Opinion
No. L90–02.
2013-04-29
STATE of New York, Plaintiff, v. C.J. BURTH SERVICES, INC., Carlton J. Burth and James G. Stasaitis, Jr., Defendants.
Eric T. Schneiderman, Attorney General of the State of New York, (Jeremy R. Feedore, Esq. Assistant Attorney General, of Counsel) Albany, Attorney for Plaintiff. (Vincent J. Rossi, Jr., Esq. of Counsel), Rossi and Murnane, New York Mills, attorneys for defendants.
Eric T. Schneiderman, Attorney General of the State of New York, (Jeremy R. Feedore, Esq. Assistant Attorney General, of Counsel) Albany, Attorney for Plaintiff. (Vincent J. Rossi, Jr., Esq. of Counsel), Rossi and Murnane, New York Mills, attorneys for defendants.
MICHAEL C. LYNCH, J.
Plaintiff commenced this action under Article 12 of the Navigation Law to recover cleanup costs resulting from a discharge of petroleum affecting premises owned by the individual defendants at 1240 Culver Avenue, Utica, New York (hereinafter, the premises).By Decision and Order dated February 18, 2009, this Court (Lynch, J.) granted defendants' motion to dismiss the complaint, finding that they were not “dischargers” liable for clean up costs pursuant to the Navigation Law § 181.
On December 9, 2010, the Appellate Division modified this Court's Decision and Order, finding that the complaint was properly dismissed as against the defendant C.J. Burth Services, Inc. (hereinafter, C.J.Burth) but that defendant owners Carlton J. Burth (hereinafter, Burth) and James G. Stasaitis Jr. (hereinafter Stasaitis) were “dischargers” and thus strictly liable for clean up and remediation costs (State of New York v. C.J. Burth Servs., Inc., 79 AD3d 1298 [2010] ).The defendants sought leave to appeal the Decision and Order of the Appellate Division. On February 24, 2011, the Court of Appeals dismissed the defendants' motion on the ground that the Appellate Division's Order did not “finally determine the action” (State v. C.J. Burth Servs., 16 NY3d 796 [2011] ). The basis for this determination, as plaintiff argued in opposition to defendants' motion, was that the parties had not yet litigated the State's claim for statutory penalties (see defendants' Exhibit E). Now, defendants move for summary judgment in their favor dismissing the State's “un-pursued claim” for statutory damages (Rossi at ¶ 11).
Plaintiff's fifth cause of action against defendants C.J. Burth, Burth, and Stasaitis asserts a cause of action pursuant to Navigation Law § 192 which provides:
Any person who knowingly gives or causes to be given any false information as a part of, or in response to, any claim made pursuant to this article for cleanup and removal costs, direct or indirect damages resulting from a discharge, or who otherwise violates any of the provisions of this article or any rule promulgated thereunder or who fails to comply with any duty created by this article shall be liable to a penalty of not more than twenty-five thousand dollars for each offense in a court of competent jurisdiction. If the violation is of a continuing nature each day during which it continues shall constitute an additional, separate and distinct offense.
Here, defendant Burth submits an affidavit wherein he avers that he had operated a gas station at a different site from 1958 to 1986, when he purchased the premises at issue in this action.At the time of the purchase, there were no apparent signs that a gas station had been operating at the premises and he avers that based on his experience in the business, no gas station had existed there for “many, many years”. Burth avers that he and Stasiadis operated a service station at the premises but did not sell gasoline, use any storage tanks, or do “anything beneath the surface of the ground”.
In response to interest from a prospective buyer in 1992, Burth explains that he contacted the former owner to inquire with regard to “environmental issues” at the premises. The former owner advised that there were two or three underground storage tanks that had been emptied and filled with water “many years” ago. Burth avers that he contacted a specialist to remove the tank but that before the removal was scheduled, representatives from the DEC visited him and asked him to let DEC know when the removal was scheduled. Upon the removal, it was discovered that the soil contained gasoline residue and the DEC directed defendants to remediate the soil. Burth avers that in 2002, he retained an expert to investigate the cost of remediating the soil. He concedes that he resisted the State's efforts to get him to remediate the site and offers various explanations for his reluctance to cooperate and dissatisfaction with the State's remediation methods.
