| Plainview Water Dist. v Exxon Mobil Corp. |
| 2009 NY Slip Op 07389 [66 AD3d 754] |
| October 13, 2009 |
| Appellate Division, Second Department |
| Plainview Water District, Appellant, v Exxon MobilCorporation, Formerly Known as Exxon Corporation and Another, et al., Respondents, et al.,Defendants. |
—[*1] McDermott Will & Emery LLP, New York, N.Y. (Peter John Sacripanti, James A. Pardo,Lauren Handel, and William J. Stack of counsel), for respondents Exxon Mobil Corporation,formerly known as Exxon Corporation and formerly known as Mobil Corporation, ExxonCorporation, Mobil Corporation, Federated Associates, and Federated Associates, LLC,Goodwin Procter LLP, New York, N.Y. (Christopher J. Garvey, Mark E. Tully, and Chad W.Higgins of counsel), for respondent Cumberland Farms, Inc., and Schoeman Updike & KaufmanLLP, New York, N.Y. (Beth L. Kaufman, Michael E. Schoeman, Peter C. Condron, and MichaelL. Williams of counsel), for respondents Shell Oil Company, Inc., and Motiva Enterprises, LLC(one brief filed).
In an action, inter alia, to recover damages pursuant to Navigation Law § 181 andGeneral Business Law § 349 and for public nuisance for the release of methyl tertiarybutyl ether into the ground and groundwater near the plaintiff's water supply wells, the plaintiffappeals, as limited by its brief, from (1) so much of an order of the Supreme Court, NassauCounty (Davis, J.), dated January 9, 2008, as, after a nonjury trial, denied its motion to strikecertain expert witness testimony, and (2) from so much of a judgment of the same court enteredFebruary 29, 2008, as, after the nonjury trial, dismissed the complaint insofar as asserted againstthe defendants Exxon Mobil Corporation, formerly known as Exxon Corporation and formerlyknown as Mobil Corporation, Exxon Corporation, Mobil Corporation, Federated Associates,Federated Associates, LLC, Shell Oil Company, Inc., Motiva Enterprises, LLC, and CumberlandFarms, Inc.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is affirmed insofar as appealed from; and it is further,
Ordered that one bill of costs is awarded to the respondents.
The appeal from the order must be dismissed because the right of direct appeal therefrom[*2]terminated with the entry of judgment in the action (seeMatter of Aho, 39 NY2d 241, 248 [1976]). The issues raised on appeal from the order arebrought up for review and have been considered on the appeal from the judgment (seeCPLR 5501 [a] [1]).
The plaintiff Plainview Water District commenced this action in response to the release ofgasoline treated with methyl tertiary butyl ether (hereafter MTBE) from the underground storagetanks underneath gas stations owned and/or operated by the defendants Exxon MobilCorporation, formerly known as Exxon Corporation and formerly known as Mobil Corporation,Exxon Corporation, Mobil Corporation, Federated Associates, Federated Associates, LLC, ShellOil Company, Inc., Motiva Enterprises, LLC, and Cumberland Farms, Inc. (hereinafter thedefendants). It is undisputed that the subject plant 1 wells operated by the plaintiff have neverdetected MTBE. The plaintiff alleged in its complaint that its plant 1 wells were under animminent threat of MTBE contamination.
The plaintiff's contention that the trial court erroneously bifurcated the trial by first trying thethreshold issue of imminent threat is without merit. The decision whether to conduct a bifurcatedtrial, severing various issues of liability and damages, rests within the discretion of the trial court(see CPLR 603; Wright v New York City Hous. Auth., 273 AD2d 378 [2000];Lind v City of New York, 270 AD2d 315 [2000]; McIver v Canning, 204 AD2d698 [1994]; O'Connor v C.T.G.N.Y., 159 AD2d 249 [1990]). Under the circumstances ofthis case, the trial court's bifurcation of the trial was a provident exercise of discretion.
"The opinion testimony of an expert must be based on facts in the record or personallyknown to the witness" (Quinn v Artcraft Constr., 203 AD2d 444, 445 [1994], citingCassano v Hagstrom, 5 NY2d 643, 646 [1959]). "An expert may not reach a conclusionby assuming material facts not supported by the evidence, and may not guess or speculate indrawing a conclusion" (id.). Contrary to the plaintiff's contention, the testimony of thedefendants' expert was based on facts in the record and his own analysis, not speculation (see Shi Pei Fang v Heng Sang RealtyCorp., 38 AD3d 520 [2007]). Accordingly, the trial court correctly denied the plaintiff'smotion to strike the testimony of the defendants' expert witness.
The plaintiff's remaining contention, raised in point one of its brief, is without merit. Skelos,J.P., Angiolillo, Leventhal and Roman, JJ., concur. [See 18 Misc 3d 1121(A), 2008 NYSlip Op 50152(U).]