Hanna v. Motiva Enters., LLC

839 F.Supp.2d 654

Robert J. HANNA and Thrya K. Hanna, Plaintiffs,

v.MOTIVA ENTERPRISES, LLC and Shell Oil Company, Defendants.

No. 09 CV 1150(VB).

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

March 9, 2012.

Howard Andrew Suckle, Suckle Schlesinger PLLC, New York, NY, for Plaintiff.

William Andrew Ruskin, Victoria Marie Sloan, Epstein, Becker & Green, P.C., New York, NY, for Defendant.

MEMORANDUM DECISION

BRICCETTI, District Judge.

Plaintiffs Robert J. Hanna and Thrya K. Hanna bring this diversity action against defendants Motiva Enterprises, LLC (“Motiva”), and Shell Oil Company (“Shell”), alleging common law claims of negligence, trespass, and private and public nuisance, along with claims for violations of New York Navigation Law § 181 and New York Environmental Conservation Law § 23–1717.

Plaintiffs and defendants have cross-moved for summary judgment (Docs. 56, 61), and defendants have also moved to preclude the testimony of plaintiffs' expert. (Doc. # 52.) For the reasons set forth below, defendants' motion for summary judgment is DENIED as to their claims regarding (1) statute of limitations, except insofar as the Court grants summary judgment on the ground that only certain of plaintiffs' claims are tolled; (2) negligent infliction of emotional distress; (3) private nuisance; and (4) New York Navigation Law § 181, insofar as plaintiffs are entitled to prove damages for costs associated with the remediation of their property and attorneys' fees. Defendants' motion for summary judgment is GRANTED as to plaintiffs' claims for (1) trespass; (2) public nuisance; (3) violations of New York Environmental Conservation Law § 23–1717; and (4) damages under New York Navigation Law § 181 for diminution in their property's value. Defendants' motion to preclude expert testimony is GRANTED. Plaintiffs' motion for summary judgment is DENIED as to their claim for damages under New York Navigation Law § 181. Plaintiffs' motion is GRANTED as to defendants' statute of limitations defense and as to the issue of liability under New York Navigation Law § 181.

The Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1332.

BACKGROUND

The parties have submitted briefs, stipulations of facts, and supporting exhibits, which reflect the following factual background.

Plaintiffs are owners of the residential property located at 86 Livingston Road in Scarsdale, New York. Plaintiffs purchased this property in 1985. A gasoline service station operates at 1455 Weaver Street in Scarsdale, approximately 350 feet to the northeast of plaintiffs' property. Plaintiffs claim defendants are the owners of the property at 1455 Weaver Street. However, the service station was affiliated at various times with different entities. In 1985, the service station was affiliated with Texaco Refining and Marketing Inc. (“Texaco”). As of April 30, 2010, Motiva was the owner of the service station, but is no longer. Star Enterprise (“Star”) owned the service station in 1991. Plaintiffs assert Star was Texaco's agent. Today the service station is a Shell-branded property.

Adjacent to the service station is a strip mall containing stores and restaurants. Plaintiffs' property abuts an overflow parking lot for the strip mall, and a creek known as the Sheldrake River flows through plaintiffs' backyard.

I. Hydrocarbon Seepage and Remediation

Defendants do not dispute the service station is the source of petroleum that eventually contaminated plaintiffs' property. Plaintiffs claim that sometime after December 11, 1991, they were advised of the presence of hydrocarbons on their property. Defendants dispute this and claim plaintiffs were aware of hydrocarbons on their property well before December 11.

On August 21, 1991, International Technology Corporation (“IT Corp.”), an environmental consultant for Star, responded to an odor complaint in the vicinity of the Sheldrake River. This observation was reported by Lauren Brooker of Star to the New York State Department of Environmental Conservation (“DEC”) on the same date. A DEC Spill Report Form, created on August 28, 1991, indicates a sheen was observed on the stream when it rained, and pads and booms would be used as “as needed.” Absorbent pads are used to remove any “floating product” resulting from an oil spill. They are periodically removed and replaced with fresh pads.

According to IT Corp.'s September 13, 1991, report, an inspection of the creek revealed an odor only in the area of the creek behind the service station. IT Corp. believed the odor originated near a Westchester County sewer manhole cover, but further investigation of the sewer manhole revealed no odors or vapors.

