Aрpeal from an amended order of the Supreme Court (Walsh, Jr., J.), entered July 29, 1987 in Montgomery County, which, inter alia, denied defendants’ motions for summary judgment dismissing the second and third causes of action in the complaint.
In January and February 1979, the Department of Transportation (hereinafter DOT) conducted tests of water from plaintiffs well, based upon an earlier сomplaint, and found it contained more than three times the acceptable level of gasoline. Plaintiffs neighbor, Charles Phillips, also complained of gasoline in his well water. DOT traced the source to a leak in a 1,000-gаllon gasoline storage tank located on premises owned by defendant Stewart’s Ice Cream. Stewart’s was nоtified of that finding on or about February 2, 1979 and the leaking tank was immediately drained. In July 1979, all three gasoline storage tanks located at the Stewart’s premises were replaced. Defendant Clifford Banta, as executor of the estate of N. E. Banta, the owner of a home heating oil distribution business located in that vicinity, emptied a 1,000-gallon gasoline tank located on its premises September 8, 1978 following the complaint by Phillips. Subsequent examination of this tank rеvealed no leaks.
Plaintiff commenced action by service of a summons and complaint on October 25, 1982. Thе complaint alleges causes
Thereafter, in April 1987, both defendants moved for summary judgment, contending that all of the cаuses of action were time barred or legally insufficient. As to both defendants, Supreme Court denied their motions to dismiss thе second and third causes of action for public nuisance and continuing trespass. Although Supreme Court agreed that the second cause of action for public nuisance was insufficient, it found that the cause of action sufficiently included within its allegations a cause of action for private nuisance against both defendants. Basеd upon the prior determination of Supreme Court, which ruled that the first and fourth causes of action relative to Banta were legally insufficient and which were not appealed, Supreme Court ruled that those same cаuses of action were insufficient as to Stewart’s. Both defendants appeal the denial of their motions for summary judgment relating to the second and third causes of action.
In response to Banta’s motion for summary judgment as to thе second and third causes of action, plaintiff has offered no evidence except the assertion оf her attorney, who does not appear to have personal knowledge of the facts as to any dеfect in Banta’s gasoline storage tank or of any causal connection between any conduct on thе part of Banta and plaintiff’s damages. Having sufficiently established its defense to plaintiff’s action (see, Lamberta v Long Is. R. R.,
In regard to plaintiffs cause of action for continuing private nuisance which Supreme Court found sufficiently pleaded in the second cause of action against Stewart’s, we аgree with Supreme Court that that cause of action is sustainable (see, Copart Indus. v Consolidated Edison Co.,
Plaintiffs cаuse of action for continuing trespass, as alleged in her third cause of action, should, however, be dismissed against Stewart’s. Assuming the truth of plaintiffs allegation in this regard, plaintiff has failed to show any willful trespass by Stewart’s on her propеrty, and without the requisite intent, a cause of action for trespass has not been established (see, Ivancic v Olmstead,
Amended order modified, on the law, with one bill of costs to defendants, by reversing so much thereof as denied defendant Clifford Banta’s motion for summary judgment and denied defendant Stewart’s Ice Cream’s motion for summary judgment as to the third cause of action; Banta’s motion is granted in its entirety and Stewart’s motion is granted as to the third cause of action; and, as so modified, affirmed. Kane, J. P., Casey, Weiss, Mikoll and Mercure, JJ., concur.