Ville de Port, Inc. v Hess Corp.

[*1] Ville de Port, Inc. v Hess Corp. 2012 NY Slip Op 50072(U) Decided on January 18, 2012 Supreme Court, Kings County Schmidt, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 18, 2012
Supreme Court, Kings County

Ville de Port, Inc., Plaintiff,

against

Hess Corp., Defendant.



875/10



Plaintiff Attorney: Marshall G. Kaplan, 40 Clinton Street, Brooklyn, NY 11201

Defendant's Attorney: Kelly, Drye & Warren LLP, 101 Park Avenue, New York, NY 10178

David I. Schmidt, J.

Upon the foregoing papers, defendant, Hess Corp. (Hess), moves for an order, pursuant to CPLR 3212, granting summary judgment and dismissing the complaint of plaintiff, Ville de Port (VDP).

Background

This action sounding in negligence arises from an oil spill that occurred within the plaintiff's residential apartment building located at 333 McDonald Avenue, Brooklyn, NY (the property). On or about August 11, 2000, a non-party independent company delivered Hess heating oil to the property.[FN1] During the delivery, oil leaked from the stick-line [FN2] of an [*2]underground tank causing a spill onto the garage floor that was above the tank and into various drains and sewer lines. At the time of the spill, the delivery driver was filling the tank through a port located outside of the apartment building and not in the area where the tank and stick-line were located.

The spill was reported to the New York State Department of Environmental Conservation (NYSDEC), and a company was hired to clean up the spill at Hess' expense. The garage floor was cleaned right after the spill and the drainage lines were cleaned over the course of the next several years. On or about March 12, 2008, the NYSDEC notified the plaintiff that there was a violation on its property resulting from the migration of oil from the spill. The NYSDEC stated that it would have to investigate the extent of the spill and remediate any environmental issues. The plaintiff alleges that it did the work required to remove the violation at a cost of $100,000. The plaintiff further alleges that, after the initial clean-up, the defendant stated "there was nothing further to be done" with respect to the oil spill. This allegation is flatly denied by defendant.

Plaintiff commenced this action in October 2009 alleging negligence on the part of defendant and resulting damage to the property. Plaintiff originally commenced in the United States District Court for the Eastern District of New York, however, as the litigants are New York "residents", the Eastern District court transferred the action to the Kings County Supreme Court citing insufficient diversity jurisdiction under 28 USC 1332. On October 7, 2011, defendant filed the instant motion for summary judgment.

In moving for summary judgment, Hess argues that plaintiff's negligence claim is time-barred pursuant to the three year statute of limitations within CPLR 214(4). Hess contends that the plaintiff was aware of the spill on August 11, 2000 - the time of occurrence - and is therefore barred from bringing its claim in October 2009, over nine years later. Defendant similarly argues that the "discovery rule" contained in CPLR 214 (c) offers no help to plaintiff because VDP was aware of the spill at the time of its occurrence and bore the responsibility of ensuring that its own property was completely cleaned. The fact that the migration of the oil was discovered years later is of no consequence.

Hess further contends that the plaintiff's negligence action is legally deficient because the defendant owed the plaintiff no legal duty. Defendant cites case law for the principle that suppliers of fuel have no legal duty to check a customer's heating system for leaks before supplying fuel unless the customer warns the supplier of a possible defect. In the instant matter, Hess argues that the plaintiff could not have warned the driver of a defect in the heating system since the plaintiff was unaware that the tank's fuel gauge was malfunctioning and improperly stating the fuel level in the tank.

In opposition, the plaintiff affirms its position that the competent producing cause of the oil spill was negligent overfill of the oil tank and not a defective gauge, and that the defendant never advised the plaintiff that the oil could migrate through the ground and cause a contamination. Further, the plaintiff alleges, albeit for the first time in its opposition, that Hess is in violation of the Navigation Law which it claims imposes absolute liability upon [*3]any person who discharges petroleum, without regard to fault, for all clean up and removal costs as well as both direct and indirect damages.

In response, defendant posits that there is no Navigation Law claim before this court as it was not included in the plaintiff's complaint and is being raised for the first time in its opposition. Moreover, the defendant contends that even if the plaintiff were to move to amend its complaint to include a Navigation Law cause of action, such cause cannot be sustained as a matter of law. Hess contends that a plaintiff cannot bring a Navigation Law cause of action if the plaintiff itself contributed in any way to the spill at issue. Here, the defendant argues that the cause of the spill was the plaintiff's defective oil tank gauge and, therefore, the plaintiff contributed to the oil spill.

