Seligson v Russo

Seligson v Russo 2012 NY Slip Op 00102 Decided on January 10, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on January 10, 2012
Friedman, J.P., Sweeny, Acosta, Renwick, Abdus-Salaam, JJ.
601608/99 6517

[*1]6516-Aaron Seligson, et al., Plaintiffs-Appellants-Respondents,

v

Albert Russo, et al., Defendants-Respondents-Appellants.




Leahey & Johnson, P.C., New York (Peter James Johnson, Jr.,
of counsel), for appellants-respondents.
Kellner Herlihy Getty & Friedman, LLP, New York (Douglas
A. Kellner of counsel), for respondents-appellants.

Order, Supreme Court, New York County (Shirley Werner Kornreich, J., upon a decision of Herman Cahn, J.), entered October 13, 2009, which, to the extent appealed from as limited by the briefs, upon the receiver's motion, inter alia, to approve his final account, fix his commissions and allocate his commissions and expenses between the parties, held plaintiffs 50% liable for the costs of remediation of an oil leak in a building owned by their former partnership and offset against this liability the sums due them from the receiver's commission escrow account, and held defendants liable for 99.9% of the receiver's commissions and expenses, unanimously affirmed, with costs.

The court properly imposed liability for the costs of remediation of the leak from the oil tank under the partnership's building pursuant to the Navigation Law, which imposes strict liability on "[a]ny person who has discharged petroleum" onto land "from which it might flow or drain into" the waters of the state, which include "bodies of ... groundwater" (§ 181[1]; §§ 172[8], [18]; see State of New York v New York Cent. Mut. Fire Ins. Co., 147 AD2d 77, 79 [1989]). Neither the "as is" clause in the offering memorandum whose terms were incorporated in defendants' right of first refusal nor the assumption agreement explicitly exculpated plaintiffs, 50% owners of the property when the oil leak was discovered, from liability for the leak (see Umbra U.S.A. v Niagara Frontier Transp. Auth., 262 AD2d 980, 981 [1999]). Plaintiffs' argument concerning our decision in 101 Fleet Place Assoc. v New York Tel. Co. (197 AD2d 27 [1994], appeal dismissed 83 NY2d 962 [1994]) is misplaced. That decision involved a broad provision that did not contain an "as is" clause but explicitly imposed liability for "any violation."

The court properly allocated 99.9% of the receiver's commissions to defendants because 99.9% of the proceeds from the sale of the partnership interests was attributable to them.

We have considered the parties' other contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. [*2]

ENTERED: JANUARY 10, 2012

CLERK