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Idylwoods Assocs. v. Mader Capital, Inc.

ELR Citation: 27 ELR 21003
Nos. 91-CV-364S(F), 956 F. Supp. 410/(W.D.N.Y., 02/26/1997) prior decision upheld on reconsideration

A magistrate judge declines to change his ruling granting summary judgment against the corporate owner and operator of a contaminated site, and its parent company, on their use of the Comprehensive Environmental Response, Compensation, and Liability Act's (CERCLA's) third-party defense and denying summary judgment on the alleged CERCLA operator liability of one of the parent company's shareholders. The magistrate judge first holds that the shareholder has not raised any new evidence or offered case law to support a finding that the order denying him summary judgment was a manifest error of law or fact. There are significant facts in dispute as to his ultimate control over the operations of the two corporations, and he has not cited, nor has the court's own research revealed, any authority for the proposition that because a site containing hazardous waste is vacant or undeveloped, an individual or corporation cannot be liable under CERCLA as an operator. The magistrate judge next finds no basis for changing his ruling on the two corporations' use of the third-party defense. The facts of New York v. Lashins Arcade Co., 26 ELR 21506 (2d Cir. 1996), which the corporations assert requires a fresh look at the statutory requirement of due care under the third-party defense, are distinguishable from the facts of the instant case. In addition, the holding of Lashins appears to be limited to its facts and does not ease the requirements of the defense or change the standards in making a due care determination. Also, the defendant in Lashins took affirmative steps to address the contamination problem, unlike the actions of the two corporations in this case. And the corporations' newly submitted evidence is irrelevant to this issue.

[Other opinions in this litigation are published at 26 ELR 21027 and 27 ELR 21009.]

Counsel for Plaintiffs
Robert E. Glanville
Phillips, Lytle, Hitchcock, Blaine & Huber
3400 Marine Midland Ctr., Buffalo NY 14203
(716) 847-8400

Counsel for Defendants
Peter G. Ruppar
Duke, Holzman, Yaeger & Photiadis
2500 Main Pl. Tower, Buffalo NY 14202
(716) 855-1111