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
"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
"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
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
Claimants Nelson Landry and Kim Landry
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). 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
, 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).
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.