SVS II Partnerswhip v. Patel

Full title: SVS II PARTNERSWHIP v. RANGIT M. PATEL ET AL

Court: Connecticut Superior Court Judicial District of Hartford at Hartford

Date published: Jan 14, 2010

2010 Ct. Sup. 2952 (Conn. Super. Ct. 2010)

Opinion

No. CV 05-4016571-S

January 14, 2010

MEMORANDUM OF DECISION ON PLAINTIFF'S COMPLAINT AND DEFENDANTS' SPECIAL DEFENSES

RITTENBAND, J.T.R.

FACTS AND PROCEDURE

The plaintiff is Shunpike Village Shops II Partnership (hereinafter also "SVS") which owns at all times pertinent hereto a shopping center in the town of Rocky Hill, Connecticut. On May 3, 1988 the defendants Rangit M. Patel Bharati R. Patel (hereinafter also "Patel") rented space known as Unit 825-P (also called the "unit") of the shopping center for use as a dry cleaning establishment to be operated by them or their employees. They leased the premises and signed as individuals on the lease and any modifications or extensions thereof even though they formed a corporation and then subsequently a partnership. Among other things, the lease required the Patels to conduct their business in compliance with state, municipal and federal laws and requirements. It is important to know that the Patels used Perchloroethylene (also known as "PCE") routinely in conducting their dry cleaning business.

PCEs are a known contaminant, hazardous to the environment, and this was known to the Patels as far back as 1989. The equipment purchased and used by the Patels was supposedly self-contained in not releasing PCEs outside the equipment. However, in this particular case in addition to the equipment there was a condensate pipe at the back of Unit 825-P which was the property leased by the Patels which it was later determined released water onto the asphalt in the back of the Unit containing the Patel's dry cleaning establishment, and it was eventually found that the drippings contained PCEs.

In 1992 there was an evaluation/testing of the area for PCEs done by the plaintiff, which showed no PCEs.

In December of 1998 a Phase I Environmental Site Assessment was conducted by Aegis, Inc., which had been ordered by the plaintiff. Although no PCEs were found, Aegis, Inc., recommended that the condensate pipe be tested for PCEs. Daniel Sargis, (hereinafter also "Sargis") a general partner of the plaintiff, testified on September 10, 2009 that in December 1998 he approached the Patels about the results and advised Mr. Patel that he should follow through with the recommendation of Aegis, Inc., that the condensate pipe be tested, that it was clear that the asphalt underneath the pipe had deteriorated and that Aegis recommended that shallow samples should be collected from the asphalt beneath the pipe. Mr. Patel was a very intelligent and bright individual and still is. He has a masters degree in mathematics and had been a professional dry cleaner at this location since the 80s. By common usage of the premises he should have noticed that the water from the condensate pipe had the result of a deterioration of the asphalt and should have prompted him to determine why. Nonetheless, when Sargis talked to Mr. Patel, he assured Sargis that the dry cleaning equipment was self-contained as to contaminants, that it was a closed loop system and was separate in effect from the pipe and all the pipe was dripping was harmless water. Mr. Patel responded by claiming that there could be no PCEs in the condensate pipe because the equipment was self-contained and the pipe was only supposed to drip water not containing PCEs onto the asphalt. Mr. Patel was told by Mr. Sargis that the issue of contamination of the property owned by the plaintiff was Patel's responsibility, and that he should have the drippings from the condensate pipe tested. Mr. Patel denied any responsibility and did nothing. In January of 2002, because the plaintiff was about to refinance the property, Scott Atkin, Licensed Environmental Professional of Anchor Engineering Inc., was hired by the plaintiff and accordingly tested the condensate pipe and determined that it was leaking PCEs onto the asphalt. Mr. Sargis testified that he again discussed the results of this testing with Mr. Patel and the cost that the plaintiff had incurred as a result of his removing contaminated soils. Mr. Sargis told Mr. Patel that he had to take responsibility for the investigation and remediation of the contamination. However, there is a dispute between Mr. Sargis and Mr. Patel as to whether in fact Mr. Sargis made Mr. Patel aware of the problem and recommendation of Aegis, Inc., on or about December 1998. This is important because one of the claims by special defense of the defendants is that there was a failure to mitigate damages by the plaintiff, and that in some part is important in determining when Mr. Patel was aware of the problem because the claim is that he was not made aware of the problem until 2002. If he was made aware of the problem in 1998, then that seriously harms the validity of the special defense. The Court believes Sargis and not Patel, and concludes that Patel was made aware of the problem in December 1998 and did nothing about it, denying that it was happening. It strains the Court's belief that Mr. Patel did not know that something was going wrong and that it could have been contamination coming from the pipe when he saw or should have seen the deterioration of the asphalt at least as far back as 1998. Nothing was done until 2002 when Sargis was attempting to refinance the shopping center which caused his hiring Anchor Engineering, Inc. Even then, in 2002, when Mr. Patel was again made aware of the problem of contamination, which he claims was the first time he was made aware, (the Court does not believe him and believes it was in 1998) he was again in a state of denial and stated that he wanted to check whether his insurance covered it, whether common charges assessed against all of the business condominiums was a possible source of the funds to do the remediation. The Court does not believe Mr. Patel. During his testimony, it seemed that he had rehearsed his claim that it was only 2002 when he became aware of the problem. Even then, he did nothing until the plaintiff's attorney Thomas Armstrong, encouraged Rachel Rosen of LFR which is an environmental company, to meet with the Patels. Because of that meeting the Patels with the help of Ms. Rosen filled out and filed an application to the Department of Economic and Community Development (also known as "DECD") for a grant which can be made available through a program established by statute that provides a grant of a maximum of $300,000 available for an applicant which meets the proper conditions. So, it is abundantly clear that by Mr. Patel's own admission, he became aware in 2002 of the PCEs entering the groundwater and soil and migrating throughout the rear parking lot of the shopping center. Still, he did nothing until at least 2005, so, it is this Court's conclusion that Mr. Patel was the one guilty of laches and failing to mitigate damages by doing nothing from at least 2002 to 2005.¹

