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New York v. Shore Realty Corp.

Citation: 17 ELR 20588
No. No. 84-CV-0864, 648 F. Supp. 255/25 ERC 1305/(E.D.N.Y., 10/10/1986) Motions to dismiss third-party complaint

The court rules that the 60-day notice requirement in § 112(a) of the Comprehensive Environmental Response, Compensation, and Liability Act does not apply to private cost recovery actions, and private parties need not obtain prior governmental approval and need only plead consistency with the National Contingency Plan (NCP) in general terms. The court first holds that the notice requirement does not apply when a defendant brings a third-party claim for contribution against other potentially liable parties (PRPs) and is not a jurisdictional prerequisite. The court holds that the third-party plaintiff has satisfied the requirement of alleging incurrence of actual response costs by reference to the state's complaint. The court holds that the third-party plaintiff need only aver the words "consistent with the NCP to satisfy its burden of pleading consistency with the NCP. Nor does the site owner need prior approval by the government before he may seek reimbursement of response costs from other PRPs.

The court also holds that the Federal Tort Claims Act (FTCA) is no bar to a suit brought against federal agencies as PRPs who used an independent contractor who subsequently improperly disposed of the waste, if the suit seeks to hold the agencies liable for the choice of the independent contractor. The FTCA allows agencies to be held liable under state law for careless acts, which under New York law includes the careless selection of an independent contractor. The court holds that officials of the New York Department of Environmental Conservation cannot be sued, however, under 42 U.S.C. § 1983 for deprivation of federally protected interests since environmental concerns are not property or liberty interests protected by the Constitution. The court finally holds that sanctions under Federal Rule of Civil Procedure 11 requested by a third party defendant against the site owner for vague allegations contained in the third party complaint are not appropriate where a complicated discovery process would be necessary to determine the accuracy of the allegations.

[Related opinions appear at 15 ELR 20358 and 20431.]

Counsel for Plaintiff
Gordon J. Johnson, Stuart Miller, Ass't Attorneys General
Dept. of Law, State Capitol, Albany NY 12224
(518) 474-7330

Counsel for Defendants
Daniel A. Pollack
Pollack & Kaminsky
Suite 2500, 61 Broadway, New York NY 10006
(212) 952-0330

Paul Windels Jr.
Windels, Marx, Davies & Ives
51 West 51st St., New York NY 10019
(212) 977-9600