Emerson Enterprises Llc v. Kenneth Crosby N.Y. Llc
| Decision Date | 15 March 2011 |
| Docket Number | No. 03–CV–6530 CJS.,03–CV–6530 CJS. |
| Citation | 781 F.Supp.2d 166 |
| Parties | EMERSON ENTERPRISES, LLC, Plaintiff,v.KENNETH CROSBY NEW YORK, LLC, Jayne C. Summers, Clark Witbeck, Inc., Brian J. Cain, Barbara Goodrich, as Executor of the Estate of Vernon Goodrich, Dean Brodie, Curtis S. Kling, the Travelers Indemnity Co., John Doe Corporations, John Does, and John Doe Insurance Companies, Defendants. |
| Court | U.S. District Court — Western District of New York |
OPINION TEXT STARTS HERE
Alan J. Knauf, Esq., Knauf Shaw, LLP, Rochester, NY, for Plaintiff.Amy K. Kendall, Esq., Hiscock & Barclay, LLP, Rochester, NY, for Defendant Dean Brodie.Alexander Geiger, Esq., Geiger and Rothenberg, LLP, Rochester, NY, for Defendants Kenneth Crosby New York, LLC, and Jayne C. Summers.
DECISION AND ORDER
This is an action pursuant to, inter alia, the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), 42 U.S.C. § 9601, et seq., the Resource Conservation Recovery Act (“RCRA”), 42 U.S.C. § 6901 et seq., the New York Environmental Conservation Law (“ECL”), and New York Navigation Law. Now before the Court are the following motions: 1) a motion for summary judgment [# 305] by defendant Dean Brodie (“Brodie”); and 2) a cross-motion to dismiss/for summary judgment [# 320] by plaintiff Emerson Enterprises, LLC (“Plaintiff”). For the reasons that follow, Brodie's motion is granted in part and denied in part, and Plaintiff's cross-motion is granted.
The history of this action is set forth in numerous prior decisions by this Court (Docket Nos. [# 165] [# 225] [# 227] [# 263] [# 264] [# 303] ). For purposes of the instant Decision and Order it is sufficient to note the following facts.
This action involves environmental contamination of a parcel of land owned by Plaintiff, known as 640 Trolley Drive (“640 Trolley Drive,” “the property,” or “the site”) in the Town of Gates, New York. Prior to 1960, the property was vacant land. In the 1960's, Plaintiff's predecessors constructed a 12,300 square-foot masonry structure on the property. At all relevant times, Plaintiff has either used or leased the property for commercial purposes. Defendant Clark Witbeck, Inc. (“Clark Witbeck”) leased the property from the early 1960s until 1992. Clark Witbeck used the property to sell industrial tools and supplies, including a cutting oil known as Cimcool, which was manufactured by the Cincinnati Milacron Company (“Cincinnati Milacron”). At all relevant times, Cimcool contained mineral oil. Moreover, prior to 1979, Cimcool contained Aroclor 1254, which is a polychlorinated biphenyl (PCB). Cimcool was packaged in pink, 55–gallon steel drums and five-gallon pails.
From the early 1960's until approximately May 1980, Clark Witbeck was owned by Curtis Kling (“Kling”). In or about May 1980, Brodie and Vernon Goodrich (“Goodrich”) purchased Clark Witbeck. In 1987, Brodie and Goodrich sold Clark Witbeck to Brian Cain (“Cain”). In or about 1992, Cain dissolved Clark Witbeck and sold some of its assets to Defendant Kenneth Crosby New York, LLC (“Crosby”), which essentially continued the same type of business as Clark Witbeck at the site, until approximately 2000. Throughout the aforementioned periods, Clark Witbeck and Crosby sold Cimcool at the site.
Ron Spinelli (“Spinelli”) began working for Clark Witbeck in 1966, when Kling was the owner, and continued to work there until 1992, including the period of Brodie's ownership of the company. (Spinelli Deposition at 17). At deposition, Spinelli testified that throughout his employment with Clark Witbeck, there was a “pit” or “dry well” in back of the property, which had been constructed in the early 1960s, prior to his employment. Id. at 22, 24. The pit was eight-to-ten-feet away from the northwest door of the building. Id. at 31. Spinelli indicated that over a period of years, Clark Witbeck employees dumped quantities of Cimcool, that was either discontinued or unwanted by customers, into the drywell. Id. at 22, 24. Spinelli, who worked on the northeast side of the building, testified that workers on the northwest side of the building dumped the liquid. Id. at 24–27. However, Spinelli does not recall who actually dumped the fluid:
Q. ... Who would put material in the dry well?
A. Actually dump the barrels?
Q. Yes.
A. I knew it was the guys on the other side of the warehouse. I don't even know who they were. I mean, I don't remember the names. I'm not sure. But I know it was—like I say, we divided the building in half and the guys that worked on the tool side are the ones. Whoever told them to go dump it, which I'm assuming at that time would have been Curt [Kling], they would just go and dump the drums. But I don't know who they were. I can't remember.
