Mendler v. Federal Ins. Co.

• Citation: 159 Misc.2d 1099,607 N.Y.S.2d 1000
• Parties: Henry MENDLER and Joseph Mendler, Plaintiffs, v. FEDERAL INSURANCE COMPANY, Defendant and Third-Party Plaintiff. A.D. Winston Corp. et al., Third-Party Defendants. Henry MENDLER and Joseph Mendler, Plaintiffs, v. A.D. WINSTON CORP., Ted Bombola Individually and d/b/a Surowiec Trucking & Excavating; and Donald C. Kraft, Individually and d/b/a Chatham Fuel, Defendants. .A. Part 55
• Decision Date: 22 December 1993
• Court: United States State Supreme Court (New York)

Page 1000

607 N.Y.S.2d 1000

159 Misc.2d 1099

Henry MENDLER and Joseph Mendler, Plaintiffs, v. FEDERAL INSURANCE COMPANY, Defendant and Third-Party

Plaintiff. A.D. Winston Corp. et al., Third-Party

Defendants.

Henry MENDLER and Joseph Mendler, Plaintiffs, v. A.D. WINSTON CORP., Ted Bombola Individually and d/b/a

Surowiec Trucking & Excavating; and Donald C.

Kraft, Individually and d/b/a Chatham

Fuel, Defendants.

Supreme Court, New York County,

I.A. Part 55.

Dec. 22, 1993.

Fred Lichtblau, New York City, for plaintiffs.

Bouck, Holloway, Kiernan & Casey, Albany, for defendant Federal Ins. Co.

Bower & Gardner by Susan A. Safer, New York City, for defendant A.D. Winston Corp.

Schneck Weltman Hashmall & Mischel by Geraldine Koeneke Russell, New York City, for defendant Ted Bombola.

Quirk & Bakalor, P.C., New York City, for defendant Donald C. Kraft.

PETER TOM, Justice.

Plaintiffs move for an order, pursuant to CPLR 3025(b), granting leave to serve an amended verified complaint to include a cause of action based on Navigation Law § 181 which permits a private right of action against a person who discharges petroleum into the waters of the State for the costs of cleanup and removal as well as related damages.

Plaintiff Henry Mendler owns the residential dwellings and the real property located on Foster Road, Canaan/Austerlitz, Columbia County, New York. Plaintiff Joseph Mendler is the son of Henry Mendler and is a part-time resident, with his family, in one of the aforementioned dwellings (to be referred to herein as the "Dwelling" or the "House"). The Dwelling was heated by an oil fueled heating system which was supplied by oil stored in an underground tank.

In or about October, 1989, plaintiffs approached defendant A.D. Winston Corp. ("Winston"), a company engaged in the business of selling and servicing heating equipment and parts, for the purpose of purchasing a new oil storage tank. Plaintiffs assert that they informed Winston that the tank would be installed underground and that they relied upon Winston's expertise and recommendation to purchase the 550 gallon tank in issue (the "Tank") from Winston.

Plaintiffs then contracted Ted Bombola, individually and doing business as Surowiec Trucking & Excavating ("Bombola") to excavate, place and level the Tank in the designated area. Defendant Donald C. Kraft, individually and doing business as Chatham Fuel ("Kraft") was contracted by plaintiffs to connect the Tank to the House, to fill the Tank with oil, and to make periodic deliveries of fuel when needed.

Defendant/Third Party plaintiff Federal Insurance Company ("Federal"), is the insurance carrier which issued plaintiffs the homeowners insurance policy in force during the relevant time period.

Plaintiffs assert that in or about December 1989, shortly after installation, the oil tank began to leak and continued to leak a large volume of oil below ground surface which resulted in, inter alia: the pollution of the well which served the house; the pollution of the surrounding grounds and ruination of the landscaping, bushes, trees and shrubs in the immediate area; the failure of the Dwelling's heating system which caused the pipes to freeze and burst; and the destruction of furniture and personal effects within the House caused by water from the bursted pipes.

Plaintiff commenced the within action which interposed seven causes of action. The first three causes of action, which are asserted against Winston and which sound in, respectively, breach of warranty and merchantability, breach of contract and negligence, allege that Winston improperly sold plaintiff the Tank, which was only suited for above-ground use, and failed to warn plaintiffs that the Tank had to be fitted with a permanent metal plug prior to installation.

The fourth and fifth causes of action, which are asserted against Bombola and which sound in, respectively, breach of contract and negligence, allege that Bombola improperly set the Tank in the ground, failed to perform certain tests to ascertain that the Tank was in a safe condition; and failed to replace a certain temporary plug with a permanent metal plug.

The sixth and seventh causes of action, which are asserted against Kraft and which sound in, respectively, breach of contract and negligence, allege that Kraft: failed to properly connect the Tank to the Dwelling; failed to conduct the necessary tests to determine that the Tank was operating properly; and ignored the fact that it had to continually fill the Tank over short intervals, pumping approximately 2,000 gallons into it over a relatively short period of time, a clear indication that the Tank was leaking. All of the approximately 2,000 gallons of oil pumped into the Tank allegedly leaked out. Plaintiffs seek $500,000.00 in damages.

