An owner of contaminated property has numerous options to pursue litigation against the seller or other prior owner of contaminated property to seek cleanup or damages. This outline will discuss claims and remedies under the New York Oil Spill Law, and common law theories.

Navigation Law Article 12 (the "Oil Spill Law") is the primary mechanism to deal with liability and cleanup for oil spills on land and water in New York State.

A. Basic Scheme. The Oil Spill Law, enacted in 1977, prohibits the unpermitted discharge of petroleum. It follows the same basic pattern as the later federal and state Superfund statutes, creating strict liability for "dischargers," and providing for cleanup financed by a government fund. The law generally prohibits the "discharge of petroleum," but does not apply to discharges "in compliance with the conditions of a federal or state permit." Navigation Law 173. Special provisions relate to "major facilities" (including refineries, pipelines, and other facilities with a capacity greater than 400,000 gallons, Navigation Law 172(11), and coordination with the federal Oil Pollution Act of 1990, and are not discussed in this outline. The statute is "liberally construed to effect its purposes." Henning v. Rando Machine Corp., 207 A.D.2d 106, 620 N.Y.S.2d 867 (4th Dep't 1994); Navigation Law 195.

1. Strict Liability for Dischargers. Under Navigation Law 181(1), "[a]ny person who has discharged petroleum shall be strictly liable, without regard to fault, for all cleanup and removal costs and all direct and indirect damages, no matter by whom sustained..."

2. Discharges. "Discharge" is defined to include all "intentional and unintentional... releasing, spilling, leaking,... of petroleum "into the waters of the state or onto lands from which it might flow or drain into said waters...." Navigation Law 172(8). Those "waters" include "all lakes, springs, streams and bodies of surface or groundwater." 172(18). Accordingly, even spills on the land that "might flow or drain" into "groundwater" are covered. Unless an oil spill is totally enclosed indoors, it is generally considered to be a "discharge" encompassed by the statute. However, in State v. Arthur L. Moon, Inc., ___ A.D.2d ___, 643 N.Y.S.2d 760, 761 (3d Dep't 1996), a question of fact was raised as to whether an oil spill "did not actually reach the groundwater or threaten to do so."

3. Petroleum. "Petroleum" is defined to include "oil or petroleum of any kind and in any form including, but not limited to, oil, petroleum, fuel oil, oil sludge, oil mixed with other wastes and crude oils, gasoline and kerosene." Navigation Law 172(15). This has been construed to include "'hydrocarbons which are commonly associated with petroleum waste,' broadly construed, cannot be distinguished from 'oil refuse.'" Henning v. Rando Machine Corp., 207 A.D.2d 106, 620 N.Y.S.2d 867 (4th Dep't 1994).

4. Retroactive Liability. The Oil Spill Law applies to spills which occurred before the statute was enacted in 1977. State v. Cities Service Co., 180 A.D.2d 940, 580 N.Y.S.2d 512 (3d Dep't 1992).

5. Defenses. Defenses for an "owner or operator of a major facility or vessel responsible for a discharge" are limited to "act or omission solely caused by war, sabotage, or government negligence." Navigation Law 181(4). However, it is not clear if facilities that are not large enough to be a "major facility" have any broader defenses. Further, if a discharge is permitted, it is not covered by the Oil Spill Law. Navigation Law 173. Limited defense are provided for "responders," 178-a, cleanup contractors, 176(7)(a), and good Samaritans. 176(7)(b).

6. Cleanups. Under the Oil Spill Law, DEC is authorized to clean up an oil spill site and hire contractors to assist it. Navigation Law 176. Such cleanups are funded by the New York Environmental Protection and Spill Compensation Fund (the "Oil Spill Fund"). Navigation Law 186. DEC can then sue "the person responsible for causing a discharge for reimbursement of its costs." Navigation Law 187. Further, injured third parties are allowed to file claims with the Fund for their damages. Navigation Law 182. Dischargers are required to immediately contain a spill, 176(1), can be directed by DEC to undertake a cleanup, 176(2), or may voluntarily remediate with the approval of DEC and (if applicable) federal authorities. 176(7)(a). Voluntarily undertaking a cleanup is not an admission of liability. 176(7)(b).

Cleanups should be consistent with the federal National Contingency Plan. Navigation Law 176(4). DEC requires that:

Containment must be initiated immediately after discovery of a discharge ro reduce the costs of recovery, increase the recyclability of recovered petroleum, and minimize hazards to public health, economic loss and environmental damage.

6 N.Y.C.R.R. 611.13(a). The objectives of cleanup are to (1) rapidly remove the discharge to increase recyclability and minimize environmental damage, (2) continue to protect environmental and natural resources, (3) soundly dispose of unrecyclable waste, (4) restore the environment to "pre-spill conditions," (5) collect injured fauna for rehabilitation, and (6) collect evidence of natural resource damages. Generally, containment and cleanup procedures follow the New York State Water Quality Accident Contingency Plan and Handbook. 6 N.Y.C.R.R. 611.13(b), 611.6(b).

Ground and surface water standards for various substances, including oil and constituents of petroleum are set forth at 6 N.Y.C.R.R. Part 703. For oil, the standards require no "visible oil film nor globules of grease." 6 N.Y.C.R.R. 703.2. DEC STARS Memo. #1, Petroleum Contaminated Soil Guidance (1992) sets guidelines for oil spill cleanups. It may be possible to negotiate less stringent cleanup levels.

While DEC can proceed through formal administrative proceedings to require cleanups and collect fines for failure to report or clean a site, generally it proceeds through negotiated settlements that are memorialized in "consent orders." Under a program commenced in 1994, DEC has adopted a short and uniform "Stipulation Agreement," by which an alleged discharger would agree to clean up a spill, but would not admit to liability. Besides the simplicity of this procedure, another advantage is that it relieves the responding party from the necessity of obtaining permits for remedial work (such as an air permit to emit vapors).

7. Liens. If, within 90 days after a demand, a landowner fails to reimburse the state "for the costs incurred by the fund for the cleanup and removal of a discharge and for the payment of claims for direct and indirect damages as a result of a discharge," the state may file a lien on land "upon which the discharge occurred." Navigation Law 181-a. The lien is "subject to the rights of any other person, including an owner, purchaser, holder of a mortgage or security interest, or judgment lien creditor, whose interest is perfected before a lien notice has been filed." Navigation Law 181-a(4). The notice of lien is indexed in the same manner as a lien under Lien Law 10. Navigation Law 181-c.

