Zincke v Pacific Energy Corp.

[*1] Zincke v Pacific Energy Corp. 2012 NY Slip Op 50270(U) Decided on February 9, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 9, 2012
Supreme Court, Kings County

Mary Ellen Zincke, Plaintiff,

against

Pacific Energy Corp., Milro Associates, Inc., Associates, Inc., Holzmacher, McLendon & Murrell, P.C., H2M, Architects & Engineers, Inc., H2M Associates, Inc., H2M Labs, Inc. And H2M Construction Management Inc., Defendants



3892/08



Plaintiff Attorney: Rupert & Gross, 150 Broadway, New York, NY

Defendants Attorney: Ahmuty, Demers & McManus, 200 I.U. Willets Road, Albertson, NY

Fiedelman & Garfinkel, 110 Williams Street, New York, NY

L'Abbate, Balkan, Colavida, 1001 Franklin Ave., Garden City, NY

David I. Schmidt, J.

Upon the foregoing papers, plaintiff Mary Ellen Zincke (plaintiff) moves for an order to strike the affirmative defense of culpable conduct contained in the answer of defendants Milro Associates, Inc., McLendon & Murrell, P.C. (H2M, P.C.), H2M Architects & Engineers, Inc. (H2M Architect), and H2M Construction Management, Inc. (H2M Construction) (collectively H2M Group). Defendant Pacific Energy Corp. (Pacific) moves, pursuant to CPLR 3025, to amend its answer to assert an additional affirmative defense. Plaintiff cross-moves, pursuant to CPLR 3211(b), to strike the second affirmative defense contained in Pacific's original answer of culpable conduct.

This is an action sounding in negligence which arises from the discharge of home heating oil in plaintiff's three-story home located at 182 Lincoln Road, in Brooklyn, New York. Plaintiff alleges that defendant Pacific negligently overfilled the two 275-gallon tanks in her basement, and that the remaining defendants were negligent in the inspection and remediation of the spill.

According to the report of defendant H2M Group, dated March 14, 2007, plaintiff's home was serviced by "two (2) 275-gallon single steel-walled aboveground fuel oil storage tanks, located within the basement, with a 2" diameter remote fill and 2-inch vent pipe, terminating surface level" on the side of plaintiff's home. The age of the tanks are unknown, but plaintiff estimated that the tanks are at least fifty years old. On February 15, 2007, defendant Pacific, plaintiff's oil company, delivered 158 gallons of oil to the "two (2) 275-gallon fuel . . .[oil storage tanks] through the remote fill located at surface grade in the front" of plaintiff's home. During the delivery, "the delivery driver. . . observed fuel oil emitting from the exterior (7) foot tall 2" inch vent pipe located adjacent [to] the dwelling." "In addition, fuel oil discharged out of the ground level fill port [and] [t]he driver immediately stopped the delivery and proceeded to inspect the basement for any fuel oil releases."

According to the report, Pacific "replaced the faulty bottom supply value (nipple valve), [*2]which discontinued the fuel oil release." The NYFD was contacted, reported to the site, and placed absorbent material throughout the basement. Pacific estimated that 25-30 gallons of fuel oil was released during the delivery.

On February 17, 2007, the New York State Department of Environmental Conservation (NYSDEC) was notified of the spill, and directed Pacific to take the appropriate measures to clean up and remove the discharge. From February 27, 2007 to on or about March 7, 2007, defendant Milro conducted remediation of the basement.

Plaintiff commenced this action in February, 2008, alleging gross negligence on the part of all defendants, resulting in personal injuries and property damages. Plaintiff also asserts a violation of Navigation Law § 181 against defendant Pacific. Defendants Milro, H2M Group, and Pacific interposed their answers, generally denying the allegations of the complaint. In addition, as relevant here, all defendants asserted the affirmative defense of comparative negligence.Specifically, Milro asserts that:

"That the injuries and/or damages alleged to have been sustained by the plaintiff were caused entirely or in part through the culpable conduct of the plaintiff, without any negligence on the part of the answering defendant and the answering defendant seeks dismissal or reduction in any recovery that may be had by the plaintiff in the proportion which the culpable conduct, attributable to the plaintiff, bears to the entire measure of responsibility for the occurrence."

Similarly, H2M group asserts:

"The damages allegedly sustained by the plaintiff was caused in whole or in part by the negligence, carelessness and/or culpable conduct of the plaintiff, her servants, agents or employees, and others for whom the plaintiff was legally responsible and that the amount of damages recovered, if any, shall therefore be diminished in proportion to which said negligence, carelessness and/or culpable conduct attributable to the plaintiff bears to the culpable conduct which caused the damages alleged."

