An upstate Supreme Court Justice has denied summary judgment on liability under Section 181 of the state’s Navigation Law against a company whose predecessor owned and operated a petroleum refinery on the site for almost 60 years. The decision in One Flint Street LLC v. Exxon Mobil Corp, et al., Index No. 2011/4470 (July 18, 2012, Monroe Co. Sup. Ct.) establishes a high bar for obtaining summary judgment in Nav Law cases.
The site’s current owner, One Flint Street LLC, filed suit against Exxon and others for alleged petroleum contamination at a site in Rochester that it had recently purchased. At the outset of the case, plaintiff filed for partial summary judgment against Exxon, on the grounds that the long history of operating a refinery on the site by Exxon’s predecessor, Vacuum Oil, clearly established liability for the contamination found there. Plaintiff supported its motion with test results and an expert’s affidavit that certain contaminants could have come only from refinery operations, which plaintiff never conducted.
The Court denied the motion, holding that the evidence does not establish conclusively that the discharges occurred while Exxon’s predecessor, rather than plaintiff, owned the property. The Court seemed to suggest that evidence of any contribution to site conditions by the current owner would defeat a Nav Law claim for contribution against a past discharger.
In its ruling, the Court emphasized that many of the defendants have yet to answer the complaint, and that discovery has just commenced. It noted that it would be prepared to reconsider plaintiff’s motion at a later stage in the case.
While it is undoubtedly true that additional discovery would help flesh out Exxon’s allocable share of liability, the decision sets a surprisingly high bar for prevailing on summary judgment under the Nav Law against a party which appears clearly liable for a major share of site contamination.
David J. Freeman is a Director in the Gibbons Real Property & Environmental Department.