8. Relief. Generally, a discharger is liable for "all cleanup and removal costs and all direct and indirect damages, no matter by whom sustained." Navigation Law 181(1). However, the Third Department has held that personal injuries are not available, and that a plaintiff is limited to "economic loss." Wever Petroleum Inc. v. Gord's Ltd., ___ A.D.2d ___, 649 N.Y.S.2d 726 (3d Dep't 1996); Strand v. Neglia, ___ A.D.2d ___, 649 N.Y.S.2d 729 (3d Dep't 1996); Cf. Snyder v. Jessie, 145 Misc.2d 293, 546 N.Y.S.2d 777 (Sup. Ct. 1989) rev. in part on other grounds, 164 A.D.2d 405, 565 N.Y.S.2d 924 (4th Dep't 1990), mot. den'd 77 N.Y.2d 940, 569 N.Y.S.2d 613 (1991) (allowing claim that sought personal injuries). However, the Third Department also held that counsel fees are recoverable as an "indirect damage" under the Oil Spill Law. Strand v. Neglia, ___ A.D.2d ___, 649 N.Y.S.2d 729 (3d Dep't 1996).

B. Discharger. The statute does not define "person who discharged petroleum" or "discharger." However, the courts have broadly construed liability under the Oil Spill Law applies to encompass "any party discharging oil." State v. Stewart's Ice Cream Co., Inc., 64 N.Y.2d 83, 86, 484 N.Y.S.2d 810, 811 (1984).

1. Operator. The operator of a facility which has leaked gas, oil, or other forms of petroleum into the ground will be strictly liable for cleanup costs under the Oil Spill Law. State v. King Service, 167 A.D.2d 777, 563 N.Y.S.2d 331 (3d Dep't 1990). This may include both the operator of a service station, and an oil company that owns the tanks. Leone v. Leewood Service Station, Inc., 212 A.D.2d 669, 624 N.Y.S.2d 610 (2d Dep't 1995); State v. Tartan Oil Corp., 219 A.D.2d 111, 638 N.Y.S.2d 989 (3d Dep't 1996). A residential homeowner may be liable as a discharger. State v. New York Central Mutual Fire Insurance Co., 147 A.D.2d 77, 542 N.Y.S.2d 402 (3d Dep't 1989); State v. Arthur L. Moon, Inc., ___ A.D.2d ___, 643 N.Y.S.2d 760 (3d Dep't 1996).

2. Non-operators. The courts have gone as far as ruling that the seller and installer of an oil tank, Mendler v. Federal Ins. Co., 159 Misc.2d 1099, 607 N.Y.S.2d 1000 (Sup. Ct. N.Y. Co. 1993), the supplier of a leaking home heating oil tank, Snyder v. Jessie, 145 Misc.2d 293, 546 N.Y.S.2d 777 (Sup. Ct. 1989) rev. in part on other grounds, 164 A.D.2d 405, 565 N.Y.S.2d 924 (4th Dep't 1990), mot. den'd 77 N.Y.2d 940, 569 N.Y.S.2d 613 (1991); Lowenthal v. Perkins, 164 Misc.2d 922, 626 N.Y.S.2d 358 (Sup. Ct. Tompkins Co. 1995), and an oil broker, State v. Montayne, 199 A.D.2d 674, 604 N.Y.S.2d 978 (3d Dep't 1993), may qualify as "dischargers." Further, a fire company that caused a discharge while fighting a fire was held liable (although perhaps today it might qualify under the responder defense). Nicol v. D.W. Jenkins Fire Co., Inc., 192 A.D.2d 164, 600 N.Y.S.2d 519 (3d Dep't 1993). However, a "non-operator" co-tenant in a lease for an oil well was held not to be a discharger. Whitesell v. Walchli, ___ Misc.2d ___, ___ N.Y.S.2d ___ (4^th Dep't. 1997).

3. Owner Liability. Unlike CERCLA, the Oil Spill Law does not explicitly provide that a landowner is liable. Thus, the courts have struggled with the question of whether a landowner who does not actively operate the contamination source is strictly liable under the statute. The Third Department has held that a property owner whose tenant operated leaking underground storage tanks is strictly liable under the Oil Spill Law. State v. Wisser Co., Inc., 170 A.D.2d 918, 566 N.Y.S.2d 747 (3d Dep't 1991).

A key question is whether, like under CERCLA, a subsequent purchaser would take on liability under the Oil Spill Law for contamination caused by on-site petroleum contamination sources. In White v. Regan, 171 A.D.2d 197, 575 N.Y.S.2d 375 (3d Dep't 1991), app. den'd 79 N.Y.2d 754, 581 N.Y.S.2d 281 (1992), the Appellate Division, Third Department held that a person who "unwittingly" purchased land which contained petroleum underground storage tanks that had previously leaked was himself a discharger strictly liable for cleanup costs under the Oil Spill Law. Accordingly to the court:

Even accepting the contention that all discharges of petroleum occurred prior to petitioners' ownership of land and that petitioners were unaware and did nothing to contribute to the contamination, it is nonetheless our view that petitioners are dischargers of petroleum . . . This court has consistently construed Navigation Law 181(1) so as to impose liability on the owner of a system from which a discharge occurred in the absence of evidence that the owner caused or contributed to the discharge . . .

171 A.D.2d at 199-200, 575 N.Y.S.2d at 376. This holding went beyond a previous expansive interpretations by the same court that a purchaser of leaking tanks was a discharger. State v. King Service Inc., 167 A.D.2d 777, 563 N.Y.S.2d 331 (3d Dep't 1991). See also State v. Tartan Oil Corp., 219 A.D.2d 111, 638 N.Y.S.2d 989 (3d Dep't 1996) (purchaser of service station with leaking tanks liable).

However, these cases did not involve situations where the tanks or other mechanism that was the source of the spill had been removed prior to the purchase. Thus, they may not stand for the proposition that a purchaser of petroleum-contaminated land would be liable as a discharger if the source of the petroleum is removed before taking title, so that no "discharge" occurs during his ownership. Furthermore, the Third Department rulings have been called into question by subsequent decisions of the Fourth Department in Drouin v. Ridge Lumber, Inc., 209 A.D.2d 957, 619 N.Y.S.2d 433 (4th Dep't 1994), and the Court of Appeals in White v. Long, 85 N.Y.2d 564, 626 N.Y.S.2d 989 (1995) (discussed infra), and it is no longer clear that a person who "unwittingly" purchases property on which oil is discharged is automatically liable under the Oil Spill Law if the person does not actively contribute to the problem.

In Drouin v. Ridge Lumber, Inc., 209 A.D.2d 957, 619 N.Y.S.2d 433 (4th Dep't 1994), the Fourth Department held that an owner who did not own the tanks in question was not automatically liable for activities of his tenant. The court stated that under the Oil Spill Law, the landowner was not a discharger, so that "[p]laintiffs were properly granted summary judgment declaring and holding defendant liable under the Navigation Law for all cleanup and removal costs and other damages resulting from defendants's discharge of the tank." In Drouin, the Fourth Department also found that "[t]he statutory scheme makes clear that liability as a 'discharger' is based upon conduct, not status," and rejected the broad rulings of the Third Department, stating that "to the extent that those cases can be read as establishing landowner liability per se, they find no support in the statute and cannot be reconciled with other cases." In Whitesell v. Walchli, ___ Misc.2d ___, ___ N.Y.S.2d ___ (4^th Dep't. 1997), the Fourth Department reaffirmed that a landowner is not "'responsible solely because it is a landowner,'" and held that the owner of an oil lease was not a discharger because "[h]e did not control operations conducted under the lease.'"

