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Gussack Realty Co. v. Xerox Corp.

ELR Citation: 31 ELR 20035
Nos. Nos. 99-7759(L), -7889(XAP), 224 F.3d 85/51 ERC 1257/(2d Cir., 08/22/2000)

The court reverses a district court order awarding landowners $1,083,585 following a jury verdict insofar as that amount was based on the landowners' Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) claims against a copier refurbisher, but upholds the award insofar as it was based on negligence. The landowners alleged that the copier refurbisher violated CERCLA and various state tort laws because solvents used by the refurbisher contaminated the landowners' property.

The court first reverses the district court's judgment as to landowners' CERCLA claim. Because prior to litigation, the landowners incurred no costs compensable under CERCLA, the district court properly set the landowners' CERCLA recovery for past response costs at zero. However, the court improperly awarded the landowners future response costs. The proper remedy for future response costs is not a present lump-sum payment, but a declaratory judgment award dividing future response costs among responsible parties. Consequently, because the court dismisses the landowners' CERCLA claim, it reverses the district court's order that the landowners indemnify the refurbisher for any future response costs it might incur remediating the landowners' property.

The court next holds that the district court properly entered judgment on the landowners' negligence claim because it was not time barred. Nevertheless, the court holds that the district court should have awarded the landowners prejudgment interest and remands the case for a determination on the amount of prejudgment interest due. The court then holds that the district court properly dismissed the landowners' nuisance claim because the refurbisher lacked the requisite intent. The court also holds that the district court did not abuse its discertion in refusing to permit the landowners to amend their complaint for gross negligence. Likewise, the court holds that the amount of the sanctions the district court imposed against the refurbisher for eliciting testimony from its expert witness on a subject not previously disclosed was reasonable.

Counsel for Plaintiffs
Harold J. Ruvoldt Jr.
Fischbein, Badillo, Wagner & Harding
909 Third Ave., New York NY 10022
(212) 826-2000

Counsel for Defendant
Robert E. Crotty
Kelley, Drye & Warren
101 Park Ave., New York NY 10178
(212) 808-7800

Before Miner, Walker, and Buchwald,* JJ.