White v. Long
| Citation | 626 N.Y.S.2d 989,650 N.E.2d 836,85 N.Y.2d 564 |
| Parties | , 650 N.E.2d 836, 41 ERC 1574 David R. WHITE, Appellant, v. Robert LONG, Respondent. |
| Decision Date | 04 May 1995 |
| Court | New York Court of Appeals |
Ronald H. Sinzheimer, P.C., Albany (Ronald H. Sinzheimer and Peter J. Molinaro, of counsel), for appellant.
Donohue, Sabo, Varley & Armstrong, P.C., Albany (Kathleen L. Werther, of counsel), for respondent.
Environmental liability is not at the heart of this appeal. Who pays is. In this case, we are asked to determine if a property owner, deemed a pollutant-discharger under the Navigation Law, has a cause of action against a previous owner-discharger for the cost of cleaning up a contaminated site.
The undisputed facts are as follows. From around 1984 to 1987, defendant Long operated a gas station at 274 Delaware Avenue in Albany, which had been the site of a gas station for more than 20 years. In 1987, Midstate Enterprises contracted with Long to buy the property, ultimately assigning that contract of sale to plaintiff White, who intended to establish a Kentucky Fried Chicken franchise there.
The contract of sale conditioned the closing on a clean environmental report. In that connection, plaintiff hired Groundwater Technology to test soil samples at places indicated by defendant, who disclosed the location of six underground storage tanks. Groundwater reported the detection of a low level of aromatic hydrocarbons to the Department of Environmental Conservation, which did not require remediation of the land. Plaintiff then waived the contract conditions and closed on the property. During excavation for the restaurant, plaintiff discovered a seventh underground petroleum storage tank, which had leaked. DEC ordered remediation of the property. Plaintiff removed the tank and cleaned up the land at a cost of more than $100,000.
Plaintiff applied for reimbursement to the New York State Environmental Protection and Spill Compensation Fund. The Fund rejected plaintiff's claim because, under the Navigation Law, plaintiff as owner of the contaminated property is considered a "discharger"--absolutely liable for clean-up costs and precluded from recovering from the Fund. Plaintiff then brought a CPLR article 78 petition, which was dismissed by the trial court and affirmed by the Appellate Division (Matter of White v. Regan, 171 A.D.2d 197, 575 N.Y.S.2d 375). This Court denied leave 79 N.Y.2d 754, 581 N.Y.S.2d 281, 282, 589 N.E.2d 1263, 1264.
Plaintiff next instituted the present action against the prior owner, defendant Long, to recover the cost of the cleanup, alleging strict liability under the Navigation Law as well as common-law claims of negligence and breach of the covenant of quiet enjoyment. Supreme Court dismissed the negligence and breach of covenant claims but denied defendant summary judgment on the Navigation Law claim. The Appellate Division dismissed all of plaintiff's claims. We now reinstate plaintiff's Navigation Law claim but uphold the Appellate Division's dismissal of the remaining claims before us (see, 84 N.Y.2d 905, 621 N.Y.S.2d 508, 645 N.E.2d 1206). There was no evidence of constructive eviction necessary to establish plaintiff's claim for breach of the covenant of quiet enjoyment, and insufficient evidence of defendant's knowledge of the leaking tank or any statutory or regulatory violation necessary to establish plaintiff's negligence claims.
Our analysis begins with an examination of Navigation Law § 181, where the key provisions read:
The statutory scheme includes as well the establishment of the Fund, which can seek, and from which persons who remediate contaminated property can seek, reimbursement for clean-up costs (Navigation Law § 179). This appeal involves only claims between dischargers, not claims by or against the Fund.
The Navigation Law defines "claim" as "any claim of the fund or any claim by an injured person, who is not responsible for the discharge, seeking compensation for cleanup and removal costs incurred or damages sustained as a result of a petroleum discharge" (Navigation Law § 172[3]. Although the Navigation Law defines "discharge" as "any intentional or unintentional action or omission resulting in the releasing * * * of petroleum into waters of the state or onto lands" (Navigation Law § 172[8], it does not specify who can be liable.
While we have yet to pass on the issue, courts have construed Navigation Law § 181(1) so as to impose liability on the owner of property on which a discharge occurred, whether or not that owner caused or contributed to the discharge (Matter of White v. Regan, 171 A.D.2d, at 199-200, 575 N.Y.S.2d 375). But even if we were to agree that property owners should be deemed "dischargers" for purposes of section 181(1), and thus themselves strictly liable irrespective of fault--a question not before us on this appeal--that would not necessarily bar their recovery under section 181(5) against persons who actually caused the discharge.
The Navigation Law provides for a private cause of action without denying standing to a property owner deemed a discharger to sue another discharger in strict liability for clean-up costs. The plain language of section 181(1) imposes liability on any discharger for clean-up costs "no matter by whom sustained," and subdivision (5) permits "any injured person" to bring a claim against a discharger for clean-up costs and damages. In fact, subdivision (5) was added by amendment in 1991 specifically to establish a private right of action under the statute in response to an Appellate Division decision (Snyder v. Jessie, 164...
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