4. Corporate "Veil." Although it is quite likely that the broad interpretations of the definitions of "owner" and "operator" under CERCLA may be applied by analogy under the Oil Spill Law to include responsible corporate officers, parent corporations, and even lenders who operate a leaking facility as "dischargers," there is no dispositive case law on this issue. However, in Allen v. W.W. Griffith Oil Company, Inc., Index No. 25554 (Sup. Ct. Wyoming Co. 1992, Dadd, J.), the court held that even the president and Chief Executive Officer of Griffith Oil could not be held liable as a discharger where the "allegations...do not show that [he] participated in the wrongful conduct."

5. "Victim" Properties. While there is no definitive case law on the issue, it would seem that a nearby owner whose land is contaminated by a spill from another property could not be liable under the Oil Spill Law, since he would not be a "person who discharged petroleum," especially in light of the Fourth Department's determination in Drouin that liability is based upon "conduct."

C. Private Right of Action. The extent to which a private party has a right of action under the Oil Spill Law has also been the subject of much controversy.

1. Right of Action By Injured Party Against Discharger. Previously, the Appellate Division, Fourth Department had held that private parties had no private cause of action against a discharger under the Oil Spill Law. Snyder v. Jessie, 164 A.D.2d 405, 565 N.Y.S.2d 924 (4th Dep't 1990), mot. den'd 77 N.Y.2d 940, 569 N.Y.S.2d 613 (1991). In reaction to Snyder, the Legislature amended Navigation Law 181 in 1991 to add a new subsection 5, which now explicitly provides:

Any claim by any injured person for the costs of cleanup and removal and direct and indirect damages based on the strict liability imposed by this section may be brought directly against the person who discharged the petroleum.

This new provision has also been held to apply retroactively to spills that occurred before its enactment. Snyder v. Newcomb, 194 A.D.2d 53, 603 N.Y.S.2d 1010 (4th Dep't 1993); Wheeler v. National School Bus Service, 193 A.D.2d 998, 598 N.Y.S.2d 109 (3d Dep't 1993).

2. Right of Discharger to Sue Another Discharger. There had been much confusion over whether a "discharger" has recourse under the Oil Spill Law against another discharger. In Busy Bee Food Stores v. WCC Tank Lining Technology, Inc., 202 A.D.2d 898, 609 N.Y.S.2d 118 (3d Dep't 1994), mot. den'd 83 N.Y.2d 953, 615 N.Y.S.2d 877 (1994), the Third Department held that a discharger "has no remedy under the statute against another discharger." Contra Mendler v. Federal Ins. Co., 159 Misc.2d 1099, 607 N.Y.S.2d 1000 (Sup. Ct. N.Y. Co. 1993).

In White v. Long, 85 N.Y.2d 564, 626 N.Y.S.2d 989 (1995), the Court of Appeals resolved this issue once and for all, and decided that even if a property owner was a discharger, he had a cause of action under Navigation Law 181(5) against a prior owner-discharger. The court rejected the Third Department's holding in Busy Bee, and further distinguished New York v. King Service, 167 A.D.2d 777, 563 N.Y.S.2d 331 (3d Dep't 1993), because the latter case properly rejected a discharger's claim against the state's Oil Spill Fund, rather than against another discharger under the relatively new private right of action under 181(5). Thus, in State v. Tartan Oil Corp., 219 A.D.2d 111, 638 N.Y.S.2d 989 (3d Dep't 1996), the present owner/operator of a service station could sue prior owners for liability as dischargers. However, it is unlikely that a claim could be made against an "innocent" prior owner.

3. Purchase Contract Provisions. While the "merger" doctrine may bar contractual claims, it is not a bar to claims under the Oil Spill Law. See White v. Long, 204 A.D.2d 892, 612 N.Y.S.2d 482 (3d Dep't 1994), rev. 85 N.Y.2d 564, 626 N.Y.S.2d 989 (1995). Similarly, an "as is" clause is probably only a bar to warranty claims, and is not a complete defense to a statutory claim for environmental contamination, "leaving the burden of environmental hazards with the seller." 51 U. Pitts. L. Rev. 995, 1019, An 'As Is' Provision in a Commercial Property Contract: Should It Be Left As Is When Assessing Liability For Environmental Torts? (1990); International Paper Co. v. GAF Corp., 1995 WL 760641 (N.D.N.Y. 1995); Channel Master Satellite Systems, Inc., JFD Electronics Corp., 702 F. Supp. 1229 (E.D.N.C. 1988); Southland Corp. v. Ashland Oil, Inc., 696 F. Supp. 994 (D.N.J. 1988).

4. Indemnification or Contribution. Navigation Law 176(8) provides that "every person providing cleanup, removal of discharge of petroleum or relocation of persons" pursuant to Navigation Law 176 (which authorizes cleanup activities by DEC and dischargers) "shall be entitled to contribution from any other responsible party." Whether based directly upon this provision, or common law principles, a discharger who conducts a cleanup or other response activities may have a cause of action for some or all of his response costs under the Oil Spill Law under an indemnification or contribution theory. 145 Kisco Ave. Corp. v. Dufner Enterprises, Inc.,198 A.D.2d 482, 604 N.Y.S.2d 963 (2d Dep't 1993); State v. King Service Inc., 167 A.D.2d 777, 563 N.Y.S.2d 331 (3d Dep't 1991); AL Tech Specialty Steel Corp. v. Allegheny International Credit Corp., ___ F.3d ___, 43 ERC 2030 (3d Cir. 1997).

5. Insurer of Discharger. Under Navigation Law 190, not only the state, State of N.Y. Central Mutual Fire Ins. Co., 147 A.D.2d 77, 542 N.Y.S.2d 402 (3d Dep't 1989), but also an injured party may bring suit directly against a discharger's insurer. Snyder v. Newcomb Oil Co., Inc., 194 A.D.2d 53, 603 N.Y.S.2d 1010 (4th Dep't 1993). Late notice is not necessarily a defense to this claim. State v. Taugco, Inc., 213 A.D.2d 831, 623 N.Y.S.2d 383 (3d Dep't 1995). Note, however, that the Court of Appeals recently decided that there is a "temporal element" to the "sudden and accidental"exception to the old pollution exclusion that would not cover a pinhole leak in an underground oil tank. Northville Indust. Corp. v. National Fire Insurance Co. of Pittsburgh, PA., ___ N.Y.2d ___, ___ N.Y.S.2d ___, 1997 N.Y. Int. 38 (March 25, 1997).

