Opinion
CA 04-01263.
November 19, 2004.
Appeals from an order of the Supreme Court, Wyoming County (Mark H. Dadd, A.J.), entered August 15, 2003. The order, insofar as appealed from, denied the motion of defendants Bramer's Services, Inc. and James Bramer, II for summary judgment dismissing the complaint and cross claims against them and denied that part of the cross motion of defendant Essex Property Management, LLC for partial summary judgment dismissing the complaint against it in an action pursuant to Navigation Law § 181.
Before: Pigott, Jr., P.J., Pine, Hurlbutt, Kehoe and Lawton, JJ.
It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action pursuant to Navigation Law § 181 to recover the cost of remediating petroleum contamination. Supreme Court properly denied the motion of defendants Bramer's Services, Inc. and James Bramer, II (collectively, Bramers) for summary judgment dismissing the complaint and cross claims against them and properly denied that part of the cross motion of defendant Essex Property Management, LLC (Essex) for partial summary judgment dismissing the complaint against it. Defendants failed to meet their initial burdens of establishing their entitlement to judgment dismissing the complaint as a matter of law, and we therefore do not address the sufficiency of the opposing papers ( see Alvarez v. Prospect Hosp., 68 NY2d 320, 324). Although in support of their motion the Bramers submitted evidence that no spills occurred at their service station located at 35 West Buffalo Street, their motion papers also contained a report prepared by Environmental Products and Services, Inc. (EPS) "strongly suggest[ing]" that they were responsible for recent gasoline releases. Similarly, in support of its cross motion Essex relied upon excerpts from the EPS report and an EPS letter and "Investigation Proposal" indicating that a petroleum contamination plume extends from its Sugar Creek store located at 30 West Buffalo Street.