Texaco retained Handex of New York (“Handex”), an environmental consultant, to investigate and remediate the spill. The February 1992 Hydrocarbon Investigation and Recovery Report prepared by Handex states “[d]uring the initial site inspection on November 20, 1991, liquid-phase hydrocarbon (LPH) was observed seeping from an area along the eastern river bank just south of the private bridge located southwest of the service station property (Figure 1). Absorbents and boom equipment were immediately employed to contain and prevent LPH from traveling downstream. This containment has been maintained on a weekly basis and during rainfall events.” From “Figure 1” in the Handex report, the private bridge is located on the “Freeman Property” directly abutting the northernmost edge of plaintiffs' property.

Defendants claim that in November 1991 Handex used the absorbent pads and boom equipment to control gasoline traveling downstream and installed monitoring wells on plaintiffs' property. However, the Handex report and accompanying figures show the monitoring wells were all installed in the service station property and in the adjacent mall parking lot, not on plaintiffs' property. Further, the Handex report illustrates several “shallow soil borings” were drilled in plaintiffs' property on December 23, 1991.

On November 20, 1991, the DEC inspected the site of the leak and noted the presence of “free product,” or gasoline, on the Sheldrake River. A DEC Spill Report Update Form, dated November 22, 1991, states there was, on November 20, gasoline “coming out of the ground along the stream,” which collected on the stream and caused a sheen. The gasoline had a strong odor and was very black in color.

The Spill Report Update Form notes Handex “had several lines of boom placed in the stream.” A fax sent by Handex on December 4, 1991, entitled “Action Plan,” states on November 20, 1991, Handex “immediately employed absorbants and boom equipment to contain and prevent gasoline from traveling down stream.” Plaintiffs' environmental expert, William J. Seevers, testified it was his understanding, based upon review of the August 28, 1991, DEC Spill Report Form and the November 22 Spill Report Update Form, that the absorbent pad and booms were installed on plaintiffs' property. Plaintiff Robert Hanna attributes some of the odor giving rise to plaintiffs' nuisance claims, in part, to the booms placed in the Sheldrake River. The crux of plaintiffs' nuisance claim is the persistent foul order on their property, which they generally attribute to the presence of petroleum on their property and defendants' resultant remediation activities.

On November 21, 1991, at a site meeting conducted by representatives of the DEC, Star, and Handex, continued monitoring and containment activities were discussed. The Handex Action Plan attributes the 1991 petroleum leak to a spill at the service station in 1978 that had been remediated, and states there was no evidence of any further issues until “nearby residents reported odors” in August 1991. As noted above, defendants do not dispute the service station is the source of petroleum that eventually contaminated plaintiffs' property. Robert Rule, the primary person responsible for environmental issues at 1455 Weaver Street for Motiva, testified the original release of petroleum into the ground occurred during Texaco's and Star's operation of the site.

On November 27, 1991, a Handex employee spoke with Robert Hanna about “the plan of action for delineation/containment/cleanup” Handex was planning to perform along the Sheldrake River. That same day, Star sent plaintiffs a letter advising plaintiffs “there may be hydrocarbons (gasoline, oil, etc.) in or about your premises,” which, unless removed, “may present a potential hazard.” The letter further requested permission on behalf of Texaco to enter plaintiffs' property to determine if hydrocarbons were present.

By letter dated December 11, 1991, Star advised plaintiffs:

We have been advised that there may be hydrocarbons (gasoline, oil, etc.) in or about your premises, which are located near the Texaco Service Station at 1455 Weaver Street in Scarsdale, New York. Unless removed, hydrocarbons (in liquid or vapor form) may present a potential hazard. Therefore, although responsibility has yet to be determined, we request permission on behalf of ourselves, Texaco Refining and Marketing Inc. (Texaco), and our contractor, Handex of New York (Handex), to enter your premises, upon at least 24 hours' written or oral notice to you, to determine if hydrocarbons are present.

Star further advised plaintiffs that the investigation may result in disruption of the normal use of plaintiffs' property, but Star asserted it would avoid unnecessary or unreasonable disruption and would restore the property to its former condition as soon as possible after any hydrocarbons were discovered and, if necessary, removed. Star signed the agreement and plaintiffs signed their consent on December 17, 1991. By letter dated December 18, Handex notified plaintiffs that Handex planned to enter plaintiffs' property to conduct “Phase I” work on December 24. Phase I work included soil testing, conducted by a series of hand borings, to define the possible area of the Sheldrake River from which...