New York State Court of Claims

New York State Court of Claims

ALASKAN OIL, INC. v. THE STATE OF NEW YORK, #2004-032-013, Claim No. 108151, Motion No. M-67428


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):

Claimant's attorney:
Neil M. Gingold, Esq.
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: Edward F. McArdle, Assistant Attorney General,Of Counsel
Third-party defendant's attorney:

Signature date:
March 8, 2004

Official citation:

Appellate results:

See also (multicaptioned case)

In this action, claimant Alaskan Oil, Inc. alleges that the New York State Department of Environmental Conservation (DEC) injured it by "threatening, harassing, prodding and haranguing claimant, verbally and in writing, to conduct a remediation of the alleged contamination at 500 Solar Street, Syracuse, New York" (claim, ¶ 3).[1]p 2). The Court of Claims Act does not recognize any document captioned "Notice of Claim" but, rather, refers only to claims and to notices of intention. Claimant asserts that by these actions defendant is guilty of abuse of process, negligence, and prima facie tort (claim, ¶ 3).

According to the claim, a July 1, 2003 letter to claimant's counsel from Benjamin A. Conlon, Esq., an attorney with DEC's Superfund and Voluntary Cleanup, informed claimant "for the very first time" that DEC had not pursued any legal effort to require certain other parties to remediate certain contamination on the property. These other parties are identified as Shell Oil Co., the former owner and operator of the petroleum terminal at 500 Solar Street, and Syracuse Industrial Development Agency (SIDA), identified as the "former owner and current owner of that site" (claim, ¶4).[2] The claim further alleges that DEC has determined that although claimant did not cause or contribute to the petroleum contamination of the property,[3] the agency has continued to try to force claimant to remediate contamination on the 500 Solar Street property and has failed to take any steps against either Shell Oil Co. or SIDA. In lieu of answering, defendant has moved for an order dismissing this claim on the ground that the Court lacks subject matter jurisdiction to hear this claim and/or that claimant has failed to state a viable cause of action.

DEC's power requiring private parties to carry out, or pay for, the cleanup of land contaminated by petroleum spills is found in the "Oil Spill Act" (Navigation Law, Article 12). These laws were developed to bring about swift and effective cleanup of petroleum spills (State of New York v Green, 96 NY2d 403 [2001]). In carrying out its duties relating to remediation of petroleum spills, the State is immune from liability unless it acts in a manner that is "unlawful, willful or malicious"(Navigation Law §176[2][b]).

Under the provisions of the Oil Spill Act, a property owner who did not cause or bring about contamination of the land may nevertheless be responsible for the cleanup. "[T]he strict liability imposed on landowners pursuant to Navigation Law article 12 cannot be avoided simply by demonstrating that another party actually and culpably caused the discharge" (State of New York v Brocco, 309 AD2d 1107, 1108 [3d Dept 2003]; see also, State of New York v Robin Operating Corp, 3 AD3d 767, 2003 WL 23185984 [3d Dept 2004]). A non-culpable landowner who is required to remediate is not without a remedy, for it may seek contribution against the party that actually caused the discharge (id. State of New York v Avery-Hall Corp, 279 AD2d 199 [3d Dept 2001]).

Claimant has not alleged facts that would support a cause of action for abuse of process against DEC. This tort consists of "[t]he improper and tortious use of a legitimately issued court process to obtain a result that is either unlawful or beyond the process's scope (Black's Law Dictionary, 7th ed [1999]).[4] To prove an action based on abuse of process, a claimant must establish the following: 1) that defendant issued or caused to be issued a civil or criminal process that compelled claimant to perform, or to forbear from performing, some act; 2) that in activating the process, the defendant was motivated by a purpose to do harm, without excuse or justification; and 3) that the defendant was seeking some collateral advantage to itself, or some corresponding detriment to claimant, outside the legitimate ends of the process (Board of Educ. of Farmingdale Union Free School Dist. v Farmingdale Classroom Teachers Assn., Local 1889, AFT AFL-CIO, 38 NY2d 397, 403 [1975]). In the instant case, claimant has failed to allege that any process has been issued against it by DEC.

Claimant has also failed to set forth a cause of action for ordinary negligence. Allegations that public officials "threatened, harassed, prodded or harangued" a citizen charge a defendant with intentional acts, not with "affirmative conduct creating a dangerous condition or a failure to perceive a foreseeable risk and take reasonable steps to avert it consequences" (Caprara v Chrysler Corp., 52 NY2d 114, 123 [1981]). In any event, the immunity provided by Navigation Law §176(2)(b) would prevent the Court from imposing liability for acts that were merely negligent.

Finally, the asserted cause of action for prima facie tort must also fail. To succeed in proving such a cause of action, a claimant must establish the following: 1) that the defendant intentionally inflicted harm, 2) that defendant had no excuse or justification for the harm caused, 3) that the acts or series of acts carried out by defendant were otherwise lawful, and 4) that claimant suffered special damages (Landor-St. Gelais v Albany Intern. Corp., 307 AD2d 671 [3d Dept 2003]). Defendant's acts "must be motivated solely by malevolence" and have no other goal or intention (Cavanaugh v Doherty, 243 AD2d 92, 101 [3d Dept 1998]). The Oil Spill Act and DEC's duty to enforce the provisions of that Act provide ample excuse and justification for that agency's efforts to convince claimant to participate in the remediation on the contamination on its lands. In addition, claimant has failed to allege any "specific and measurable" losses resulting from defendant's actions, the special damages that must be pled and proven in order to recover on a prima facie tort (Freihofer v Hearst Corp., 65 NY2d 135, 143 [1985]).

In summary, claimant has failed to plead and will be unable to prove any of the causes of action set forth in this claim. Because this fact alone warrants granting defendant's motion, there is no need to address defense counsel's other arguments: that the claim does not meet the pleading requirements of Court of Claims Act §11(b) and that any challenge to the enforcement actions of DEC is properly made by way of an Article 78 proceeding commenced in Supreme Court.[5]

Defendant's motion is granted, and Claim No. 108151 is dismissed.

March 8, 2004
Albany, New York

Judge of the Court of Claims

[1] The Court notes that claimant's pleading is entitled "Notice of Claim" and, according to claimant's counsel, was intended to be a claim rather than a notice of intention to file a claim (Gingold Memorandum of Law,

[2] The parties provide no information regarding the dates on which claimant or these other parties obtained or released ownership interest in the property, nor do they provide information about the dates on which contamination occurred and/or was discovered.
[3] This allegation is sharply disputed by the parties (see, McArdle affirmation, ¶11; Conlon affirmation, ¶9; Gingold affirmation, ¶6).
[4] "Process" in this context means a legal document issued by a court or other lawful authority, usually a summons or a writ (Black's Law Dictionary, 7th ed [1999]).

[5] The parties do not dispute that an Article 78 proceeding would be the appropriate vehicle by which to challenge any final administrative determination that negatively impacted claimant. Defense counsel points out, however, there has been no such final action (McCardle Affirmation, ¶ 15), and counsel for claimant asserts that the only relief sought by this action is money damages, not a review of a formal agency determination (Gingold memorandum of law, pp 4-5). As noted above, however, it is not necessary to determine whether an Article 78 proceeding would be an exclusive remedy in this somewhat unusual circumstance (see, Safety Group No. 194 v State of New York, 2001 WL 939747, aff'd 298 AD2d 785 [3d Dept 2002] [observing that in some instances there can be concurrent jurisdiction in the Court of Claims and Supreme Court]).