| State of New York v C.J. Burth Servs., Inc. |
| 2010 NY Slip Op 09036 [79 AD3d 1298] |
| December 9, 2010 |
| Appellate Division, Third Department |
| State of New York, Appellant, v C.J. Burth Services, Inc., et al.,Respondents. |
—[*1] Rossi & Murnane, New York Mills (Vincent J. Rossi, Jr. of counsel), for respondents.
Garry, J. Appeal from an order of the Supreme Court (Lynch, J.), entered February 24, 2009 inAlbany County, which, among other things, denied plaintiff's motion for partial summary judgment.
Defendants Carlton J. Burth and James G. Stasaitis, Jr. (hereinafter collectively referred to asdefendants) own real property in the City of Utica, Oneida County, where they operate theirautomobile repair business, defendant C.J. Burth Services, Inc. (hereinafter the corporation). Whendefendants purchased the property in 1987, it was being used as an automobile repair business; therewere no gas tanks, pumps, or other indications on the property that petroleum had been stored there,and defendants did not know that the property had ever been used for that purpose. In 1992,defendants learned that the property had once been used as a service station and that severalunderground petroleum storage tanks that had been taken out of service years before were still locatedon the property. The tanks were removed in the presence of a representative of the Department ofEnvironmental Conservation (hereinafter DEC) and proved to be corroded and riddled with holes.DEC demanded that defendants and the corporation assume responsibility for investigating andremediating petroleum contamination in the surrounding soil. After obtaining an environmental surveyconfirming that the soil in the vicinity of the tanks was contaminated, defendants refused to takeremedial action or to permit DEC to do so. DEC installed observation wells on adjacent property thatrevealed no groundwater [*2]contamination.
In 2002, plaintiff commenced this action against defendants and the corporation seeking to recoverits remediation costs on the ground that they are strictly liable for the petroleum discharge underNavigation Law article 12. Plaintiff moved for summary judgment on three of the five causes of action.Defendants and the corporation opposed the application. Supreme Court denied plaintiff's motion and,upon review of the record, dismissed the complaint. Plaintiff appeals.
Under Navigation Law article 12, commonly referred to as the Oil Spill Act, "[a]ny person whohas discharged petroleum" is strictly liable for cleanup and remediation costs (Navigation Law §181 [1]). A discharge is defined, in pertinent part, as "any intentional or unintentional action oromission" that results in the release of petroleum (Navigation Law § 172 [8]). Liberallyconstruing these provisions, as we must (see State of New York v Green, 96 NY2d 403, 406[2001]; State of New York v Montayne, 199 AD2d 674, 674-675 [1993]), we conclude thatdefendants are strictly liable as dischargers and, thus, Supreme Court erred in dismissing the complaintagainst them.
Defendants argue that they cannot be held liable because they did not cause the contamination, didnot control the site when the contamination occurred, and had no knowledge of the existence of storagetanks or contamination on the property when they purchased it. However, strict liability under the OilSpill Act does not depend on fault or knowledge (see State of New York v Green, 96 NY2dat 407). Instead, the liability of an otherwise faultless owner of contaminated property or a system fromwhich petroleum has spilled "turns on the owner's 'capacity to take action to prevent an oil spill orto clean up contamination resulting from a spill' " (State of New York v B & P Auto Serv. Ctr., Inc., 29 AD3d 1045,1047 [2006], lv dismissed 7 NY3d 864 [2006] [emphasis added], quoting State of New York v Speonk Fuel, Inc., 3NY3d 720, 724 [2004]). When a spill is discovered, the owner or operator of the system fromwhich the discharge occurred " 'is most likely to be in position to halt the discharge, to effect animmediate cleanup, or to prevent a discharge in the first place' " (Matter of White v Regan, 171AD2d 197, 200-201 [1991], lv denied 79 NY2d 754 [1992], quoting Quaker StateCorp. v United States Coast Guard, 681 F Supp 280, 285 [1988]). Accordingly, we haveconsistently held system owners strictly liable for the cost of remediation under Navigation Law §181 (1) "even in the absence of any evidence that the owner caused or contributed to the discharge"(State of New York v Dennin, 17 AD3d744, 745 [2005], lv dismissed 5 NY3d 824 [2005]; see Golovach v Bellmont L.M., 4 AD3d 730, 731 [2004], lvdismissed 2 NY3d 793 [2004]; Matter of 310 S. Broadway Corp. v McCall, 275 AD2d549, 549 [2000], lv denied 96 NY2d 701 [2001]; State of New York v Arthur L. Moon,Inc., 228 AD2d 826, 827 [1996], lv dismissed 89 NY2d 861 [1996]). We have alsopreviously determined that owners of petroleum systems from which petroleum has spilled or leakedare "dischargers" within the purview of Navigation Law § 172 (8) even where, as here, thedischarge occurred before their ownership began and the owners did not contribute to the dischargesor know that they had occurred (see Matter of White v Regan, 171 AD2d at 199).
