Robert H. Law, Inc. v. Woodbine Bus. Park, Inc.

ROBERT H. LAW, INC., Plaintiff, v. WOODBINE BUSINESS PARK, INC.; NORMAN SWANSON;224 HARRISON CORP.; 100 COLLINGSWOOD CORP.;WAITE DAIRY INC.;D.E. TAROLLI INC.; LAN-CO COMPANIES INC.;NATIONAL GRID (US) HOLDINGS, LTD; NATIONAL GRID US;and NIAGARA MOHAWK POWER CORP., d/b/a National Grid,, Defendants.

5:13-CV-1393 (GTS/DEP)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

February 12, 2018

APPEARANCES:

SHEATS & BAILEY, PLLC

Counsel for Plaintiff

9650 Brewerton Road, P.O. Box 820

Brewerton, NY 13029

BROWN, SHARLOW, DUKE & FOGEL, P.C.

Counsel for Defendants Woodbine, Swanson,

224 Harrison, and 100 Collingswood

621 West Genesee Street

Syracuse, NY 13204

COSTELLO, COONEY & FEARON, PLLC

Counsel for Defendant Tarolli

500 Plum Street, Suite 300

Syracuse, NY 13204

THE SLATER LAW FIRM, PLLC

Counsel for Defendant Lan-Co

500 Seneca Street, Suite 504

Buffalo, NY 14204

MELVIN & MELVIN, PLLC

Counsel for Defendant Lan-Co

217 South Salina Street, 7th Floor

Syracuse, NY 13202

BARCLAY DAMON, LLP

Counsel for Defendants National Grid

USA and Niagara Mohawk

80 State Street

Albany, NY 12207

OF COUNSEL:

JASON B. BAILEY, ESQ.

MICHAEL A. FOGEL, ESQ.

ROBERT W. CONNOLLY, ESQ.

CRAIG A. SLATER, ESQ.

SUSAN E. OTTO, ESQ.

YVONNE E. HENNESSEY, ESQ.

GLENN T. SUDDABY, Chief United States District Judge

DECISION and ORDER

Currently before the Court, in this action asserting claims under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA") and state tort and contract law filed by Robert H. Law, Inc., ("Plaintiff") against the ten above-captioned individuals and entities ("Defendants"), are the following three motions: (1) Defendant Lan-Co's motion for summary judgment; (2) Defendant Tarolli's motion for partial summary judgment;¹ and (3) Defendants National Grid USA and Niagara Mohawk's (collectively "National Grid Defendants")² cross-motion to dismiss the Second Amended Complaint for failure to state a claim.³ (Dkt. Nos. 81, 89, 123.) For the reasons set forth below, Defendant Lan-Co's motion forsummary judgment is denied without prejudice, Defendant Tarolli's motion for partial summary judgment is denied, and the National Grid Defendants' cross-motion to dismiss is granted.

I. RELEVANT BACKGROUND

A. Plaintiff's Second Amended Complaint

Generally, Plaintiff's Second Amended Complaint asserts six distinct claims. (Dkt. No. 91 [Second Am. Compl.].) First, Plaintiff claims that, pursuant to 42 U.S.C. § 9607(a) (Section 107[a] of CERCLA), Defendants are liable for the release of a hazardous substance that resulted from the storage and spreading of contaminated soil on Plaintiff's property and at other properties, soil that Plaintiff had purchased from Woodbine Business Park and Swanson (known collectively, along with 244 Harrison Corporation and 100 Collingswood Corporation, as the "Woodbine Defendants") ("First Claim"). (Id. at 5-8.) Specifically, Plaintiff claims that Defendants are all responsible parties under 42 U.S.C. § 9607(a) by virtue of their actions and are therefore jointly and severally liable to Plaintiff for damages resulting from that release of hazardous substances, including the necessary costs incurred by Plaintiff in removing or remediating the contamination. (Id.)

Second, Plaintiff claims that, in the alternative, Defendants, as responsible parties under CERCLA, are each liable to Plaintiff for the necessary costs incurred in removing or remediating the contamination, in an amount equal to their equitable share pursuant to 42 U.S.C. § 9613(f)(1) (Section 113[f][1] of CERCLA) ("Second Claim"). (Id. at 8.)

Third, Plaintiff claims that Defendants knew (or should have known) that the soil was contaminated and therefore owed (and breached) a duty to inform Plaintiff of the potential that the soil was contaminated ("Third Claim"). (Id. at 8-9.)

Fourth, Plaintiff claims that Defendants made negligent representations that the soil purchased was topsoil (and nothing more), representations that Plaintiff reasonably relied upon when purchasing and using the soil ("Fourth Claim"). (Id. at 9.)

Fifth, Plaintiff claims that storage of the contaminated soil at its principle place of business has caused a substantial and unreasonable interference with its use and enjoyment of that property ("Fifth Claim"). (Id. at 9-10.)

Sixth, Plaintiff claims that Woodbine Business Park and Swanson breached their contract with Plaintiff regarding the purchase of the soil ("Sixth Claim"). (Id. at 10.)