6. Statute of Limitations. Generally, a private claim is subject to the three-year statute of limitations for property damages under CPLR 214(4), with the time limit measured from the time of discovery for "latent" injuries, pursuant to CPLR 214-c. Rose v. Grumman Aerospace Corp., 196 A.D.2d 861, 602 N.Y.S.2d 34 (2d Dep't 1993). However, claims for response costs in the nature of indemnification or contribution are subject to the six-year statute of limitations under CPLR 213, AL Tech Specialty Steel Corp. v. Allegheny International Credit Corp., ___ F.3d ___, 43 ERC 2030 (3d Cir. 1997); 750 Country Road Realty Corp. v. Exxon Corp., ____ A.D.2d ___, 645 N.Y.S.2d 186 (4^th Dep't 1996); 145 Kisco Ave. Corp. v. Dufner Enterprises, Inc., 198 A.D.2d 482, 604 N.Y.S.2d 963 (2d Dep't 1993), as is a claim by the state. Town of Guilderland v. Texaco Refining and Marketing, Inc., 159 A.D.2d 829, 552 N.Y.S.2d 704 (3d Dep't 1990). In AL Tech Specialty Steel Corp. v. Allegheny International Credit Corp., ___ F.3d ___, 43 ERC 2030 (3d Cir. 1997), the Third Circuit held that the statute has not yet even begun to run for claims for future remediation costs.

7. Burden of Proof. Ordinarily, the burden of proof is on a plaintiff to show that the defendant is the discharger. However, in a California case arising under federal law (see infra) where it was not clear which past or present owner controlled the tanks at the time they leaked, the burden of proof shifted to the defendants to show they were not responsible. Zands v. Nelson, 779 F.Supp. 1254 (S.D. Cal. 1991).

While environmental law is thought of in terms of statutes and regulations, too often common law principles are forgotten. Clearly, petroleum contamination (and other types of pollution) may be actionable under the common law.

[W]hile the trespasser, to be liable, need not intend or expect the damaging consequences of his intrusion, he must intend the act which amounts to or produces his unlawful invasion, and the intrusion must at least be the immediate or inevitable consequence of what he willfully does, or he does so negligently as to amount to willfulness.

However, trespass may include the unintentional (but inevitable) consequences of an intentional act. See, e.g., Scribner v. Summers, 84 F.3d 554 (2d Cir. 1996) (contamination caused by foreseeable migration of hazardous wastes dumped by defendant on its own land); Serotta v. M&M Utilities, Inc., 55 Misc.2d 286, 285 N.Y.S.2d 121 (Sup. Ct. Nassau Co. 1967) (spill caused by unauthorized oil delivery); Dunlop Tire v. FMC, 53 A.D.2d 150, 385 N.Y.S.2d 971 (4th Dep't 1976) (unintended explosion resulting in trespass on nearby property); CARE v. Southview Farm, 834 F. Supp. 1422 (W.D.N.Y. 1993), rev'd on other grounds 34 F.3d 114 (2d Cir. 1994), cert. den'd ___ U.S. ___, 115 S.Ct. 1793 (1995) (overspreading of cow manure resulted in trespass); Suffolk Co. Water Authority v. Union Carbide Corp., N.Y.L.J., May 2, 1991 (Sup. Ct. Suffolk Co. 1991) (use of pesticide resulted in trespass).

It is quite likely that a leaking oil tank or other petroleum spill will be unintentional, and thus not actionable as a trespass. See, e.g., Phillips v. Sun Oil Co., 307 N.Y. 328, 331 (1954); Snyder v. Jessie, 164 A.D.2d 405, 565 N.Y.S.2d 924 (4th Dep't 1990), mot. den'd 77 N.Y.2d 940, 569 N.Y.S.2d 613 (1991); Drouin v. Ridge Lumber, Inc., 209 A.D.2d 957, 619 N.Y.S.2d 433 (4th Dep't 1994). Furthermore, a defendant cannot trespass on his own property. 55 Motor Ave. Co. v. Liberty Industrial Finishing Corp, 885 F.Supp. 410 (E.D.N.Y. 1994); Metzger v. Agway, Index No. 81362 (Sup. Ct. Ontario Co. 1994, Harvey, J.).

2. Negligence. The general rule is that a landowner is held to the standard of a "reasonable man in maintaining his property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk." Basso v. Miller, 40 N.Y.2d 233, 241, 386 N.Y.S.2d 564 (1976). Thus, a negligence claim may arise out of a leaking oil tank or other discharge, especially if there has been a breach of regulatory standards that a reasonable landowner would satisfy. See, e.g., Leone v. Leewood Service Station, Inc., 212 A.D.2d 669, 624 N.Y.S.2d 610 (2d Dep't 1995)(2d Dep't 1995) (failure to comply with regulations); N.Y. Telephone Co. v. Mobil Oil Corp., 99 A.D.2d 185, 473 N.Y.S.2d 172 (1st Dep't 1984) (negligence due to leaking tanks); Snyder v. Jessie, 145 Misc.2d 293, 546 N.Y.S.2d 777 (Sup. Ct. 1989), mod. 164 A.D.2d 405, 565 N.Y.S.2d 924 (4th Dep't 1990), mot. den'd 77 N.Y.2d 940, 569 N.Y.S.2d 613 (1991) (leaking oil tank gave rise to neighbor's negligence claim); Metzger v. Agway, Index No. 81362 (Sup. Ct. Ontario Co. 1994, Harvey, J.) (landowner stated negligence claim against past owner for leaking oil tanks). Similarly, a landlord owes a duty to his or her tenant to maintain safe premises, and to avoid environmental hazards such as flaking lead paint. Morales v. Felice Properties Corp., ___ A.D.2d ___, 633 N.Y.S.2d 305 (1st Dep't 1995).

Nonetheless, not every accident is caused by negligence, and it may be that no one is liable for damages. Mikula v. Duliba, 94 A.D.2d 503, 464 N.Y.S.2d 910 (4th Dep't 1983). Violation of a regulation is not per se negligence, and a landowner cannot have a duty with regard to tanks or other conditions he does not know exist. White v. Long, 204 A.D.2d 892, 612 N.Y.S.2d 482 (3d Dep't 1994), rev. on other grounds 85 N.Y.2d 564, 626 N.Y.S.2d 989 (1995); Strand v. Neglia, ___ A.D.2d ___, 649 N.Y.S.2d 729 (3d Dep't 1996).

3. Private Nuisance. In the seminal case, Copart Industries, Inc. v. Consolidated Edison Co. of New York, Inc., 41 N.Y.2d 564, 568, 394 N.Y.S.2d 169, 172 (1977), the Court of Appeals explained the nature of a private nuisance:

A private nuisance threatens one person or a relatively few (McFarlane v. City of Niagara Falls, 247 N.Y. 340, 344), an essential feature being an interference with the use or enjoyment of land (Blessington v. McCrory Stores Corp., 198 Misc. 291, 299, 95 N.Y.S.2d 414, 421, affd. 279 App.Div. 807, 110 N.Y.S.2d 456, affd. 305 N.Y. 140). It is actionable by the individual person or persons whose rights have been disturbed (Restatement, Torts, notes preceding 822, p. 217).