1 It was actually 2007 before the remediation began.

The Patels were subsequently awarded a sum of close to $300,000 to be used for the remediation. However, according to Rachel Rosen, defendants' expert, the cost is expected to run at least $484,000. The plaintiff has obtained a $300,000 prejudgment attachment on the Patel's home. Meanwhile, the remediation is taking place, but there is testimony from Rachel Rosen that it could be at least another ten years before completion and verification by a licensed environmental professional to approve the remediation.

The plaintiff brought this action in several counts. However, this Court granted summary judgment in favor of the defendants as to all but two counts because of the statute of limitations. The remaining counts are Count Three in Trespass and Count Four in Private Nuisance. The plaintiff is seeking an injunction to order the Patels to continue to pay for the cleanup beyond what is received from the DECD and make sure that the Patels make all payments necessary for completion of the remediation with no cost to the plaintiff.

The primary special defenses by the defendants are estoppel and failure of the plaintiff to mitigate damages. Trial commenced before this Court on August 26, 2009 and continued for 11 days up until September 16, 2009. Briefs and reply briefs have been filed by both parties. Subsequent hearings were held on various issues, the last being January 14, 2010.

STANDARD OF REVIEW

"The plaintiff in a civil case (and a defendant in special defenses) sustain their burden of proof as to any essential element in their cause of action if the evidence, considered fairly and impartially, induces in the mind of the trier, a reasonable belief that it is more probable than otherwise that the facts involved in that element are true." Busker v. United Illuminating Co., 156 Conn. 456, 458 (1968). This is also known as proof by a preponderance of the evidence.

In addition, this Court evaluates the credibility of the witnesses based upon their appearance and demeanor on the witness stand, the consistency or inconsistency of their testimony, their memory or lack thereof of certain events, whether they were candid and forthright or evasive and incomplete, their manner in responding to questions and their interest or lack of interest in the case as well as the exhibits in the case.

Also, the Court evaluates general credibility on the basis of other testimony in this case as well as documents in evidence as to their consistency or inconsistency with other evidence.

The burden is on the plaintiff, SVS II Partnership, to prove its allegations by a preponderance of the evidence, and the defendants have the burden of proving their allegations in their special defenses by a preponderance of the evidence.

