Opinion
15757-2007.
Decided on January 22, 2008.
Reilly, Like Tenety, Esqs., Attorney for the Plaintiffs, Babylon, New York.
John E. Reilly, Esq., Attorney for Defendants, Hicksville, New York.
McLane, Fraf, Raulerson Middleton, P.A., Bruce W. Felmly, Esq. (admitted Pro Hac Vice), Barry Needleman, Esq. (admitted Pro Hac Vice), Rachel A. Hampe, Esq.(admitted Pro Hac Vice), Manchester, New Hampshire.
ORDERED that the motion of the Plaintiffs Edward Russo and Vincent Russo to reargue and renew a decision of this Court that granted the motion of the Defendants KeySpan Corp., KeySpan Energy Corp., and KeySpan Gas East Corp. to dismiss the action of the Plaintiffs is denied.
Certain facts have not changed since this Court issued its decision on October 26, 2007, granting the motion to dismiss. In this civil action the Plaintiffs seek damages and injunctive relief against the Defendants based upon their alleged exposure to contaminants from the migration of these contaminants in underground plumes. It is alleged that the plumes emanate from a decommissioned manufactured gas plant(hereinafter "MGP") located in Bay Shore, New York. The Bay Shore facility formerly was owned by predecessor corporations of the KeySpan Defendants. This litigation raises issues of public concern because the effect of the plumes on the health, safety and welfare of the persons directly in the path of the contaminants, the real property and natural resources allegedly adversely affected by the pollutants in the plumes and the financial costs involved with remediating the plumes of contaminants that potentially will be borne by all of the ratepayers of KeySpan if those expenses are passed through to the utility's customers.
The Plaintiffs Edward Russo and Vincent Russo own real property located at 1627 Union Boulevard, Bay Shore, New York. According to the Defendants, in May of 2002, representatives from Key Span met personally with Plaintiff Edward Russo on two separate occasions to provide him with environmental data concerning the presence of contaminants on the Plaintiffs' property and to obtain Russo's consent to conduct additional environmental testing at the Plaintiffs' real property. Two KeySpan employees, Theodore Leissing and Joseph Giordano, who were present at this meeting submitted affidavits in support of the prior motion to dismiss wherein it is alleged that at this meeting Edward Russo told the KeySpan representatives that he was a retired LILCO gas plant worker who had performed work at the Bay Shore MGP facility.
At a subsequent meeting held on May 20, 2002, KeySpan, through Giordano, offered to purchase the real property of the Plaintiffs. In July of 2002, at another face to face meeting with Giordano, Russo declined KeySpan's offer to purchase his real property. Russo was informed that KeySpan wished to purchase this property to aid in the remediation efforts. Russo did indicate that he was willing to cooperate with KeySpan to facilitate the remediation of the property in an effort to remove or remediate the contaminants in the soil on the property. Theodore Leissing, the Project Manager at KeySpan Corporation, specifically alleges in his affidavit that in May of 2002 he explained to Russo that KeySpan had detected the presence of MGP byproducts in and around the area of a former pond, part of which extended onto the Plaintiffs' property.
It is axiomatic that "(a) motion for leave to renew is addressed to the sound discretion of the court" ( Matheus v. Weiss , 20 AD3d 454, 454-455, 797 NYS2d 774). The motion for leave to renew must be based upon "new facts not offered on the prior motion that would change the prior determination" ( CPLR 2221[e][2]) and must contain "reasonable justification for the failure to present such facts on the prior motion" ( CPLR 2221[e][3]). It "is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation" ( Matter of Weinberg , 132 AD2d 190, 210, 522 NYS2d 511). It has been held that the Supreme Court lacks the discretion to consider newly presented facts on a motion to reargue and renew where there is no reasonable excuse presented for the failure to submit those facts on the earlier motion (see, Worrell v. Parkway Estates, LLC , 43 AD3d at 437, 840 NYS2d 817).
The Plaintiffs have offered no reason why the affidavit of Edward Russo submitted on this motion to reargue was not submitted on the Defendants' previous motion to dismiss. While this Court sympathizes with the Defendants and recognizes their familial health concerns, the various illnesses and problems incurred by the residents of the real property have not even colorably been connected to the Defendants by any scientific proof. This Court has always granted the parties in this litigation the time needed to marshal proof to support allegations, recognizing the complex nature of this litigation and the related litigations. However, the Court notes that it has been Plaintiffs' counsel who has refused the requests for adjournments made by the Defendants and required the Defendants to engage in additional motion practice to address that problem.
CPLR § 214-c states:
Notwithstanding the provisions of section 214, the three year period within which an action to recover damages for personal injury or injury to property caused by the latent effects of exposure to any substance or combination of substances, in any form, upon or within the body or upon or within property must be commenced shall be computed from the date of discovery of the injury by the plaintiff or from the date when through the exercise of reasonable diligence such injury should have been discovered by the plaintiff, whichever is earlier.
