White Plains Hous. Auth. v. BP Prods. N. Am. Inc.

• Decision Date: 27 August 2020
• Docket Number: 17-cv-6250 (NSR)
• Citation: 482 F.Supp.3d 95
• Parties: WHITE PLAINS HOUSING AUTHORITY, Plaintiff, v. BP PRODUCTS NORTH AMERICA INC., Marianina Oil Corp., and Atlantic Richfield Company, Defendants.
• Court: U.S. District Court — Southern District of New York

482 F.Supp.3d 95

WHITE PLAINS HOUSING AUTHORITY, Plaintiff,

v.BP PRODUCTS NORTH AMERICA INC., Marianina Oil Corp., and Atlantic Richfield Company, Defendants.

17-cv-6250 (NSR)

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

Signed August 27, 2020

Norman W. Bernstein, Mary Elizabeth Desmond, N.W. Bernstein & Associates, LLC, Rye Brook, NY, for Plaintiff.

Philip Anthony DeCaro, DeCaro & DeCaro, Harrison, NY, for Defendants.

OPINION & ORDER

NELSON S. ROMÁN, United States District Judge

Plaintiff White Plains Housing Authority ("Plaintiff" or "WPHA") brings this action against Marianina Oil Corporation ("Defendant" or "Marianina"),¹ asserting claims under the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6901 et seq. , and the New York Navigation Law ("NYNL"), N.Y. Nav. Law § 181(5).² (ECF No. 59.) Plaintiff also asserts state common law claims for negligence, private nuisance, and trespass. (Id. ) Plaintiff alleges that its property was contaminated by discharges of gasoline and toxic-biproducts of gasoline emanating from a former gasoline station at 34 East Post Road, White Plains, New York (the "Service Station"), which is currently owned, and was formerly operated, by Defendant. (Id. )

Before the Court is Plaintiff's motion for summary judgment on the issue of liability. (ECF No. 103.) For the following reasons, Plaintiff's motion is GRANTED.

BACKGROUND

I. Materials Considered by the Court

A. Defendant's Failure to Comply with Local Rule 56.1

Plaintiff argues that this Court should deem as undisputed the facts in its Local Civil Rule 56.1 Statement. (Pl. Reply in Further Supp. of Mot. for Summ. J. ("Reply"), ECF No. 108, at 4.) The Court agrees. Local Civil Rule 56.1 provides that "[u]pon any motion for summary judgment," the moving party shall annex "a separate, short and concise statement, in numbered paragraphs, of the material facts as to which the moving party contends there is no genuine issue to be tried." Local Civil Rule 56.1(a). The party opposing the motion is then to "include a correspondingly numbered paragraph responding to each numbered paragraph in the statement of the moving party, and if necessary, additional paragraphs containing a separate, short and concise statement of additional material facts." Id. 56.1(b). "Each statement by the movant or opponent ... including each statement controverting any statement of material fact, must be followed by citation to evidence which would be admissible." Id. 56.1(d). If the opposing party fails to submit a responsive statement, then the facts set forth in the moving party's 56.1 statement are deemed admitted. Id. 56.1(c) ; see Cress v. Wilson , No. 06 Civ. 2717(JGK), 2008 WL 5397580, at *5 (S.D.N.Y. Dec. 29, 2008) (citing Holtz v. Rockefeller & Co., Inc. , 258 F.3d 62, 73 (2d Cir. 2001) ).

Here, Plaintiff filed a Statement of Undisputed Facts and accompanying declarations and exhibits as required under Local Rule 56.1. (See Pl. 56.1 Statement of Undisputed Facts ("Pl. 56.1"), ECF No. 106.) Defendant, in response, failed to submit any responsive statement, and, in fact, did not file an opposition to Plaintiff's motion. Instead, Defendant, who is represented by counsel, submitted a three-page affirmation signed by Defendant's president, Frank Codella (the "Codella Affirmation"). (ECF No. 107.)³ Because Defendant failed to comply with Local Rule 56.1, the Court will deem as admitted those facts set forth in Plaintiff's 56.1 Statement, to the extent they are supported by the record.

B. Plaintiff's Request to Preclude Portions of the Codella Affirmation

Plaintiff contends that, under Rule 37(c) of the Federal Rules of Civil Procedure, paragraphs 13, 14, and 16 of the Codella Affirmation should be stricken from the record because the facts therein had not been previously disclosed under Rule 26(e). (Reply 4-5.) In any event, Plaintiff maintains, the Codella Affirmation does not dispute any material fact in Plaintiff's moving papers. (Id. at 3.)

Under Rule 26(e) of the Federal Rules of Civil Procedure, a party "who has responded to a[ ] ... request for production" must "supplement or correct its disclosure or response ... in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect." Fed. R. Civ. P. 26(e)(1)(A). Here, Defendant apparently did not previously disclose the facts regarding the City of White Plains’ stop work order until it "opposed" Plaintiff's motion for summary judgment. Such a failure to disclose is a clear violation of Rule 26(e). See Xiao Hong Zheng v. Perfect Team Corp. , 739 F. App'x 658, 662 (2d Cir. 2018). The question then is whether preclusion of the new factual assertions is warranted. The Court concludes that it is.

