Osarczuk v. Associated Univs., Inc., 2009 NY Slip Op 52695(U) (N.Y. Sup. Ct. 12/23/2009)
| Decision Date | 23 December 2009 |
| Docket Number | 2836/1996 |
| Citation | 2009 NY Slip Op 52695 |
| Parties | BARBARA OSARCZUK, JOHN OSARCZUK, HELGA A. DEMPSEY, GARY OSARCZUK, DOROTHY OSARCZUK, CAROL ANGELORA, WILLIAM FERGUSON, DEBORAH FERGUSON, JAMES ANDREJKOVIC, JOAN WEISNER, MICHAEL MIESEMER, BARBARA MIESEMER, VINCENT SCAVONE, ROBERT O'GARA, JEAN O'GARA, PAULINE MODICA, NANCY BOND, FLORENCE CARRANO, RANDY SNELL, INDIVIDUALLY, AND AS PARENT AND GUARDIAN OF LAUREN SNELL, AN INFANT, DONNA J. VELARDO, AND THOMAS CUNNINGHAM, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, Plaintiffs, v. ASSOCIATED UNIVERSITIES, INCORPORATED, COMMONLY KNOWN AS BROOKHAVEN NATIONAL LABORATORY, Defendant. |
| Court | New York Supreme Court |
PLAINTIFFS' ATTORNEYS: RICHARD J. LIPPES & ASSOCIATES, BUFFALO, NEW YORK. GLYNN, MERCEP AND PURCELL, LLP, STONY BROOK, NEW YORK, LYNCH, TRAUB, KEEFE & ERRANTE, NEW HAVEN, CT.
DEFENDANT'S ATTORNEYS: NIXON PEABODY, LLP, JERICHO, NEW YORK.
ORDERED that this motion by plaintiffs for an Order, pursuant to CPLR 901 and 906, directing that this action proceed as a class action, is hereby GRANTED to the extent provided hereinafter. The Court has received opposition to the instant application from defendant ASSOCIATED UNIVERSITIES, INCORPORATED, commonly known as BROOKHAVEN NATIONAL LABORATORY ("BNL").
This action was commenced on or about February 6, 1996 by summons and complaint. Plaintiffs, all presently or formerly living or working within a ten-mile radius of BNL, commenced this action to recover damages for personal injury and property damage alleged to be the result of various nuclear and non-nuclear materials of a hazardous and toxic nature emitted into the air, soil, and groundwater from BNL, a 5,265 acre facility that was operated by defendant ASSOCIATED UNIVERSITIES, INCORPORATED ("AUI") on behalf of the United Stated Department of Energy from 1947 to 1998. In 1998, "Brookhaven Science Associates" succeeded AUI as the operator of BNL. Plaintiffs seek compensatory and punitive damages for themselves and other members of their class to compensate for alleged personal injuries and property damage sustained.
BNL conducts many major programs, some of which address national needs, including high-energy and nuclear physics, physics and chemistry of materials, environmental energy research, neuroscience and medical imaging, and structural biology. BNL employs approximately 3,000 scientists, technicians, engineers, and support staff, and hosts over 4,000 guest researchers annually. BNL informs the Court that among other accolades, four BNL scientists have been awarded the Nobel Prize for advances in the field of physics.
Among the alleged contaminating substances are trichloroethane, tritium, strontium-90, uranium, argon-41, and cesium-137. Among the alleged injuries are cancer, nausea, headaches, immunological problems, loss of use and enjoyment of property and businesses, and psychological and emotional problems associated with fear of these health problems. Plaintiffs' complaint asserts causes of action sounding in negligence; abnormally dangerous activity; gross negligence; private nuisance; and medical monitoring.
In response to the complaint, BNL made a motion to dismiss. By Order dated September 4, 1996 (Berler, J.), the Court denied most of BNL's motion, with the exception of certain causes of action that were dismissed with leave to re-plead. On January 28, 1999, plaintiffs filed a supplemental and amended summons, and a second amended complaint, which remains the controlling pleading herein. The case then proceeded through Court-supervised class discovery, which was completed in phases.
