Nalley v. General Elec. Co.

• Decision Date: 03 April 1995
• Citation: 165 Misc.2d 803,630 N.Y.S.2d 452
• Parties: Raymond NALLEY, Dorothy Nalley, Mary C. Arnold, George H. Witbeck, Jr., Marjorie H. Witbeck, Isidoro Marra, Gail A. Marra, C. Stanton Baltzel, Patricia Baltzel, John Carlson, John Casserly, and Donna Casserly, Plaintiffs, v. GENERAL ELECTRIC COMPANY, The Bendix Corporation, Schenectady Chemicals, Inc., Loeffel's Waste Oil Removal and Service Co., Inc., Dewey Loeffel, Marcar Oil, Inc. and Florence Howley, Defendants.
• Court: New York Supreme Court

Page 452

630 N.Y.S.2d 452

165 Misc.2d 803

Raymond NALLEY, Dorothy Nalley, Mary C. Arnold, George H Witbeck, Jr., Marjorie H. Witbeck, Isidoro Marra, Gail A Marra, C. Stanton Baltzel, Patricia Baltzel, John Carlson John Casserly, and Donna Casserly, Plaintiffs, v. GENERAL ELECTRIC COMPANY, The Bendix Corporation Schenectady Chemicals, Inc., Loeffel's Waste Oil Removal and Service Co., Inc., Dewey Loeffel, Marcar Oil, Inc. and Florence Howley, Defendants.

Supreme Court, Rensselaer County.

April 3, 1995.

Ruberti, Girvin & Ferlazzo, P.C., Albany, for plaintiffs George H. Witbeck, Jr., and others.

Richard P. Feirstein, Albany, for plaintiffs C. Stanton Baltzel and another.

Bond, Schoeneck & King, Albany, Shea & Gardner, Washington, DC, for defendant General Elec. Co.

Thorn & Gershon, Albany, for defendant Bendix Corp.

Ainsworth, Sullivan, Tracy, Knauf, Warner & Ruslander, Albany, for defendant Loeffel's Waste Oil Removal Service Co., Inc. and another.

Young, Stockli & Rowe, Albany, for defendant Florence Howley.

GEORGE B. CERESIA, Jr., Justice.

FACTS

Plaintiffs are owners of land near what is known as the Loeffel waste disposal site ("Loeffel site") located on Mead Road, four miles northeast of Nassau, Rensselaer County, New York. The Loeffel site is an 11 acre parcel that was operated beginning in 1952. In the 1950's and 1960's, defendants General Electric Company ("GE"), The Bendix Corporation ("Bendix"), Schenectady Chemicals, Inc. ("Schenectady"), and others contracted with the Loeffels to pick up industrial wastes and transport them to the Loeffel site where they were deposited. In 1968 the Loeffels ceased disposing of industrial wastes. An on-site lagoon, oil pit, and drum disposal area were covered with soil and a system of drainage channels was constructed to control surface water on the site. These activities were completed in 1974. Defendant Loeffel's Waste Oil Removal and Service Company reportedly continued to use the site from 1974 to 1980 as a transfer station for waste oils.

In the late 1970's, the New York State Department of Environmental Conservation ("NYSDEC") determined that chemicals had escaped from the Loeffel site and that further remedial action should be undertaken. GE agreed to a Consent Order to fund a portion of long-term remediation activities at the site. Bendix did the same. Schenectady refused to do so and the State successfully brought suit against Schenectady to compel it to pay its share of remediation costs (see, State v. Schenectady Chemicals, Inc., 117 Misc.2d 960, 459 N.Y.S.2d 971, modified 103 A.D.2d 33, 479 N.Y.S.2d 1010 [Third Dept., 1984].

NYSDEC eventually approved and implemented a remedial plan for the Loeffel site. This remediation, which began in September, 1983, included the following: (a) removal of the four storage tanks as well as numerous barrels of waste; (b) construction of a below-ground soil-bentonite impermeable containment barrier around the perimeter of the site; (c) placement of an impermeable barrier clay cap with a vegetative cover over the site; and (d) installation of a leachate collection system and surface drainage system. The remediation was completed in November 1984.

Monitoring of ground water and surface water has been carried out at and near the Loeffel site both before and after the remediation by NYSDEC, the New York State Department of Health ("NYSDOH"), the Rensselaer County Department of Health ("RCDH") and GE. Results of sampling of well water from the properties of plaintiffs Baltzel and Carlson show no detectable concentrations of any contaminants on these plaintiffs' properties. The remaining four plaintiffs do not have drinking water wells on their property.

Plaintiffs commenced the instant action for damages in July, 1987. Their amended complaint, dated October 9, 1991, sets up five causes of action: (a) negligence; (b) nuisance based upon ultrahazardous activity; (c) nuisance based upon intentional acts of defendants; (d) nuisance based upon negligence; (e) trespass. Plaintiffs allege, inter alia, that defendants GE, Bendix and Schenectady caused toxic waste chemicals to be dumped at the Loeffel site; that these toxic wastes are dangerous to human, animal and plant life; that the chemical wastes have migrated and are still migrating onto surrounding properties, including onto plaintiffs' lands, into plaintiffs' water and into the air above their lands; that the chemical wastes have contaminated plaintiffs' properties, causing them to be unsafe, unhealthful and hazardous; that plaintiffs have suffered financial and economic damage; that the notoriety and public awareness of the contamination at the Loeffel site has permanently decreased the value of plaintiffs' properties.

