Town of Islip v. Datre

• Decision Date: 28 March 2017
• Docket Number: No. 16–CV–2156,16–CV–2156
• Citation: 245 F.Supp.3d 397
• Parties: TOWN OF ISLIP, Plaintiff, v. Thomas DATRE, Jr., et al., Defendants.
• Court: U.S. District Court — Eastern District of New York

245 F.Supp.3d 397

TOWN OF ISLIP, Plaintiff,

v.Thomas DATRE, Jr., et al., Defendants.

No. 16–CV–2156

United States District Court, E.D. New York.

Signed March 28, 2017

Plaintiff is represented by Michael J. Cahill and Guy W. Germano of Gemano & Cahill, P.C., 4250 Veterans Memorial Highway, Suite 275, Holbrook, NY 11741. Defendant COD is represented by Laurel R. Kretzing and Jeffrey D. Lebowitz of Jaspan Schlesinger LLP, 300 Garden City Plaza, Garden City, NY 11530. Defendant IEV is represented by Michael D. Cassell of Hogan & Cassell LLP, 500 North Broadway, Suite 153, Jericho, NY 11753. The Atlas defendants are represented by John F. Carman, Esq., 666 Old Country Rd., Garden City, NY 11530. The Church Defendants were represented by Alesia J. Kantor, of the Law Offices of Joseph F. Kilada, P.C., 100 Quentin Roosevelt Blvd., Suite 208, Garden City, NY 11530, on this motion, but Ms. Kantor has since withdrawn as counsel.

MEMORANDUM AND ORDER

Joseph F. Bianco, District Judge:

On April 29, 2016, plaintiff the Town of Islip ("plaintiff" or "the Town") filed this action against Thomas Datre Jr., Thomas Datre Sr., Clara Datre, Richard Datre Jr., Christopher Grabe, Gia Gatien, Ronald Cianciulli, Joseph Montuori, Brett Robinson, Iglesia De Jesucristo Palabra Miel (the "Church"), Marco Lopez, Nancy Alvarez, William Carillo, Raul Pachecho, Walter Casasola, 5 Brothers Farming Corp., DFF Farm Corp., Datre Trucking & Farming Inc., Datre Auto & Equipment Sales Inc., Daytree at Cortland Square Inc., Daytree Custom Builders Inc., Datre Family Farms Inc., Datre Farms Realty Co. Inc., Islandia Recycling Inc., C.J. Site Development Inc., Atlas Home Improvement Corp. of Long Island d/b/a Atlas Asphalt ("Atlas"), IEV Trucking Corp. ("IEV"), COD Services Corp. ("COD"), and John Doe Nos. 1 through 10. The Complaint sets forth claims under the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1964(c), 1962(d), and the Comprehensive Environmental Response Compensation and Liability Act ("CERCLA"), 42 U.S.C. § 9601 et seq ., as well as state law claims for public nuisance, private nuisance, trespass, injury to property, joint tortfeasors, fraud and deceit, and restitution.

These claims are based on the alleged illegal dumping of hazardous waste at Roberto Clemente Park ("the Park") from July or August 2013 through April 2014 by defendants 5 Brothers Farming Corp., DFF Farm Corp., Datre Trucking & Farming Inc., Datre Auto & Equipment Sales Inc., Daytree at Cortland Square Inc., Daytree Custom Builders Inc., Datre Farms Realty Co. Inc., Thomas Datre Jr., Thomas Datre Sr., Clara Datre, Richard Datre Jr. and Gia Gatien (the "Datre defendants"), together with defendants C.J. Site Development and Christopher Grabe (the "Grabe defendants"). Defendants COD and IEV (collectively, the "arranger defendants") allegedly acted as brokers throughout this time, arranging for the Datre and Grabe defendants to collect fill material from the John Doe defendants at various locations in Queens, Kings, Nassau, and Suffolk counties.

According to the Complaint, prior to the dumping activities, the Church, Lopez, Alvarez, Carillo, Pachecho and Casasola (collectively, the "Church defendants") had received permission to replace the topsoil and existing grass seed on one of the Park's soccer fields, and individuals were seen spreading soil on the field in May 2013. In August and October 2013, the Church defendants sent two letters to the Town acknowledging their work on the soccer field.

The Complaint further alleges that the Town closed the Park in January 2014 and ordered the removal of the dumped material. The Datre and Grabe defendants removed some of the material and contracted with Atlas and Cianciulli (the "Atlas defendants") to assist in the removal effort. Subsequently, the Suffolk County District Attorney's Office launched an investigation into the dumping activities, and, in the course of that investigation, testing revealed that the dumped material contained hazardous substances. Thomas Datre Jr. and Grabe were convicted on various charges in state court for their role in the dumping activities.

