State v. PassalacquaState v. Passalacqua
This
In 1992, Passalacqua removed the three 4,000 gallon USTs, which reportedly appeared to be in good condition. In an effort to determine the date and source of the discharge, plaintiff authorized Marcor in 1994 to hire Global Geochemistry Corporation to conduct a chemical analysis. That analysis revealed, among other things, the presence of five lead alkyls which Global indicated were mixed together and added to gasoline
In March 1999, plaintiff commenced this action against defendants to recover the costs incurred in cleaning up the discharge. In its answer, Sunoco denied any responsibility for the discharge and asserted a cross claim against Passalacqua, who interposed an answer denying responsibility for the spill and asserting two counterclaims against plaintiff and five cross claims against Sunoco. Following discovery, the parties moved for summary judgment. Supreme Court granted plaintiff’s motion for partial summary judgment against Sunoco, denied Sunoco’s cross motion for summary judgment against plaintiff and Passalacqua and granted Passalacqua’s cross motion for summary judgment against Sunoco with respect to his cross claim for indemnification. The court awarded plaintiff $281,900.52 and Sunoco appeals.
Initially, Sunoco argues that Supreme Court erred in granting plaintiff’s motion for partial summary judgment against it. According to Sunoco, while plaintiff may have presented evidence indicating that some of the discharged petroleum was manufactured during the time that Sunoco owned the property, the proof submitted by its experts raised a question of fact on that issue. Additionally, Sunoco maintains that, even if some of the petroleum was manufactured during its ownership, plaintiff failed to establish, as a matter of law, that any of the petroleum was actually discharged during that time so as to establish Sunoco’s liability as a matter of law.
In support of its motion, plaintiff relied primarily on affidavits from Peter Miller,1 an engineering geologist employed by the Department of Environmental Conservation, and the 1994 study of monitoring wells issued by Global. With respect to whether the proof established that some of the discharged gasoline was manufactured prior to 1980, the Global report established, among other things, the presence of the five lead alkyls in the
In response, Sunoco argued that a question of fact existed as to whether some of the discharged petroleum was manufactured during its ownership due to evidence in the record indicating that, until the late 1980s or early 1990s, a certain amount of lead alkyls were added to gasoline as antiknock agents. While Sunoco’s manager of fuels products, Helen Doherty, asserted that this fact raised the possibility that the fuel could have been manufactured after Sunoco no longer owned the property, the proof she submitted did not establish that the lead alkyls used as antiknock agents were identical to the five lead alkyls identified by Miller and the Global report as being used in gasoline prior to 1980. In addition, in reference to the affidavits from Sunoco’s expert hydrogeologist, Patricia Newdeck, we note that her various opinions as to when the discharged petroleum was manufactured were either consistent with that of plaintiff’s experts or “consisted primarily of speculative allegations with no independent factual basis [which] were insufficient to raise a triable issue of fact” (Wallach v American Home Prods. Corp., 300 AD2d 576, 577 [2002]).
Sunoco also argues that, even if some of the petroleum was manufactured prior to 1980, the proof did not establish that it was actually discharged during its ownership. We are not persuaded. Newdeck, who did not state that she actually examined the subject USTs, discussed the possibility for lead alkyls to “transport” into unleaded gasoline when unleaded gasoline mixes with sludge and residual leaded gasoline builds up over time in the bottom of USTs. However, nothing submitted by Sunoco contradicted an affidavit from Passalacqua’s expert chemist James Bruya, which affirmatively stated, inter alia, that the lead which collected in the bottom of the subject USTs “was not alkyl lead compounds that were added to make leaded gasoline.” This statement is consistent with Miller’s observation that, “if the sludge were the source of the lead found, any sludge that leaked out would have only contami
Next, Sunoco alleges that its cross motion for summary judgment against Passalacqua should have been granted based on the theory of contractual indemnity despite Supreme Court’s ruling that the cross claim “sounds only in negligence.” Specifically, Sunoco claims that its use of the term “indemnification” in its cross claim for summary judgment is sufficient under liberal pleading rules to state a cause of action for contractual indemnification. However, even affording Sunoco’s cross claim a liberal construction, it is clear that the term “indemnification” is only asserted with respect to the underlying theory of liability asserted in that claim, namely, negligence. Moreover, to the extent that Sunoco argues that Supreme Court should have granted it summary judgment against Passalacqua on the ground of statutory indemnity, we find Sunoco is not entitled to such relief due to its liability as a “person responsible for a discharge” under the
Turning to Supreme Court’s grant of Passalacqua’s cross motion for summary judgment against Sunoco with respect to his cross claim for indemnification, we find that reversal is warranted. A review of Passalacqua’s submissions reveals that he failed to establish merit to that cross claim as a matter of law. In order to set forth a prima facie entitlement to indemnification pursuant to
Crew III, Spain, Mugglin and Rose, JJ., concur. Ordered that the order is modified, on the law, without costs, by reversing so much thereof as granted defendant David Passalacqua’s cross motion for summary judgment on his cross claim for indemnification against defendant Sunoco, Inc.; said cross motion denied; and, as so modified, affirmed.