Opinion
2022–01083 Index No. 607346/19
07-05-2023
Joseph MASSARO, appellant, v. ROCKLAND FUEL OIL CORP., et al., respondents.
Sunshine, Isaacson & Hecht, LLP (Pollack, Pollack, Isaac & DeCicco, LLP, New York, NY [Brian J. Isaac ], of counsel), for appellant. McCabe, Collins, McGeough, Fowler, Levine & Nogan, LLP, Jericho, NY (Patrick M. Murphy of counsel), for respondents.
Sunshine, Isaacson & Hecht, LLP (Pollack, Pollack, Isaac & DeCicco, LLP, New York, NY [Brian J. Isaac ], of counsel), for appellant.
McCabe, Collins, McGeough, Fowler, Levine & Nogan, LLP, Jericho, NY (Patrick M. Murphy of counsel), for respondents.
MARK C. DILLON, J.P., ROBERT J. MILLER, DEBORAH A. DOWLING, LILLIAN WAN, JJ.
DECISION & ORDER In an action, inter alia, to recover damages for a violation of Navigation Law § 181, the plaintiff appeals from an order of the Supreme Court, Nassau County (Erica L. Prager, J.), entered February 4, 2022. The order denied the plaintiff's motion for summary judgment on the issue of liability and dismissing the defendants’ first and third affirmative defenses.
ORDERED that the order is affirmed, with costs.
The plaintiff commenced this action against the defendants to recover damages related to an oil spill in the basement of his home which began within approximately 45 minutes after an employee of the defendant Rockland Charter Energy concluded a service call of the plaintiff's home oil-fired heating system. The oil spill was later determined to have resulted from a broken or faulty fitting. In their answer, the defendants asserted culpable conduct and failure to mitigate as their first and third affirmative defenses, respectively. Following discovery, the plaintiff moved for summary judgment on the issue of liability and dismissing the defendants’ first and third affirmative defenses. In an order entered February 4, 2022, the Supreme Court denied the plaintiff's motion. The plaintiff appeals.
Pursuant to Navigation Law § 181(1), "[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" (see State of New York v. Speonk Fuel, Inc., 3 N.Y.3d 720, 723, 786 N.Y.S.2d 375, 819 N.E.2d 991 ; State of New York v. Green, 96 N.Y.2d 403, 406, 729 N.Y.S.2d 420, 754 N.E.2d 179 ; Hjerpe v. Globerman, 280 A.D.2d 646, 647, 721 N.Y.S.2d 367 ). "Any claim by any injured person for the costs of cleanup and removal and direct and indirect damages based on the strict liability imposed by [ Navigation Law § 181 ] may be brought directly against the person who has discharged the petroleum" ( Navigation Law § 181[5] ). "However, a claim may only be maintained by a person ‘who is not responsible for the discharge’ " ( Hjerpe v. Globerman, 280 A.D.2d at 647, 721 N.Y.S.2d 367, quoting Navigation Law § 172[3] ; see Bennett v. State Farm Fire & Cas. Co., 137 A.D.3d 725, 726, 26 N.Y.S.3d 327 ). "Discharge" is defined as an "action or omission resulting in the releasing, spilling, leaking, pumping, pouring, emitting, emptying or dumping of petroleum" ( Navigation Law § 172[8] ; see State of New York v. Green, 96 N.Y.2d at 406–407, 729 N.Y.S.2d 420, 754 N.E.2d 179 ; Plainview Props. SPE, LLC v. County of Nassau, 181 A.D.3d 731, 732, 121 N.Y.S.3d 338 ). "[O]wners who have ‘control over activities occurring on their property’ and reason to believe that petroleum products are stored there are liable as a discharger" ( State of New York v. Slezak Petroleum Prods., Inc., 96 A.D.3d 1200, 1202, 947 N.Y.S.2d 189, quoting State of New York v. Green, 96 N.Y.2d at 407, 729 N.Y.S.2d 420, 754 N.E.2d 179 ). Thus, "the owner of the property at which petroleum has been released may have a claim under the Navigation Law provided such person did not cause or contribute to the contamination" ( Hjerpe v. Globerman, 280 A.D.2d at 647, 721 N.Y.S.2d 367 ; see Kolbert v. Morania Oil of Long Is., 138 A.D.3d 1072, 1072–1073, 28 N.Y.S.3d 913 ; Carter v. Suburban Heating Oil Partners, L.P., 44 A.D.3d 1221, 1222, 845 N.Y.S.2d 482 ; Hjerpe v. Globerman, 280 A.D.2d at 647, 721 N.Y.S.2d 367 ). An owner's "failure, unintentional or otherwise, to take any action in controlling the events that led to the spill or to effect an immediate cleanup renders it liable as a discharger" ( State of New York v. Green, 96 N.Y.2d at 407, 729 N.Y.S.2d 420, 754 N.E.2d 179 ; see Kolbert v. Morania Oil of Long Is., 138 A.D.3d at 1073, 28 N.Y.S.3d 913 ).
Here, the plaintiff established his prima facie entitlement to judgment as a matter of law on the issue of liability and dismissing the defendants’ first and third affirmative defenses by demonstrating that the defendants were dischargers of oil on his property (see Navigation Law § 181 ; Hjerpe v. Globerman, 280 A.D.2d at 647, 721 N.Y.S.2d 367 ). However, in opposition, the defendants raised a triable issue of fact as to whether the plaintiff contributed to the oil spill by failing to turn off his heating system despite being told that it would take hours for the technician he requested to arrive at his property after informing the defendants of the spill (see State of New York v. Speonk Fuel, Inc., 3 N.Y.3d at 724, 786 N.Y.S.2d 375, 819 N.E.2d 991 ; State of New York v. Green, 96 N.Y.2d at 407, 729 N.Y.S.2d 420, 754 N.E.2d 179 ; State of New York v. Montayne, 199 A.D.2d 674, 674–675, 604 N.Y.S.2d 978 ). Notably, the record indicates that the plaintiff had been a co-owner of nonparty Charter Oil Company for 30 years, a family-owned business that had been sold to a predecessor of Rockland Charter Energy prior to the oil spill.
Accordingly, the Supreme Court properly denied the plaintiff's motion for summary judgment on the issue of liability and dismissing the defendants’ first and third affirmative defenses.
DILLON, J.P., MILLER, DOWLING and WAN, JJ., concur.