Town of Eastchester v Shawn's Lawns Inc.
Annotate this CaseDecided on October 12, 2006
Supreme Court, Westchester County
Town of Eastchester and the TOWN BOARD OF THE TOWN OF EASTCHESTER, Plaintiffs,
against
Shawn's Lawns Inc., SEAN WENDELL, FRANK A. PELOSO, JR., AMERICAN ATHLETIC FIELD DEVELOPERS, LLC, FAPCO LANDSCAPING INC., ATLANTIC CASUALTY INSURANCE CO., AMERICAN INTERNATIONAL GROUP, INC., ST. PAUL FIRE AND MARINE INSURANCE CO., ST. PAUL TRAVELERS COMPANIES, INC., FIRST SEALORD SURETY, INC., formerly known as MOUNTBATTEN SURETY COMPANY, INC., ALFREDO LAMMANA TRUCKING INC., ALMAR SUPPLIES INC., AJAY TRUCKING CORP., BOMBACE CONSTRUCTION CO., INC., COPPOLA PAVING & LANDSCAPING CORP., MVM CONTRACTING CORP., NAHEED & SONS CONSTRUCTION, INC., RUSSO TRUCKING CO., INC., UNIVERSAL TRUCKING INC., ALWAYS FAST DEVELOPMENT LLC, ATLANTIC WATER & SEWER, INC., EDISON AVE. RECYCLE & MATERIALS SUPPLY, CORP., JOY CONSTRUCTION CORPORATION, JUST US, LLC, PEBBLE LANE ASSOCIATES, INC., PERKAN CONCRETE CORP., SIGMA CONSTRUCTION CO., INC., SKILLMAN ST. REALTY LLC, and DOES 1-100, 101-200, and 201-300, Defendants.
9530/05
TANNENBAUM HELPERN SYRACUSE &
HIRSCHTRITT LLP
Attorneys for Defendants Shawn's Lawns Inc. and
Sean Wendell
900 Third Ave.
New York, NY 10022
Zarin & Steinmetz
Attorneys for Plaintiffs
81 Main St., Ste. 415
White Plains, NY 10601
Francis A. Nicolai, J.
Plaintiffs commenced the present action seeking damages resulting from movants dumping allegedly contaminated fill upon the real property known as Haindl Field (a/k/a Haindl Park). Pursuant to a contract with the Town, defendant Shawn's Lawns agreed to place 100,000 cubic yards of fill at the site to facilitate the refurbishment of the field. After the fill was in place and a new ball field was constructed, an inspection by the Department of Environmental Conservation (hereinafter "DEC") found contaminants in the fill. Thereafter, the Town entered into a Consent Order with the DEC wherein it agreed to remediate the site to, inter alia, prevent contaminants from leaching into the groundwater.
Movants now seek access to Haindl Field to test the subsurface using Geoprobe® direct push sampling equipment. Specifically, movants seek to test the "historical fill" placed on the property by the Town during the 40 years the property was used as a municipal landfill. Movants contend that since plaintiffs constructed the original Haindl Field on a municipal landfill, the property was already contaminated prior to movants placing the new allegedly contaminated fill [*2]on the field. Accordingly, movants contend that since the alleged damage caused by the fill they placed upon Haindl Field is the potential leaching of contaminants into the ground water, the contamination of the historical fill is relevant.
Plaintiffs oppose the motion. Plaintiffs contend that the existence of contamination in the historical fill is irrelevant to the present action insofar as the Town was only required to conduct remediation at Haindl Field as the result of defendants' contaminated fill. Plaintiffs further contend that movants' request is untimely and would create an undue financial burden on plaintiffs since remediation of the field is complete, including the placement of geomembrane, impermeable sheets of polyethylene, over the entire field.
Contrary to plaintiffs' contention, the issue of whether the historical fill is contaminated is
relevant to the present action. In the event that it is determined that the historical fill is
contaminated, then defendants may be entitled to a reduction in liability based upon an
apportionment of liability between plaintiffs and defendants (CPLR 1411; see also The
Restatement Third, Torts § 26 [2000]; NY Prac., New York Law of Torts § 10:13).
Notably, a successive tortfeasor is liable only for the separate injury or the aggravation his
conduct has caused (see, Suria v Shiffman, 67 NY2d 87, 98; Ravo by Ravo v
Rogatnick, 70 NY2d 305, 310; see also The Restatement Third, Torts § 26
[2000]). The cases relied upon by plaintiffs for their position that any preexisting contamination
of the historical fill is irrelevant, actually support movants' contention that such prior
contamination is relevant to the issues in the present action. In both Bell Petroleum Svcs. v
Sequa Corp. (3 F3d 889) and United States v Alcan Aluminum Corp. (990 F2d 711),
the Courts recognized that liability for damage caused by contamination may be apportioned
between successive polluters. Moreover, the issue of whether the historical fill was contaminated
by the Town is directly relevant to its Navigation Law claim insofar as a "discharger" under the
Navigation Law is precluded from bringing such a claim (Navigation Law § 172[3];
White v Long, 85 NY2d 564). Finally, plaintiffs' contention that any preexisiting
contamination is irrelevant, since the Town was only required to remediate the field as a result of
the placement of contaminated fill on the field by defendants, is disingenuous. The fact that the
Town may have escaped the burden of remediation of the original field because the historical fill
was never tested, does not by itself render the issue of the contamination of the
historical fill irrelevant.
Plaintiffs' contentions that movants' demand is untimely and the testing and subsequent repair of the geomembrane would place an undue financial burden upon the Town are unpersuasive. Notably, movants sought access to the field for sampling by letter dated June 26, 2006 and then by a discovery demand dated July 11, 2006, which were rejected by plaintiffs. Nevertheless, despite movants continued requests for access to the property for sampling, plaintiffs opted to install the geomembrane only two weeks before the return date of the present motion. Finally, movants are not seeking to disturb the geo-grids or the area near the retaining wall, where plaintiffs contend defendants' contaminated fill is most highly concentrated and the cost of sampling and repair will be the greatest. In any event, movants have stated that they would bear the cost of the sampling. With respect to the cost to repair the geomembrane after the [*3]sampling, however, the cost should be borne by plaintiffs insofar as they knew movants were seeking to obtain a sample of the historical fill and nevertheless proceeded with the installation of the geomembrane. Plaintiffs' own expert opined that the combined cost of both the sampling and repair of the geomembrane in the area where the historical fill is located would be approximately $25,000.00. Accordingly, plaintiffs' cost to repair the geomembrane would be much less than $25,000.00 and cannot be considered an undue financial burden under the circumstances.
In light of the foregoing, the motion is granted to the extent that plaintiffs are directed to allow movants and their consultants access to Haindl Field on or before November 17, 2006 for the purpose of conducting sampling of the "historical fill" by the use of Geoprobe® direct push sampling equipment. Movants shall not conduct any testing, sampling or otherwise disturb the area of Haindl Field containing the geo-grids, nor disturb the retaining wall. Movants shall bear the costs of the Geoprobe® sampling. Plaintiffs shall bear the costs of any repair necessary to the geomembrane as a result of the Geoprobe® sampling.
Movants are directed to serve this order on all parties to the action and third-party action.
Dated: White Plains, New York
October, 2006
FRANCIS A. NICOLAI
A.J.S.C.
TANNENBAUM HELPERN SYRACUSE &
HIRSCHTRITT LLP
Attorneys for Defendants Shawn's Lawns Inc. and
Sean Wendell
900 Third Ave.
New York, NY 10022
Zarin & Steinmetz
Attorneys for Plaintiffs
81 Main St., Ste. 415
White Plains, NY 10601
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