State v. Avery-Hall Corp.

No. 87679 (719 N.Y.S.2d 735) (N.Y. App. Div. January 18, 2001)

ELR Digest

The court holds that a trial court properly dismissed a property owner's third-party complaint against an oil company for reimbursement of any cleanup costs the owner was required to pay to the state of New York in connection with gasoline contamination at the property. The oil company's predecessor-in-interest sold gasoline to the property owner's predecessor-in-interest and hired an independent dealer to deliver the gasoline to the property when it was used as a gasoline station over 20 years ago. After the state discovered leaking underground storage tanks (USTs) at the property and contracted for the removal of the USTs, gasoline, contaminated soil, and sludge from the property, the current property owner sought to recover the cost of the property's cleanup and brought a third-party complaint against the oil company, alleging that the oil company was liable for contamination at the property as a discharger under New York Navigation Law § 181.

The court first holds that the trial court properly held that the oil company's connection to the discharge was too attenuated to impose liability as a discharger. Pursuant to case law interpreting the Navigation Law, where a party contracts to deliver petroleum and thereby has responsibility for the manner and means of delivery, and the discharge occurs during the delivery, that party will not be insulated from liability as a discharger by arranging to have the delivery made by a third party. Here, however, the property owner failed to establish that the discharge at issue occurred during the delivery process of transferring the fuel to the station's USTs.

The full text of this litigation is available from ELR (4 pp., ELR Order No. L-319).

Counsel for Plaintiff
Timothy Hoffman
U.S. Attorney's Office
138 Delaware Ave., Buffalo NY 14202
(716) 551-4826

Counsel for Defendants
Christopher J. Dow
Jaeckle, Fleischmann & Mugel
Fleet Bank Bldg.
12 Fountain Plaza, Buffalo NY 14202
(716) 856-0600

[31 ELR 20365]

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]