Marist College v. Chazen Environmental Services, Inc.

May 24, 2011
Versions:84 A.D.3d 1181
923 N.Y.S.2d 695

the motion of the defendant Brush & Weaving Corporation, doing business as Blocksom & Co., to dismiss the complaint insofar as asserted against it pursuant to CPLR 3211 (a) (1) is denied.

Pursuant to CPLR 3211 (a) (1) a party may move to dismiss a cause of action based on documentary evidence which conclusively establishes a defense to the asserted claim as a matter of law (see Leon v Martinez, 84 NY2d 83 [1994]; Goldfarb v Schwartz, 26 AD3d 462 [2006]). In order to obtain dismissal based on documentary evidence, the documentary evidence “must be such that it resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff‘s claim” (Trade Source v Westchester Wood Works, 290 AD2d 437 [2002]; see 511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 152 [2002]).

The Supreme Court erred in dismissing the complaint insofar as asserted against the defendant Brush & Weaving Corporation, doing business as Blocksom & Co. (hereinafter Blocksom), pursuant to CPLR 3211 (a) (1). The documentary evidence submitted by Blocksom, which included, inter alia, the parties’ contract of sale and closing statements, did not conclusively establish that the plaintiffs had released Blocksom from any and all obligations and liability arising from undisclosed and undiscovered environmental conditions on the property or that the plaintiffs had waived any and all future claims relating to the undisclosed and undiscovered environmental conditions on the property, including those claims for indemnification and contribution pursuant to Navigation Law §§ 181 and 176 (8) (see Union Turnpike Assoc., LLC v Getty Realty Corp., 27 AD3d 725, 725 [2006]; Umbra U.S.A. v Niagara Frontier Transp. Auth., 262 AD2d 980, 981 [1999]; cf. Olin Corp. v Consolidated Aluminum Corp., 5 F3d 10, 15-16 [1993]; 101 Fleet Place Assoc. v New York Tel. Co., 197 AD2d 27, 30 [1994]).

In light of our determination, we need not reach the parties’ remaining contentions. Angiolillo, J.P., Florio, Leventhal and Miller, JJ., concur.

In an action, inter alia, to recover damages pursuant to Navigation Law § 181, resulting from the discharge of petroleum, the defendant/third-party plaintiff appeals from an order of the Supreme Court, Dutchess County (Dolan, J.), dated April 2, 2010, which granted the motion of the third-party defendant to dismiss the third-party complaint pursuant to CPLR 3211 (a) (7).

Ordered that the order is affirmed, with costs.

“When a party moves to dismiss a complaint pursuant to CPLR 3211 (a) (7), the standard is whether the pleading states a cause of action, not whether the proponent of the pleading has a cause of action” (Sokol v Leader, 74 AD3d 1180, 1180-1181 [2010]). In considering such a motion, the court must “accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Leon v Martinez, 84 NY2d 83, 87-88 [1994]). “Whether a plaintiff can ultimately establish its allegations is not part of the calculus” (EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19 [2005]).

The Supreme Court properly held that the defendant/third-party plaintiff, Chazen Environmental Services, Inc. (hereinafter Chazen), did not state a cause of action for indemnification pursuant to Navigation Law § 181 (5). Even though the Navigation Law must be liberally construed (see 145 Kisco Ave. Corp. v Dufner Enters., 198 AD2d 482, 483 [1993]), Chazen does not qualify as an “injured person” under the statute and, accordingly, cannot maintain a cause of action for indemnification (see Navigation Law § 172 [3]; § 181 [5]; cf. White v Long, 85 NY2d 564, 569 [1995]; Nappi v Holub, 79 AD3d 1110 [2010]).

Chazen also did not state a cause of action for indemnification under the common law. Chazen‘s potential liability to the plaintiffs, Marist College and Marist Real Property Services, Inc. (hereinafter together Marist), is limited to the damages resulting from Chazen‘s alleged breach of its contract with Marist and its alleged negligence arising from its insufficient environmental assessment. There is no allegation that Chazen is liable for the injuries to the property sustained as a result of alleged environmental contamination of the property by the third-party defendant, Brush & Weaving Corporation, doing business as Blocksom & Co. (hereinafter Blocksom) (see Raquet v Braun, 90 NY2d 177, 183 [1997]). Accordingly, Chazen cannot seek indemnification from Blocksom for its own alleged breach of contract and negligence (cf. General Cas. Ins. Co. v Kerr Heating Prods., 48 AD3d 512, 514 [2008]).

Chazen also did not state a cause of action for common-law contribution because Blocksom, a prior owner of the property, owed no duty to Chazen related to Chazen‘s contract with Marist for an environmental assessment of the property. Moreover, even if Blocksom did owe such a duty, any alleged breach of that duty by Blocksom did not have “a part in causing or augmenting the injury for which contribution is sought” (Raquet v Braun, 90 NY2d at 183, quoting Nassau Roofing & Sheet Metal Co. v Facilities Dev. Corp., 71 NY2d 599, 603 [1988]). Blocksom is allegedly a polluter, but its status as such has no bearing on Chazen‘s alleged failure to conduct a proper environmental assessment of the property and to comply with the terms of its contract with Marist. Accordingly, the Supreme Court properly held that Chazen did not state a cause of action for common-law contribution.

In light of our determination, we need not reach the parties’ remaining contentions. Angiolillo, J.P., Florio, Leventhal and Miller, JJ., concur.