Booth Oil Site Administrative v. Safety-Kleen

• Citation: 532 F.Supp.2d 477
• Decision Date: 27 September 2007
• Docket Number: No. 98-CV-696(A).,98-CV-696(A).
• Parties: BOOTH OIL SITE ADMINISTRATIVE GROUP, Plaintiff, v. SAFETY-KLEEN CORPORATION, et al., Defendants.
• Court: U.S. District Court — Western District of New York

532 F.Supp.2d 477

BOOTH OIL SITE ADMINISTRATIVE GROUP, Plaintiff, v. SAFETY-KLEEN CORPORATION, et al., Defendants.

No. 98-CV-696(A).

United States District Court, W.D. New York.

September 27, 2007.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

R. William Stephens, Stephens & Stephens, Buffalo, NY, for Plaintiff.

Henry W. Killeen, III, Killeen & Killeen, Orchard Park, NY, David L. Roach, Larry Kerman, Blair & Roach LLP, Tonawanda, NY, Richard T. Sullivan, Sullivan, Oliverio & Gioia, Rodney O. Personius, Personius Melber LLP, Craig A. Slater, Harter, Seerest and Emery LLP, Patrick J. Brown,

Lotempio & Brown, Buffalo, NY, John A. Heer, Ralph E. Cascarilla, Walter & Haverfield LLP, Cleveland, OH, for Defendants.

ORDER

RICHARD J. ARCARA, Chief Judge.

This case was referred to Magistrate Judge H. Kenneth Schroeder, Jr., pursuant to 28 U.S.C. 636(b)(1). During pretrial proceedings, the parties filed various, motions for summary judgment and to dismiss. On June 29, 2007, Magistrate Judge Schroeder filed a Report and Recommendation, addressing the various motions.

Both plaintiff and, defendants Booth Oil Co., Inc., Lonsdale Slater Schofield, Ahsen Yelkin, EC Holdings, Inc., Joseph Chalhoub, Breslube Industries Limited, and Speedy Oil Services, Inc., filed objections to the Report and Recommendation on August 15, 2007. Oral argument on the objections was held on September 19, 2007. On September 24, 2007, defendant Lonsdale Slater Schofield filed a reply memorandum, with the Court's permission.

Pursuant to 28 U.S.C. § 636(b)(1), this Court must make a de novo determination of those portions of the Report and Recommendation to which objections have been made. Upon a de novo review of the Report and Recommendation, and after reviewing the submissions and hearing argument from the parties, the Court adopts the proposed findings of the Report and Recommendation.

Accordingly, for the reasons set forth in Magistrate Judge Schroederis Report and Recommendation, the Court:

GRANTS Lonsdale Schofield's motion (Dkt.# 162), to dismiss the first cause of action (CERCLA), without prejudice;

DENIES Lonsdale Schofield's motion (Dkt.# 162), to dismiss the fourth cause of action (enforcement of Booth dating Plan);

GRANTS Lonsdale Schofield's' Motion (Dkt.# 162), to dismiss the sixth cause Of action (New York Debtor & Creditor Law § 276);

GRANTS Lonsdale Schofield's (notion (Dkt.# 162), to dismiss the seventh cause of action (New York Debtor & Creditor Law § 270); and

DENIES Lonsdale Schofield's motion (Dkt.# 162), to dismiss the eighth cause of action (breach of fiduciary duty);

GRANTS Schofield Oil's motion (Dkt.# 162), to dismiss the first cause of action (CERCLA), without prejudice;

GRANTS Schofield Oil's, motion (Dkt.# 162), to dismiss the fourth cause of action (enforcement of Booth Oil's Liquidating Plan), without prejudice on the ground that it is not properly before the court;

GRANTS Schofield Oil's motion (Dkt.# 162), to dismiss the sixth cause of action (New. York Debtor & Creditor Law § 276), without prejudice on the ground that it is not properly before the court;

GRANTS Schofield Oil's motion (Dkt.# 162), to dismiss the seventh cause of action (New York Debtor & Creditor Law § 273), without prejudice on the ground that it is not properly before the court;

ORDERS that Schofield Oil be terminated as a defendant in this action;

DENIES Booth Oil's motion (Dkt.# 165), for partial summary judgment dismissing the fifth cause of action (accounting);

DENIES Joseph Chalhoub's motion (Dkt.## 173 & 179), to dismiss land/or for summary judgment on the first cause of action (CERCLA);

DENIES Joseph Chalhoub's motion (Dkt.## 173 & 179), to dismiss and/or for summary judgment on the second, and third causes of action: (Navigation Law liability);

DENIES Joseph Chalhoub's motion (I)kt.## 173 & 179), to dismiss and/or for summary judgment on the fourth, caw of action (enforcement of Booth Oil's, Liquidating Plan);

GRANTS Joseph Chalhoub's motion (Dkt.## 173 & 179), to dismiss and/or for summary judgment on the sixth cause of action (New York Debtor & Creditor § 276);

GRANTS Joseph Chalhoub's motion (Dkt.## 173 & 179), to dismiss and/or for summary judgment on the seventh cause of action (New York Debtor & Creditor Law § 273);

DENIES Joseph Chalhoub's motion (Dkt.## 173 & 179), to dismiss and/or for summary judgment on the eighth cause of action (breach of fiduciary duty);

DENIES Breslube Industries' motion (Dkt.## 173 & 179), to dismiss and/or for summary judgment on the first cause of action (CERCLA);'

DENIES Breslube Industries' motion (Dkt.## 173 & 179), to dismiss and/or for summary judgment on the second & third causes of action (New York Navigation Law);

