Gettner v. Getty Oil Company

• Decision Date: 15 November 1999
• Citation: 266 A.D.2d 342,701 N.Y.S.2d 64
• Parties: ALAN GETTNER, as Executor of HENRIETTE GETTNER, Deceased, et al., Respondents,<BR>v.<BR>GETTY OIL COMPANY et al., Appellants.
• Court: New York Supreme Court — Appellate Division

266 A.D.2d 342

701 N.Y.S.2d 64

ALAN GETTNER, as Executor of HENRIETTE GETTNER, Deceased, et al., Respondents,

v.GETTY OIL COMPANY et al., Appellants.

Decided November 15, 1999.

O'Brien, J. P., Santucci, Altman and Krausman, JJ., concur.

Ordered that the judgment is modified, on the law and the facts, by deleting the provisions thereof awarding $201,969.59 for lost rent, $57,195 for unpaid real estate taxes, $4,345.56 for unpaid insurance premiums, $227,672.50 for attorneys' fees, $6,799.80 for litigation disbursements, $8,000 for litigation support, and $11,000 as a sanction imposed pursuant to CPLR 3123; as so modified, the judgment is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Westchester County, for the calculation of damages for lost rent and additional rent, including unpaid real estate taxes and unpaid insurance premiums, in accordance herewith.

The plaintiffs, owners of property leased for use as a gas station, commenced this action against the defendants (hereinafter collectively referred to as Getty), their former tenants, seeking to recover damages caused by gasoline contamination on their property. The plaintiffs were granted partial summary judgment on the issue of liability on their cause of action pursuant to Navigation Law § 181 and their cause of action alleging breach of the parties' lease. After a nonjury trial on the issue of damages, the Supreme Court awarded damages in the principal sum of $760,802.90. On appeal, Getty concedes liability and certain basic cleanup costs, but contends that the court erred in awarding other items of damages. Specifically, Getty contends that the plaintiffs were not entitled to attorneys' fees and environmental consultant fees related to the cleanup, costs for fencing and garbage removal, lost rent, and additional rent including unpaid taxes and insurance premiums, attorneys' fees and ancillary expenses for prosecuting this action, and a sanction imposed pursuant to CPLR 3123 for failing to admit the authenticity of certain documents in a notice to admit.

Contrary to Getty's contention, a fair interpretation of the evidence supports the conclusion that it unreasonably delayed the investigation and remediation of the environmental problems. At trial, Getty's witnesses conceded that Getty was reluctant to undertake an investigation of subsurface drains on the premises because it was concerned about the cost and doubted that an investigation was necessary. When these drains were investigated without Getty's approval, at the insistence of the plaintiffs' consultants and counsel, they revealed subsurface contamination. Also, Getty never actually conceded that the plaintiffs were entitled to certain basic remediation costs until...