Discussion

The proponent of a motion for summary judgment must demonstrate entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). Once such a showing is made, the burden shifts and the party opposing the motion must tender evidentiary proof, in admissible form, sufficient to establish the existence of a material issue of fact which would require a trial or tender an acceptable excuse for his or her failure to do so (see Greenberg v Coronet Prop. Co., 167 AD2d 291 [1990]; see Zuckerman 49 NY2d at 557 ). Material issues of fact must be established by admissible evidence, "not mere conjecture, suspicion, or speculation" (Fotiatis v Cambridge Hall Tenants Corp., 70 AD3d 631, 632 [2010]). "[I]t is incumbent upon a [plaintiff] who opposes a motion for summary judgment to assemble, lay bare and reveal his proofs, in order to show that the matters set up in his answer are real and are capable of being established upon a trial. Bare conclusory allegations are insufficient to defeat a motion for summary judgment." (Seyfried v Greenspan, 92 AD2d 563, 565 [1983]). Pursuant to CPLR 214(4), "an action to recover damages for an injury to property" must be commenced within three years (see also Atlantic Express Transp. Corp. v Weeks Mar., Inc., 68 AD3d 903 [2009]). In New York, a cause of action for injury to property begins to accrue on the date of injury (see Manhattanville College v James John Romeo Consulting Eng'r, P.C., 5 AD3d 637 [2004]).

Here, the defendant, as proponent of the summary judgment motion, has made a prima facie showing of entitlement to judgment as a matter of law. It is uncontroverted that the action was commenced more than nine years after the date of the oil spill with the plaintiff's full knowledge of the occurrence. The spill occurred on or about August 11, 2000, and this is when the general period of limitations began to run under CPLR 214(4). In unintended support of Hess' motion, VDP's affirmation in opposition, clearly states, "this action is [*4]predicated upon an oil spill which occurred on August 11, 2000." Since it is irrefutable that the plaintiff did not commence its action until October 2009, more than nine years after the date of its injury, the claim is time-barred under CPLR 214(4).

The defendant, having made his prima facie burden, that burden now shifts to the plaintiff to provide evidentiary proof, in admissible form, sufficient to establish the existence of a material issue of fact which would require a trial (Alvarez, supra).

The plaintiff has failed to raise a triable issue of fact, indeed, has failed to even address, the defendant's statute of limitations argument. In opposition to Hess' motion, plaintiff offers the conclusory and unsupported statement that the defendant failed to warn the plaintiff of the risk of migration from the spill. Strangely absent from VDP's opposition is any evidence that Hess delivered more oil than ordered. Counsel's affirmation alleges that two deliveries were made, however, he includes no evidence to support that Hess negligently overfilled the tank. Bare conclusory allegations that Hess did so are insufficient to defeat a motion for summary judgment (see Seyfried 92 AD2d at 565). Moreover, the testimony of plaintiff's own witness, property manager Chany Kaplan conclusively states that the spill went into the drains and sewers of the building. She testified that the spilled oil apparently clogged the drains and it took the next 4 years or so to adequately remove same from the system. These structures are below ground level therefore plaintiff cannot assert that it had no knowledge of potential underground migration issues since, for over four years, VDP was cleaning up the oil's migration through its drainage system. Moreover, the plaintiff's attempt to impose liability by inclusion of only four lines of text from defendant's witness' deposition is misleading and inappropriate. While Raymond Sojka (Sojka), Hess' representative, did in fact state that the spill was caused by a tank overfill, a more thorough review of his testimony, and supporting documentary evidence, reveals the important fact that the overflow spill was predicated upon a malfunctioning tank gauge that was improperly stating the level of fuel in the tank. Hess delivered the quantity ordered and such quantity was more than the tank actually required. VDP's opposition offers no evidence to rebut Hess' showing on this point.

Although never raised by the plaintiff, if, for the sake of argument, VDP sought refuge under the "discovery" rule of CPLR 214 - c (2),[FN3] the provision, similarly, provides no support for its position. CPLR 214 (4) provides a three year period within which to [*5]commence an action to recover damages for an injury to property except as provided in section 214-c. Under CPLR 214 -c, "discovery occurs when, based upon an objective level of awareness of the dangers and consequences of the particular substance, the injured party discovers the primary condition on which the claim is based" (Byrd v Manor, 82 AD3d 813 [2011]) (internal citations omitted). Since the oil spill is the primary condition on which the plaintiff's claim is based, and plaintiff was fully aware of such spill at the time of its occurrence, VDP has no cause of action under this provision.

