Science Applications Intl. Corp. v Environmental
Risk Solutions, LLC
2012 NY Slip Op 31013(U)
April 18, 2012
Supreme Court, Albany County
Docket Number: 3688-10
Judge: Joseph C. Teresi
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STATE OF NEW YORK
COUNTY OF ALBANY
DECISION and ORDER
INDEX NO. 3688-10
RJI NO. 01-10-100559
ENVIRONMENTAL RISK SOLUTIONS, LLC;
1694 NIAGARA FALLS BLVD TONAWANDA, LLC;
2058 DELA WARE AVE, BUFFALO, LLC; JAMES M.
DONEGAN; JOSEPH RIITANO; 7549 OSWEGO RD
CLA Y, LLC; 1361 ABBOT RD LACKAWANNA, LLC;
RED-KAP SALES, INC.; CORTLAND PUMP & EQUIPMENT,
INC.; 690 PITTSFORD VICTOR RD PITTSFORD LLC; and
BUCKNO, LISICKY & COMPANY, PC,
BLOUNT ENERGY, INe.; JTNY, LLC;
and LEHIGH GAS CORP.,
INDEX NO. 8473-10
ENVIRONMENTAL RISK SOLUTIONS, LLC;
SCIENCE APPLICATIONS INTERNATIONAL
CORPORATION; and AMERICAN INTERNATIONAL
SPECIALITY LINES INSURANCE CO.,
Supreme Court Albany County All Purpose Term, February 23,2012
Assigned to Justice Joseph C. Teresi
Tabner, Ryan and Keniry
Thomas R. Fallati, Esq.
Attorneys for Science Applications International Corporation
18 Corporate Woods Blvd.
Albany, New York' 12211
Harriton & Furrer, LLP
Attn: Urs Broderick Furrer, Esq.
Attorneys for Defendants 1694 Niagara Falls Blvd Tonawanda, LLC;
2058 Delaware Ave Buffalo, LLC; 7549 Oswego Rd Clay, LLC; 1361 Abbot
Road Lackawanna, LLC,' 690 Pittsford Victor Rd Pittsford, LLC,' Buckno, Lisicky
& Company, PC,' Blount Energy, Inc.; JTNY, LLe and Lehigh Gas Corp.
84 Business Park Drive, Suite 302
Armonk, New York 10504
Harris Beach, PLLC
Frank Pravia, Esq.
Attorneys for Environmental Risk Solutions, LLC
99 Garnsey Road
Pittsford, New York 14534
By Stipulation of the parties dated March 7, 2011 (hereinafter "Stipulation"), this Court
consolidated Actions 1 and 2, revised the scheduling order applicable to both, and restricted
disbursements from three specified escrow accounts. Lehigh] and Buckno, Lisicky & Company,
PC (hereinafter "Buckno") now move to vacate the Stipulation's escrow restrictions.
Environmental Risk Solutions, LLC (hereinafter "ERS") objects to Lehigh and Buckno's
characterization of certain proof, it takes no position on the escrow issue. Science Applications
International Corporation (hereinafter "SAIC"), however, opposes Lehigh and Buckno's motion,
and cross moves for a preliminary injunction increasing the restrictions on two of the three
escrow accounts. Because neither Lehigh and Buckno nor SAIC demonstrated their entitlement
to the relief they seek, their motions are denied.
"Lehigh" will hereinafter collectively refer to: 1694 Niagara Falls Blvd Tonawanda,
LLC; 2058 Delaware Ave Buffalo, LLC; 7549 Oswego Rd Clay, LLC; 1361 Abbot Road
Lackawanna, LLC; 690 Pittsford Victor Rd Pittsford, LLC; Blount Energy, Inc.; JTNY, LLC; and
Lehigh Gas Corp.
"[O]nly where there is cause sufficient to invalidate a contract, such as fraud, collusion,
mistake or accident, will a party be relieved from the consequences of a stipulation made during
litigation." (Hamilton v Murphy, 79 AD3d 1210, 1211-12 [3d Dept 2010] Iv to appeal
dismissed, 16 NY3d 794  rearg denied, 16 NY3d 885 , quoting Robison v. Borelli,
239 AD2d 656 [3d Dept 1997]; Tverskoy v Ramaswami, 83 AD3d 1195 [3d Dept 2011];
Hallock v. State of New York, 64 NY2d 224 ).
