State of New York v C.J. Burth Servs., Inc.

[*1] State of New York v C.J. Burth Servs., Inc. 2009 NY Slip Op 50374(U) [22 Misc 3d 1130(A)] Decided on February 18, 2009 Supreme Court, Albany County Lynch, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 18, 2009
Supreme Court, Albany County

State of New York, Plaintiff,

against

C.J. Burth Services, Inc., Carlton J. Burth and James G. Stasaitis, Jr., Defendants.



L90-02



APPEARANCES:

Andrew M. Cuomo

Attorney General of the State of New York

Attorney for Plaintiff

(Jeremy R. Feedore, Esq. Assistant

Attorney General, of Counsel)

The Capitol

Albany, New York 12224

Rossi and Murnane

Attorneys for Defendants

(Vincent J. Rossi, Jr., Esq. of Counsel)

587 Main Street, Suite 302

New York Mills, New York 13417

Michael C. Lynch, J.

Plaintiff commenced this action under Article 12 of the Navigation Law to recover cleanup costs resulting from a discharge of petroleum affecting premises owned by the individual defendants at 1240 Culver Avenue, Utica, New York. [*2]Plaintiff has moved for summary judgment on its first, third and fourth causes of action against the defendants. Defendants have opposed the motion and request that the Court search the record and dismiss the complaint (see Guggenheim v. Guggenheim, 109AD2d 1012).

In State of New York v. Green, (96 NY2d 403), the Court of Appeals determined that a faultless landowner (i.e. one who has neither caused nor contributed to a discharge) on whose property petroleum has spilled is not per se a "discharger" liable for the cleanup cost under Article 12 of the Navigation Law. By comparison , the Court determined that "where...a landowner can control activities occuring on its property and has reason to believe that petroleum products will be stored there, the landowner is liable as a discharger for the cleanup costs" (Id at p. 405). The Court of Appeals applied this rule of control in US Underwriters Ins. Co. v. City Club Hotel, LLC, (3 NY3d 592) (hereinafter Speonk) to impose liability on a contract vendee, Speonk Fuel, Inc., which acquired title to a gasoline service station knowing the underground petroleum storage tanks had failed , contaminating the site (Id p. 722). The Court found that Speonk had the ability to "control" the site within the meaning of Green since "with knowledge of its vendor's discharge of oil and the need for cleanup, Speonk did nothing" (Id p. 724).

Here the submissions indicate that the individual defendants, Burth and Stasaitis (hereinafter the defendants) purchased the property in 1986. In his opposition affidavit, Burth explains that when they purchased the site they knew it was being used as an automotive repair shop, but denied knowing the site had previously been used as a gas station. According to Burth, "there were no gasoline pumps, no gasoline canopies, and no gasoline storage or sale operation whatsoever on the premises" (see Burth affidavit at paragraph 2). Defendants admittedly took possession in 1987 and have since operated an automobile repair shop through the defendant corporation. In 1992, defendants learned from the prior owner, Talerico, that there were several underground gasoline storage tanks previously taken out of service. Defendants made arrangements for the removal of the tanks, at which time petroleum contamination adjacent the tanks was discovered. The "Petroleum Bulk Storage Application" filed by defendants with the petitioner for the 1992 removal identified the "facility owner" as the corporation (see Exhibit "K" to Feedore Affirmation).

There is nothing in this record to refute Burth's explanation that defendants' were unaware of the site's prior use as a gasoline service station when they purchased the premises. While plaintiff's counsel refers to defendants' operation [*3]of a gasoline service station at the site in his submissions (see plaintiff's Memorandum of Law at p. 6; Feedore affidavit at paragraph 15), no factual basis for this characterization is provided. Notably, no such characterization is included in the affidavit of James Doyle, plaintiff's environmental engineer. While defendants' concededly have operated a repair shop on site that involves the handling of waste oil, the record confirms that the waste oil tank was inspected by DEC and found to be intact ( Doyle, affidavit at paragraph 5). The photographs document that the contamination emanated from the underground pipes and gasoline tanks riddled with holes (see Exhibit "A" attached to Doyle affidavit).

While the Court is mindful that defendants identified the corporation as the "facility owner" in the removal application submitted to DEC, there is no other basis in this record to identify the corporation as the owner of the underground storage tanks. Indeed, such an assertion directly contradicts defendants' position that they did not discover the presence of the tanks until 1992 — and that at no point were the tanks utilized in the operations of the repair shop. This record actually points to the individual defendants as the premises owner, inclusive of the underground tanks in question.

The questions thus presented is whether defendants may be held liable for the discharge by virtue of their ownership of the premises and/or the petroleum storage system. Unlike the circumstances in Speonk, there is nothing in this record indicating that defendants had knowledge of the underground tanks or any contamination resulting from the leakage of the tanks at the time they purchased the premises in 1986. As such, defendants were not in a position of control over the site (see Speonk, supra. at p. 724; Green, supra. at p. 407).

Their status as owners does not make them strictly liable as dischargers under Article 12 of the Navigation Law and, as a result, the complaint against the defendants must be dismissed.

This Memorandum constitutes the Decision and Order of the Court. All papers including this Decision and Order are returned to the attorneys for plaintiff. The signing of this Decision and Order shall not constitute entry or filing under CPLR Rule 2220. Counsel is not relieved from the applicable provisions of that Rule respecting filing, entry and Notice of Entry.

SO ORDERED!

ENTER.

Dated: Albany, New York

February 18, 2009 [*4]

______________________________________

Michael C. Lynch