Art-Tex Petroleum, Inc. v. New York State Department of Audit and Control

• Decision Date: 16 February 1999
• Docket Number: ART-TEX
• Citation: 93 N.Y.2d 830,687 N.Y.S.2d 619
• Parties: , 710 N.E.2d 265, 1999 N.Y. Slip Op. 1392 In the Matter ofPETROLEUM, INC., Appellant, v. NEW YORK STATE DEPARTMENT OF AUDIT AND CONTROL et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 619

687 N.Y.S.2d 619

93 N.Y.2d 830, 710 N.E.2d 265, 1999 N.Y. Slip Op. 1392

In the Matter of ART-TEX PETROLEUM, INC., Appellant, v. NEW YORK STATE DEPARTMENT OF AUDIT AND CONTROL et al., Respondents.

Court of Appeals of New York.

Feb. 16, 1999.

Teahan & Constantino, Poughkeepsie (Richard I. Cantor of counsel), for appellant.

Eliot Spitzer, Attorney-General, Albany (Lisa S. Kwong, Barbara G. Billet, Peter H. Schiff and David A. Munro of counsel), for New York State Department of Audit and Control, respondent.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division should be affirmed, with costs.

The courts below properly held that petitioner's CPLR article 78 proceeding to annul and vacate an environmental lien on petitioner's land in Dutchess County, filed pursuant to Navigation Law § 181-a, should be dismissed on the ground that another adequate remedy at law was available.

At all relevant times, the subject property was operated as a gasoline station. In a 1993 agreement with petitioner, a third party leased the station and purchased the pumps, fuel lines, tanks and related fixtures for operation of the station. In 1994, the State Department of Environmental Conservation notified petitioner that a petroleum discharge had occurred at its property and that petitioner was liable for the clean-up and removal of the discharge under Navigation Law § 181. When petitioner failed to undertake the clean-up, the State Environmental Protection and Spill Compensation Fund expended over $143,000 in clean-up and removal costs. Thereafter, the Fund filed the environmental lien against petitioner's property for those expenditures, and the State commenced a plenary action for reimbursement, pursuant to Navigation Law § 181.

Petitioner brought this CPLR article 78 proceeding to vacate and annul the lien. Its contention was that, having transferred all control of the contaminated property as well as ownership of the tanks, pumps and remaining fixtures of the gasoline station's operating system to third parties, it was not a discharger liable for the clean-up and its property was not subject to a lien (see, Navigation Law § 172; § 181; see also, § 181-a [a] [environmental lien may be filed upon property whose owner is a person liable under section 181] ).

Dismissal of the petition was correct. A CPLR article 78 proceeding does not lie when another adequate remedy at law is available (see, CPLR 7801; Matter of Morgenthau v. Roberts, 65 N.Y.2d 749, 751, 492 N.Y.S.2d 21, 481 N.E.2d 561; Matter of Campbell Painting Corp. v. Reid, 48 Misc.2d 544, 545-546, 265 N.Y.S.2d 304, aff'd 26 A.D.2d 992, 275 N.Y.S.2d 363, aff'd 20 N.Y.2d 370, 283 N.Y.S.2d 31, 229 N.E.2d 602). Lien Law article 3, § 59 gives petitioner a statutory remedy to effect the vacatur of the lien (see, Navigation Law...