Q. Okay. So was it your understanding that was kind of—that was the standard procedure, to—when there was discontinued material, that it would be put in the dry well?
A. Yes.
Regarding the dates when this dumping allegedly occurred, Spinelli testified as follows:
Q. All right. And when did this activity go on?
A. It was in the '60s.
Q. Okay. And did it stop at some point?
A. I'm going to say it stopped around Dean Brodie's time, when he took over the business. Now, I don't—I don't remember exactly, you know, when it stopped, I but I know it did stop.
Q. Do you recall why it stopped?
A. I don't remember why it stopped. I'm assuming he didn't think it was the right thing to do. And there was always a problem when it got wet back there, because this stuff would come to the top. It would—actually, the well must have been filled and when it rained a lot [of] it would come to the top, so I think he stopped it. I think Dean stopped it. I don't—it might even have stopped a little before even him, but I can't remember when.
Q. Would you remember if any of the use of the dry well happened during his tenure, during Dean Brodie's tenure?
A. No, I couldn't say ‘yes' or ‘no.’ But I don't think so.
Q. Okay. And do you know if use of that dry well ever resumed at any point?
A. Not that I know of.
* * *
Q. Okay. So was it your understanding that was kind of—that was the standard operating procedure, to—when there was discontinued material, that it would be put in the dry well?
A. Yes.
MR. PALUMBO: Objection. I need a time frame[.]
Q. Oh. During the tenure of Curtis Kling.
A. Yes.
Q. Now, do you recall there ever being any barrels outside behind the building?
A. I think there was a couple barrels back there. But not—I mean, there wasn't a lot of—they used to take the barrels back in. And I think they used to bring the barrels to the scrap yard, the empty barrels, because they were steel at the time.
MR. PALUMBO: Excuse me, Mr. Spinelli. Are we talking about the period when Mr. Kling was operating the business again?
A. Yes.
(Spinelli Dep. at 23–25). Spinelli further testified:
Q. And do you know if the pit was used in the late '70s?
A. I don't know. I can't say. I don't know.
Q. And do you know if it was used in the early '80s?
A. For some reason, I remember when Dean [Brodie] took it over, I remember him saying something about the pit. He might have asked me those questions, you know, “What was this used for [?],” and I told him. He said, “Well, that's going”—I know he said something to the effect of, “That's going to stop.” And that was it.
* * *
Q. You testified earlier that Mr. Brodie said words or substance after he took over the business that the use of the pit was to stop?
A. Yeah, I think that's what he had said, to that effect.
During the period from 1980 to 1987 when Brodie and Goodrich owned Clark Witbeck, Brodie was president of the corporation, and “r[a]n the operations overall.” (Spinelli Dep. at 13). At his deposition, Brodie stated, (Brodie Dep. at 13). Goodrich, on the other hand, was an accountant and oversaw the corporations Accounting Department. (Spinelli Dep. at 13). On one occasion during this seven-year period, the date of which is unknown, Brodie was examining the area of the property behind the building, because Clark Witbeck was considering building a parking lot. Brodie Deposition at 48, 76. The area was overgrown with “weeds and brush,” making it difficult to open the door to the outside. Brodie Deposition at 48. At that time, Brodie observed a structure near the northwest rear door of the building, which he described as, “somewhat like a large child's sand box, four boards on either side with rock inside the board structure.” (Brodie Deposition at 48, 50). Apparently, this structure was the dry well described by Spinelli. Brodie indicates that he never discussed the structure with anyone. Id. at 50–51, 54. However, as discussed above, Spinelli states that Brodie “may have” discussed the “pit” with him at some unknown time.
Monty Alberts (“Alberts”) worked for Clark Witbeck between approximately 1980 1 and 1992. Alberts testified that approximately one-to-two years after he began working for Clark Witbeck, an official from the Town of Gates notified Clark Witbeck that there were barrels on the land behind the warehouse that had to be removed. (Alberts Deposition at 23–29, 65). Alberts helped remove a number of empty barrels from an overgrown area behind the warehouse. Id. Alberts states that, after the barrels were found behind the building, Brodie told him that such dumping of barrels should not occur in the future:
Q. ... Do you recall the content of that discussion [with Brodie] at all?
A. No. It was that they [the barrels] were there and that we had to get them out of there. And that if that was being dumped out there, it was no longer going to ever happen.
Alberts Dep. at 74 (emphasis added).2
As for the dry well, Alberts indicated that someone at Clark Witbeck told him that, at some point in time, that employees would dispose of leaking drums in an area called the pit: ...
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