The necessary elements are of a private nuisance are as follows:

one is subject to liability for a private nuisance if his conduct is a legal cause of the invasion of the interest in the private use and enjoyment of land and such invasion is (1) intentional and unreasonable, (2) negligent or reckless, or (3) actionable under the rules governing liability for abnormally dangerous conditions or activities (Restatement, Torts 2d (Tent Draft No. 16), s 822; Prosser, Torts (4th ed.), p. 574; 2 N.Y.P.J.I. 563-654; see Spano v. Perini Corp., 25 N.Y.2d 11, 15, 302 N.Y.S.2d 527, 529, 250 N.E.2d 31, 33; Kingsland v. Erie Co. Agric. Soc., 298 N.Y. 409, 426-427, 84 N.E.2d 38, 46-47; Wright v. Masonite Corp., D.C., 237 F.Supp. 129, 138, affd. 4th Cir., 368 F.2d 661, cert. den. 386 U.S. 934, 87 S.Ct. 957, 17 L.Ed.2d 806.

Copart at 569, 394 N.Y.S.2d at 172-173.

An oil spill or other pollution may be actionable as a private nuisance. See, e.g., Scribner v. Summers, 84 F.3d 554 (2d Cir. 1996) (neighboring property contaminated by hazardous waste); Snyder v. Jessie, 145 Misc.2d 293, 546 N.Y.S.2d 777 (Sup. Ct. 1989), mod. 164 A.D.2d 405, 565 N.Y.S.2d 924 (4th Dep't 1990), mot. den'd 77 N.Y.2d 940, 569 N.Y.S.2d 613 (1991) (oil spill); CARE v. Southview Farm, 834 F. Supp. 1410 (W.D.N.Y. 1993) (spreading of cow manure). However, a private nuisance claim generally does not lie with regard to conditions created by a landowner or tenant on its own property. Rose v. Grumman Aerospace Corp., 196 A.D.2d 861, 602 N.Y.S.2d 34 (2d Dep't 1993); Drouin v. Ridge Lumber, Inc., 209 A.D.2d 957, 619 N.Y.S.2d 433 (4th Dep't 1994).

While generally nuisance requires a substantial or non-trivial interference, exceedance of an applicable regulatory standard may be sufficient to support such a claim. See, e.g., State of New York v Fermenta Asc Corp., 630 N.Y.S.2d 884 (Sup. Ct. Suffolk Co 1995); Suffolk Co. Water Authority v. Union Carbide Corp., N.Y.L.J., May 2, 1991, p. 28, col. 1 (Sup. Ct. Suffolk Co. 1991).

4. Public Nuisance. In Copart Industries, Inc. v. Consolidated Edison Co. of New York, Inc., 41 N.Y.2d 564, 568, 394 N.Y.S.2d 169, 172 (1977), the Court of Appeals also explained the nature of a public nuisance:

A public, or as sometimes termed a common, nuisance is an offense against the State and is subject to abatement or prosecution on application of the proper governmental agency (Restatement, Torts, notes preceding 822, p. 217; see Penal Law, 240.45). It consists of conduct or omissions which offend, interfere with or cause damage to the public in the exercise of rights common to all (New York Trap Rock Corp. v. Town of Clarkston, 299 N.Y. 77, 80, 85), in a manner such as to offend public morals, interfere with use by the public of a public place or endanger or injure the property, health, safety or comfort of a considerable number of persons (Melker v. City of New York, 190 N.Y. 481, 488; Restatement, Torts, notes preceding 822, p. 217).

although an individual cannot institute an action for public nuisance as such, he may maintain an action when he suffers special damage from a public nuisance (Restatement, Torts, notes preceding 822, p. 217; Wakeman v. Wilbur, 147 N.Y. 657, 663-664).

Clearly, pollution may be actionable as a public nuisance. New York v. Shore Realty Corp., 759 F.2d 1032 (2d Cir. 1985); Drouin v. Ridge Lumber, Inc., 209 A.D.2d 957, 619 N.Y.S.2d 433 (4th Dep't 1994). In Drouin, the Fourth Department allowed a landowner to make a claim for public (as opposed to private) nuisance for leaking oil tanks maintained by a tenant on his own property.

5. Strict Liability. Under the doctrine of strict or absolute liability, persons who carry on "ultrahazardous activities" are liable without regard to fault or negligence. Doundoulakis v. Town of Hempstead, 42 N.Y.2d 440, 448, 398 N.Y.S.2d 401, 404 (1977). This doctrine may apply to "generation and disposal of chemical wastes."State v. Schenectady Chemical, Inc., 117 Misc.2d 960, 459 N.Y.S.2d 971 (Sup. Ct. Rensselaer Co. 1983), mod. 103 A.D.2d 33, 37, 479 N.Y.S.2d 1010, 1013 (3d Dep't 1989); State v. Monarch Chemicals, 90 A.D.2d 907, 456 N.Y.S.2d 867 (3d Dep't 1982); see also New York v. Shore Realty Corp., 759 F.2d 1032 (2d Cir. 1985); State v. Fermenta Asc Corporation, 160 Misc.2d 187, 195, 608 N.Y.S.2d 980, 985 (Sup. Ct. Suffolk Co. 1994).

Home heating oil has been held not to give rise to common law strict liability. Snyder v. Jessie, 164 A.D.2d 405, 565 N.Y.S.2d 924 (4th Dep't 1990), mot. den'd 77 N.Y.2d 940, 569 N.Y.S.2d 613 (1991). Storage of gasoline is not an ultrahazardous activity. 750 Country Road Realty Corp. v. Exxon Corp., ____ A.D.2d ___, 645 N.Y.S.2d 186 (4^th Dep't 1996).

6. Fraud. Under the doctrine of caveat emptor, silence is not fraud, so that unless a seller intentionally gives false information about environmental contamination, there is no fraud. However, the courts have recently eroded this doctrine, especially with regard to environmental matters, and may imply a duty to disclose defects to a buyer, even if no inquiry is made. Stambovsky v. Ackley, 169 A.D.2d 254, 472 N.Y.S.2d 674 (1st Dep't 1991) (duty to disclose haunted nature of house); Young v. Keith, 112 A.D.2d 625, 492 N.Y.S.2d 489 (3d Dep't 1985) (duty to disclose faulty water and sewer systems).

Thus, a seller who knowingly fails to disclose the presence of an oil spill or other hidden environmental contamination on a property may be liable to the buyer for fraud even if no inquiry or representations were made with regard to environmental contamination. See Roth v. Leach, 5 TXLR 641 (Sup. Ct. Wayne Co. 1990, Parenti, J.) (duty to notify buyer of presence of buried hazardous wastes); 195 Broadway Co. v. 195 Broadway Corp. N.Y.L.J., April 15, 1988, p. 6, col. 4 (Sup. Ct. N.Y. Co. 1988) (duty to notify buyer of presence of asbestos in building); Tahini Investments, Ltd. v. Bobrowsky, 99 A.D.2d 489, 470 N.Y.S.2d 431 (2d Dep't 1984) (buried drums); cf. Metzger v. Agway, Index No. 81362 (Sup. Ct. Ontario Co. 1994, Harvey, J.) (no fraud claim against owner who sold to seller). Further, in Keywell v. Weinstein, 33 F.3d 159 (2d Cir. 1994), a claim stated for fraud due to misrepresentation with regard to the extent of TCE disposal.