ISSUES AND FINDINGS 1. Credibility

The expert witnesses on both sides appear to be honest and forthright in their opinions and analysis as they saw it. However, the principal issue of credibility is that of the credibility between Mr. Patel and Mr. Sargis because of the special defense raised by the defendants that the plaintiff should have taken action to mitigate damages, and this issue depends upon when Mr. Patel became aware of the problem of the contamination emanating from his dry cleaning establishment. The Court finds that Mr. Daniel Sargis was and is more credible in his testimony than Mr. Patel was in his testimony. Mr. Patel was contradictory in his testimony. He was first called to testify by the plaintiff, and in defense testified as part of the defendants' case in chief. He admittedly had no knowledge of federal, state and local laws concerning his duties as to the environment and disposal of PCEs. Ignorance of the law is no excuse, and if he had been aware of these laws, he would hopefully have acted when confronted by Mr. Sargis in 1998. Two witnesses and/or reports found that there was PCE contamination in the area behind the building housing the dry cleaning establishment, in the building itself and in front of the building and that there were slabs underneath the unit and in front of the unit, contamination of PCEs emanating from the dry cleaning establishment. Mr. Patel meant well but did not seem to appreciate the seriousness of the problem of contamination and had a mind set to reject any responsibility for same. He was in a state of denial. He didn't want to know that there was a problem or that he had any responsibility for the problem and appeared to want to do nothing in the hopes that the problem would just go away. He is well educated and very knowledgeable and capable in the field of mathematics which forms the basis of his employment at the Traveler's Insurance Company. However, he is obviously not sophisticated in conducting a business, in particular a dry cleaning business. He had substantial experience in that business but failed to familiarize himself with any laws that could apply to such a business. For example, he did admit that he did become aware of the problem in 2002 and was told repeatedly by Mr. Sargis that it was his responsibility to clean up the problem, but he delayed doing anything, no doubt in part because of the high cost he expected it to be for remediation and did nothing in 2003, 2004 or 2005 until the plaintiff's attorney arranged to have him talk to Rachel Rosen about a source of funding for the clean up. Patel continued to deny responsibility or take any action when he realized that he and his wife were responsible for the contamination, and as Mr. Sargis stated in somewhat harsh words he was an adult and a businessman and should have taken responsibility for the contamination and act as an adult would act and take steps promptly to remediate the problem. In sum, this Court believes Daniel Sargis and finds that the testimony of Mr. Patel does not ring true. The Court believes Mr. Sargis and does not believe Mr. Patel.

2. Was there PCE contamination of the soil and groundwater emanating from the defendants' dry cleaning establishment?

The short answer is yes.

There was abundant testimony and exhibits of testing reports that clearly show that PCE contaminants came from the defendants' dry cleaning establishment through the condensate pipe, the floors of the dry cleaning operation and even in front of the dry cleaning store. It is very clear that there may even have been other sources of contamination from the dry cleaning establishment, and it is also clear from the evidence that the PCEs got under the asphalt and into the gravel and soil beneath same and migrated through the watertable and groundwater to other parts of the plaintiff's parking lot. This was conceded by defendants' counsel in remarks made during the last two days of trial.

3. Did the plaintiff prove by a preponderance of the evidence that the defendants had committed trespass as alleged in Count Three?

The short answer is yes.

It is well settled law that the elements for trespass are:

1. Ownership or possessory interest in land by the plaintiff;

2. Invasion, intrusion or entry by the defendant affecting the plaintiff's exclusive possessory interest;

3. Done intentionally;

4. Causing direct injury;

See City of Bristol v. Tilcon, 284 Conn. 55 (2007).

In this case clearly the defendants did not and do not have ownership and possessory interest in the land in the shopping center which the plaintiff owns; clearly there was entry by the defendants affecting the plaintiff's exclusive possessory interest; there is no question that the PCEs emanating from the defendants' dry cleaning store dripped onto the asphalt down into the gravel and soil and moved further into the parking lot to the rear owned by the plaintiff, the PCEs migrating throughout the parking lot. This was clearly an entry onto the plaintiff's exclusive interest.