In response to defendants' motion, plaintiff's counsel submits an affirmation wherein he argues that defendants are liable for the penalty pursuant to Navigation Law § 192 because once they were aware of the contamination, “defendants failed to take all necessary actions to abate the resulting contamination problem” (Feedore ¶ 11).Plaintiff also submits a copy of the affidavit by Mr. Doyle, an environmental engineer with the Department of Environmental Conservation, which was submitted with the prior motion for partial summary judgment. Therein, Doyle avers that after the DEC discovered the spill in April 1992, DEC made “several attempts” to get defendants to determine the extent of the contamination. Thereafter, he avers that defendants rejected DEC's proposed stipulation detailing the work that DEC recommended and that defendants did not attempt to clean up the contamination on their own.
To obtain summary judgment, a movant must establish his or her position “sufficiently to warrant the court as a matter of law in directing judgment” in its favor (Friends of Fur Animals, Inc. v. Associated Fur Mfrs., Inc., 46 N.Y.2d 1065, 1067 [1979], quoting CPLR 3212[b] ). The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any genuine material issues of fact from the case ( see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 [1986] ). The failure to make such a showing mandates denial of the motion, regardless of the sufficiency of the opposing papers ( see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985] ).
Here, defendants have not demonstrated that they are entitled to summary judgment dismissing plaintiff's fifth cause of action. Navigation Law § 192 provides for an “automatic” penalty once a defendant is determined to be liable for violating a provision of Article 12 of the Navigation Law (State v. Super Value, Inc., 257 A.D.2d 708, 710 [1999]lv. den.93 N.Y.2d 815 [1999] ).Where, as here, the issue is whether a discharger violated the statute, the penalty must be assessed whether or not the violation was “knowing” (State v. Markowitz, 273 A.D.2d 637 [2000]app. den.95 N.Y.2d 770 [2000];seeN.Y. PJI 10:1 [3rd Ed.] ).Penalties may be proper where a party fails to respond to the DEC's requests to investigate and/or remediate the site after contamination is discovered (State of New York v. LVF Realty Co., Inc., 59 AD3d 519, 523 [2009] ).Even assuming, without deciding that the penalty imposed by Navigation Law § 192 may be characterized as punitive damages, defendants arguments with regard to the appropriateness of the penalty are not properly raised here because no penalty has been assessed. Here, Burth and Stasaitis are “dischargers” as a matter of law ( State of New York v. C.J. Burth Servs., Inc., Supra ). The damages and penalty to be assessed as a result of their conduct will be decided at trial.
Accordingly, based on the foregoing, it is
ORDERED AND ADJUDGED that defendants' motion for summary judgment is DENIED; and it is further
ORDERED AND ADJUDGED that in accordance with CPLR 3216, plaintiff shall resume prosecution of this action and serve and file a note of issue within ninety days after receipt of a copy of this Decision and Order; and it is further
ORDERED AND ADJUDGED that plaintiff's default in complying with this Decision and Order within the 90–day period will serve as a basis for a motion by the for dismissal of the action as against them for unreasonably neglecting to proceed.
This Memorandum constitutes the Decision and Order of the Court. All papers including this Decision and Order are returned to the attorneys for defendants. The signing of this Decision and Order shall not constitute entry or filing under CPLR Rule 2220. Counsel is not relieved from the applicable provisions of that Rule respecting filing, entry and Notice of Entry.
SO ORDERED!
Papers Considered:
(1)Notice of Motion dated November 20, 2012, with Affidavit in Support (Vincent Rossi Jr. Esq.), Exhibits A–F; Affidavit in Support (Carlton J. Burth) and Affidavit in Support (James G. Stasaitis, Jr.);
(2)Attorney Affirmation in Opposition dated January 24, 2013 (Jeremy R. Feedore, Esq.), with Affidavit in Opposition sworn July 8, 2008 (Doyle) and Memorandum of Law;
(3)Correspondence dated February 1, 2013 from Vincent Rossi Jr., Esq.).