Prisco v. State of NY

Decision Date14 September 1995
Docket NumberNo. 91 Civ. 3990 (RLC).,91 Civ. 3990 (RLC).
Citation902 F. Supp. 374
PartiesThomas PRISCO and Filomena Prisco, Plaintiffs, v. The STATE OF NEW YORK; New York State Department of Environmental Conservation; Thomas C. Jorling, as Commissioner of The New York State Department of Environmental Conservation; State of New York Organized Crime Task Force; John M. Murray and William E. Bubenicek, as employees of Division of Law Enforcement, Bureau of Environmental Conservation Investigation, New York State Department of Environmental Conservation; New York State Police; Thomas A. Constantine, as Superintendent of New York State Police; Lloyd F. Ward, as an employee of the New York State Police; James LaBate; Angelo Anthony Calvello; A-1 Carting, Inc.; A-1 Compaction Corp.; A-1 Compaction, Inc.; Greene Refuse Service; A & D Carting Corp.; A.F.C. Transfer Corp.; American Disposal Services, Inc.; Black Meadow Construction, Inc.; John Danna & Sons, Inc.; Gun Hill Trucking, Ltd.; Suburban Carting Corp.; Nyconn Waste Disposal; Tri-County Disposal, Inc.; Stamford Wrecking Company; Finne Bros. Refuse Systems, Inc.; Tiger Recycling, Inc.; Anthony Moreno; Moreno Bulk Haulage; SCND Construction Co., Inc.; LSC Trucking Corp.; DeCostole Carting, Inc.; Kristal Papers, Ltd.; Karnak Inc.; Best Container Service, Inc.; Montauk Enterprises; G & A Sand and Gravel, Inc.; Mill Basin Construction Corp.; Garan Carting Co., Inc.; Stevens Trucking, Inc.; Top Job Sanitation Co., Inc.; Cross Bay Contracting Corp. and Consumer Transfer Trucking, Defendants.
CourtU.S. District Court — Southern District of New York

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Reardon & Sclafani, P.C., Yonkers, NY (Michael V. Sclafani, of counsel), for plaintiffs, Thomas Prisco and Filomena Prisco.

Sheft & Sheft, New York City (Gerald A. Greenberger, of counsel), for defendant John Danna & Sons, Inc.

Keane & Beane, P.C. White Plains, NY (Joel H. Sachs, of counsel), for defendant Stamford Wrecking Co.

Harris Beach & Wilcox, Albany, NY (David A. Engel, of counsel), for Defendants Top Job Sanitation Co., Inc., Gun Hill Trucking, Ltd., A-1 Carting, Inc., A-1 Compaction Corp., A-1 Compaction, Inc., Greene Refuse Service, Suburban Carting Corp., NYCONN Waste Recycling, Inc. s/h/a NYCONN Waste Disposal, American Disposal Services, Inc. and Vincent Cavaliere.

ROBERT L. CARTER, District Judge.

Preliminary Statement

Plaintiffs Filomena Prisco and Thomas Prisco, who has since passed away, instituted this action for declaratory and injunctive relief, and monetary damages for certain alleged violations of federal and state environmental statutes and state common law by a number of private defendants in relation to a landfill plaintiffs owned in the town of Patterson, Putnam County, New York.1 Extensive discovery has been conducted by the parties. For further procedural history see Prisco v. State of N.Y., No. 91 Civ. 3990, 1994 WL 114818 (S.D.N.Y. Mar. 25, 1994) (Buchwald, J.); Prisco v. State of N.Y., 804 F.Supp. 518 (S.D.N.Y.1992) (Carter, J.); Prisco v. State of N.Y., No. 91 Civ. 3990, 1992 WL 88165 (S.D.N.Y. Apr. 22, 1992) (Carter, J.).

Defendant Stamford Wrecking Company ("Stamford") moves for summary judgment pursuant to Rule 56, F.R.Civ.P., contending that there are no evidentiary facts to support plaintiffs' claims that Stamford violated the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601 et seq. (1995) ("CERCLA"), the Resource Conservation and Recovery Act, 42 U.S.C. § 6972 et seq. (1995) ("RCRA"), the Clean Water Act, 33 U.S.C. § 1311(a) (1986) ("CWA"), and New York State Environmental Conservation Law § 24-0107 (McKinney 1984). Stamford also moves to dismiss plaintiffs' pendant state claims for lack of federal subject matter jurisdiction. Defendants Top Job Sanitation Co., Inc., Gun Hill Trucking, Ltd., A-1 Carting, Inc., A-1 Compaction Corp., A-1 Compaction, Inc., Greene Refuse Service, Suburban Carting Corp., NYCONN Waste Recycling, Inc. s/h/a NYCONN Waste Disposal, American Disposal Services, Inc. and Vincent Cavaliere move for summary judgment, pursuant to Rule 56, F.R.Civ.P., and/or to dismiss, pursuant to Rule 12(b)(6), plaintiffs' first, second, third and fourth causes of action, (see Complaint, ¶¶ 79-113), involving CERCLA, RCRA and CWA claims against them; and to dismiss plaintiffs' pendent state law claims set forth in plaintiffs' fifth through twelfth causes of action for lack of federal subject matter jurisdiction. (See Complaint, ¶¶ 114-161). Defendant John Danna & Sons Inc. ("Danna") moves for summary judgment, pursuant to Rule 56, F.R.Civ.P., pertaining to all of the claims brought against it by plaintiffs.