The trespass was done intentionally. The defendants continued a pattern of denial that the PCEs were caused by them and made no effort to reimburse the plaintiff promptly and no effort to stop the intrusion of the PCEs onto and under the plaintiff's land at least until 2005 and despite having knowledge in 1998 and 2002 that the PCEs had come out of their establishment onto and under the plaintiff's property and knew it was their responsibility to remediate it, continued to do nothing until 2005 when they learned about the possible DECD grant certainly showing an intent to allow the PCEs to continue to contaminate the plaintiff's land as described above and do nothing about it even though Patel knew it was their responsibility to remediate it. Even if the Court were to accept Patel's claim that Mr. Patel didn't know about the contamination until 2002, which the Court does not accept, knowing that it was their responsibility to stop the PCEs from going onto and under the plaintiff's land, they did nothing about it for at least three years and that was clearly an intent to allow the PCEs to go onto or under the plaintiff's land.

Certainly the above facts show direct injury to the plaintiff and its land by contaminating it and incurring a substantial cost to remediate it.

In short, the plaintiff has met its burden of proof that the defendants committed trespass on its land, and the trespass continues to this day.

3. Did the defendants commit and maintain a private nuisance on the plaintiff's land?

The short answer is yes.

"There are four elements to prove a claim for a private nuisance. They are:

1) "The condition complained of had a natural tendency to create danger and inflict injury upon person or property." The contamination by PCEs of the plaintiff's property by the defendants was of a natural tendency to spread throughout the parking lot not only creating danger by use of contaminants and inflict injury upon person or property by creating pollution through PCEs throughout the parking lot owned by the plaintiff and necessitating remediation which is costly. The injury or danger to persons is that if the contaminants get into the soil and eventually the ground water it could create physical harm when exposed to persons.

2) "The danger created was a continuing one." It is clear that once the PCEs reached the soil and the groundwater they migrated throughout the parking lot to the rear of the establishment and until remediated continue to be the danger.

3) "The use of the land was unreasonable or unlawful." It is clearly unlawful to the extent that it violates various environmental laws and of course is a trespass onto the plaintiff's land as well as being unreasonable in that it causes PCEs on or under the property to the danger of people and property.

4) "The existence of the nuisance was the proximate cause of the plaintiff's injuries and damages." Having met the first three elements, it is abundantly clear that the nuisance proximately caused the plaintiff's damages to its property above and below the surface and injuries to the extent that it exposed people to contamination and just as importantly is exposing the plaintiff to large sums of money in injuries/damages. See Walsh v. Stonington Water Pollution Control Authority, 250 Conn. 443 at 449 Note 4 (1999).

Accordingly this Court concludes that the plaintiff has met its burden of proof in establishing that the defendants committed private nuisance against the plaintiff.

Based upon the plaintiff successfully meeting its burden of proof in the third and fourth counts of trespass and nuisance, it is the conclusion of this Court that the defendants are liable for the cost of the entire remediation and investigation of the plaintiff's land.

SPECIAL DEFENSES:

1. Are the plaintiff's claims barred by virtue of the doctrine of estoppel because the plaintiff was or should have been aware as of 1998 of the dripping and contamination as alleged by the plaintiff but failed to give notice to the defendants of the same which deprived the defendants of an opportunity to remedy the dripping and contamination?

The short answer is No.

