| Rosato v 2550 Corp. |
| 2010 NY Slip Op 00945 [70 AD3d 803] |
| February 9, 2010 |
| Appellate Division, Second Department |
| Elaine Rosato et al., Respondents, v 2550 Corporation,Also Known as Hempstead Turnpike Corp., et al., Appellants, et al.,Defendant. |
—[*1] Burns, Russo, Tamigi & Reardon, LLP, Garden City, N.Y. (John T. Pieret of counsel), forappellant Sunoco, Inc. (R&M). Ralph A. Hummel, Woodbury, N.Y., for respondent Elaine Rosato.
In an action to recover damages for personal injuries, etc., the defendant 2550 Corporation,also known as Hempstead Turnpike Corp., appeals, and the defendant Sunoco, Inc. (R&M),separately appeals, from so much of an order of the Supreme Court, Suffolk County (Farneti, J.),dated September 18, 2008, as denied those branches of their respective motions which were forsummary judgment dismissing the complaint insofar as asserted against them other than theplaintiff's claims to recover damages for leukemia and anemia.
Ordered that the order is reversed insofar as appealed from, on the law, with one bill of costs,and the motions for summary judgment dismissing the complaint insofar as asserted against theappellants are granted in their entirety.
Between August 1996 and October 1997, the plaintiff Elaine Rosato (hereinafter theplaintiff) was employed as a legal assistant at the law office of Cardino & Cardino, at 217Merrick Road (hereinafter the subject building) in Amityville. In October 1996 the plaintiffallegedly began experiencing certain physical symptoms she associated with environmentalcontamination at her workplace.
The plaintiff and her husband, derivatively, commenced this action against, among others,the defendant Sunoco, Inc. (R&M) (hereinafter Sunoco), the owner of a gas station (hereinafterthe Sunoco station) located at 318 Montauk Highway and the defendant 2550 Corporation, alsoknown as Hempstead Turnpike Corp. (hereinafter 2550 Corp.), the owner of the subject building,to recover damages for personal injuries, etc. The plaintiffs alleged, inter alia, that Sunoco and2550 Corp. failed to maintain their respective premises in a reasonably safe condition. It wasalleged that Sunoco allowed discharge from underground storage tanks (hereinafter USTs) toleak and release hazardous particles such as methyl tertiary butyl ether, [*2]hydrocarbons, and petroleum distillates and that 2550 Corp.allowed the hazardous particles from the USTs to enter the subject building and remain on thepremises.
Sunoco and 2550 Corp. separately moved for summary judgment dismissing the complaintinsofar as asserted against them. On its motion, 2550 Corp., inter alia, incorporated by referencethe documents proffered by Sunoco on its motion. The Supreme Court denied the motions exceptto the extent of dismissing the plaintiff's claims to recover damages for leukemia and anemiainsofar as asserted against each of the movants. We reverse insofar as appealed from and grantthe motions for summary judgment dismissing the complaint insofar as asserted against Sunocoand 2550 Corp. in their entirety.
Sunoco and 2550 Corp. established their prima facie entitlement to judgment as a matter oflaw on the issue of liability through the affidavit of Sunoco's expert, Robert Ancona, a SeniorHydrologist employed by Environmental Assessment and Remediations (hereinafter EA&R).EA&R had been retained by Sunoco in 1990 to begin a monthly monitoring and quarterlygroundwater sampling program at the Sunoco station in connection with the discovery of acontaminated groundwater plume. Subsequently, the New York State Department ofEnvironmental Conservation requested that EA&R perform additional work, including thepreparation of a remedial action plan.
Ancona personally conducted both onsite and offsite investigations of the Sunoco station andthe well network established in 1994 and 1995 for the purposes of monitoring the spread of theplume. Relying on his personal observations and investigations, as well as the documentsattached to his affidavit, which included "A Section View of Water Bearing Units and. . . Groundwater Flow Patterns" published by the United States Geological Survey(hereinafter the USGS standard) and a regional water table elevation contour map of the subjectarea, Ancona rendered his expert opinion regarding the alleged contamination of the subjectbuilding (see generally Cassano v Hagstrom, 5 NY2d 643, 646 [1959]; Plainview Water Dist. v Exxon MobilCorp., 66 AD3d 754 [2009]; Samuel v Aroneau, 270 AD2d 474, 475 [2000]).According to Ancona, the data from the monitoring wells established that the plume flowed in a"narrow band" running approximately 192 degrees and then 198 degrees (generally north tosouth) from the Sunoco station with "little dispersion" before emptying into Amityville Creek inexcess of 2,000 feet south of the portion of Merrick Road where the subject building waslocated. The subject building was located in a west-northwest orientation from the Sunocostation. Ancona averred that a properly defined "MTBE plume pathline may be used to estimategroundwater flow direction and velocity." Ancona opined that, to a reasonable degree ofhydrogeological certitude, groundwater from the Sunoco station which, according to the USGSstandard, the regional water table elevation contour map of the subject area, and the definedMTBE plume pathline, did not flow in the direction of the subject building, could not havecaused the alleged contamination at the subject building.
In opposition, the plaintiffs failed to raise a triable issue of fact. An expert may not reach aconclusion by assuming material facts not supported by the evidence, and may not guess orspeculate in drawing a conclusion (see Cassano v Hagstrom, 5 NY2d at 646;Hambsch v New York City Tr. Auth., 63 NY2d 723, 725 [1984]; Santoni v Bertelsmann Prop., Inc., 21AD3d 712, 715 [2005]; Espinosa v A & S Welding & Boiler Repair, 120 AD2d 435,437 [1986]; see e.g. Amatulli v Delhi Constr. Corp., 77 NY2d 525, 535 [1991];Samuel v Aroneau, 270 AD2d at 475). Here, the opinion of the plaintiffs' environmentalinvestigator that the subject building was contaminated by leaking USTs beneath the Sunocostation was not based upon facts either contained in the record or within his personal knowledge(see generally Cassano v Hagstrom, 5 NY2d at 646).
Accordingly, the Supreme Court should have granted in their entirety the motions of Sunocoand 2550 Corp. for summary judgment dismissing the complaint insofar as asserted against eachof them.
Based on the foregoing, the parties' remaining contentions regarding the proximate cause ofthe plaintiff's alleged injuries have been rendered academic. Prudenti, P.J., Skelos, Covello andAustin, JJ., concur. [Prior Case History: 2008 NY Slip Op 32755(U).]