Jump to Navigation
Jump to Content

New York v. Almy Bros., Inc.

Citation: 28 ELR 20077
No. 90-CV-818, 971 F. Supp. 69/(N.D.N.Y, 07/03/1997)

The court grants in part and denies in part a Fed. R. Civ. P. rule 12(f) motion to strike certain affirmative defenses of a third-party defendant brought by a responsible party who was held liable under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The court first holds that it will not strike the third party's failure to state a claim defense. Even if the responsible party's allegation that contamination of the site is a result of the application of pesticides while the third party occupied the site is true, this fact alone would not establish the third party's liability under CERCLA. CERCLA contains an exemption for the application of a registered pesticide. Next, the court denies the responsible party's motion to strike the third party's affirmative defenses of laches and failure to mitigate damages as to a contribution claim. The affirmative defenses of laches and failure to mitigate are not among the defenses to liability listed under CERCLA § 107(b). Thus, to the extent that the third-party defendant would assert these defenses against the responsible party's CERCLA § 107(a) claim, they must fail as a matter of law. However, a contribution claim under CERCLA § 113(f) is broadly interpreted, giving the court discretion to apply such equitable factors as it deems appropriate, including the defenses of laches and failure to mitigate damages. Therefore, the third party's affirmative defenses that are directed toward the responsible party's CERCLA § 113(f) contribution claim are legally sufficient. Next, the court holds that the third party's affirmative defense of potential mootness, which would result from a bankruptcy proceeding, is legally insufficient. The bankruptcy court already ruled that the responsible party's liability for the response costs under CERCLA is a nondischargeable debt. The court then denies the responsible party's motion to strike the third party's collateral estoppel defense. It is beyond dispute that the third-party defendant did not have a full and fair opportunity to litigate issues decided before its involvement in the present third-party action. Therefore, the third-party defendant is not collaterally estopped from asserting defenses that may raise issues identical to those raised and decided in the first-party action. Last, the court denies the responsible party's motion to strike the third party's affirmative defense that some or all of the response costs the responsible party is seeking contribution for are inconsistent with the national contingency plan. Because the third-party defendant is not collaterally estopped from raising this defense in the third-party action, this defense cannot be said to be legally insufficient.

[A prior decision in this litigation is published at 25 ELR 20540.]

Counsel for Plaintiff
M. Suzanne McMahon
Law Offices of M. Suzanne McMahon
539 Riverside Dr., Johnson City NY 13790
(607) 797-6600

Counsel for Defendants
Thomas R. Smith
Bond, Schoeneck & King
One Lincoln Ctr., 18th Fl., Syracuse NY 13202
(315) 422-0121