Contrary to defendants' contention, our holding in White was unaffected by the subsequentdetermination of the Court of Appeals that a landlord whose property was contaminated by a spill froma kerosene tank owned by a tenant could not be held liable based solely on land ownership, but wasliable as a discharger nonetheless because of its "failure, unintentional or otherwise, to take any action incontrolling the events that led to the spill or to [*3]effect an immediatecleanup" (State of New York v Green, 96 NY2d at 407). The Court reasoned that imposingliability in this circumstance served to ensure that responsible parties were available to reimburseplaintiff for cleanup costs; to do otherwise "would discourage landowners from promptly cleaning uptheir contaminated land, leaving [plaintiff] to shoulder the entire cost of the cleanup while it searches forthe party at fault" (id. at 407-408).[FN*]
Further, strict liability under the statute need not be premised on ownership of land or a petroleumsystem at the time a discharge occurs; instead, such liability may be founded either upon a potentiallyresponsible party's capacity to prevent spills before they occur or the ability to clean upcontamination thereafter (see State of New York v Speonk Fuel, Inc., 3 NY3d at 724). Here,after defendants knew that the storage system on their property had discharged petroleum, that theproperty was contaminated and that a cleanup was needed, they did nothing. As owners of both thecontaminated property and the system that caused the contamination, they are the parties best situatedto effect the cleanup. To hold that they are not liable as dischargers simply because the spill occurredbefore they owned the system would be inconsistent with the statutory purpose of promoting promptcleanups (see id. at 723; State of New York v Green, 96 NY2d at 406). Further,holding owners such as these liable is consistent with legislative policy, in view of the benefit derivedfrom the cleanup efforts and the fact that their property is often the only asset available to plaintiff forrecovery (see State of New York v Green, 96 NY2d at 408). Defendants here are not themere victims of a " 'midnight dumper' or an errant oil truck that spills fuel" upon their property(id. at 407). Accordingly, we conclude that defendants are strictly liable as dischargers underthe Oil Spill Act as a matter of law.
Finally, Supreme Court concluded that the corporation could not be held liable. Although plaintiffargues that Burth identified the corporation as the owner of the facility in the tank removal applicationsand later affirmed that he and Stasaitis acted on behalf of the corporation in obtaining the environmentalsurvey, we find no evidence in the record that identifies the corporation as a discharger, as an owner ofthe premises or as an owner of any part of the system that failed. Accordingly, the complaint against thecorporation was properly dismissed.
Cardona, P.J., Mercure, Spain and Lahtinen, JJ., concur. Ordered that the order is modified, onthe law, without costs, by reversing so much thereof as granted summary judgment dismissing thecomplaint against defendants Carlton J. Burth and James G. Stasaitis, Jr. and as denied plaintiff'smotion for summary judgment as to said defendants; plaintiff's motion granted to that extent; and, as somodified, affirmed. [Prior Case History: 22 Misc 3d 1130(A), 2009 NY Slip Op 50374(U).]
Footnote *: A faultless landowner who has beenfound liable as a discharger is not without a remedy; the Oil Spill Act permits such a landowner to seekcontribution from the party at fault (see Navigation Law § 181 [5]; State of NewYork v Green, 96 NY2d at 408; White v Long, 85 NY2d 564, 568 [1995]).