The answer to this question goes back to the credibility of Daniel Sargis and Mr. Patel. As noted above, this Court has already found Daniel Sargis more credible than Mr. Patel. It should be noted that in the Court's notes during the trial when Mr. Sargis testified, the Court wrote down in its notes that Mr. Sargis was "honest." The same, for the reasons stated in paragraph one on credibility, cannot be said of Mr. Patel. Therefore, the Court concludes that in December 1998 the plaintiff advised Mr. Patel verbally that although the Aegis Report did not show any PCEs dripping from the pipe, Mr. Patel and his wife, the defendants, should have followed the recommendation of the report that further testing should be done to determine if PCEs are coming from the dry cleaning establishment onto the plaintiff's land. Mr. Patel, at that point, and Mrs. Patel were clearly aware of the potential of PCE contamination from their establishment onto the plaintiff's land. They were even told that as tenants they were responsible for any PCEs emanating from their establishment going onto the plaintiff's land and since the report indicated that potential, Patel had an obligation to follow through with the recommendation of the report and do more testing. The plaintiff, therefore, did give notice to the defendants of the report and the potential of the dripping and contamination and of their obligation to investigate and remediate any contamination. Under the terms of the lease as well as the potential for trespass and nuisance it was the defendants' obligation to investigate and remediate any contamination of PCEs. The landlord had no such obligation because it was the defendants who caused the contamination, the potential was well known to the defendants in that they knew that they used PCEs in the dry cleaning business. The defendants caused the contamination not the plaintiff, and the responsibility for remediation was that of the defendants. The Court totally rejects that the plaintiff's claims are barred by virtue of the doctrine of estoppel. Judgment is entered for the plaintiff as to the first special defense.

SECOND SPECIAL DEFENSE:

This is a claim that the plaintiff's claims are barred by the statute of limitation. This Court has already ruled that the plaintiff violated the statute of limitations on all counts except the trespass and nuisance counts and rendered summary judgment against the plaintiffs on all counts except count three and count four. The Court as will be noted hereafter has changed its ruling on the statute of limitations.

THIRD SPECIAL DEFENSE:

Are the plaintiff's claims barred by virtue of the doctrine of unclean hands because the plaintiff was or should have been aware as of 1998 of the dripping and contamination?

The short answer is No.

There was no obligation on the part of the plaintiff, as stated above, to remediate. The plaintiff being aware in 1998 of the potential for the dripping and contamination contacted the parties responsible for investigation and remediation, namely, the defendants, in 1998. There is nothing to show that the doctrine of unclean hands is applicable to the facts of this case as to the plaintiff's claims. The third special defense is rejected and judgment may enter for the plaintiff on the third special defense.

FOURTH SPECIAL DEFENSE:

Did the plaintiff fail to mitigate its damages from the dripping and contamination as it was aware or should have been aware of said dripping and contamination as of 1998 but failed to either remedy the dripping and contamination in 1998 or give notice to the defendants of the same?

The short answer is No.

First, the duty to mitigate damages was on the defendants, not the plaintiff because, as stated above, the defendants caused the dripping and contamination and were advised in December 1998 shortly after the Aegis Report came to the plaintiff of the necessity of further investigation to determine whether there were PCEs contaminating the plaintiff's property which contamination was coming from the defendant's establishment. Being advised in 1998 as aforesaid, it was the defendants' obligation to move quickly to investigate and/or take samples to determine whether the PCEs were trespassing onto the plaintiff's property and coming from the defendants' establishment. It was the duty of the plaintiff. The duty to mitigate damages was on the defendants. The Court finds that the plaintiff advised the defendants of what was contained in the report in December 1998 which made the defendants aware of the necessity of investigating and sampling what was coming from their establishment because of the potential of PCE contamination of the plaintiff's land. It is the defendants who failed to mitigate the damages. In a state of denial, they did nothing, and so any failure to mitigate damages was the failure of the defendants from 1998 to 2002, and when the defendants admittedly became aware of the contamination by sampling done by Anchor by the plaintiff that there was indeed contamination from the defendants' establishment, they still did nothing until 2005. In short, they failed to mitigate damages between 2002 and 2005.

It should be noted that when the defendants' expert witness, Eric Bucholz, testified on the next to last day of trial as an expert for the defendants, he concentrated on the period between 1998 and 2002 and claimed that was a delay of three years and one month and there was a failure to mitigate damages. However, this Court in asking questions to the said witness as to hypothetically if the Patels were in fact notified of the 1998 report at or about the time it was received by Mr. Sargis, and they failed to do anything, would they be responsible for remediation and not the plaintiff, and his answer was "yes." Accordingly, this Court rejects the special defense of mitigation of damages against the plaintiff and hereby renders judgment for the plaintiff on the fourth special defense.

FIFTH SPECIAL DEFENSE:

Are the plaintiff's claims of breach of contract barred by virtue of the plaintiff's failure to give the defendants a contractual required written notice of any breach of the lease which would have allowed the defendants an opportunity to cure the alleged breaches?

