Plainview Water Dist. v. Exxon Mobil Corp.

• Decision Date: 13 October 2009
• Docket Number: 2008-03108.,2008-01629.
• Citation: Plainview Water Dist. v. Exxon Mobil Corp., 66 A.D.3d 754, 888 N.Y.S.2d 521, 2009 NY Slip Op 7389 (N.Y. App. Div. 2009)
• Parties: PLAINVIEW WATER DISTRICT, Appellant, v. EXXON MOBIL CORPORATION, Formerly Known as EXXON CORPORATION and Another, et al., Respondents, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

66 A.D.3d 754

888 N.Y.S.2d 521

2009 NY Slip Op 7389

PLAINVIEW WATER DISTRICT, Appellant, v. EXXON MOBIL CORPORATION, Formerly Known as EXXON CORPORATION and Another, et al., Respondents, et al., Defendants.

2008-01629.

2008-03108.

Appellate Division of the Supreme Court of New York, Second Department.

Decided October 13, 2009.

In an action, inter alia, to recover damages pursuant to Navigation Law § 181 and General Business Law § 349 and for public nuisance for the release of methyl tertiary butyl ether into the ground and groundwater near the plaintiff's water supply wells, the plaintiff appeals, as limited by its brief, from (1) so much of an order of the Supreme Court, Nassau County (Davis, J.), dated January 9, 2008, as, after a nonjury trial, denied its motion to strike certain expert witness testimony, and (2) from so much of a judgment of the same court entered February 29, 2008, as, after the nonjury trial, dismissed the complaint insofar as asserted against the defendants Exxon Mobil Corporation, formerly known as Exxon Corporation and formerly known as Mobil Corporation, Exxon Corporation, Mobil Corporation, Federated Associates, Federated Associates, LLC, Shell Oil Company, Inc., Motiva Enterprises, LLC, and Cumberland Farms, Inc. [See 18 Misc 3d 1121(A), 2008 NY Slip Op 50152(U).]

Ordered that the appeal from the order is dismissed; and it is further,

Ordered that the judgment is affirmed insofar as appealed from; and it is further,

Ordered that one bill of costs is awarded to the respondents.

The appeal from the order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 NY2d 241, 248 [1976]). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).

The plaintiff Plainview Water District commenced this action in response to the release of gasoline treated with methyl tertiary butyl ether (hereafter MTBE) from the underground storage tanks underneath gas stations owned and/or operated by the defendants Exxon Mobil Corporation, formerly known as Exxon Corporation and formerly known as Mobil Corporation, Exxon Corporation, Mobil Corporation, Federated Associates, Federated Associates, LLC, Shell Oil Company, Inc., Motiva Enterprises, LLC, and Cumberland Farms, Inc. (hereinafter the defendants). It is undisputed that the subject plant 1 wells operated by the plaintiff have never detected MTBE. The plaintiff alleged in its complaint that its plant 1 wells were under an imminent threat of MTBE contamination.

The plaintiff's contention that the trial court erroneously bifurcated the trial by first trying the threshold issue of...