| General Cas. Ins. Co. v Kerr Heating Prods. |
| 2008 NY Slip Op 01300 [48 AD3d 512] |
| February 13, 2008 |
| Appellate Division, Second Department |
| General Casualty Insurance Company, Respondent, v KerrHeating Products et al., Appellants, et al., Defendant. |
—[*1] Kardisch, Link & Associates, P.C., Mineola, N.Y. (Beth L. Rogoff of counsel), forrespondent.
In an action to recover insurance payments made by the plaintiff to its insureds for thecleanup costs of an oil discharge on their property, the defendants Kerr Heating Products andParrsboro Metal Fabricators, Ltd., appeal from so much of an order of the Supreme Court,Suffolk County (Baisley, J.), dated May 11, 2007, as denied their motion pursuant to CPLR 3211(a) (7) to dismiss the complaint insofar as asserted against them for failure to state a cause ofaction.
Ordered that the order is affirmed insofar as appealed from, with costs.
In December 1998 James Spillane and Deborah Spillane, the plaintiff's insureds, had an oiltank installed at property which they owned in Islip. In or about June 2002 they detected an odoremanating from the tank and it was thereafter discovered that the tank was leaking anddischarging oil into the soil and groundwater. The appellants Kerr Heating Products andParrsboro Metal Fabricators, Ltd. allegedly manufactured, designed, assembled, and distributedthe tank. The Spillanes incurred expenses for cleanup and removal, environmental testing, andlabor. The Spillanes filed a claim under an insurance policy issued by the plaintiff, GeneralCasualty Insurance Company. The plaintiff paid the Spillanes under the terms of the policy. Theplaintiff, as subrogee of the Spillanes, commenced this action to recover insurance payments itmade to the Spillanes. The appellants moved pursuant to CPLR 3211 (a) (7) to dismiss thecomplaint insofar as asserted against them for failure to state a cause of action. The SupremeCourt denied the motion. We affirm.[*2]
The first cause of action in the complaint, which wasasserted pursuant to Navigation Law § 181 (5), alleged that due to the defendants'defective manufacture, design, assembly, and/or distribution of the tank, the tank malfunctioned,caused the leak and required the Spillanes to incur significant remediation expenses. NavigationLaw § 181 (1) imposes absolute liability upon "[a]ny person who has dischargedpetroleum," regardless of fault (seeFuchs & Bergh, Inc. v Lance Enters., Inc., 22 AD3d 715 [2005]; Huntington Hosp. vAnron Heating & A.C., 250 AD2d 814, 815 [1998]). A property owner who is held strictlyliable for the costs of a petroleum discharge is authorized to bring a claim as an "injured person"for the cost of cleanup and removal against a prior owner or any other party who actually causedor contributed to the discharge (White v Long, 85 NY2d 564, 568-569 [1995]). A partypursuing a claim under Navigation Law § 181 (5) must be without fault; once it isestablished that a property owner caused or contributed to a spill, the property owner will beprecluded from bringing a claim under Navigation Law § 181 (5) (see Hjerpe vGloberman, 280 AD2d 646, 647 [2001]).
On a motion to dismiss, the court must liberally construe the complaint and accept as true thefacts alleged and any submissions in opposition to the dismissal motion (see 511 W. 232ndOwners Corp. v Jennifer Realty Co., 98 NY2d 144, 151-152 [2002]). Moreover, the courtmust accord the plaintiff every possible inference and determine only whether the facts as allegedfit within any cognizable legal theory (see Sokoloff v Harriman Estates Dev. Corp., 96NY2d 409, 414 [2001]). If a plaintiff can succeed upon any reasonable view of the allegations,the complaint may not be dismissed (seeMacDonell v PHH Mtge. Corp., 45 AD3d 537 [2007]). According the plaintiff hereevery favorable reasonable inference and bearing in mind that the Navigation Law must beliberally construed (see Huntington Hosp. v Anron Heating & A.C., 250 AD2d at 815),the complaint alleges a viable cause of action pursuant to Navigation Law § 181 (5).Moreover, the complaint also alleges a viable cause of action for common-law indemnification,as the complaint alleges that the Spillanes were faultless property owners required to pay cleanupand related costs resulting from an oil discharge on their property caused by the appellants'defectively manufactured, designed, assembled, and/or distributed tank (see generally Glaserv Fortunoff of Westbury Corp., 71 NY2d 643, 646 [1988]).
The parties' remaining contentions are without merit or have been rendered academic by ourdetermination. Rivera, J.P., Ritter, Dillon and Carni, JJ., concur.