By Order dated May 18, 2005 (Werner. J.), the Court granted BNL's cross motion for summary judgment and dismissed plaintiffs' complaint, and also denied plaintiffs' motion for class certification as moot. The Order of May 18, 2005 was appealed, and by decision of the Appellate Division, Second Department, dated January 30, 2007, the Court modified the Order to the following extent: "(1) by deleting the provisions thereof granting that branch of [BNL]'s cross motion which was for summary judgment dismissing so much of the complaint as sought damages for and equitable relief as a remedy for personal injuries and property damage arising from exposure to non-nuclear hazardous and toxic materials and substituting therefor a provision denying that branch of [BNL]'s cross motion, and (2) by deleting the provision thereof denying the plaintiffs' motion for class action certification pursuant to CPLR article 9" (Osarczuk v Associated Univs., Inc., 36 AD3d 872, 873 [2007]). The Appellate Division directed that the matter be remitted to the Supreme Court, Suffolk County, for a determination of plaintiffs' motion for class action certification pursuant to CPLR article 9 in accordance therewith.
Accordingly, plaintiffs have now filed the instant motion for class action certification based upon plaintiffs' claims of non-nuclear hazardous substances contaminating their homes, property, persons, and neighborhood. Plaintiffs allege that although the contamination was of a long duration, they only discovered the contamination in January of 1996, when Newsday published an article entitled, "Well-Water Alert." The article reported that Suffolk County health officials found levels of trichloroethane in water drawn from four private wells in the neighborhood adjacent to BNL's southern border, and suspected that carbon-tetrachloride was also present. By letter dated February 13, 1996, from the United States Department of Energy to 800 homeowners that lived south of the BNL property, the Department of Energy indicated that it was providing public water hookups to all residences "in a designated area south of BNL as a precautionary measure."
Plaintiffs contend that the instant action was originally commenced based upon the hazardous chemical contaminants in the drinking water wells south of the BNL border; however, plaintiffs allege that the plume of hazardous chemical contamination has now spread throughout the class area, and has moved as far as Flower Hill Drive to the south, and has also moved into Manorville in the east. Plaintiffs further allege that according to BNL's own projections, these plumes will ultimately reach Brookhaven Calabro Airport, and that the time to remediate these plumes will last well into the remainder of this century.
Plaintiffs inform the Court that BNL and other governmental entities and agencies have prepared a number of studies concerning the polluting events, which documented the pollution on the BNL site as well as the plumes moving off-site, and at least one such study concluded that BNL has mismanaged its environmental, health and safety responsibilities. Since the initial motion for class certification was made on August 6, 2003, plaintiffs indicate that BNL has provided plaintiffs with additional tests and reports, which found, among other things, that it would take 65 years for the contaminated groundwater to reach drinking water standards; that low levels of volatile organic compounds (VOCs), primarily trichloroethane, were detected in groundwater both on and off the BNL site; and that fish consumed from the Peconic River pose a non-cancerous health hazard of up to 2.5 times greater than previously calculated, and a cancerous health hazard of up to 10 times greater than previously calculated. Based upon the available information, data, and statistics, plaintiffs contend that the contamination has caused adverse health effects in members of the putative class that have been exposed to such contaminants, as well as adverse affects on the value of the properties to the areas south and east of BNL's boundaries. According to plaintiffs' expert, Gerard J. Veitch, a New York State Certified General Appraiser, property values have declined twenty-four (24%) percent during the time period from 1996 to mid-1998. Further, plaintiffs argue that they have lost the use of their free and potable private water wells and are now forced to connect to the public water supply and incur the costs attendant thereto, to wit: $800 to connect to the public water and approximately $ 400 per year for the public water.
Plaintiffs initially sought to certify six sub-classes of individuals who have been adversely affected by the contamination. These sub-classes are as follows Sub-Class Number 1: Persons who live and/or work within a ten-mile radius of BNL's facilities in the Town of Brookhaven, and who have been exposed to hazardous chemicals and whose health has been adversely affected.
Sub-Class Number 2: Residential homeowners whose properties lie within an area south of BNL's facilities, as indicated on a map submitted by plaintiffs as Exhibit "12," and whose property values have been adversely affected, or who have lost the use and enjoyment of their property within a ten-mile radius of the BNL facility.
Sub-Class Number 3: Persons who live and/or work or have lived and/or have worked within a ten-mile radius of BNL's facilities in the Town of Brookhaven, and who, due to the latent nature of injuries caused by their exposure to hazardous materials, require a medical trust fund to be established to monitor those injuries and detect them at the earliest possible dates so as to ameliorate the severity thereof.
Sub-Class Number 4: Commercial property owners who own property within the same designated area south of BNL's facilities and who have suffered economic losses including the diminution of value of their properties and/or business.
Sub-Class Number 5: Persons who have suffered economic loss, including but not limited to, the expense of securing alternative water supplies, including the cost to hookup to the public water supply and the yearly cost of that water, and other economic losses within a ten-mile radius around the...
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