The short answer is No. This issue is moot since the first count was eliminated by this Court in summary judgment because the plaintiff violated the statute of limitations.²

2 The Court has not found a Sixth Special Defense in the pleadings.

SEVENTH SPECIAL DEFENSE:

Should the defendants get credit for monies paid in remediation?

The short answer is Yes.

The defendants raised the issue as to whether the plaintiff has proven that there is no adequate remedy at law in its motion to dismiss dated September 10, 2009. The Court denied the motion to dismiss after a hearing saying that the remedy at law would have been to evict the defendants for violating the laws in trespass and in nuisance and then would have had to sue for the total cost of the remediation which is still not known in which case the State's potential grant of $300,000 from the DECD would not have been available to the defendants since they would no longer be in possession of the dry cleaning establishment on the land of the plaintiff if the eviction was successful. The parties are referred to the transcript of the hearing and decision on the motion to dismiss for further elaboration on this issue.

The plaintiff has now pleaded no adequate remedy at law and that irreparable harm will be done to the plaintiff if an injunction is not issued.

The Court finds that there is no adequate remedy at law and that irreparable harm will be done to the plaintiff if an injunction is not issued.

The Court finds that there is no adequate remedy at law as mentioned above. It further finds from the evidence that including the money granted by the State and the alleged value of the $300,000 attachment on the defendants' residence, without knowing the total cost of the remediation and understanding the defendants' agreements or obligations to the State Department of Environmental Protection etc., it may well be that the defendants will not be able when the remediation is completed to pay the total cost for same. Further, it is not the responsibility of the plaintiff to pay any part of the cost of remediation. Accordingly, this Court finds that without knowledge of the total cost of the remediation and without sufficient evidence of the assets of the defendants, irreparable harm will attach to the plaintiff in the event the defendants have insufficient funds to make full payment for the remediation.³

3 Irreparable harm has also attached by the deprivation of the plaintiff's use of his property while the remediation is ongoing.

IS THE PLAINTIFF ENTITLED TO ATTORNEYS FEES?

The short answer is yes.

1. This Court initially granted summary judgment on all of the counts except the counts involving trespass and the count involving nuisance because of the statute of limitation. The sixth count (amended complaint dated November 19, 2009) which seeks a judgment against the defendants is based upon their violation of environmental laws of the State of Connecticut. The plaintiff then moved for reconsideration on the sixth count because that is the count on which the plaintiff claims attorneys fees. The Court granted the motion for reconsideration and held a hearing thereon. The defendants have cited various law as to why this Court should not grant attorneys fees to the plaintiff. However, the Court is persuaded by the case of Cristian Pedro v. Joseph Miller, No. 564838 July 23, 2007, Superior Court, judicial district of New London, a decision by D. Michael Hurley, J.T.R. (2007) W.L. 2318048 (Conn.Super.) [ 43 Conn. L. Rptr. 805].⁴ In Pedro v. Miller, supra, Judge Hurley found that when there are equitable considerations such as in count six where there is no request for damages but for equitable relief in the form of an injunction, a motion for reconsideration is appropriate and is not bound by a 20-day rule. The case at bar, in particular count six, is an equitable action only based upon C.G.S. § 22a-16. It is an equitable action because it seeks an injunction.

4 The Court bases its decision on this as to the statute of limitations on count six on C.G.S. § 22a-16 and C.G.S. § 22a-18 which are set forth below:

Sec. 22a-16. Action for declaratory and equitable relief against unreasonable pollution. The Attorney General, any political subdivision of the state, any instrumentality or agency of the state or of a political subdivision thereof, any person, partnership, corporation, association, organization or other legal entity may maintain an action in the superior court for the judicial district wherein the defendant is located, reside or conducts business, except that where the state is the defendant, such action shall be brought in the judicial district of Hartford, for declaratory and equitable relief against the state, any political subdivision thereof, any instrumentality or agency of the state or of a political subdivision thereof, any person, partnership, corporation, association, organization or other legal entity, acting alone, or in combination with others, for the protection of the public trust in the air, water and other natural resources of the state from unreasonable pollution, impairment or destruction provided no such action shall be maintained against the state for pollution of real property acquired by the state under subsection (e) of section 22a-133m, where the spill or discharge which caused the pollution occurred prior to the acquisition of the property by the state.