B. Undisputed Material Facts on Defendant Lan-Co's Motion for Summary Judgment

Rule 7.1(a)(3) of the Local Rules for the Northern District of New York requires that the movant on a motion for summary judgment set forth, in numbered paragraphs, each material fact about which the movant contends there is no genuine dispute, and that "[e]ach fact listed shall set forth a specific citation to the record where the fact is established." N.D.N.Y. L.R. 7.1(a)(3). Movants are warned that "[f]ailure of the moving party to submit an accurate and complete Statement of Material Facts shall result in a denial of the motion." Id.

Here, although Lan-Co submitted a Statement of Material Facts with individually numbered paragraphs along with its motion, it did not provide citations to the record to show where any of those facts are established. (Dkt. No. 81, Attach. 13 [Def.'s Rule 7.1 Statement].) While the Court is under no duty to sua sponte scour the record for evidence supporting a movant's factual assertions (and it thus declines to conduct such a sua sponte review of the record), the Court will not turn a blind eye to the citations that are plainly evident upon its review of the papers. Here, in its summary of the facts in its memorandum of law, Lan-Coprovides record citations in support of various factual assertions repeated verbatim from its Rule 7.1 Statement. To the extent Lan-Co has done so, the Court has considered Lan-Co's factual assertions in light of the cited record evidence; to the extent Lan-Co has not done so, the Court deems Lan-Co's factual assertions as not established under Local Rule 7.1(a)(3). As a result, the following facts have been asserted by Lan-Co in its Statement of Material Facts and supported by accurate record citations provided in Lan-Co's memorandum of law, and expressly admitted by Plaintiff in its response thereto or denied without appropriate record citations. (Compare Dkt. No. 81, Attach. 14 [Def.'s Rule 7.1 Statement] with Dkt. No. 101 [Pl.'s Rule 7.1 Resp.].)

1. The original complaint was filed on November 8, 2013.

2. The Amended Complaint, adding Lan-Co as a defendant, was filed on December 4, 2015. Discovery between Lan-Co and its co-Defendants is complete.

3. Norman Swanson purchased a parcel of approximately 68.70 acres located at the intersection of Canada Drive and Loucks Road in East Syracuse, New York, from a local dairy farmer in 1989 and then transferred that parcel to Woodbine Business Park on June 8, 2011, which continues to own it today.

4. The Woodbine Business Park property was farmland prior to 2008.

5. The construction of Canada Road, Loucks Road, and a detention basin resulted in the creation of three piles of excess soil (one consisting of topsoil and two consisting of deeper fill or soil with more rocks) located on the Woodbine property.

6. On July 21, 2011, Plaintiff executed a contract to purchase the 2,400 cubic yards of topsoil located in a pile on the Woodbine Business Park for $12,000.

7. The Town of Dewitt awarded a job to Lan-Co based on its April 2008 bid for the installation of 2,460 feet of an 8-inch water main west of Loucks Road and north of Canada Drive.

8. All Lan-Co work for installation of the water line was completed in 13 days.

9. All clearing, grubbing, and stripping of the topsoil and subsoil had been performed by another party unrelated to Lan-Co before Lan-Co started work.

10. Lan-Co did not strip any topsoil from the site, or clear and grub the site or the waterline area.⁴

11. The three soil piles were already in place before Lan-Co commenced work on the water line.

12. Lan-Co's method of installation was to excavate a trench for the pipe, side-cast the soil away from the street, install soil, and push soil back into the trench.

13. Lan-Co was not a party to the soil pile purchase contract between Plaintiff and Woodbine.

C. Undisputed Material Facts on Defendant Tarolli's Motion for Partial Summary Judgment

Unless otherwise noted, the following facts were asserted and supported with accurate record citations by Tarolli in his Statement of Material Facts and expressly admitted by the Woodbine Defendants in their response thereto or denied without appropriate record citations. (Compare Dkt. No. 89, Attach. 3 [Def.'s Rule 7.1 Statement] with Dkt. No. 98, Attach. 3 [Defs.' Rule 7.1 Resp.].)

1. The original complaint was filed on November 8, 2013.

2. Plaintiff has alleged violations of CERCLA resulting from the alleged release of hazardous substances on property owned by Plaintiff located at 6883 Schuyler Road, East Syracuse, New York ("Plaintiff's property").

3. Tarolli was not initially named as a party in this action.⁵

4. After approximately two years of litigation, Plaintiff amended its Complaint to add Tarolli as a party.

5. Tarolli was hired by Woodbine Business Park to perform site work at the Woodbine Business Park Subdivision.⁶ The work to be performed for the project was the subject of a Standard Form of Agreement between Owner and Contractor, AIA Document A101-1997.

6. As part of the Agreement, the parties incorporated various documents, including Conditions of the Contract (General, Supplementary, and other Conditions). The incorporated General Conditions for the project are set forth in standard form AIA Document A201-1997 without modifications.⁷

7. Section 10.3.3 of the General Conditions, found in a section titled "Hazardous Materials," sets forth in pertinent part as follows:

To the fullest extent permitted by law, the Owner shall indemnify and hold harmless the Contractor . . . from and

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