The Complaint asserts that defendants engaged in a RICO conspiracy to fraudulently conceal the disposal of hazardous substances at the Park, setting forth underlying claims for mail and wire fraud. It also alleges CERCLA claims, which assert that defendants are all potentially responsible parties for their roles in the illegal dumping, as well as various state law claims.

Before the Court are motions to dismiss filed by the arranger, Atlas, and Church defendants. As set forth in more detail below, the Court concludes, inter alia , that the Complaint fails to allege facts from which it could be plausibly inferred that these defendants knew, or should have known, that the material dumped at the Park by the Datre and Grabe defendants contained hazardous substances. Absent such allegations regarding knowledge, plaintiff cannot plausibly assert that the arranger, Atlas, and Church defendants engaged in mail or wire fraud by misrepresenting or concealing material information (i.e. , the hazardous nature of the material).

In addition, the Court concludes that, for "arranger" liability to apply under CERCLA, the Complaint must allege that an arranger knew, or should have known, that the material in question was hazardous. Given the current allegations, the Complaint fails to state plausible CERCLA claims for arranger liability against COD, IEV, and the Atlas defendants. The Complaint also fails to state a plausible claim against the Church defendants for "operator" liability because it does not allege that they exercised the requisite degree of control over the Park or the hazardous substances for such liability to apply.

Finally, the Complaint does not plausibly allege state law claims against the arranger, Atlas, or Church defendants for (1) nuisance because it does not adequately allege intent or negligence, (2) trespass because the illegal dumping was not an immediate or inevitable consequence of these defendants' actions, (3) injury to property because the underlying nuisance and trespass claims fail, (4) fraud and deceit because the Complaint fails to allege knowledge of the material's hazardous nature, and (5) restitution because the Complaint fails to allege that these defendants had a duty to assist in the remediation of the Park.

Accordingly, the Court grants the arranger, Atlas, and Church defendants' motions to dismiss. However, the Court gives the Town leave to re-plead to attempt to address thse pleading defects with additional allegations, if plaintiff can do so.

I. BACKGROUND

A. Facts

The following facts are taken from the Complaint ("Compl."). (ECF No. 1.) The Court assumes them to be true for purposes of deciding this motion and construes them in the light most favorable to plaintiff, the non-moving party.

The Town owns the Park, which consists of designated parkland located in Brentwood, New York. (Compl. ¶ 70.) In April 2013, Lopez, the Church's pastor, and Alvarez, a member of the Church, contacted the Town on behalf of the Church and requested permission to replace the topsoil and existing grass seed on one of the Park's soccer fields at the Church's own cost and with volunteer labor. (Id. ¶ 72.) Defendant Montuori, the Commissioner of the Parks Department, granted the Church defendants' request on behalf of the Town. (Id. ¶ 73.) Shortly thereafter in May 2013, several individuals were seen spreading topsoil and grass seed over roughly two-thirds of the soccer field. (Id. ) On May 13, Alvarez sent an email to defendant Robinson, Secretary to Commissioner Montuori, asking for additional topsoil to complete the project. (Id. ) The Church stopped working on the field in May 2013. (Id. ¶ 82.)

In June or August 2013, the Datre and Grabe defendants began trucking in thousands of tons of construction and demolition ("C & D") debris, contaminated fill, and other solid wastes to the Park, dumping it over the topsoil and seed the Church defendants had deposited in May. (Id. ¶ 74.) On August 24, 2013, the Parks Department held a press conference at the Park where attendees saw trucks marked "Datre" delivering fill to the site of the soccer field. (Id. ¶ 76.)

Subsequently, Town Board members and officers not employed by the Parks Department asked about the dumping activity. (Id. ¶ 77.) Commissioner Montuori and Robinson informed them that the Church defendants were volunteering to repair the soccer field, and the Town determined that they needed a permit to clear and grade the park, as well as consent and approval from the Town Board for any improvements by the Church defendants. (Id. ) Commissioner Montuori and Robinson asked the Church to provide information for a land clearing permit and a letter from the Church describing the work it planned to complete. (Id. ) On August 29, 2013, the Church faxed the Town a letter (the "August letter") signed by Lopez, stating that the Church had been working on the soccer field without pay since April 2013. (Id. ¶ 81.) The letter provided no other information. (See id. )

Meanwhile, claiming that he was working on behalf of the Church, defendant Grabe spoke with an architect and asked him for a site drawing of the soccer fields to submit to the Town with the land clearing permit information. (Id. ¶¶ 78–79.) The architect prepared the drawing, which did not include specifications of fill material, and provided it to Grabe. (Id. ¶ 80.) Grabe submitted the site drawing to the Town, and the Planning and Parks Departments reviewed it in the preparation of an application for a land clearing and grading permit. (Id. ¶ 83.) The Town Board subsequently granted the Church permission to spread topsoil and reseed the soccer fields at the Park. (Id. ¶¶ 84–85.) The Parks Department then submitted an application to the Planning Department for a Land Clearing and Grading permit, which the Planning Department issued on September...