Presently, plaintiff moves to dismiss the comparative negligence affirmative defense of H2M Group and Milro. In support of her motion, plaintiff argues that "there is no, nor can there by any evidence whatsoever, that [she] was in any way culpable with respect to the oil spill caused by defendant, Pacific..." Specifically, plaintiff asserts that it is "indisputable that . . . the oil spill that occurred in [her] basement . . . was caused by the over filling of the oil tanks" when Pacific was delivering oil to her home. Plaintiff relies upon the H2M inspection report which "did not reveal any corrosion breakthrough holes in the tanks or any other defects," and which "found conclusive evidence that the spill was caused by a delivery overfill and nothing else." Plaintiff also submits an affidavit in which she states, among other things, that she did not discover the spill until she arrived home at 7:00 P.M., and that she had nothing to do with the spill. Finally, plaintiff asserts that the fact that discovery is not complete "is irrelevant inasmuch as no amount of discovery will change the fact that the spill was caused by an employee of Pacific, who overfilled the tank."

Pacific cross-moves to amend its complaint to assert the affirmative defense that "[t]he Navigation Law does not apply if the plaintiff is found to have been negligent (even one percent)," asserting that leave to amend pleadings is freely given upon such terms as may be just.

Plaintiff cross-moves, pursuant to CPLR 3211(b), to "strike" (dismiss) Pacific's original comparative negligence affirmative defense,[FN1] and opposes Pacific's motion to amend. In addition to the H2M Group Inspection report, and the arguments raised in her motion, plaintiff relies upon [*3]a "NYSDEC Spill Report Form" to establish that she was not responsible for the spill. The spill report, created on February 15, 2007, states, among other things, "DEC REMARKS: 2/16/07 - DEC Piper responded to site in AM. Spill was due to an overfill, 1 qt. of oil outside of vent." Plaintiff also annexes a March 15, 2007 from Milro to the DEC, stating that "The oil spill was caused by an overfill of a 275 gallon above ground tank located in the basement of the residence." Further, plaintiff annexes February 16, 2007 DEC letter, which simply states that a "petroleum release" was discovered at her residence. Finally, plaintiff again points to the H2M Group Inspection report, noted above.

In opposition to plaintiff's motions, H2M and Pacific argue that plaintiff's motion to dismiss is premature at this early stage of the proceedings. Specifically, they argue, and plaintiff does not dispute, that discovery has not been completed and that plaintiff has not yet appeared for a deposition.Further, the H2M Group notes that it is waiting to conduct an inspection of plaintiff's residence prior to commencing depositions. In addition, Pacific contends that plaintiff has not explained what measures she took to maintain her heating system or the pipes that she owns, for which she was responsible to maintain in a safe condition. In this regard, Pacific notes that the Navigation Law does not apply if plaintiff is found at fault.

H2M Group and Pacific also refer to H2M Group's inspection report, which found "the nipple value connecting the two (2) [tanks] on the bottom was potentially loosened due to pressurization of the delivery event, releasing fuel oil throughout the basement. Further, albeit not cited by plaintiff, the report concluded that: "An inspection of the basement 2-275 gallon [tanks] reveals that a combination of the weather piping and pressurization during the delivery event caused the bottom supply (nipple) connection value to weaken and disconnect, causing the fuel oil release within the basement" (emphasis added). H2M Group notes that it did not conclude in its report who was responsible for maintaining the weather pipping and the nipple valve that became loosened, nor does the report state whether the nipple valve was faulty, although it indicates that there may have been some issue because it was replaced by Pacific. Thus, H2M Group asserts that there is a question as whether a fully functional or properly maintained nipple value would have been able to withstand the pressure involved in filling of the tank; that at this point, it cannot be determined who was responsible for maintaining the weather piping and the nipple value, particularly inasmuch as plaintiff's papers are devoid of any such discussion; and that plaintiff's motion is also premature because it has not been provided with any maintenance records for the oil tanks, boiler, furnace or associated pipes or parts. Finally, H2M Group notes that while plaintiff is claiming damages to her personal property, she authorized Milro employees to discard her belongings prior to giving H2M Group or any experts an opportunity to inspect them, and thus she cannot now claim she was not culpable, at least to a certain extent, for her property damages.

In its first affirmation in opposition, Milro opposes plaintiff's motion to dismiss Pacific's affirmative defense contained in its original answer, arguing that such relief would be premature as discovery is not complete. In its second affirmation in opposition to plaintiff's motion to the extent plaintiff seeks to dismiss its own comparative negligence affirmative defense, Milro contends, in substance, that there is no basis to strike the defense, there is evidence that plaintiff was negligent with respect to her claims against it; that plaintiff has not established its liability; and that absent complete discovery, such relief would be premature.

