Delaney v. Town of Carmel

55 F.Supp.2d 237

James and Margaret DELANEY et al., Plaintiffs, v. TOWN OF CARMEL, Putnam County, Lynlil Land Development Corp., Howard Stockfield, Thomas Boniello, Michael Barile, Mahopac Sanitation Septic, Inc., Joseph Mantovi, Patsy Deluca, Anthony Deluca, Thomasina Falzerano, Gloria Abrams, Theresa Miller, Marie Schmidt, Jean and Willie McCranie, and James B. and Rosemary Flanigan, Defendants.

No. 96 Civ. 2850(CM).

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

June 29, 1999.

COPYRIGHT MATERIAL OMITTED

Nicholas Michael Ward-Willis, Keane & Beane, P.C., White Plains, NY, for Margaret Delaney, plaintiffs.

AMENDED DECISION AND ORDER ON ALL OUTSTANDING MOTIONS FOR SUMMARY JUDGMENT¹

McMAHON, District Judge.

Plaintiffs, thirty-two homeowners and residents of the Town of Carmel in Putnam County, New York, bring this action seeking relief under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. §§ 9601 et seq. (1995) ("CERCLA"), the Resource Conservation and Recovery Act of 1976, 42 U.S.C. §§ 6901 et seq. (1995) ("RCRA"), and the common law against various municipalities, corporations and individuals whose activities over the last forty-five years have touched on or concerned the land on which their homes stand. After expedited discovery and dismissal or discontinuance of the action against six individual defendants,² all ten remaining defendants and all three third-party defendants have moved for summary judgment or dismissal of various claims, counterclaims, cross claims, and third-party claims asserted against them. The motions are disposed of as follows:

I. Disposition of the Various Motions for Summary Judgment

A. Plaintiffs' Claims

1. First Cause of Action: Plaintiffs' RCRA action for hazardous or solid waste clean-up is dismissed with prejudice as against the following defendants: Town of Carmel, Putnam County, Lynlil Land Development Corp., Howard Stockfield, Thomas Boniello, Michael Barile, Joseph Mantovi, and Mahopac Septic Sanitation, Inc.

2. Second Cause of Action: Plaintiffs' CERCLA action for hazardous substance clean-up is dismissed with prejudice as against the following defendants: Town of Carmel, Putnam County, Lynlil Land Development Corp., Howard Stockfield, Thomas Boniello, Michael Barile, Joseph Mantovi, and Mahopac Septic Sanitation, Inc.

3. Third, Fourth, Fifth, and Sixth Causes of Action: The Court declines to exercise pendent jurisdiction over Plaintiffs' state common law claims of trespass, public nuisance, private nuisance, and negligence against the above-named defendants, and they are dismissed without prejudice to refiling them in the New York State Supreme Court and without prejudice to the assertion of any and all defenses that have been or may be asserted.

4. Ninth³ and Tenth Causes of Action: Plaintiff Koji Higashionna's common law claims for fraudulent conveyance and breach of contract are dismissed without prejudice as against defendants Lynlil Land Development Corp., Howard Stockfield, Thomas Boniello, and Michael Barile.

B. Defendants' Cross Claims

The various cross claims for indemnity, contribution, and/or response costs under CERCLA and/or RCRA asserted by the following defendants:

1. Town of Carmel ("Carmel" or the "Town")

2. Putnam County ("Putnam" or the "County")

3. Lynlil Land Development Corp. ("Lynlil")

4. Howard Stockfield ("Stockfield")

5. Thomas Boniello ("Boniello")

6. Michael Barile ("Barile")⁴

7. Joseph Mantovi ("Mantovi")

8. Mahopac Septic Sanitation, Inc. ("MSSI") are dismissed as moot in light of the Court's disposition of the federal claims against them. Cross claims for indemnity arising out of the state law causes of action are dismissed, but may be reasserted in the State Supreme Court if Plaintiffs refile there.

C. Defendants' Counterclaims

Lynlil, MSSI, and Mantovi assert counterclaims against the Plaintiffs for indemnification and contribution under CERCLA. These counterclaims are dismissed with prejudice. The remaining counterclaims have not been addressed in any of the parties' briefings and are unaffected by the Court's various rulings. They consist of the following counterclaims against Plaintiffs: (1) frivolous prosecution of a RCRA claim, asserted by Lynlil, Stockfield, MSSI, Mantovi, and Putnam County; (2) frivolous prosecution of a CERCLA claim, asserted by Putnam County; and (3) cost recovery under CERCLA for Lynlil's expenses in investigating possible contamination at the DeLuca Farm and from constructing an alternate public water supply.

D. Third-Party Action

The third-party contribution claims asserted by Lynlil and the Lynlil Defendants against Olga DeLuca, Elizabeth DeLuca, and Thomasina Christianson (the "Third-Party Defendants"), under CERCLA, 42 U.S.C. §§ 9607 & 9613(F)(1), are dismissed with prejudice.