Sec. 22a-18. Powers of court. (a) The court may grant temporary and permanent equitable relief, or may impose such conditions on the defendant as are required to protect the public trust in the air, water and other natural resources of the state from unreasonable pollution, impairment or destruction.

(b) If administrative, licensing or other such proceedings are required or available to determine the legality of the defendant's conduct, the court in its discretion may remand the parties to such proceedings. In so remanding the parties the court may grant temporary equitable relief where necessary for the protection of the public trust in the air, water and other natural resources of the state from unreasonable pollution, impairment or destruction and the court shall retain jurisdiction of the action pending completion of administrative action for the purpose of determining whether adequate consideration by the agency has been given to the protection of the public trust in the air, water or other natural resources of the state from unreasonable pollution, impairment or destruction and whether the agency a decision is supported by competent material and substantial evidence on the whole record.

(c) If the agency's consideration has not been adequate, and notwithstanding that the agency's decision is supported by competent material and substantial evidence on the whole record, the court shall adjudicate the impact of the defendant's conduct on the public trust in the air, water or other natural resources of the state in accordance with sections 22a-14 to 22a-20, inclusive.

(d) Where, as to any administrative, licensing or other proceeding, judicial review thereof is available, the court originally taking jurisdiction shall maintain jurisdiction for purposes of judicial review.

(e) The court may award any person, partnership, corporation, association, organization or other legal entity which maintains an action under section 22a-16 or intervenes as a party in an action for judicial review under section 22a-19, and obtains declaratory or equitable relief against the defendant, its costs, including reasonable costs for witnesses, and a reasonable attorneys fee. (Emphasis added.)

"The legislative history is clear that the only cause of action allowed under General Statutes § 22a-16 is for declaratory or injunctive relief not for monetary damages. Therefore, it may be concluded that regardless of the entity commencing an action pursuant to General Statutes § 22a-16, said cause of action is brought for the benefit of the state and its citizens to protect the environment. Is the statute of limitations a defense to the state in an equitable proceeding? The answer has historically been "no" . . . Although courts in equitable proceedings often look by analogy to the statute of limitations to determine whether in the interests of justice a particular action should be heard, they are by no means obliged to adhere to those time limitations . . . First, the action is brought by the plaintiff pursuant to C.G.S. § 22a-16 whereby it becomes a `state regulation' enjoying the sovereign's authority. Secondly, the cause of action seeks injunctive and declaratory relief which falls under the court's equitable powers. Lastly, the statute of limitations pleaded by the defendants all pertain to damages suffered and sought to be compensated for, whereas the cause of action, (in count six), brought by the plaintiff pursuant to General Statutes § 22a-16 does not seek damages but equitable relief only. Devino v. Waterbury House Wrecking Co., Inc., Superior Court, judicial district of Waterbury, Docket No., CV 04-4002076 (January 27, 2006 Agati, J.) ( 40 Conn. L. Rptr. 642.) (Emphasis added.) The conclusion of this Court is that a motion for reconsideration is different than a motion to reargue and any time limitation on a motion to reargue is not applicable to a motion for reconsideration.

Secondly, because under § 22a-16, the plaintiff is in effect a special attorney general acting on behalf of the state as well as itself. Therefore, the statute of limitation does not apply to an action brought by the state. Also, this Court has inherent equitable authority in a matter of this type, and pursuant to the motion for reconsideration, the Court finds that an injustice would be done if the plaintiff were not to be awarded attorneys fees in this case. It would be inequitable for the plaintiff who has brought this action in part representing the citizens of the state to clean up the environment to have to spend over $200,000 in attorneys fees to obtain equitable relief. Accordingly, the statute of limitations does not apply to count six, and, therefore, there is a basis for the award of attorneys fees under C.G.S. §§ 22a-16 and 22a-18(e).

