| Cleary v Wallace Oil Co., Inc. |
| 2008 NY Slip Op 08083 [55 AD3d 773] |
| October 21, 2008 |
| Appellate Division, Second Department |
| John Cleary et al., Respondents, v Wallace Oil Company, Inc.,et al., Appellants, et al., Defendants. (Action No. 1.) Preferred Mutual Insurance Company, asSubrogee of John Cleary and Another, Respondent, v Wallace Oil Company, Inc., et al., Appellants, etal., Defendants. (Action No. 2.) |
—[*1] DeProspo, Petrizzo & Longo (Steven A. Kimmel, Washingtonville, N.Y., of counsel), forrespondents in Action No. 1. Methfessel & Werbel, P.C., New York, N.Y. (Fredric Paul Gallin of counsel), for respondent inAction No. 2.
In two related actions, inter alia, to recover damages for injury to property, the defendants WallaceOil Company, Inc., Alta East, Inc., Star Gas Partners, L.P., Meenan Oil Company, Inc., Region Oil,Petro Holdings, Inc., and Petro, Inc., appeal, as limited by their brief, from so much of an order of theSupreme Court, Orange County (Horowitz, J.), dated March 12, 2007, as denied their cross motionfor summary judgment dismissing the claims of John Cleary, Karen Cleary, Erin Cleary, and JohnCleary, Jr., the plaintiffs in action No. 1, for punitive damages and those plaintiffs' [*2]causes of action to recover damages for negligent infliction of emotionaldistress, and granted the cross motion of Preferred Mutual Insurance Company, as subrogee of JohnCleary and Karen Cleary, the plaintiff in action No. 2, for summary judgment on the issue of liabilitywith respect to the causes of action to recover damages pursuant to article 12 of the Navigation Law.
Ordered that the order is modified, on the law, by deleting the provision thereof denying thatbranch of the cross motion of the defendants Wallace Oil Company, Inc., Alta East, Inc., Star GasPartners, L.P., Meenan Oil Company, Inc., Region Oil, Petro Holdings, Inc., and Petro, Inc., whichwas for summary judgment dismissing the causes of action to recover damages for negligent infliction ofemotional distress, and substituting therefor a provision granting that branch of that cross motion; as somodified, the order is affirmed insofar as appealed from, with one bill of costs payable by the appellantsto the plaintiff in action No. 2.
In making a delivery of heating oil to the home of the plaintiffs John Cleary, Karen Cleary, ErinCleary, John Cleary, Jr., and Daniel Cleary (hereinafter collectively the Clearys), an employee of thedefendant Wallace Oil Company, Inc., attached his delivery hose to an abandoned fill pipe which wasnot connected to a fuel tank. The fill pipe opened into the rafters of the basement, and the employeeproceeded to pump more than 900 gallons of fuel oil into the Clearys' home. The Clearys and theirinsurance carrier Preferred Mutual Insurance Company, as subrogee of John Cleary and Karen Cleary(hereinafter PMIC), separately commenced the instant actions to recover damages from, among others,Wallace Oil Company, Inc., Alta East, Inc., Star Gas Partners, L.P., Meenan Oil Company, Inc.,Region Oil, Petro Holdings, Inc., and Petro, Inc. (hereinafter collectively Wallace).
The Supreme Court erred in concluding that a question of fact exists as to whether the Clearyscould recover damages for negligent infliction of emotional distress based upon their alleged exposureto toxic substances. A breach of a duty of care "resulting directly in emotional harm is compensableeven though no physical injury occurred" (Kennedy v McKesson Co., 58 NY2d 500, 504[1983]; see Ornstein v New York CityHealth & Hosps. Corp., 10 NY3d 1, 6 [2008]; DiStefano v Nabisco, Inc., 2 AD3d 484, 485 [2003]; Brown v NewYork City Health & Hosps. Corp., 225 AD2d 36, 44 [1996]). However, the mental injury mustbe "a direct, rather than a consequential, result of the breach" (Kennedy v McKesson Co., 58NY2d at 506) and the claim must "possess some guarantee of genuineness" (Ferrara v Galluchio,5 NY2d 16, 21 [1958]; see Ornstein v New York City Health & Hosps. Corp., 10NY3d at 6; see DiStefano v Nabisco, Inc., 2 AD3d at 485). Thus, "[t]o maintain a cause ofaction to recover damages for [negligent infliction of] emotional distress following exposure to a toxicsubstance, a plaintiff must establish both that he or she was in fact exposed to a disease-causing agentand that there is a 'rational basis' for his or her fear of contracting a disease" (DiStefano v Nabisco,Inc., 2 AD3d at 485; see Prato v Vigliotta, 253 AD2d 746, 748 [1998]; Abusio vConsolidated Edison Co. of N.Y., 238 AD2d 454 [1997]; Wolff v A-One Oil, 216AD2d 291, 291-292 [1995]; Doner v Adams Contr., 208 AD2d 1072 [1994]). "This Courthas construed 'rational basis' to mean 'the clinically-demonstrable presence of a toxin in the plaintiff'sbody, or some other indication of a toxin-induced disease' " (DiStefano v Nabisco, Inc., 2AD3d at 485, quoting Prato v Vigliotta, 253 AD2d at 748; Abusio v Consolidated EdisonCo. of N.Y., 238 AD2d 454 [1997]).