"A party may move for judgment dismissing one or more defenses, on the ground that a defense is not stated or has no merit" (Family-Friendly Media, Inc. v Recorder Tel. Network, 74 AD3d 738, 739 [2010], citing CPLR 3211 [b]; Greco v Christoffersen, 70 AD3d 769, 771, 896 [2010]; Butler v Catinella, 58 AD3d 145, 147-148 [2008]). Moreover, "[u]pon a motion to dismiss a defense, the defendant is entitled to the benefit of every reasonable intendment of its pleading, which is to be liberally construed. If there is any doubt as to the availability of a defense, it should not be dismissed" (id., citing Federici v Metropolis Night Club, Inc., 48 AD3d 741, 743 [2008]; Amerada Hess Corp. v Town of Southold, 39 AD3d 442 [2007]; Warwick v Cruz, 270 AD2d 255 [2000]). [*4]

Here, plaintiff failed to meet her burden of demonstrating that the defendants' H2M Group and Pacific's affirmative defenses of comparative negligence are "without merit as a matter of law" Family-Friendly Media, Inc., 74 AD3d at 739, quoting Vita v New York Waste Servs., LLC, 34 AD3d 559, 559 [2006]; see Butler v Catinella, 58 AD3d at 148). First, the February 15, 2007 DEC Spill Report and the March 15, 2007 Milro letter state in conclusory terms that the spill was caused by an overfill, and the February 16, 2007 DEC letter merely refers to a "petroleum release." Moreover, plaintiff has failed to establish that these documents are competent and therefore admissible. Further, even assuming the H2M Group Inspection report constitutes competent evidence, it fails to support plaintiff's position. Specifically, the letter states that "the nipple value connecting the two (2) [tanks] on the bottom was potentially loosened due to pressurization of the delivery event, releasing fuel oil throughout the basement." Further, albeit conspicuously not addressed by plaintiff, either in her motion or her reply, the report concludes that: "An inspection of the basement 2-275 gallon [tanks] reveals that a combination of the weather piping and pressurization during the delivery event caused the bottom supply (nipple) connection value to weaken and disconnect, causing the fuel oil release within the basement" (emphasis added). Inasmuch as plaintiff may have been responsible for maintaining the weather piping at this early juncture in the proceedings, plaintiff has failed to demonstrate that she was free from comparative negligence. Further, in light of the fact that discovery is far from complete, plaintiff's motion is premature (CPLR 3212[f]). As noted, defendants are waiting to conduct an inspection of plaintiff's home, after which depositions must be conducted. Therefore, the issue of what measures, if any, plaintiff took or for which she was responsible in maintaining the fuel tanks, oil burner, and furnace have not yet been addressed. Accordingly, plaintiff's motion to dismiss the affirmative defenses of H2M Group and Pacific is denied.

That branch of plaintiff's motion to dismiss the affirmative defense of Milro is also denied. Again, absent completed discovery, the motion is premature. Moreover, Milro asserts in its opposition, and plaintiff does not dispute, that plaintiff apparently provided direction, guidance, and instructions as to its remediation, which is a factor to be considered with respect to the cause of action she alleged against Milro (negligence). Further, Milro correctly argues that it is not "clear" as plaintiff asserts, that she is free from culpable conduct with respect to the claims she has asserted against it, because there has been no inspection of her home, nor have depositions been conducted. In sum, Milro correctly contends that what measures were taken with respect to remediation, the appropriateness of such measures, the circumstances of the alleged disposal of certain items, albeit relating to damages, and plaintiff's role in the remediation, are the subject of discovery. Thus, plaintiff's motion to dismiss the affirmative defense of comparative negligence of Milro is also denied.

The motion of Pacific to amend its answer is granted. "Leave to amend should be freely given absent prejudice or surprise (Rosicki, Rosicki & Assoc., P.C. v Cochems, 59 AD3d 512, 514 [2009]). "A court should not examine the merits or legal sufficiency of the proposed amendment unless it is palpably insufficient or patently devoid of merit on its face" (id., citing Kusak v Allstate Ins. Co., 190 AD2d 1050 [1993]; Hopper v Hise, 131 AD2d 814 [1987]; Lucido v Mancuso, 49 AD3d 220, 221 [2008]; see also Jenal v Brown, 80 AD3d 727 [2011]; Morton v Brookhaven Mem. Hosp., 32 AD3d 381[2006]). Plaintiff did not show and in fact has not even addressed that she would suffer any prejudice which would arise from the proposed amendment, nor can she allege surprise inasmuch as she has asserted a claim based upon a violation of the Navigation Law. Further, plaintiff's own submissions demonstrate that the amendment is not palpably insufficient or patently devoid of merit.

In sum, based upon the foregoing, the motion and cross motion of plaintiff is denied and the motion of Pacific to amend its answer is granted.

This constitutes the decision and order of the court.

E N T E R [*5]

J.S.C. Footnotes

Footnote 1:Pacific, in its second affirmative defense, alleges "[t]hat the injures and damages to the [p]laintiff were caused in whole or in part or were contributed to by the culpable conduct and want of care on the part of the [p]laintiff and any such alleged damages should be fully or partially diminished by said culpable conduct and want of care pursuant to CPLR Article 14-A."