E. Third-Party Defendants' Cross Claims

The Third-Party Defendants brought cross claims for contribution and indemnity against Carmel, Putnam, Lynlil, the Lynlil Defendants, Mantovi, MSSI, Anthony DeLuca, and Theresa Miller. To the extent they seek contribution under CERCLA, these cross claims are moot and are dismissed with prejudice. To the extent they seek common law indemnity and/or contribution, these claims are dismissed, but may be reasserted in the State Supreme Court.

II. Statement of Facts

On these dispositive motions, I construe all facts in favor of the Plaintiffs, who are the non-movants. See United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962); Donahue v. Windsor Locks Bd. of Fire Commn'rs, 834 F.2d 54, 57 (2d Cir.1987). What follows, then, is a recitation of the case taken largely from the Plaintiffs' papers opposing the various motions that seek dismissal of their claims, supplemented as needed by uncontested facts from other presentations that are relevant to the issues before me.

A. Septic Waste Dumping at the DeLuca Farm

The property that is the subject of this litigation consists of around 246 acres of land located within the Hamlet of Mahopac, Town of Carmel, County of Putnam, in the State of New York. (Aff. of Joel Sachs in Opposition to Defendants' Motion for Summary Judgment ("Sachs aff."), ¶ 3) Agor Lane, a public road in the Town of Carmel, bisects the property. Id. Philip and Mary DeLuca came to own this property, hereinafter referred to as the "DeLuca Farm," in 1944, and following Philip's death in 1966, Mary conveyed various portions to her children and grandchildren, including defendants Anthony DeLuca and Theresa DeLuca Miller (the "DeLuca Defendants"). (Id., ¶¶ 4, 6, 8) In 1986 and 1990, the DeLuca family members subsequently conveyed portions of the property to two corporate entities controlled by the Lynlil Defendants. (Id., ¶ 9)

In 1955, representatives of Defendant Town of Carmel contacted Philip DeLuca and sought to reach an agreement permitting the disposal of septic wastes on a portion of the DeLuca Farm property. (Id., ¶ 16) The Town Board met shortly thereafter and unanimously adopted a resolution authorizing the Town Supervisor "`to sign an agreement with Philip DeLuca of Agor Lane, for permission to dispose of sewage waste on a parcel of his property, for the amount of $500.00 per year.'" (Id., ¶ 16, quoting exh. 14 to dep. of Anthony DeLuca.) Around the time the lease terminated, in June 1960, the Town and Philip and Mary DeLuca executed an additional five-year lease to continue the "`disposal [at the DeLuca Farm] of septic tank and cesspool waste'" collected in Carmel by Town-licensed scavengers. (Id., ¶ 18, quoting exh. M to dep. of Michael Barile) This lease required Philip and Mary DeLuca to provide trenches for the disposal of septic waste on the DeLuca Farm. (Id., ¶ 19) Then, when that lease expired in 1965, the Town Board renewed its five year lease with Philip and Mary DeLuca on similar terms, but at an increased rental rate. (Id., ¶ 20)

Between 1955 and 1970, trenches were excavated within the leased area and were used for disposal of septic wastes by septic waste haulers. This area, consisting of some 10 acres of land located west of Agor Lane and south of the DeLuca farmhouse, is known as the "Site." (Id., ¶ 21) A number of septic waste haulers used the Site for disposal of septic wastes on a daily basis from 1955 to 1970. (Id., ¶ 22) During this same time period, the Town charged septic waste haulers an annual dump fee of $25 per tanker truck to dispose of septic wastes at the Town's septic dump located at the Site. (Id., ¶ 25) Septic waste haulers had access to the Site by means of a dirt road extending from Agor Lane. Town employees occasionally maintained, improved, and snow plowed the dirt road during this period. (Id., ¶ 27) Additionally, the road had a locking gate to which septic haulers who had paid their $25 annual fee would receive a key from the DeLuca family. (Id., ¶ 28)

The final Town lease for use of the Site expired on June 15, 1970. However, the DeLucas permitted individual septic waste haulers to continue dumping for a number of years. (Id., ¶ 41) Defendant Mantovi and Mahopac Sanitation (an unincorporated predecessor to corporate defendant MSSI) entered one such agreement with the DeLuca family for use of the Deluca Farm Site for dumping sewage through December 31, 1971. (Id., ¶ 49) As part of the arrangement, Mantovi agreed to procure a permit from the Putnam County Board of Health and to maintain the sewage pits in accordance with Board of Health requirements. (Id., ¶¶ 49-50)

Mahopac Sanitation, an unincorporated entity controlled by a father and son, Joseph C. Mantovi (who is not a party to this action) and defendant Joseph A. Mantovi, collected septic waste in Carmel between 1955 and 1974. (Id., ¶ 29) Mahopac Sanitation applied for and received a license from the Town allowing it to dispose of septic waste at the Site, on an annual basis between 1955 and 1970. (Id., ¶ 30) Joseph C. Mantovi and defendant Mantovi testified that Mahopac...