On this record, Lehigh and Buckno failed to proffer sufficient proof to invalidate the
Stipulation. The affidavit of Joseph Topper2 makes no allegation of fraud, collusion, mistake or
accident in the execution of the Stipulation. His conclusory statement that Lehigh "had no
choice but to agree to" the Stipulation, simply fails to establish the evidentiary foundation
necessary to vacate it. Nor did the affidavit of the replacement environmental consulting firm,
Synergy Environmental, Inc. (hereinafter "Synergy"). Both the Synergy and Topper affidavits
detail the extensive remediation work Synergy has performed, but neither allege that this work
was not contemplated or foreseeable at the time the Stipulation was entered. Thus, contrary to
Lehigh and Buckno's contention, the Stipulation cannot be vacated due to the doctrine of
frustration of purpose. (Rebell v Trask, 220 AD2d 594 [2d Dept 1995]). To the extent Lehigh
and Buckno's counsel produced documents allegedly demonstrating SAIC's breach of contract,
negligence and fraud in entering and performing the contracts underlying this action, such
showing fails to demonstrate fraud, collusion, mistake or accident in their execution of the
Stipulation. Moreover, Lehigh and Buckno's argument that the Stipulation's escrow restrictions
He is the Chief Executive Officer of Lehigh Gas Corp.; Blount Energy, Inc.; and
will cause environmental damage is not supported by any factual showing of specific
environmental damage. Because Lehigh and Buckno failed to demonstrate fraud, collusion,
mistake or accident their motion is denied.
SAIC similarly failed to demonstrate its entitlement to a preliminary injunction.
"As the moving party, [SAIc] was required to establish a likelihood of success on the
merits, irreparable harm in the absence of an injunction and a balancing of the equities in [their]
favor." (Moore v Ruback's Grove Campers' Ass'n, Inc., 85 AD3d 1220, 1221 [3d Dept 2011]).
"Notwithstanding the tripartite test, if [SAIc] has an adequate remedy at law and may be fully
compensated by monetary damages, a preliminary injunction will not be granted." (Roushia v
Harvey, 260 AD2d 687,688 [3d Dept 1999]; Credit Agricole lndosuez v Rossiyskiy Kredit
Bank, 94 NY2d 541 ).
While SAIC seeks a preliminary injunction to increase the restraint on two of the three
escrow accounts and to continue the Stipulation's restraint on the third, it failed to proffer any
proof that it has no adequate remedy at law. It is undisputed that the escrow accounts at issue
were initially funded by non-party ExxonMobil Corporation (hereinafter "Exxon"), for the
purpose of paying for environmental remediation at three portfolios of properties Exxon sold to
Lehigh (hereinafter "portfolio properties").
After SAIC was refused payment from the escrow
funds for environmental remediation work it allegedly completed on specified portfolio
properties, it commenced Action I to foreclose a number of mechanic's liens it had filed on
portfolio properties. SAIC's liens were thereafter discharged by the filling of bonds, and the
escrow fund was no longer a subject of the action. (CPLR §6301). The bond's assurance of
payment belies SAIC's claim that a reduction of the escrow accounts may result in its not being
fully compensated. Moreover, SAlC offered no proof to substantiate or explain its assertion that
its damages are not covered by the liens it filed. Nor did SAlC show that the escrowed funds
may be used to pay interest on its theoretical damage award. SAlC similarly proffered no proof,
nor cites to a provision of the underlying escrow agreement, that allows it to collect ajudgment
for attorney's fees from such escrowed funds. Due to such lack of proof, SAlC failed to
demonstrate that the escrowed funds are the subject of this action or that it has no adequate
remedy at law.
Accordingly, SAlC's motion is denied.
This Decision and Order is being returned to the attorneys for SAle. A copy of this
Decision and Order and all other original papers submitted on this motion are being delivered to
the Albany County Clerk for filing.
The signing of this Decision and Order shall not constitute
entry or filing under CPLR §2220. Counsel is not relieved from the applicable provision of that
section respecting filing, entry and notice of entry.
" So Ordered.
Dated: Albany, New York
C. Teresi, J.S.e.
Order to Show Cause, dated January 19,2012, with attached Exhibit A; Affirmation of
Urs Broderick Furrer, dated January 18,2012, with attached Exhibits A-R; Affidavit of
Brian Fitzpatrick, dated January 17,2012, with attached Exhibit A; Affidavit of Joweph
Topper, dated January 16,2012.
Notice of Cross-Motion, dated February 14, 2012; Affidavit of Steven Bonde, dated
February 13,2012, with attached unnumbered exhibit; Affirmation of Thomas Fallati,
dated February 14,2012, with attached Exhibits A-H; Affidavit of John Conrad, dated
February 13,2012, with attached Exhibit A; Affirmation of Brian Quinn, dated February
14,2012, with unnumbered exhibits.
Affidavit of Frank Pavia, dated February 13,2012, with attached Exhibits A-B.
Reply Affirmation ofUrs Broderick Furrer, dated February 20,2012, with attached