GRANTS 118958 Canada's motion (Dkt.## 173 & 179), to dismiss and/or for summary judgment on the fourth cause of action (enforcement of Booth Oil's Liquidating Plan), without prejudice on the ground that it is not properly before the court;

GRANTS 118958 Canada's motion (Dkt.## 173 & 179), to dismiss and/or for summary judgment on the sixth cause of action (New York Debtor & Creditor Law § 276);

GRANTS 118958 Canada's motion (Dkt.## 173 & 179), to dismiss and/or for summary judgment on the seventh cause of action (New York Debtor & Creditor Law § 273);

ORDERS that 118958 Canada be terminated as a defendant in this action;

DENIES Speedy Oil's motion (Dkt.## 173 & 179), to dismiss and/or for summary judgment on the first cause of action (CERCLA);

GRANTS Speedy Oil's motion (Dkt.## 173 & 179), to dismiss and/or for summary judgment on the fourth cause of action (enforcement of Booth Oil's Liquidating Plan), without prejudice on the ground that it is not properly before the court;

GRANTS Speedy Oil's motion (Dkt.## 173 & 179), to dismiss and/or for summary judgment on the sixth cause of action (New York Debtor & Creditor Law § 276), without prejudice on the ground that it is not properly before the court;

GRANTS plaintiffs motion (Dkt.# 175), for summary judgment against Booth Oil on the first cause of action (CERCLA liability);

GRANTS plaintiffs motion (Dkt.# 175), for summary judgment against Booth Oil on the second and third causes of action (Navigation Law liability);

DENIES plaintiffs motion (Dkt.# 175), for judgment in the amount of $1,475,000.00, as a matter of law, against Booth Oil as damages on the environmental claims;

GRANTS plaintiffs motion (Dkt.# 175); for a declaration that Booth Oil's transfer of $450,000 to EC Holdings violated the terms of the Liquidating Plan;

GRANTS plaintiffs motion (Dkt.# 175), for a declaration that Booth Oil's transfer of $300,000 to Katherine Street Properties on August 15, 1994, violated the terms of the Liquidating Plan;

GRANTS plaintiffs motion (Dkt.# 175), for a declaration that Booth Oil's transfer of $275,000 to George Booth, III on October 7, 1994, violated the terms of the Liquidating Plan;

DENIES plaintiffs motion (Dkt.# 189), for summary judgment against George Booth, III, Joseph Chalhoub, Lonsdale Schofield, EC Holdings, Ahsen Yelkin, and Katherine Street Properties with respect to the fourth cause of action (enforcement of Booth Oil's Liquidating Plan);

GRANTS plaintiff's motion (Dkt.# 175), for summary judgment with respect to the fifth cause of action against Booth Oil (accounting);

DENIES Ahsen Yelkin's motion (Dkt.# 183), to dismiss and/or for summary judgment on the first cause of action (CERCLA);

DENIES Ahsen Yelkin's motion (Dkt.# 183), to dismiss and/or for summary judgment on the second & third causes of action (Navigation Law liability);

GRANTS Ahsen Yelkin's motion (Dkt.# 183), to dismiss and/or for summary judgment on the fourth cause of action (enforcement of Booth Oil's Liquidating Plan); and

DENIES Ahsen Yelkin's motion (Dkt.# 183), to dismiss and/or for summary judgment on the sixth cause of action (New York Debtor & Creditor Law § 276);

GRANTS EC Holdings' motion (Dkt.# 183), to dismiss and/or for summary judgment on the fourth cause of action (enforcement of Booth Oil's Liquidating Plan); and DENIES EC Holdings' motion (Dkt.# 183), to dismiss and/or for summary judgment on the sixth cause of action (New York Debtor & Creditor Law § 276).

Counsel shall appear on October 31, 2007, at 9:00 a.m. for a meeting to set a trial date.

IT IS SO ORDERED.

REPORT, RECOMMENDATION AND ORDER

H. KENNETH SCHROEDER, JR., United States Magistrate Judge.

This matter was referred to the undersigned by the Hon. Richard J. Arcara, in accordance with 28 U.S.C. § 636(b), for all pretrial matters and to hear and report upon dispositive motions.' Dkt. # 120.

Currently before the Court are the following:

1. Motion (Dkt.# 162), by Lonsdale Schofield and Schofield Oil Limited ("Schofield Oil"), to dismiss the amended complaint;

2. Motion (Dkt.# 165), by Booth Oil Company, Inc. ("Booth Oil"), for partial summary judgment dismissing the, fifth cause of action seeking an accounting;

3 Motion (Dkt.## 173 & 179), by Joseph Chalhoub, Breslube Industries Limited ("Breslube Industries"), 118958 Canada ("118958 Canada"), and Speedy Oil Services, Inc. ("Speedy Oil"), to dismiss and/or for summary judgment;

4 Motion (Dkt.# 175), for summary judgment by Booth Oil Site Administrative Group ("plaintiff'), against Booth Oil;

5. Motion (Dkt.# 183),¹ by Ahsen Yelkin and EC Holdings, Inc. ("EC Holdings"), to join in the motions of Joseph Chalhoub and Lansdale Schofield; and

Motion (Dkt.# 189), by plaintiff for summary judgment against George Booth, III; Booth Oil; Joseph Chalhoub; Lansdale Schofield; EC Holdings; Ahsen Yelkin; and Katherine Street `Properties, Inc. ("Katherine Street Properties").

BACKGROUND

George Booth moved this waste oil business to Robinson Street in North Tonawanda in 1939. Dkt. # 175-8, p. 6. From approximately 1948 through 1960, George Booth and George Booth, J. operated George Booth & Son as a partnership. Dkt. # 175-8, p. 7. George Booth purchased the property from...