However, in Bank North Salem v. Haight, 204 A.D.2d 949, 612 N.Y.S.2d 281 (3d Dep't 1994), no fraud claim could be made against the seller of an apple orchard who had no knowledge of the use of hazardous chemicals. In Vandervort v. Higginbotham, 222 A.D.2d 831, 634 N.Y.S.2d 800 (3d Dep't 1995), a buyer could not make a fraud claim when he was on notice to a possible oil spill, since he knew that the property had been used as a motor vehicle repair shop, and floor drains were obvious.

There may also be a duty to give a buyer correct information about nearby environmental problems that may have an effect on value. Diggins v. Amato, Index No. 66839 (Sup. Ct. Steuben Co. 1994, Purple, J.), aff'd 214 A.D.2d 1056, 627 N.Y.S.2d 507 (4th Dep't 1995); see also Strawn v. Canuso, 271 N.J. Super. 88, 638 A.2d 141 (N.J. App. Div. 1994) (real estate broker may have obligation to investigate and disclose potential contamination on or near property).

Neither the statement that no representations are made, 60 N.Y. Jur.2d Fraud and Deceit 218; DeBell v. Nothnagle Florida Realty Corp., 24 A.D.2d 825, 264 N.Y.S.2d 190 (4th Dep't 1965), nor even an "as is" clause, 60 N.Y. Jur.2d Fraud and Deceit 207; George v. Lumbrazo, 184 A.D.2d 1050, 584 N.Y.S.2d 704 (4th Dep't 1992), app. dis'd 81 N.Y.2d 759, 594 N.Y.S.2d 719 (1992); Haney v. Castle Meadows, Inc., 38 E.R.C. 1508 (D. Colo. 1993), necessarily bars a fraud claim.

7. Mistake. If contaminated property is sold, but there is no intentional fraud (perhaps because the seller did not know), there might be a mutual mistake. In Rekis v. Lake Minnewaska Mountain Houses, Inc., 170 A.D.2d 124, 130, 573 N.Y.S.2d 331, 335 (3d Dep't 1991), the court held that:

a contract is voidable under the equitable remedy of rescission if the parties entered into the contract under a mutual mistake of fact which is substantial and existed at the time the contract was entered into.

In U.S. Postal Service v. Phelps, 1996 WL 734737 (E.D.N.Y. 12/26/96), a land sale was rescinded due to mutual mistake after the seller failed to complete cleanup promised to be completed after 1986 closing. However, in Copland v. Nathaniel, 164 Misc.2d 507, 624 N.Y.S.2d 514 (Sup. Ct. Westchester Co. 1995), no mistake claim could be made for chlordane found in a house, where the buyers were on notice to a termite problem. See also Vandervort v. Higginbotham, 222 A.D.2d 831, 634 N.Y.S.2d 800 (3d Dep't 1995) (no mistake claim when buyer on notice to possible contamination).

8. Waste. A tenant who damages property may be liable for "waste." Accordingly, a tenant may "waste" property by leaving behind environmental contamination. See P.B.N. Associates v. Xerox Corp., 141 A.D.2d 807, 529 N.Y.S.2d 877 (2d Dep't 1988).

9. Restitution. A claim for restitution arises where "it would be against equity and good conscience to permit the defendant to retain what is sought to be recovered." 22 N.Y.Jur.2d Contracts 445. Restitution must be made for "unjust enrichment" for "property or benefits received under such circumstances as to give rise to a legal or equitable obligation to account therefore." Id. 447. The "essential inquiry in any action for unjust enrichment or restitution is whether it is against equity and good conscience to permit the defendant to retain what is sought to be recovered." Id. 448. There is no need to prove any wrongdoing by the defendant. Id.

Thus, some courts have recognized claims for restitution where a defendant should, in fairness, be held accountable for the cleanup of environmental contamination. New York v. SCA Services, 754 F. Supp. 995 (S.D.N.Y. 1991); State of New York v. Almy Brothers, Inc., 866 F.Supp. 668 (N.D.N.Y. 1994); State v. Schenectady Chemicals, Inc., 117 Misc.2d 960, 966-67, 459 N.Y.S.2d 971, 977 (Sup. Ct. Rensselaer Co. 1983), mod. 103 A.D.2d 33, 479 N.Y.S.2d 1010 (3d Dep't 1984); City of New York v. Lead Industries Association, Inc., 222 A.D.2d 119, 644 N.Y.S.2d 919 (1st Dep't 1996); City of New York v. Keene Corp., 132 Misc. 2d 745, 505 N.Y.S.2d 782 (Sup. Ct., NY Co., 1986), aff'd 129 A.D.2d 504, 513 N.Y.S.2d 1004 (1st Dep't 1987).

10. Implied Indemnification. Where two parties are both under a duty to clean up environmental contamination, and the duty, as between the two parties, should have been discharged by the defendant, the plaintiff may recover cleanup costs under a theory of "implied indemnification." City of New York v. Lead Industries Association, Inc., 222 A.D.2d 119, 644 N.Y.S.2d 919 (1st Dep't 1996); City of New York v. Keene Corp., 132 Misc. 2d 745, 505 N.Y.S.2d 782 (Sup. Ct., NY Co., 1986), aff'd 129 A.D.2d 504, 513 N.Y.S.2d 1004 (1st Dep't 1987). In City of New York v. Lead Industries, the City alleged that it had a non-delegable duty to its tenants to remediate lead contamination, and it stated a claim against lead manufacturers to reimburse it for its costs.

11. Quasi-Contract. "'Quai contracts are not contracts at all," but are "imposed by law where there has been no agreement... to assure a just and equitable result.'" Wood Realty Trust v. N. Storonski Cooperage Co., Inc., ___ A.D.2d ___, 646 N.Y.S.2d 410 (3d Dep't 1996). In Wood Trust, the owner of an apartment building stated a quasi-contract claim when the defendant owner of nearby land that had contaminated the plaintiff's property stopped providing bottled water to residents after the statute of limitations to sue in tort had expired.

12. Contract. A contract may also form the basis for an environmental claim. For example, a landlord may have a cause of action for waste or breach of lease if his tenant contaminates his property. P.B.N. Associates v. Xerox Corp., 141 A.D.2d 807, 529 N.Y.S.2d 877 (2d Dep't 1988). However, environmental contamination does not make the title to property unmarketable, or result in breach of the warranties of title. Vandervort v. Higginbotham, 222 A.D.2d 831, 634 N.Y.S.2d 800 (3d Dep't 1995); John Hancock Mutual Life Insurance Co. v. 491-499 Seventh Avenue Associates, ___ Misc.2d ___, 644 N.Y.S.2d 953 (Sup. Ct. N.Y. Co. 1996); Roth v. Leach, 5 TXLR 641 (Sup. Ct. Wayne Co. 1990, Parenti, J.). Thus, in John Hancock Mutual Life Insurance Co. v. 491-499 Seventh Avenue Associates, ___ Misc.2d ___, 644 N.Y.S.2d 953 (Sup. Ct. N.Y. Co. 1996), where the notice of sale disclosed oil contamination, a foreclosure sale could proceed.

