New York State Court of Claims

New York State Court of Claims

NEWKIRK v. THE STATE OF NEW YORK, #2005-016-064, Claim No. 106090


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):

Alan C. Marin
Claimant's attorney:
Kevin Newkirk, Pro se
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Geoffrey Rossi, Esq., AAG
Third-party defendant's attorney:

Signature date:
October 17, 2005
New York

Official citation:

Appellate results:

See also (multicaptioned case)

This decision follows the trial of the claim of Kevin Newkirk, which was held at Sullivan Correctional Facility. In his claim, Mr. Newkirk alleges that in December of 2000, he learned that gasoline spills had contaminated the drinking water at Woodbourne with the toxic substance MTBE. Newkirk alleges that exposure to MTBE caused him to suffer from "skin rashes, dizziness, nausea, severe headaches, lumps beneath the skin on various parts of the body, and an aggravation of existing asthmatic condition. [Claimant] also suffers mental anguish, including loss of sleep, heightened anxiety, and depression." Claim, p. 2.

Claimant testified that he was exposed to MTBE-contaminated water for "three or four months" in 2000, and because of such exposure suffers a "permanent" rash on his back and right leg. He showed the Court his back, where three discolored oval areas were apparent, each of which was several inches in diameter. Claimant testified that there is also one such area on his leg.
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Henry Moore, Woodbourne's Plant Utility Engineer, testified as to an "Analytical Report" of the Woodbourne water supply prepared by a private laboratory, Severn Trent Services Inc. The lab tested the water supply at all five of Woodbourne's well heads on July 11, 2000 and September 8, 2000; Moore said that such five wells were the source of all the water at Woodbourne.

According to Moore, the New York State Department of Health finds a level of fifty parts of MTBE per billion as acceptable. The Severn Trent report for July 11, 2000 contained the following results: well one - 8.7 parts per billion; well two - 6.7 ; well three - 4.3; well four - 9.2; and well six - 11[1]
. The September 8, 2000 report contained the following results: well one - 3.5 parts per billion; well two - 5.7; well three - 2.6; well four - 3.3; and well six - 16.
On cross-examination, Moore said he was not familiar with a spill at Woodbourne on October 5, 2000.
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Claimant's exhibit 3 contains a "NYSDEC Spill Report Form" which refers to an "unknown material" being spilled at Woodbourne on October 5, 2000, and also notes that "MTBE [was] found in water system." In addition, Henry Moore's testimony, defendant's exhibit A and claimant's exhibit 2 (a videotape of a January 3, 2001 staff meeting concerning the Woodbourne water supply), all indicate that MTBE was in fact present in the Woodbourne water supply in 2000.

However, claimant failed to prove that defendant was in any way negligent in connection with the presence of MTBE, or for that matter, that the level of MTBE in the water was not acceptable by any relevant standards. Moreover, claimant failed to provide expert testimony that any medical condition from which he suffers was caused by exposure to MTBE. See, e.g.,
Lyons v McCauley, 252 AD2d 516, 675 NYS2d 375 (2d Dept 1998), lv denied 92 NY2d 814, 681 NYS2d 475 (1998). For the foregoing reasons, claim no. 106090 is dismissed.

October 17, 2005
New York, New York

Judge of the Court of Claims

  1. [1]It was unclear why the wells were numbered 1 through 4 and 6, as opposed to 1 through 5.