Hellert v. Town of Hamburg

• Decision Date: 25 April 2008
• Docket Number: CA 07-00290.
• Citation: 857 N.Y.S.2d 825,50 A.D.3d 1481,2008 NY Slip Op 03747
• Parties: DONALD D. HELLERT et al., Individually and as Parents and Natural Guardians of BENJAMIN P. HELLERT, an Infant, et al., Respondents, v. TOWN OF HAMBURG, Appellant. (Appeal No. 1.)
• Court: New York Supreme Court — Appellate Division

50 A.D.3d 1481

857 N.Y.S.2d 825

2008 NY Slip Op 03747

DONALD D. HELLERT et al., Individually and as Parents and Natural Guardians of BENJAMIN P. HELLERT, an Infant, et al., Respondents, v. TOWN OF HAMBURG, Appellant. (Appeal No. 1.)

CA 07-00290.

Appellate Division of the Supreme Court of the State of New York, Fourth Department.

Decided April 25, 2008.

Appeal from an order of the Supreme Court, Erie County (Erin M. Peradotto, J.), entered December 11, 2006 in a personal injury action. The order, insofar as appealed from, denied in part the motion of defendant for summary judgment dismissing the amended complaint.

It is hereby ordered that the order insofar as appealed from is unanimously reversed on the law without costs, the motion is granted in its entirety and the amended complaint is dismissed.

Memorandum:

Plaintiffs commenced this action alleging that defendant allowed toxic and hazardous substances to migrate from its property, where it formerly operated a landfill, to plaintiffs' property. According to plaintiffs, those substances caused health risks to plaintiffs and personal injuries to one of the children on whose behalf the action was commenced (hereafter, child), as well as property damage. Supreme Court granted defendant's motion for summary judgment dismissing the amended complaint only in part, and we agree with defendant that the court should have granted defendant's motion in its entirety.

In support of its motion, defendant established its entitlement to judgment as a matter of law with respect to the remaining causes of action, for trespass, private nuisance, negligence and negligence per se (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). A common element alleged in each of those causes of action is that unsafe levels of hazardous materials originating on defendant's property migrated to plaintiffs' properties, resulting in health or safety risks. Here, defendant established through the various environmental reports submitted in support of the motion and through the affidavit of its medical expert that, although contaminants were found on plaintiffs' properties, they did not result in health or safety risks and did not cause the migraine headaches of the child.

We conclude that plaintiffs failed to raise a triable issue of fact sufficient to defeat the remainder of defendant's motion. Contrary to the contention of plaintiffs, the affidavit of their hydrogeologist was insufficient to raise a triable issue of fact because they failed to establish that he was qualified to render the opinions set forth in his affidavit, i.e., they failed to establish that he was "possessed of the requisite skill, training, education, knowledge or experience from which it can be assumed that the information imparted or the opinion rendered is reliable" (Matott v Ward, 48 NY2d 455, 459 [1979]; see Moody v Sorokina, 40 AD3d 14, 20 [2007], appeal dismissed 8 NY3d 978, reconsideration denied 9 NY3d 887 [2007]). He was not certified as a hydrogeologist by any accepted accrediting organization and, indeed, he admitted in his deposition testimony that he was "not qualified to indicate what's a health risk and what's not."

Even assuming, arguendo, that plaintiffs' hydrogeologist is a qualified expert, we conclude that his affidavit and report is insufficient to raise a triable issue...