Plaintiffs cross-move against all the individual defendants. In particular, the Priscos cross-move for summary judgment, pursuant to Rule 56, F.R.Civ.P., on the CERCLA, RCRA, and CWA claims set forth in the first, second, third and fourth causes of action; to declare the defendants jointly and severally liable for all future response costs under CERCLA, pursuant to 28 U.S.C. § 2201 (1994); and to strike under 42 U.S.C. § 9607(b) (1995) any impermissible affirmative defenses made by defendants.

Factual Background

The Priscos own approximately twenty acres of land in the town of Patterson in Putnam County, New York, where they ran a flea market and leased property. In anticipation of commercial development in their area, the Priscos wanted to enhance the value of their property by leveling it with construction and demolition ("C & D") material, a less expensive alternative to virgin soil. Consequently, from approximately May, 1987 to early fall, 1987, the Priscos paid Stamford Wrecking Co. to deposit such material on their land.

Plaintiffs claim that in about August of 1987, they were approached by defendants William E. Bubenicek, who represented himself as a New York State Department of Environmental Conservation ("NYSDEC") law enforcement officer, and Lloyd F. Ward, a New York State Police Officer. Bubenicek and Ward sought to establish a C & D landfill on the Priscos' property, to be run by the NYSDEC. Plaintiffs concede that they agreed to allow the landfill on their property, believing that Bubenicek and Ward operated the landfill on behalf of and with the authorization of the NYSDEC. Accordingly, from August, 1987 until about February, 1988, NYSDEC allegedly operated a landfill facility at the Prisco site. Bubenicek and Ward solicited the private corporate defendants to transport C & D material to the property. The named defendants transported solid waste to the Prisco site.

On or about April 28, 1988, the Priscos returned to their home and discovered C & D material piled and deposited in their pond. The Priscos allegedly attempted to contact Bubenicek and Ward, to no avail. The Priscos allege that pursuant to directives by NYSDEC's Regional Director Paul D. Keller and Assistant Sanitary Engineer Lawrence C. Gallagher, they had the C & D material leveled, the site capped with clean dirt and the premises seeded. In addition, plaintiffs claim they dredged and removed C & D debris from the pond and excavated the site to make trenches to control the leachate problem. The Priscos claim that they spent approximately $10,000 to $11,000 in costs.

Plaintiffs contend that their property has been contaminated by hazardous substances and wastes deposited by the individual wastehauler defendants in this action. The NYSDEC conducted inspections of the Prisco site in 1987 and 1988 and determined that the Prisco landfill had to be closed in accordance with its Part 360 regulations, which regulate solid waste management facilities. See 6 NYCRR Part 360 (1987). In 1991, Environmental-Science, Inc., on behalf of and approved by the NYSDEC, conducted a Preliminary Site Assessment ("PSA") which documented the nature of the material at the Prisco site and its impact on the environment. The NYSDEC continues to make such assessments. Plaintiffs later discovered that the NYSDEC was allegedly involved in a "sting" operation on their property in an attempt to gain information about the waste hauling industry in the area.

Legal Standards
A. Summary Judgment

Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits ... show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c), F.R.Civ.P; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986); Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir.1994). The moving party bears the initial burden of demonstrating an absence of any genuine issue of material fact, and then the burden shifts to the non-moving party to point to specific facts that demonstrate that there is a genuine issue for trial. Rule 56(e), F.R.Civ. P.; Celotex Corp., 477 U.S. at 324, 106 S.Ct. at 2553; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). When determining whether to grant a motion for summary judgment, the court must ascertain whether there is sufficient evidence to allow a jury to reasonably find in favor of the non-moving party. Anderson, 477 U.S. at 249, 106 S.Ct. at 2510-11.

B. Motion to Dismiss

In general, "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief," Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957); Salahuddin v. Cuomo, 861 F.2d 40, 43 (2d Cir.1988); Hudson's Bay Fur Sales Canada, Inc., No. 90 Civ. 8026, 1991 WL 60377, at *2 (S.D.N.Y. Apr. 8, 1991) (Carter, J.), and "the court must consider the legal sufficiency of the complaint, not the weight of evidence which might be offered at...

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