties shall comply with any applicable COVID-19 related rule, regulation, statute, and/or executive order, or such other legal requirement.
This constitutes the decision, order, and judgment of the court.