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Christie-Spencer Corp. v. Hausman Realty Co.

ELR Citation: 31 ELR 20274
Nos. No. 00 Civ. 7801(CM), 118 F. Supp. 2d 408/(S.D.N.Y., 10/23/2000)

The court refuses to preliminarily enjoin a lessee from using a soil vapor extraction (SVE) cleanup method during the remediation of its leased property or to require the lessee to remediate all contamination at the site. The lessee subleased the property at issue to a dry cleaner who released hazardous chemicals into the environment. After discovering the contamination, the lessee entered into a voluntary cleanup agreement with the state environmental agency that called for the removal and treatment of surrounding soil, but did not provide for the testing or remediation of surrounding bedrock and groundwater. While performing the cleanup, the lessee discovered that the contamination extended further than originally expected and, on the advice of environmental engineers, began to install an SVE system. The owners of the property objected to the use of the SVE system and asked for an injunction that would require the lessee to fully remediate all contamination at the site, including potential bedrock and groundwater contamination.

The court first holds that the owner's claim does not merit injunctive relief. The owners are not likely to succeed in proving that the planned cleanup, and the decision not to investigate the bedrock or groundwater for contamination, poses an imminent and substantial endangerment to health or the environment. Additionally, use of the SVE system was approved by the state environmental agency, and the agency retained the right to require further investigation to ensure that the lessee fulfilled the requirements of the voluntary cleanup program. Further, there is a substantial danger that if all contaminated soil is removed from under the property, as the owner requests, it will undermine the foundation of the building or of adjacent buildings. Moreover, the owner has failed to present any evidence that there is the real possibility of bedrock and groundwater contamination, such that immediate testing is necessary. The owner also failed to show any irreparable injury. The court next holds that the owner's breach of lease claims do not merit injunctive relief. The owner is unlikely to succeed in proving that the lessee breached the terms of the lease, and the owner has failed to show irreparable harm.

Counsel for Plaintiff
Michael B. Gerrard
Arnold & Porter
399 Park Ave., New York NY 10022
(212) 715-1000

Counsel for Defendants
Steven Russo
Sive, Paget & Riesel
460 Park Ave., New York NY 10022
(212) 421-2150