CPLR § 214-c applies to actions to recover damages caused by contamination by any substance (see, Curry v. D'Onofrio , 29 AD3d 727, 816 NYS2d 144; DiStefano v. Nabisco, Inc ., 282 AD2d 704, 724 NYS2d 444). In MRI Broadway Rental, Inc. v. United States Mineral Products Co. , ( 92 NY2d 421, 681 NYS2d 783) the Court of Appeals stated that "(f)or purposes of CPLR § 214-c, discovery occurs when, based upon an objective level of awareness of the dangers and consequences of the particular substance the injured party discovers the primary condition on which the claim is based "' ( citing, Matter of New York County DES Litig ., 89 NY2d 506, 655 NYS2d 862) (emphasis provided by the Court). While the Plaintiffs may not have understood the significance or extent of the contamination as a result of public meetings held prior to the May and July 2002 meetings, once the Plaintiffs were contacted by the Defendants, told that their land was contaminated and received an offer by KeySpan to purchase the land, the three year Statute of Limitations began to run. This action, commenced in 2007 is untimely and the motion to dismiss will be granted (see, New York Practice, New York Law of Torts § 19:25, Statutes of limitations — Three years from date of discovery for injury to person or property caused by exposure to toxic or harmful substances under CPLR 214-c, 2007; see Jensen v. General Elec. Co. , 82 NY2d 77, 603 NYS2d 420, 623 NE2d 547).
CPLR § 214-c applies to tort actions and actions for continuing trespass and nuisance ( Scheg v. Agway, Inc. , 229 AD2d 963, 645 NYS2d 687; Pfohl v. Amax, Inc ., 222 AD2d 1068, 635 NYS2d 880 leave to appeal denied 88 NY2d 1038, 651 NYS2d 12).
To the extent that the Plaintiffs now argue that a six year Statute of Limitations should be applied by the Court to save some of their claims, that new and novel assertion must be denied. As the Appellate Division, Second Department stated in Curry v. D'Onofrio , (146, 29 AD3d 727, 816 NYS2d 144):
CPLR 214-c provides a three-year statute of limitations period for latent injuries to person or property caused by exposure to harmful substances beginning on the date the injury is discovered or the date when the injury should have been discovered by a reasonably diligent plaintiff, whichever is earlier (cite omitted). It is well-settled that CPLR 214-c applies to actions to recover damages caused by contamination by any substance, including petroleum(cites omitted).
Generally, the Statute of Limitations is not subject to an extension of time no matter how good the reason for delay unless an exception or toll is provided for by statute (see, Ali v. Moss , 35 AD3d 640, 827 NYS2d 260; see, Siegel, NewYork Practice § 33, 4th edition). While in an appropriate situation, the Defendants may be estopped by their conduct from interposing the affirmative defense of Statute of Limitations, the Plaintiffs have not shown that the Court should exercise that equitable remedy at this time (see, Zumpano v. Quinn , 6 NY3d 666, 816 NYS2d 703, 849 NE2d 926; see also, Ross v. Louise Wise Services, Inc. , 8 NY3d 478, 836 NYS2d 509, 868 NE2d 189; General Stencils, Inc. v. Chiappa , 18 NY2d 125, 272 NYS2d 337, 219 NE2d 169). There is no showing herein nor can a reasonable inference be made that the Plaintiffs relied upon fraudulent statements in refraining from the commencement of suit in a timely manner (see also, DiStefano v. Nabisco, Inc ., 282 AD2d 704, 724 NYS2d 444 ; Distefano v. Nabisco, Inc ., 1999 WL 1074314; see generally, Syms v. Olin Corp ., 408 F.3d 95).
The Appellate Division, Second Department in DiStefano v. Nabisco, Inc . held that "(t)The diminution in value of the Plaintiffs' properties is an outgrowth, maturation, or complication of the original contamination *** and not a separate and distinct injury(cites omitted)." That is precisely analogous to the facts herein where the Plaintiffs knew of the groundwater contamination and the alleged fumes in 2002.
While it is true that the Statue of Limitations in CPLR § 214-c does not apply to bar a suit for equitable relief, if the principal objective of the action of the Plaintiffs is to obtain monetary relief rather than equitable relief, CPLR § 214-c will still govern the limitations period (see, Thoma v. Town of Schodack , 6 AD3d 957, 776 NYS2d 109). The Plaintiffs now allege that their primary purpose in commencing this law suit is to force the Plaintiffs to remediate their real property. However, the Complaint that was drafted by the Plaintiffs only peripherally asks for some equitable relief and its principal objective is to obtain monetary damages. The Court notes that the Plaintiffs are not left remediless by this decision and the Defendants are in the process of addressing the pollution plumes emanating from the Bay Shore property.
Therefore, the Court will deny the motion of the Plaintiffs to reargue and renew and it will not reverse its previous decision to dismiss the action of the Plaintiffs (see, Broich v. Nabisco, Inc. , 2 AD3d 474, 768 NYS2d 489; Water Authority of Western Nassau County v. Lockheed Martin Corp. , 276 AD2d 624, 714 NYS2d 726 lv to app'l den'd 96 NY2d 702, 722 NYS2d 794, 745 NE2d 1016; see also Distefano v. Nabisco, Inc. , 1999 WL 1074314, N.Y.Sup. Sep 27, 1999). The precedents established by the Appellate Divisions and Court of Appeals require that actions seeking damages for toxic torts be commenced within a specified period of time of short duration.