As noted by the defendant, the VDP's argument regarding the Navigation Law is referenced for the first time within its affirmation in opposition and is not plead in the complaint. While a party may oppose a motion for summary judgment by relying on an unplead cause of action (Falkowski v Krasdale Foods, Inc., 50 AD3d 1091 [2008]), plaintiff's attempt to assert a cause of action under the Navigation Law is untenable as VDP is unable to assert the necessary facts in support.

Pursuant to Navigation Law § 181, "any person who has discharged petroleum shall be strictly liable, without regard to fault, for all cleanup and removal costs and all direct and indirect damages, no matter by whom sustained." However, a Navigation Law "claim" is defined "for the purposes of part three of this article, any claim of the fund or any claim by an injured person, who is not responsible for the discharge, seeking compensation for cleanup and removal costs incurred or damages sustained as a result of a petroleum discharge"and did not cause or contribute to the discharge in any way (see Navigation Law § 172 [3]; see also Sunrise Harbor Realty, LLC v 35th Sunrise Corp., 86 AD3d 562 [2011]; Nappi v Holub, 79 AD3d 1110 [2010]). The Court of Appeals has held that while liability would not be imposed on a landowner who had no control over the spill, such as the victim of an anonymous dumping of toxic products, liability would be imposed on a landowner who could control activities on its land and had reason to believe that petroleum products would be stored on its property (see State of New York v Green, 96 NY2d 403 [2001]).

In the instant action, the defendants have produced prima facie evidence that the cause of the oil spill was a defective gauge on the oil tank resulting in an excessive order for oil. In support of its motion, Hess has provided excerpts from Sojka's deposition wherein he testified that he examined the gauge on the date of the oil spill and that it was defective. Hess also provides Sojka's business records from the time of the event, which support his deposition testimony. VDP has offered no evidence that it notified Hess of a defect in the tank's gauge. Absent evidence that the defendant was given notice of a possible defect, liability will not attach (see Mittendorf v Brooklyn Union Gas Co., 195 AD2d 449 [1993]). In opposition, VDP cites the aforementioned and misleading excerpt from Sojka's deposition, bolstered by the conclusory statement from its attorney, to wit: "The facts are clear that the competent producing cause of the spill was putting too much oil in the tank." It is well settled that attorney affirmations containing "general conclusory allegations which contain no specific factual references" are insufficient to defeat a summary judgment motion (see Seyfried, 92 AD2d at 565). [*6]

Finally, the plaintiff's reliance on Fuchs & Bergh, Inc. v Lance Enter., Inc. (22 AD3d 715 [2005]) and Schreiber v Cimato (299 AD2d 813 [2002]) is misplaced. As plaintiff merely cites the names of the cases, and offers no insight as to how or why said cases support its proposition, the court distinguishes the cases as follows: Fuchs stands for the proposition that a Navigation Law claim may only be asserted by an injured person who is not responsible for the discharge. In the instant action, the plaintiff is responsible because, as discussed above, it had control of the oil tank, placed the order for fuel based on a faulty gauge, and never informed Hess that VDP's tank gauge was malfunctioning. In Schreiber, the court held "There are issues of fact whether plaintiffs exercised due diligence to discover the contamination and the fraud and whether defendants are estopped from asserting the statute of limitations as an affirmative defense because of their alleged acts of deception." In the instant matter, plaintiff offers no evidence that it undertook any due diligence to ascertain the extend of the underground contamination, despite the knowledge that the oil spilled into the underground drainage and sewer lines. Further, there are no allegations or evidence in any document that the defendants acted to deceive the plaintiff with regard to the spill.

Conclusion

Accordingly, VDP having failed to raise a triable issue of fact, Hess' motion for summary judgment is granted in its entirety and VDP's complaint is dismissed. The court, having considered VDP's remaining contentions, finds them unavailing. All relief not expressly granted herein is denied.

The foregoing constitutes the decision, order, and judgment of the court.

E N T E R,

J. S. C. Footnotes

Footnote 1:There is no evidence explaining why the independent oil delivery company was not made a party to this action.

Footnote 2:The stick-line is a port located at the top of the tank and through the ground through which the owner of the building could ascertain the amount of oil in the tank since the tank itself is below ground level.

Footnote 3:CPLR 214 - c [2] provides "Notwithstanding the provisions of section 214, the three year period within which an action to recover damages for personal injury or injury to property caused by the latent effects of exposure to any substance or combination of substances, in any form, upon or within the body or upon or within property must be commenced shall be computed from the date of discovery of the injury by the plaintiff or from the date when through the exercise of reasonable diligence such injury should have been discovered by the plaintiff, whichever is earlier."