Defendants move for partial summary judgment dismissing all claims of plaintiffs Witbeck, Baltzel, Carlson, and Casserly.

DISCUSSION

NUISANCE

In Copart Inds. v. Consolidated Edison, 41 N.Y.2d 564, 394 N.Y.S.2d 169, 362 N.E.2d 968 [1977] the Court of Appeals reviewed the law with respect to nuisance:

A private nuisance threatens one person or a relatively few (McFarlane v. City of Niagara Falls, 247 NY 340, 344 , an essential feature being an interference with the use or enjoyment of land (Blessington v. McCrory Stores Corp., 198 Misc 291, 299 , affd. 279 App Div 806 , affd. 305 NY 140 . It is actionable by the individual person or persons whose rights have been disturbed (Restatement, Torts, notes preceding § 822, p 217). A public, or as sometimes termed a common, nuisance is an offense against the State and is subject to abatement or prosecution on application of the proper governmental agency (Restatement, Torts, notes preceding § 822, p 217; see Penal Law § 240.45). It consists of conduct or omissions which offend, interfere with or cause damage to the public in the exercise of rights common to all (New York Trap Rock Corp. v. Town of Clarkstown, 299 NY 77, 80 , in a manner such as to offend public morals, interfere with use by the public of a public place or endanger or injure the property, health, safety or comfort of a considerable number of persons (Melker v. City of New York, 190 NY 481, 488 ; Restatement of Torts, notes preceding § 822, p 217).

Copart Inds. v. Consolidated Edison, supra, p. 568, 394 N.Y.S.2d 169, 362 N.E.2d 968.

Despite early private nuisance cases, which apparently assumed that the defendant was strictly liable, today it is recognized that one is subject to liability for a private nuisance if his conduct is a legal cause of the invasion of the interest in the private use and enjoyment of land and such invasion is (1) intentional and unreasonable, (2) negligent or reckless, or (3) actionable under the rules governing liability for abnormally dangerous conditions or activities (Restatement, Torts, 2d [Tent Draft No. 16], § 822; Prosser, Torts [4th ed], p 574; 2 NY PJI 653-654; see Spano v. Perini Corp., 25 NY2d 11, 15 [302 N.Y.S.2d 527, 250 N.E.2d 31]; Kingsland v. Erie Co. Agric. Soc., 298 NY 409, 426-427 ; Wright v. Masonite Corp., 237 F Supp 129, 138, affd 368 F2d 661, cert den 386 US 934 [87 S.Ct. 957, 17 L.Ed.2d 806].

Copart Inds. v. Consolidated Edison, supra, p. 569, 394 N.Y.S.2d 169, 362 N.E.2d 968.

It has been said that discomfort and inconvenience caused by the disturbance of property are valid grounds for recovery in an action for nuisance (see, Dixon v. New York Trap Rock Corporation, 293 N.Y. 509, 514, 58 N.E.2d 517). However, " 'To constitute a nuisance, the use must be such as to produce a tangible and appreciable injury to neighboring property, or such as to render its enjoyment especially uncomfortable or inconvenient' (Campbell v. Seaman, 63 NY 568, 577). But not every intrusion will constitute a nuisance." (Nussbaum v. Lacopo, 27 N.Y.2d 311, 315, 317 N.Y.S.2d 347, 265 N.E.2d 762). The disturbances to plaintiff must not be "fanciful, slight or theoretical, but certain and substantial, and must interfere with the physical comfort of the ordinary reasonable person" (Dugway v. Fizzinoglia, 166 A.D.2d 836, 563 N.Y.S.2d 175 [Third Dept., 1990].

The Court has examined the depositions of the various parties. There is much testimony with respect to activities formerly carried on by the parties on their respective properties, including gardening, camping, picnicking and hunting, as well as other activities commonly incident to the ownership of land. It is plaintiffs' testimony that the proximity of the Loeffel site to their property has significantly impeded the use and enjoyment of their lands ¹.

Plaintiffs also place great emphasis on the fact that ground water monitoring has shown that ground water in the vicinity of the Loeffel site is contaminated and that the "plume" of contamination is migrating. They point out that pollution of Nassau Lake and the Valatie Kill has resulted in a fish advisory banning the taking of all fish in the Nassau Lake vicinity because of a high concentration of PCBs. Plaintiffs characterize the 1984 encapsulation of the Loeffel site as the creation of a 46,000 ton "bathtub" without bottom which is actively leaking toxic wastes. Plaintiffs also maintain that their land is subject to imminent and substantial danger of invasion by contaminated ground water. Further, they contend, that their cause of action for nuisance did not accrue until November, 1984 when the State finished the encapsulation of the Loeffel site. Prior to that time, plaintiffs were hopeful that defendants would be required to abate the nuisance through physical removal of the contaminated soil. They indicate that the encapsulation created an even more dangerous condition than previously existed, due to the nature of its design and construction.

Plaintiffs concede that there has been no confirmed contamination of their drinking water. ²

The Court has carefully examined the affidavit of plaintiffs' engineer, John R. Snell, sworn to January 18, 1994. Mr. Snell states that he has reviewed the...