| Aiken v General Elec. Co. |
| 2008 NY Slip Op 09527 [57 AD3d 1070] |
| December 4, 2008 |
| Appellate Division, Third Department |
| Richard Aiken et al., Respondents, v General Electric Company,Appellant. |
—[*1] Langrock, Sperry & Wool, L.L.P., Middlebury, Vt. (Emily J. Joselson of counsel, pro hac vice),for respondents.
Kavanagh, J. Appeal from an order of the Supreme Court (Hall, J.), entered May 5, 2008 inWashington County, which, among other things, denied defendant's motion for summary judgmentdismissing the complaint.
In 1983, groundwater beneath defendant's industrial facility located in the Village of Fort Edward,Washington County was found to be contaminated with the chemical trichloroethane (hereinafter TCE)and other chemical compounds, and this groundwater had migrated onto property in nearby residentialareas. Claiming that their drinking water wells had been contaminated by this groundwater,homeowners commenced an action against defendant for damages to their property.[FN1]that action was subsequently settled and the terms of that settlement were sealed by stipulation.
In 2005, tests performed by defendant at the request of the Department of EnvironmentalConservation (hereinafter DEC) established that soil vapor from the contaminated [*2]groundwater had permeated the air and soil of some of the residenceslocated near the site. Plaintiffs thereafter commenced this action in July 2006 claiming that theirproperties were damaged as a result of soil vapor contamination. Defendant moved for summaryjudgment dismissing the complaint, alleging that this action is time-barred because it should have beencommenced within three years of the detection of the groundwater contamination (see CPLR214-c [2]). Supreme Court denied defendant's motion and defendant now appeals.[FN2]
Defendant has limited its appeal to that part of Supreme Court's order denying its motion forsummary judgment as to those claims made by plaintiffs whose homes have since been tested bydefendant and, according to defendant, have been found to be free of soil vaporcontamination.[FN3]Significantly, prior to defendant moving for summary judgment, the parties entered into a stipulationwhich, in part, provided that discovery, at this point in the action, would be limited solely to "resolvingthe merits of the statute of limitations defense." In that regard, we note that defendant's motion forsummary judgment, and the fact that its focus was on the ultimate question to be decided by thislitigation, appears to be at odds with the spirit, if not the terms, of this stipulation. In any event, the issueraised by this motion is not, as defendant contends, whether plaintiffs have suffered an injury; instead, itis when plaintiffs should have reasonably been aware of the presence of soil vapor contamination andthe threat it presented to their properties. For the reasons that follow, we conclude that at this stage ofthis action, a question of fact exists on this issue and defendant's motion for summary judgment wasproperly denied.
In essence, defendant argues that if the results of its recent tests are accurate, and if plaintiffs'properties have not been damaged by soil vapor contamination, the only damages they can claim musthave been caused when the groundwater contamination beneath defendant's industrial site was firstdetected. There is no dispute that the existence of that contamination was a matter of public record andthe source of considerable public concern in the Fort Edward community for more than 20 years.Defendant contends, and plaintiffs acknowledge, that they were clearly on notice as to the threat suchgroundwater contamination presented to them and their properties. However, plaintiffs contend that itwas only recently that they were informed that soil vapor contamination, as opposed to groundwatercontamination, posed a threat to their properties and, as a result, the time to commence such an actionshould only begin to run when warnings about such a threat were disseminated throughout theircommunity.
A three-year statute of limitations exists for actions brought to recover damages caused by a latentinjury to a person or property as the result of exposure to harmful substances, and that period begins torun on the date that the injuries are discovered or the date that they should have been discovered by areasonably diligent party, whichever is earlier (see CPLR 214-c [2]; Jensen v General Elec.Co., 82 NY2d 77, 83 [1993]; Atkins vExxon Mobil Corp., 9 AD3d 758, 760 [2004]). In determining when the statute of limitationsbegins to run, the relevant question is[*3]"when, based upon anobjective level of awareness of the dangers and consequences of the particular substance, 'the injuredparty discovers the primary condition on which the claim is based' " (MRI Broadway Rental vUnited States Min. Prods. Co., 92 NY2d 421, 429 [1998], quoting Matter of New YorkCounty DES Litig., 89 NY2d 506, 509 [1997]).
Here, in the two decades that have passed since groundwater contamination was first detected inthis area, residents of this community, including plaintiffs, were repeatedly assured by defendant, as wellas DEC, that there was no immediate health problem from contaminated groundwater and that therewas no risk to residents of the village from exposure to contaminates in the soil or in the air in homeslocated above the contaminated groundwater plume. Only in 2004, after tests of the air in nearbyhomes had been conducted by defendant at DEC's request, was it publicly announced that soil vaporcontamination emanating from the groundwater beneath defendant's industrial site was a potentialproblem for residents, especially those located in the vicinity of the contaminated waterplume.[FN4]Given the belated timing of this disclosure, there is, at the very minimum, a question of fact as to whenplaintiffs should have suspected, let alone discovered, that their properties had been damaged by soilvapor intrusion (see Atkins v Exxon Mobil, 9 AD3d at 761; Bimbo v Chromalloy Am.Corp., 226 AD2d 812, 815-816 [1996]).
Cardona, P.J., Peters, Carpinello and Stein, JJ., concur. Ordered that the order is affirmed, withcosts.
Footnote 1: Plaintiffs in the instant action usedmunicipal water and were not involved in that litigation.
Footnote 2: Plaintiffs have not filed a notice ofappeal from Supreme Court's order denying their motion to dismiss defendant's statute of limitationsdefense.
Footnote 3: Defendant claims that its tests revealthat 16 of the 59 plaintiffs have no evidence of chemical contamination in the air or soil on theirproperties.
Footnote 4: Defendant sampled 57 of the 96properties located in the area. Nine properties were found to have detectable levels of TCE in theirindoor air, and 21 properties were found to have no chemical vapors either indoors or in the soilbeneath the residences.