New York State Court of Claims

New York State Court of Claims

LANDRY v. THE STATE OF NEW YORK, #2002-007-152, Claim No. 100087, Motion No. M-64583


Claimants seek summary judgment regarding petroleum spills on premises leased by defendant. Motion granted, in part

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

John L Bell
Claimant's attorney:
Defendant's attorney:
Third-party defendant's attorney:

Signature date:
March 4, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


Claimants have made an application for an order granting partial summary judgment on the issue of liability. The return date of the motion was February 20, 2002. The following papers were read and considered by the court:

Notice of Motion, Affidavit of William J.

Greagan, Esq., Annexed Exhibits, Affidavit

of Thomas A. Sexton, Affidavit of Kim
Landry, Memorandum of Law 1, 2, 3, 4, 5, 6

Affirmation in Opposition of Michael W.

Friedman, Esq., Affidavit of Russell D.

Huyck, Annexed Exhibit, Affidavit of
Charles L. White, II, Annexed Exhibits 7, 8, 9, 10, 11

Reply Affidavit of William J. Greagan, Esq. 12

Filed Papers: Amended Claim, Answer
to Amended Claim 13, 14
From 1941 to September 30, 1998, the State Police operated a "Police Substation" on Moody Road, Village of Tupper Lake, Franklin County. During such time, the Police leased the subject premises from various owners, including claimant Thomas Sexton, who owned the premises from 1977 to 1993, and claimants Nelson and Kim Landry, who purchased the property from Sexton in 1993 and currently still own the property. Claimants contend that while the Police were in possession of the premises, two petroleum spills occurred and that the spills have not been adequately remediated.

One of the discharges allegedly occurred as a result of leakage from an underground gasoline storage tank installed by the Police for fueling State vehicles at the Substation. Claimants contend that a second discharge was caused by leaks from a fuel tank in the basement of the building where oil for heating the building was stored. Numerous causes of action are set forth in the claim, including a purported breach of the lease (second cause of action) and alleged liability pursuant to article 12 of the Navigation Law (sixth and seventh causes of action).

Defendant acknowledges learning of the gasoline discharge in August 1998 when the State excavated the underground gasoline tank. The State Department of Environmental Conservation (DEC) was notified and the State Office of General Services (OGS) hired an independent company, Tyree, to conduct an investigation. A report was submitted to DEC from such company in November 1998 and, thereafter, a second company, Alpha-Geoscience, was retained by OGS to, inter alia, define the probable lateral and vertical extent of soil contamination and provide recommended remediation. In August 1999, the State was granted access to the subject property and adjoining parcels in order to install monitoring wells. After analyzing the monitoring wells and soil samples, defendant determined that the most effective way to remove the petroleum and prevent further migration of the contamination was to install a high vacuum extraction system down gradient from the subject property. In late January 2002, after claimants had filed the current motion, defendant authorized contractors to initiate the first phase of the high vacuum extraction remediation process (see, White Affidavit, par. 11).

As regards the second discharge on the property resulting from leaks in the heating oil storage and distribution system, defendant has not submitted detailed information regarding remediation. Defendant has, however, offered the expert opinion of Russell D. Huyck, an environmental engineer employed by DEC, who opines that "the individual releases from the No. 2 Fuel Oil storage and distribution system and the Gasoline storage and distribution system have commingled into one contaminant plume" (Huyck Affidavit, par. 6). Hence, defendant urges that the cleanup it has authorized within the last month will address both discharges on the premises.

Claimant Kim Landry sets forth in her affidavit a summary of the relevant events regarding the discharges and the consequences allegedly suffered, as follows:

"5. Pursuant to the lease and the extension, the State was in continuous possession of the property until September 30, 1998.

"6. During the course of its tenancy at the property, the State had installed an underground gasoline storage tank and a gasoline pump system to fuel its police cars. The State acknowledged that this system leaked. The State agreed to remediate the gasoline contamination and in August, 1998, the State dug up and removed the underground gasoline tank. In the course of doing this work, the heavy equipment damaged the parking lot in front of the building. The damage has never been repaired.

"7. It is my understanding that the State has also undertaken a study of the soil contamination resulting from the underground gas leak and has agreed to remediate this contamination. As of this date, however, the State has not said when the work will begin; what the work will involve; or how long it will take to complete.

"8. There is fuel oil contamination in the basement of the building. This contamination creates a noxious odor which can be smelled throughout the house. Upon information and belief, the State has repeatedly refused to clean up the fuel oil contamination.

"9. The property has not been rented since the State terminated its lease in September, 1998. We cannot rent the property because the fuel oil contamination in the basement produces an odor inside the building and because we cannot tell prospective tenants when the State will actually begin its remediation of the gasoline contamination; what disruptions this remediation will cause; or how long the disruptions will last.

"10. We have offered to sell the property, which the State Police used for in excess of fifty years, to the State but even it has expressed no interest in purchasing the property and we believe the current contamination makes the property unmarketable."