Thirdly, because the migration of the PCEs into the ground water and soil extending underneath the plaintiff's parking lot contained without any remediation up until at least 2005, the trespass, the nuisance and count six under C.G.S. §§ 22a-16 and 22a-18 were continuing courses of conduct. Therefore, bringing the action on or about September 12, 2005 means that the statute of limitations was not violated.

Fourthly, beyond and separate from what is stated above the plaintiff has alleged in the amended complaint dated November 19, 2009 count four, private nuisance. In said count, the plaintiff, in paragraph 31 states as follows: "When the Patels intentionally, negligently or with wanton disregard for the consequences allowed the discharge, release, spillage and uncontrolled loss of contaminates into the soil and groundwater at the Village Mall . . ."

Paragraph 32 of said count states "the Patels' use of the contaminants which were discharged or released into the environment was unreasonable and negligent, as well as reckless and abnormally dangerous." (Emphasis added.)

If there is proof that the Patels acted with wanton disregard, recklessly and dangerously as alleged, punitive damages/attorneys fees may be awarded to the plaintiff. See Franc v. Bethel Holding Co., 73 Conn.App. 114, 138-39 (2002), in which the Court stated inter-alia" . . . Wanton misconduct is reckless misconduct . . . It is such conduct that indicates a reckless disregard of the just rights or safety of others or of the consequences of the action . . . Whether the defendant acted recklessly is a question of fact subject to the clearly erroneous standard of review . . ."

This Court finds that the actions and/or failure to act by the Patels was in reckless disregard of the rights of the plaintiff. At least in 2002, by Mr. Patel's own admission, he and his wife were aware of the PCEs going into the ground water and soil and migrating underneath the plaintiff's parking lot. He was certainly informed that the PCEs were contaminants which hurt the environment and the property of the plaintiff, yet he did nothing about it until 2005. This buildup of contaminants in the plaintiff's property constituted wanton misconduct and reckless misconduct and a reckless disregard of the just rights and safety of others or of the consequences of the action.

"We conclude that the Court's finding of recklessness was not clearly erroneous; therefore, its award of punitive damages was proper." Id., 139.

Further, when the defendants became fully aware, at least in 2002, of the dripping of the PCEs into the ground water and soil migrating throughout the plaintiff's parking lot and knowing full well that they were liable to the plaintiff to stop the nuisance, it was bad faith on the part of the defendants to delay in conceding that they were liable to the plaintiff thus necessitating the plaintiff to bring the instant legal action.

For all of these reasons, this Court is justified in awarding punitive damages/attorneys fees and will assess attorneys fees (and expert fees) after a hearing following this judgment in accordance with CPB 11-21.

CONCLUSION AND ORDERS CT Page 2966

1. The plaintiff has met its burden of proving the allegations in Counts three, four and six, and judgment is entered for the plaintiff on those Counts. Judgment is rendered for the plaintiff on all special defenses except the seventh special defense on which judgment is entered for the defendants.

2. A permanent injunction is issued requiring the defendants to remediate environmental contamination present at the plaintiff's shopping center caused by their release of PCEs and to bring the property into compliance with all local, state and federal environmental laws and regulations and to reimburse the plaintiff for all costs incurred or to be incurred for the investigation and remediation of the contamination on the plaintiff's shopping center caused by PCEs as described above, also known as the Village Mall, and to reimburse the plaintiff for all costs to be incurred for the investigation and said remediation of the contamination in or about Unit 825-P and any contamination emanating therefrom.

3. Judgment and damages are assessed in favor of the plaintiff and against the defendants in the amount of $703,000 as the cost for remediation. The Court believes the cost of remediation in accordance with the testimony of the plaintiff's expert witness at $703,000 and rejects the claim by Rachel Rosen, the defendant's expert, of $484,000. Of course, the defendants will be credited for monies spent by them or on their behalf for remediation and will get credit in the event that the total cost of remediation is less than the $703,000 in damages, and their obligation may be reduced by the difference between $703,000 and the actual cost if less.

SO ORDERED.

The court would like to thank Attorneys Nicholas Harding and Martin Clayman for their professionalism at trial, their excellent preparation and conduct of the trial as well as the substantial number and quality of post-trial briefs and hearings thereon.