Where a landowner is suing the prior owner for selling contaminated property, the doctrine of merger is generally a bar to claims arising out of the purchase and sale contract. White v. Long, 204 A.D.2d 892, 612 N.Y.S.2d 482 (3d Dep't 1994), rev. on other grounds, 85 N.Y.2d 564, 626 N.Y.S.2d 989 (1995). Thus, it is in the buyer's interest to be sure that his purchase contract includes provisions such as representations and indemnifications with regard to environmental conditions that survive closing. See, e.g. Avalon Realty, Inc. v. Baumrind, 203 A.D.2d 185, 610 N.Y.S.2d 269 (1st Dep't 1994), app. dis'd 84 N.Y.2d 864, 618 N.Y.S.2d 8 (1994) (buyer justified in canceling contract based upon false representation regarding lack of tidal wetlands). While an indemnity provision may be enforceable to require a buyer or seller to reimburse the other for cleanup costs, the court in State v. Tartan Oil Corp., 219 A.D.2d 111, 638 N.Y.S.2d 989 (3d Dep't 1996) strictly construed indemnity language in a purchase contract, and allowed the present owner to sue past owners for oil discharges. See also Gettner v. Getty Oil Co., ___ A.D.2d ___, 641 N.Y.S.2d 73 (2d Dep't 1996) (release strictly construed so as to not bar environmental cleanup costs).

However, the merger doctrine neither bars a claim of fraud, Lawlor v. Engley, 166 A.D.2d 799, 563 N.Y.S.2d 160 (3d Dep't 1990), nor mutual mistake, Larsen v. Potter, 174 A.D.2d 801, 571 N.Y.S.2d 121 (3d Dep't 1991); Copland v. Nathaniel, 164 Misc.2d 507, 624 N.Y.S. 514 (Sup. Ct. Westchester Co. 1995). Nor is it a bar to a claim based upon an indemnification, representation or other provision intended to survive closing. See, e.g., Irmer v. Autohaus, Civ. No. 92-CV-6553L (W.D.N.Y. June 11, 1993), published in Daily Record July 1-2, 1993 (indemnification agreement in separation agreement).

B. Persons Liable. While generally the owner/operator of a facility that causes pollution is responsible, even a non-landowner can be held liable for creating environmental conditions causing a nuisance. State v. Fermenta Asc Corporation, 160 Misc.2d 187, 195, 608 N.Y.S.2d 980, 985 (Sup. Ct. Suffolk Co. 1994). Further, an individual corporate officer or employee that "controls corporate conduct and thus is an active participant in that conduct is liable for the torts of the corporation," including those involving responsibility for environmental contamination. New York v. Shore Realty Corp., 759 F.2d 1032 (2d Cir. 1985). A landowner may be liable for actions of his tenant if he has been made aware of contamination, but has failed to fully abate the situation, since he has "control over the premises." State v. Monarch Chemicals, Inc., 90 A.D.2d 907, 456 N.Y.S.2d 867, 868 (3d Dep't 1982).

A purchaser of contaminated property may be liable for cleanup of environmental contamination, even if he did not cause the situation, if "upon learning of the nuisance and having a reasonable opportunity to abate it" the purchaser fails to do so. N.Y. v. Shore Realty Corp., 759 F.2d 1032, 1050 (2d Cir. 1985); see also N.Y. Telephone Co. v. Mobil Oil Corp., 99 A.D.2d 185, 473 N.Y.S.2d 172 (1st Dep't 1984); Restatement (Second) of Torts 839, comment d (1979) ("liability is not based upon responsibility for the creation of the harmful condition, but upon the fact that he has exclusive control over the land and the things done upon it...."). Thus, a purchaser must be wary of buying into common law, as well as statutory, environmental liability, and neither an "innocent purchaser" defense, nor a voluntary cleanup release, may be an absolute protection from this liability. Conversely, a seller's liability may shift to the buyer if, after a reasonable time after the transfer of title, the new owner fails to take steps necessary to remediate the continuing environmental problem. N.Y. Telephone Co. v. Mobil Oil Corp., 99 A.D.2d 185, 473 N.Y.S.2d 172 (1st Dep't 1984).

C. Duty and Foreseeability. Duty and foreseeability are necessary elements of a tort claim. While there is generally a duty to nearby owners, and pollution is generally foreseeable, N.Y. Telephone Co. v. Mobil Oil Corp., 99 A.D.2d 185, 473 N.Y.S.2d 172 (1st Dep't 1984), that may not always be the case. Nodine v. Tarpening Trucking Co., Inc. 64 A.D.2d 808, 407 N.Y.S.2d 277 (4th Dep't 1978). Whether past landowners and occupants have a duty to protect remote future owners or occupants from pollution, if the impact upon these potential plaintiffs is foreseeable, and whether caveat emptor bars their claims, is not well-settled. See, e.g., 79 N.Y.Jur.2d Negligence 71; 55 Motor Ave. Co. v. Liberty Industrial Finishing Corp, 885 F.Supp. 410 (E.D.N.Y. 1994); Hydro-Manufacturing, Inc. v. Kayser-Roth Corp., 38 E.R.C. 1236 (R.I. 1994); Rosenblatt v. Exxon Co. U.S.A., 38 E.R.C. 1908 (Md. 1994); T & E Industries, Inc. v. Safety Light Corp., 123 N.J. 371, 587 A.2d 1249 (1991) .

A buyer may have a claim against an environmental inspector hired by the seller, especially if recommendations are made with respect to corrective action. Benz v. Burrows, 191 A.D.2d 1021, 594 N.Y.S.2d 929 (4th Dep't 1993). Furthermore, as provided by Real Property Law 223, "an owner's rights and remedies run with the land and may be assumed by a new owner," 815 Park Owners, Inc. v. West LB Admin., Inc., 119 Misc.2d 671, 673, 463 N.Y.S.2d 1015, 1017 (N.Y. Co. 1983), so a new owner might be able to pursue claims of prior owners.

D. Remedies. In cases of environmental pollution or injuries from toxic chemicals, the defendant is liable for 'reasonably anticipated' consequential damages which may flow later from that invasion although the invasion itself is 'an injury too slight to be noticed at the time it is inflicted.'" Askey v. Occidental Chemical Corp., 102 A.D.2d 130, 136, 477 N.Y.S.2d 242, 247 (4th Dep't 1984). These damages may include property damages, Henning v. Rando Machine Corp., 207 A.D.2d 106, 620 N.Y.S.2d 867 (4th Dep't 1994), personal injuries, Hancock v. Three Thirty Hall Realty Group, __ A.D.2d __, 638 N.Y.S.2d 654 (1st Dep't 1996), loss of quality of life, Ayers v. Jackson Township, 525 A.2d 287 (N.J. 1987), medical surveillance, Id.; Askey v. Occidental Chemical Corp., 102 A.D.2d 130, 477 N.Y.S.2d 242 (4th Dep't 1984); Gerardi v. Nuclear Utility Services, 149 Misc.2d 657, 566 N.Y.S.2d 1002 (Sup. Ct. Westchester Co. 1991), and emotional distress. Gerardi v. Nuclear Utility Services, 149 Misc.2d 657, 566 N.Y.S.2d 1002 (Sup. Ct. Westchester Co. 1991). However, no recovery is generally allowed for the increased risk of future harm. Askey, supra; Gerardi, supra.

