Opinion
March 23, 1995
Appeal from the Supreme Court, Washington County (Dier, J.).
Plaintiffs commenced this action to cover the cost of cleaning a petroleum discharge which occurred on or about February 3, 1987 at a service station owned by plaintiff Race Oil Corporation in the Town of Salem, Washington County. After defendant Paula Eastman drove into a gas pump located on the premises, Race Oil retained defendant H.G. Anderson Equipment Corporation (hereinafter Anderson) to repair the pump. Plaintiffs allege that Anderson was negligent in performing such services since it failed to prevent gasoline from leaking from the underground lines connected to the pump into the ground and groundwater of properties belonging to Race Oil and its immediate neighbors. Plaintiffs asserted a cause of action in negligence against Eastman and causes of action in negligence and breach of warranty against Anderson.
After joinder of issue and completion of discovery, plaintiffs sought leave to serve an amended complaint asserting a claim for strict liability against Anderson pursuant to the provisions of Navigation Law § 181 (5). Supreme Court granted such relief, relying on this Court's decision in Wheeler v. National School Bus Serv. ( 193 A.D.2d 998). Anderson appeals. We reverse.
It is uncontested that Race Oil is a "discharger" within the meaning of Navigation Law § 181 (1) and, therefore, pursuant to our decision in Busy Bee Food Stores v. WCC Tank Lining Technology ( 202 A.D.2d 898, 899, lv dismissed 83 N.Y.2d 953), may not assert a private right of action against another alleged discharger. As we stated in Busy Bee, Navigation Law § 181 (1) subjects a discharger to strict liability and, accordingly, does not afford it a remedy under such statute against another alleged discharger (supra, at 899; see, White v. Long, 204 A.D.2d 892, lv dismissed in part, granted in part 84 N.Y.2d 905; Matter of White v. Regan, 171 A.D.2d 197, lv denied 79 N.Y.2d 754). "Plaintiff's remedies lie with its direct claims against defendant `predicated upon [defendant's common-law] liability as a discharger'" (Busy Bee Food Stores v. WCC Tank Lining Technology, supra, at 899, quoting State of New York v King Serv., 167 A.D.2d 777, 779).
Hence, with the amendment lacking in merit (see, Taylor v Dyer, 190 A.D.2d 902), we reverse Supreme Court's order granting plaintiff's motion for leave to amend the complaint.
Cardona, P.J., Mikoll, Mercure and Casey, JJ., concur. Ordered that the order is reversed, on the law, with costs, and motion denied.