| Baldwin v Bradt |
| 2009 NY Slip Op 03814 [62 AD3d 1131] |
| May 14, 2009 |
| Appellate Division, Third Department |
| Scott A. Baldwin, Doing Business as Northville Septic Service,Appellant, v Virginia Bradt, as Executor of Howard Bradt, Deceased, et al., Defendants, andVillage of Northville et al., Respondents. |
—[*1] Law Office of Daniel W. Coffey, Albany (Daniel W. Coffey of counsel), for Village ofNorthville, respondent. Miller, Mannix, Schachner & Hafner, L.L.C., Glens Falls (Leah Everhart of counsel), forTown of Northampton, respondent.
Lahtinen, J. Appeal from an order of the Supreme Court (Aulisi, J.), entered July 15, 2008 inFulton County, which, among other things, granted the motions of defendants Village ofNorthville and Town of Northhampton for summary judgment dismissing the complaint againstthem.
The Department of Environmental Conservation notified plaintiff in 2002 that property heowned in the Village of Northville, Fulton County was contaminating surrounding ground waterand in need of remedial measures. From approximately 1972 to 1982, the property, then ownedby Paul Bradt, had been used as a landfill where, pursuant to annual contracts, refuse wasdisposed of from defendant Village of Northville and defendant Town of Northhampton(hereinafter collectively referred to as the municipalities). The landfill closed in 1982 and PaulBradt sold the property in 1985 to Howard Bradt, who used the property to operate his septicbusiness, including disposing of septic effluent. In 1997, plaintiff purchased the property alongwith Howard Bradt's septic service business, but he never was permitted to use the property todispose of septic effluent.
Plaintiff commenced this action in November 2005 against the executors of the estates ofPaul Bradt and Howard Bradt setting forth numerous causes of action and contending that he hadincurred expenses exceeding $100,000, with further cleanup still needed. In July 2007, plaintifffiled an amended complaint adding the municipalities as defendants. The municipalities eachmoved to dismiss pursuant to CPLR 3211, and Supreme Court notified the parties that themotions would be treated as seeking summary judgment. Supreme Court eventually granted themunicipalities' motions. Plaintiff appeals.
We affirm. Plaintiff contends that Supreme Court erred in dismissing two of his causes ofaction, one for common-law indemnification and one for statutory indemnification underNavigation Law § 181. The threshold argument advanced by plaintiff is that there arefactual issues as to whether the municipalities operated the landfill in a joint venture capacitywith Paul Bradt. We are unpersuaded. The current case is similar to Village of Wellsville vVillage of Andover (231 AD2d 870 [1996]). Here, as in that case, neither the terms of thecontracts between the municipalities and Paul Bradt nor the evidence submitted regarding theactual operation of the landfill is sufficient to raise factual issues indicating a joint venture. Thecontractual language upon which plaintiff relies, when read in context of the entire agreement,does not establish a joint venture. There was no sharing of profits and losses, and Paul Bradtretained control over the operation of the landfill, including what waste he would accept (seeid. at 870-871; see generally Matter of Steinbeck v Gerosa, 4 NY2d 302, 317 [1958],appeal dismissed 358 US 39 [1958]; Kaufman v Torkan, 51 AD3d 977, 979 [2008]).
Moreover, as for the Navigation Law § 181 cause of action, which is premised uponthe contention that some of the contaminates on the premises were petroleum products, there isno proof that the municipalities caused or contributed to the discharge of petroleum at thelandfill (see State of New York v MetroResources, Inc., 14 AD3d 982, 983 [2005]; see also White v Long, 85 NY2d564, 569 [1995]). The remaining arguments have been considered and are either academicbecause of the lack of proof of a joint venture or otherwise unavailing.
Cardona, P.J., Peters, Kane and McCarthy, JJ., concur. Ordered that the order is affirmed,without costs.