Claimants have now moved for partial summary judgment on the issue of liability regarding the second cause of action (breach of the lease) and the sixth and seventh causes of action (article 12 of the Navigation Law). The proponent of a motion for summary judgment bears the threshold burden of tendering sufficient evidence to eliminate any material issues of fact and establishing the propriety of judgment as a matter of law (Winegrad v New York Univ. Med. Center, 64 NY2d 851; Tiano v Lane, 260 AD2d 908). If the threshold burden is satisfied, the nonmoving party must step forward with evidence demonstrating a triable issue of fact to defeat the motion (Moran v Technical Bldg. Servs., 258 AD2d 697).

Initially, the court will address the aspect of the motion that pertains to claimant Thomas A. Sexton. Sexton has not owned the property since 1993. Since all claimants are represented by the same counsel it is readily apparent that the current owners are not pursuing a remedy against Sexton for the discharges, which might give rise to a claim by Sexton against the State. In his reply affidavit, Sexton's attorney asserts the fifth cause of action as reflecting damages to Sexton. Claimants did not, however, move for summary judgment under the fifth cause of action. Moreover, the fifth cause of action does not appear to allege a petroleum discharge but instead asserts negligence related to damage to a sink and the septic system purportedly caused by defendant when Sexton owned the subject property. There is no allegation as to when during the time period from 1977 to 1993 the purported negligent conduct occurred. Sexton's affidavit does not address the merits of the fifth cause of action in any fashion. There is no proof that the petroleum contamination was an issue at the time Sexton sold the property to the other claimants or that the sale price was affected thereby. Claimant Sexton has failed to sustain his initial burden of proving that he is entitled to summary judgment and thus the motion is denied as to him.

Claimants Nelson Landry and Kim Landry[1] owned the subject property when the lease with defendant ended and they still own the property. Navigation Law § 181(1) provides that "[a]ny person who has discharged petroleum shall be strictly liable, without regard to fault, for all cleanup and removal costs and all direct and indirect damages * * *." The statute further states that "[a]ny claim by any injured person for the costs of cleanup and removal and direct and indirect damages based on the strict liability imposed by this section may be brought directly against the person who has discharged the petroleum * * *" (Navigation Law § 181[5]). The statutory framework of article 12 of the Navigation Law is designed to foster swift and effective cleanup of petroleum spills (State of New York v Green, 96 NY2d 403).

An owner of contaminated land who has not caused or contributed to a discharge can seek compensation from the party who actually caused the damage (White v Long, 85 NY2d 564; State of New York v Avery-Hall Corp., 279 AD2d 199). While an owner may be "faultless" in that the owner did not cause or contribute to the discharge, the owner may nevertheless be a "discharger" liable for cleanup costs within the broad remedial statutory framework (State of New York v Green, supra). Indeed, in State of New York v Green (supra), the landowner was held to be a statutory "discharger" because it had the right to control activities on its property and it had reason to believe that petroleum products were stored there. Significantly, however, the Court of Appeals added that such a "discharger" landowner was not without redress because it could "seek contribution from the actual discharger, even though the landowner itself is liable as a discharger under section 181(1)" (id., at 408).

Here, it is undisputed that defendant installed the gasoline storage tank and that a discharge of gasoline occurred during defendant's tenancy (see, e.g., Exhibits E and F annexed to Greagan Affidavit of January 15, 2002). While defendant has not admitted to the second discharge from the heating fuel tank, it has not presented proof to contradict claimants' evidence regarding such discharge. Defendant contends that claimants may have caused or contributed to the discharges. Defendant has failed, however, to offer any proof to substantiate such contention. Mere expressions of hope and unsubstantiated allegations are inadequate to defeat a motion for summary judgment (see, e.g., Zuckerman v City of New York, 49 NY2d 557; Roupp v Conrad, 287 AD2d 937). The evidence set forth in the papers before the court establishes that the discharges occurred while defendant was in possession and control of the premises without any comparative culpability by claimants. Claimants are thus entitled to summary judgment on the issue of liability (see, Gettner v Getty Oil Co., 266 AD2d 342).

Additionally, the papers presented establish that, at the time defendant vacated the subject property, the property was not, as required by the lease, in "as good order and condition as when received, normal wear and tear and damage by the elements, including fire, excepted" (Exhibit C, par. 20, annexed to Greagan Affidavit of January 15, 2002). The discharges of petroleum, which were not fully remediated when defendant vacated the property, constituted violations of the lease and claimants are entitled to summary judgment upon such ground (see, Gettner v Getty Oil Co., supra).

It is

ORDERED that claimants' motion is granted, in part, and partial summary judgment on the issue of liability is granted to claimant Nelson Landry and claimant Kim Landry on the second, sixth and seventh causes of action set forth in the amended claim, and, it is further

ORDERED that claimants' motion is otherwise denied.

March 4, 2002
Plattsburgh, New York

Judge of the Court of Claims

[1] References hereinafter to "claimants" are to Nelson Landry and Kim Landry, unless otherwise indicated.