If a party fails to provide information required under Rule 26(e), it may not "use that information ... to supply evidence on a motion ... unless the failure was substantially justified" or was harmless. Fed. R. Civ. P. 37(c)(1). The decision of whether to apply this "drastic remedy" is up to the discretion of the court. Ebewo v. Martinez , 309 F. Supp. 2d 600, 607 (S.D.N.Y. 2004). In evaluating whether to preclude evidence, courts will look to "(1) the party's explanation for the failure to comply with the [disclosure requirement]; (2) the importance of ... the precluded [evidence]; (3) the prejudice suffered by the opposing party as a result of having to prepare to meet the new [evidence]; and (4) the possibility of a continuance." Capitol Records, LLC v. Escape Media Grp., Inc. , No. 12-CV-6646 (AJN), 2015 WL 1402049, at *22 (S.D.N.Y. Mar. 25, 2015) (quoting Patterson v. Balsamico , 440 F.3d 104, 117 (2d Cir. 2006) ).

A review of these factors reveals why preclusion is warranted. To begin, Defendant provided no explanation for why this information is being provided for the first time in opposition to Plaintiff's motion. Meanwhile, although the factual assertions are not of great importance—they do not even seem to raise a triable issue of fact—the prejudice to Plaintiff appears readily apparent. Plaintiff was forced to file Freedom of Information Law requests to investigate and respond to these previously undisclosed factual assertions in the middle of briefing its motion. (See Reply Aff. of Norman W. Bernstein in Supp. of Pl.’s Mot. for Summ. J. ("Bernstein Reply Aff."), ECF No. 109, Ex. 3.) Finally, with discovery closed, continuance appears to be unfeasible. Therefore, in resolving Plaintiff's motion, the Court will not consider paragraphs 13, 14, and 16 of the Codella Affirmation. See Highland Cap. Mgmt., L.P. v. Schneider , 551 F. Supp. 2d 173, 181 (S.D.N.Y. 2008) (excluding an expert's declaration and testimony because plaintiff provided no explanation for its failure to supplement the expert disclosure under Rule 26(e), the information was not of great importance, the filing was prejudicial, and continuance would have been impracticable); see also Madden v. Town of Hempstead , No. 16-CV-6835(SJF)(AKT), 2019 WL 1439935, at *12 (E.D.N.Y. Mar. 29, 2019) (precluding affidavit of a witness who was not previously identified under Rule 26 because plaintiff had "not offered any explanation ... for her failure to identify" the witness, the affidavit was cumulative and would not affect the court's determination of the motion, the defendants would be prejudiced by the lack of an opportunity to depose the witness, and the action was at the summary judgment stage).

C. Defendant's Failure to File an Answer to the Second Amended Complaint

The operative complaint in this matter is Plaintiff's Second Amended Complaint, which was filed on November 30, 2018. (ECF No. 60.) Although it filed an answer to Plaintiff's First Amended Complaint (see ECF No. 23), Defendant did not file an answer to the Second Amended Complaint. Plaintiff now requests that the Court conclude that Defendant has admitted all well-pleaded claims in the Second Amended Complaint. (Pl. Mem. of Law in Supp. of Mot. for Summ. J. ("Mot."), ECF No. 105, at 14.)

A review of the Second Amended Complaint reveals that Plaintiff largely just added claims and allegations against the new defendant, Atlantic Richfield Company. In doing so, Plaintiff did not meaningfully alter the allegations to which Defendant had previously answered.⁴ Given that Defendant has essentially responded to the current allegations against it, the Court will construe Defendant's Answer to the First Amended Complaint as responding to the Second Amended Complaint. See, e.g. , CIT Bank, N.A. v. Vasquez , No. 17-CV-4654 (MKB)(PK), 2019 WL 4418883, at *1 n.2 (E.D.N.Y. Aug. 19, 2019), adopted by , 2019 WL 4415291 (E.D.N.Y. Sept. 16, 2019) (construing answer to initial complaint as an answer to amended complaint where amended complaint only made clerical corrections and plaintiff did not seek default judgment).

II. Factual Background

The following facts are derived from Plaintiff's Rule 56.1 Statement and a review of the record. As noted above, they have been deemed uncontested unless otherwise noted.

A. The Parties and the Service Station

i. WPHA

WPHA is a municipal public housing authority that exists under the laws of New York. (Pl. 56.1 ¶ 1; Aff. of Norman W. Bernstein ("Bernstein Aff."), ECF No. 106, Ex. 2.) Since 1949, WPHA has owned and operated a multi-family residential public housing complex known as the Winbrook Apartments, which is in downtown White Plains, New York. (Pl. 56.1 ¶ 2; Bernstein Aff. Ex. 1 ("Carter Dep. Tr.") at 29:7-32:3.) The Winbrook Apartments contain five apartment buildings, located at (1) 159 S. Lexington Avenue, (2) 135 S. Lexington Avenue, (3) 11 Fisher Court, (4) 33 Fischer Court ("Building 33"),⁵ and (5) 225 Dr. Martin Luther King Jr. Blvd. (Pl. 56.1 ¶ 3; Carter Dep. Tr. at 30:23-32:3; Bernstein Aff. Ex. 3 ¶ 1.)

ii. Marianina

Marianina is a domestic corporation, which was formed under the laws of the State of New York. (Pl. 56.1 ¶ 6.) Mr. Frank Codella ("Codella") is Marianina's owner and serves as its...