Veltri v. New York State Office of the State ComptrollerVeltri v. New York State Office of the State Comptroller
Petitioner owns real property in the City of Rochester, Monroe County, which he purchased from A.R. Gundry in 1989. In 1987 and 1988, Leaseway Transportation, Inc., which was leasing the property from Gundry and operating it as a trucking terminal, reported spills on the property to the Department of Environmental Conservation (hereinafter DEC). Following several excavations and the removal of contaminated soil and multiple underground storage tanks (hereinafter USTs), DEC issued a letter to Leaseway in September 1988 stating that its inspection of the area where the soil and USTs had been removed “reasonably suggest[ed] that the site is now free of the effects of underground fuel leakage,” but cautioned that “[t]his does not preclude the migration of contaminants off property or to other sections of the property.”
That same month, petitioner entered into a purchase and sale agreement with Gundry which required Gundry to remove all USTs from the property, with the exception of one 1,000-gallon heating oil UST, as well as any petroleum contaminated soil in the area of the USTs. After this work was undertaken by Leaseway pursuant to its lease with Gundry, petitioner purchased the property in an “as is” condition and operated it as a
Petitioner‘s application for reimbursement from the New York Environmental Protection and Spill Compensation Fund (hereinafter Fund) for damage to his real property, loss of income and legal costs was denied. The Fund ruled that, to the extent that petitioner claimed that the contamination was caused by the orphan tank discovered in 2005, petitioner was strictly liable as owner of the system from which the discharge occurred. Alternatively, the Fund found that, even if the contamination did not occur while petitioner was the owner, but was instead discharged from USTs that were removed prior to him taking title to the property, his claim for reimbursement was untimely. Petitioner thereafter commenced this
Relying on State of New York v Green (96 NY2d 403 [2001]) and State of New York v Speonk Fuel, Inc. (3 NY3d 720 [2004]), petitioner argues that he cannot be liable for any contamination caused by the orphan tank because he had no knowledge of its existence when he purchased the property and therefore could not have controlled the events that led to the discharge. However, petitioner‘s liability as a discharger is not predicated on his status as a landowner but, rather, as the owner of the system from which the discharge occurred. “This [C]ourt has consistently construed
Here, as in Matter of White v Regan (supra), petitioner claims that he “unwittingly took title to real property containing one . . . undisclosed underground petroleum storage tank[ ]” and was unaware of and did nothing to contribute to the contamination (Matter of White v Regan, 171 AD2d at 198-199). And, as with the petitioners in White, petitioner here was found to be strictly liable as the owner of the system at the time of discovery of the discharge, regardless of fault or knowledge (see id. at 199-201). Although petitioner contends that he does not, in fact, own the system from which the discharge occurred, in reviewing an administrative determination this Court “‘may not substitute its judgment for that of the agency responsible for making the determination, but must ascertain only whether there is a rational basis for the [determination] or whether it is arbitrary and capricious‘” (Matter of 310 S. Broadway Corp. v McCall, 275 AD2d at 550, quoting Flacke v Onondaga Landfill Sys., 69 NY2d 355, 363 [1987]; see Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 230-231 [1974]). Accordingly, the only issue to be resolved in this proceeding is whether there is a rational basis in the record for the determination that petitioner owned the orphan tank from which the discharge allegedly occurred.
While the orphan tank was installed by an entity other than petitioner and petitioner took steps in an attempt to remove all USTs from the property prior to purchasing it, it remains undisputed that the orphan tank remained in the ground when the property was purchased by petitioner. Having been imbedded into and affixed to the land, USTs are considered fixtures (see Golovach v Bellmont L.M., 4 AD3d at 731; Matter of 310 S. Broadway Corp. v McCall, 275 AD2d at 550; Sunnybrook Realty Co. v State of New York, 15 Misc 2d 739, 741 [1959], mod on other grounds 11 AD2d 888 [1960], affd 9 NY2d 960 [1961]) which, upon conveyance of the land, generally become the property of the landowner (see Mott v Palmer, 1 NY 564, 569-570 [1848]; 230 Park Ave. Assoc. v Penn Cent. Corp., 178 AD2d 185, 186 [1991]). Here, petitioner purchased the property in “as is” condition and failed to submit any proof that the transfer of the land did not include fixtures, and the record is otherwise devoid of any evidence that, as the title owner of the real estate, petitioner is not the owner of the orphan tank (see Matter of 310 S. Broadway Corp. v McCall, 275 AD2d at 550; see also State of New York v Dennin, 17 AD3d 744, 745 [2005], lv
To the extent that petitioner argued at the administrative level that the contamination resulted from discharges from USTs that were removed before he purchased the property in 1989, the Fund correctly determined that petitioner‘s claim would be time-barred under this alternative scenario. Pursuant to the dual time requirements of
Finally, petitioner‘s arguments regarding the applicability of
Mercure, J.P., Rose, Malone Jr. and Egan Jr., JJ., concur. Ordered that the judgment is affirmed, without costs.