In opposition to Wallace's prima facie showing of entitlement to judgment as a matter of law, theClearys failed to raise a triable issue of fact. Although the Clearys' expert affirmed that the environmentin the house was toxic, it is undisputed that none of the Clearys were present in the house when the oilspilled and there is no evidence or allegation that Erin Cleary, John Cleary, Jr., [*3]or Daniel Cleary were ever exposed to the toxic environment by enteringthe house after the spill. Although John Cleary and Karen Cleary alleged that they entered the house onoccasion to inspect and that they had some contact with their personal property, they did not presentclinical evidence of some physical manifestation of contamination or evidentiary proof of "some otherindication of a toxin-induced disease" (DiStefano v Nabisco Inc., 2 AD3d at 485 [internalquotation marks omitted]). Thus, they are not entitled to recover damages for negligent infliction ofemotional distress and Wallace should have been awarded summary judgment dismissing those causesof action.
The Supreme Court correctly denied that branch of Wallace's cross motion which was forsummary judgment dismissing the Clearys' claims for punitive damages. Wallace's only argument in thisregard is that it could not be held liable for punitive damages as a result of the action of its employeebecause there was no evidence that it "authorized, participated in, consented to or ratified the conductgiving rise to such damages, or deliberately retained the unfit servant" (Loughry v Lincoln FirstBank, 67 NY2d 369, 378 [1986]; see Gallo v 800 Second Operating, 300 AD2d 537,538 [2002]). Here, however, the Clearys' claims for punitive damages are limited to the alleged "directand independent gross negligence" of Wallace, i.e., actions and omissions of Wallace itself. Thus, thecase law cited by Wallace is inapposite, and Wallace's failure to address its own alleged misconduct, asopposed to the acts and omissions of its employee, requires that this branch of its cross motion bedenied.
The Supreme Court did not err in granting PMIC's motion for summary judgment on the issue ofliability with respect to the causes of action to recover damages pursuant to article 12 of the NavigationLaw. Pursuant to the Navigation Law, any party who has discharged petroleum is "strictly liable,without regard to fault, for all cleanup and removal costs and all direct and indirect damages, no matterby whom sustained" (Navigation Law § 181 [1]; see Matera v Mystic Transp., 308AD2d 514, 517 [2003]). "Discharge" is defined, in relevant part, as "any intentional or unintentionalaction or omission resulting in the releasing, spilling [or] pumping . . . of petroleum"(Navigation Law § 172 [8]). "[A] 'claim' may only be asserted by an injured person 'who is notresponsible for the discharge' " (Fuchs &Bergh, Inc. v Lance Enters., Inc., 22 AD3d 715, 717 [2005], quoting Navigation Law§ 172 [3]; General Cas. Ins. Co. vKerr Heating Prods., 48 AD3d 512 [2008]).
Here, PMIC established its prima facie entitlement to judgment as a matter of law on the issue ofliability by demonstrating that Wallace pumped oil into an abandoned fill pipe that led to the Clearys'basement, thereby discharging oil into the house, and that the Clearys' property was damaged as aresult of the discharge (see Fuchs & Bergh, Inc. v Lance Enters., Inc., 22 AD3d at 717;Matera v Mystic Transp., 308 AD2d at 518). Wallace failed to raise a triable issue of fact inopposition. It relied solely upon an attorney's affirmation, in which counsel asserted that the Clearyswere negligent in failing to remove the abandoned fill pipe and that this negligence contributed to the oilspill. The affirmation of Wallace's attorney "has no probative weight and cannot raise a triable issue offact" (Bates v Yasin, 13 AD3d 474[2004]; see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Fisher, J.P., Dillon,McCarthy and Belen, JJ., concur.