In the instant motion, plaintiffs move for leave to amend the complaint to add an eighth cause of action against defendants Winston, Bombola and Kraft based on Navigation Law § 181(5). The proposed amended Complaint does not impact on action No. 1 against Federal, and neither Federal nor Kraft oppose the within motion.

Navigation Law § 181(5) states:

Any claim by any injured person for the costs of cleanup and removal and direct and indirect damages based on the strict liability imposed by this section may be brought directly against the person who has discharged the petroleum, provided, however, that damages recoverable by any injured person in such a direct claim based on the strict liability imposed by this section shall be limited to the damages authorized by this section (emphasis added).

It is well settled that absent prejudice or surprise, leave to amend a complaint shall be "freely given" (see, CPLR 3025[b]; Edenwald Cont. Co. v. City of New York, 60 N.Y.2d 957, 471 N.Y.S.2d 55, 459 N.E.2d 164; NAB Constr. Corp. v. Metropolitan Transp. Auth., 167 A.D.2d 301, 562 N.Y.S.2d 44; Adams Drug Co. v. Knobel, 129 A.D.2d 401, 513 N.Y.S.2d 674; Fulford v. Baker Perkins, 100 A.D.2d 861, 474 N.Y.S.2d 114; Siegel, Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 7B, CPLR C3025:6, at 356).

Defendants Bombola and Winston, in opposing the instant motion, make no attempt to demonstrate, or allege, any prejudice which might result from the granting of plaintiffs' requested relief to amend.

Defendants proffer two arguments with regard to Navigation Law § 181(5): that they were not responsible for the alleged discharge and, therefore, do not fall within the category of people liable under that section; and that § 181(5), which became effective on July 26, 1991 or approximately 5 months after the commencement of the within action is not retroactive in nature, and, as a result, is not applicable to the facts herein.

In Merrill v. Ralston, 95 A.D.2d 177, 465 N.Y.S.2d 507, the Appellate Division, First Department held that:

Whether an amendatory statute is to be given retroactive application depends upon the legislative intent and whether the amendment involves procedural or remedial matters as opposed to substantive rights (Matter of Clayton v. Clement, 33 NY2d 386 [353 N.Y.S.2d 173, 308 N.E.2d 690]; Simonson v. International Bank, 14 NY2d 281 [251 N.Y.S.2d 433, 200 N.E.2d 427]).

(Id. at 179, 465 N.Y.S.2d 507).

The general rule favored by the courts is that a statute should be construed as prospective unless the language of the statute, either expressly or by direct implication, requires a retroactive construction. An exception to the foregoing is that remedial statutes, which are to be liberally construed, are to be given retroactive construction to the extent that they do not impair vested rights or create new rights (see, McKinney's Statutes §§ 54[a], 321; State of New York v. Cities Serv. Co., 180 A.D.2d 940, 580 N.Y.S.2d 512; Kriegel Assocs. v. Lahm Knitting Mill, 179 A.D.2d 539, 579 N.Y.S.2d 44, appeal dismissed, 80 N.Y.2d 893, 587 N.Y.S.2d 909, 600 N.E.2d 636; Matter of Hays v. Ward, 179 A.D.2d 427, 578 N.Y.S.2d 168, appeal denied 80 N.Y.2d 754, 587 N.Y.S.2d 906, 600 N.E.2d 633; Matter of City of New York [Long Is. Sound Realty Co.], 160 A.D.2d 696, 553 N.Y.S.2d 789; Lesser v. Park 65 Realty Corp., 140 A.D.2d 169, 527 N.Y.S.2d 787, appeal dismissed, 72 N.Y.2d 1042, 534 N.Y.S.2d 940, 531 N.E.2d 660; Coffman v. Coffman, 60 A.D.2d 181, 400 N.Y.S.2d 833).

Remedial statutes are designed to correct imperfections in prior law, give relief to aggrieved parties and to promote justice (see, Matter of Asman v. Ambach, 64 N.Y.2d 989, 489 N.Y.S.2d 41, 478 N.E.2d 182; Cady v. County of Broome, 87 A.D.2d 964, 451 N.Y.S.2d 206, appeal denied 57 N.Y.2d 602, 454 N.Y.S.2d 1027, 440 N.E.2d 798; Coffman v. Coffman, supra 60 A.D.2d at 188, 400 N.Y.S.2d 833; McKinney's Statutes § 321).

If a new right of action is created which did not previously exist, the statute should be applied prospectively only (Matter of Hays v. Ward, supra ), 179 A.D.2d at 428-429, 578 N.Y.S.2d 168; Ruotolo v. State of New York, 157 A.D.2d 452, 549 N.Y.S.2d 22, appeal denied 75 N.Y.2d 710, 556 N.Y.S.2d 247, 555 N.E.2d 619).

A reading of Navigation Law § 181 clearly reveals that it is remedial in nature and is designated to clarify the fact that a private right of action exists under Article 12 of the Navigation Law. A review of the legislative bill jacket is also instructive. In a letter to Governor Cuomo, Senator Owen H. Johnson, a cosponsor of the bill, states, inter alia:

This legislation would clarify Article 12 of the Navigation Law by expressly providing a person damaged by a discharge of petroleum with a private right of action against the party responsible for the discharge based on the strict liability imposed by § 181 of the Navigation Law. This right existed for injured parties from 1977, when this statute was originally enacted,...