1. Permanent Property Damages. The general rule is that "[a] person whose property is taken, damaged, or destroyed by the negligent or wrongful act or omission of another is entitled to compensation for the damage sustained in such a sum as will restore him as nearly as possible to his former position." 36 N.Y. Jur.2d Damages 72; Cashin v. New Rochelle, 256 N.Y. 190 (1931). "[T]he proper measure of damages for permanent injury to real property is the lesser of the decline in market value and the cost of restoration." Jenkins v. Etlinger, 55 N.Y.2d 35, 39, 447 N.Y.S.2d 696, 698 (1982). However, "the plaintiff need only present evidence as to one measure of damages, and that measure will be used when neither party presents evidence going to the other measure." Id. Furthermore, the burden is on the defendant to prove failure to mitigate or some alternative measure of damages. Id. In cases of environmental contamination, plaintiffs can recover "damages for diminution in the fair market value of their real property allegedly caused by contamination from hazardous substances." Henning v. Rando Machine Corp., 207 A.D.2d 106, 620 N.Y.S.2d 867 (4th Dep't 1994).

Permanent property damages may include loss due to stigma that remains even after a property is cleaned up. Decker v. Keeler, Index No. 700-1992 (Sup. Ct. Livingston Co. 1996); In Re Paoli Railroad Yard PCB Litigation, 35 F.3d 717 (3d Cir. 1994); Bisson v. Eck, 11 TXLR 257 (Mass. App. Ct., 7/10/96); see also Scheg v. Agway, Inc., __ A.D.2d __, 645 N.Y.S.2d 687 (4th Dep't 1996); Osarczuk v. Associated Universities, Inc., Index No. 2836/96 (Sup. Ct. Suffolk Co. 9/4/96) . However, in Putnam v. State of New York, 223 A.D.2d 872, 636 N.Y.S.2d 473 (3rd Dep't 1996), the court rejected an appraiser's opinion that an oil spill stigmatized the property to render it unmarketable, since the appraiser "assessed marketability without ever requesting documents relating to the spill or the testing of the property," and "did not take into account that claimant might be able to use or rent the commercial portion of such property."

In a condemnation case, Criscuola v. Power Authority of State of New York, 81 N.Y.2d 649, 602 N.Y.S.2d 588 (1993), the New York Court of Appeals held that a landowner can recover damages due to the claimed loss in property values resulting from the construction of high-voltage lines, even without proof that electromagnetic fields were an actual health risk, or that their fear was "reasonable." According to the Court:

there should be no requirement that the claimant, as a separate and higher component of its market value proofs, must establish the reasonableness of a fear or perception of danger or of health risks from exposure to high voltage power lines.

81 N.Y.2d at 651-2, 602 N.Y.S.2d at 589. Rather, the claimants merely need to "establish some prevalent perception of a danger emanating from the objectionable condition.... scientific certitude or reasonableness notwithstanding." 81 N.Y.2d at 653, 602 N.Y.S.2d at 590. See also Parisi, Cancerphobia: The Fear and the Decision, New York State Bar Journal (March/April 1995) at 30; cf. Zappavigna v. State of New York, 186 A.D.2d 557, 588 N.Y.2d 790 (2d Dep't 1992) (in condemnation case, claimants failed to meet their burden of proving, by market data, that the "cancerphobia" was reasonable, and were denied consequential damages).

In Commerce Holding Corp. v. Board of Assessors of the Town of Babylon, 88 N.Y.2d 724, 649 N.Y.S.2d 932 (1996) ,a tax certiorari proceeding involving contaminated property, the Court of Appeals discussed the factors that must be considered when valuing contaminated property, and made it clear that the cost of cleanup is only one factor that must be considered, since cleanup alone will not completely restore the Property. In Commerce Holding Corp, the parcel had been designated as a "Superfund site," and the owner had entered into a consent order with EPA to remediate the property. The Court of Appeals recognized that "a buyer of the property would have demanded an abatement in the purchase price to account for the contamination notwithstanding the consent order," and thus the promise to remediate had not "precluded an assessment reduction." 88 N.Y.2d at 730, 649 N.Y.S.2d at 935. According to the Court of Appeals:

While it is not possible to prescribe any one method to assess the effects of environmental contamination, there are certain factors that should be considered. These include the property's status as a Superfund site, the extent of the contamination, the estimated cleanup costs, the present use of the property, the ability to obtain financing and indemnification in connection with the purchase of the property, potential liability to third parties, and the stigma remaining after cleanup.

88 N.Y.2d at 732, 649 N.Y.S.2d at 936.

2. Temporary Property Damages. Where injury to property is temporary, damages are measured by "the reduction of the rental or usable value of the property." Guzzardi v. Perry's Boats, Inc., 92 A.D.2d 250, 460 N.Y.S.2d 78, 82 (2d Dep't 1983). A nuisance may be so pervasive as to totally deprive the property of the use of the their property, even though there are not actually evicted. See, e.g., Stiglinese v. Vallone, 168 Misc.2d 446, 637 N.Y.S.2d 284 (N.Y. City Civ. Ct. Bronx Co.1995). Moreover, even if there is a partial restoration, property damages include both damages due to the temporary loss in rental value, as well as "further damage, if any, caused to the fee." Mead v. State, 24 A.D.2d 1043, 265 N.Y.S.2d 302, 303 (3d Dep't 1965).

During the time of the temporary injury, a property owner may sustain damages including carrying costs of the property, such as taxes, insurance, maintenance and operating costs. Keystone Associates v. Moedler, 19 N.Y.2d 78, 278 N.Y.S.2d 185 (1966). Thus, in Putnam v. State of New York, 223 A.D.2d 872, 636 N.Y.S.2d 473 (3rd Dep't 1996), while no permanent property damages were awarded, the court allowed recovery for temporary injury due to "decrease in the rental value during pendency of the injury" until cleanup was complete, based upon testimony of the defendant's appraiser, who treated the spill as a temporary easement. In Kinley v. Atlantic Cement Company, 42 A.D.2d 496, 349 N.Y.S.2d 199 (3d Dep't 1973), the plaintiffs were entitled to damages for time during which their properties were burdened with pollution from a cement factory. See Boomer v. Atlantic Cement Company, 226 N.Y.2d 219, 309 N.Y.S.2d 312 (1970).

3. Other Economic Damages. Other economic damages may flow from property contamination. In Syracuse Cablesystems, Inc. v. Niagara Mohawk Power Co., 173 A.D.2d 138, 578 N.Y.S.2d 770 (4th Dep't 1991), the plaintiffs (including cable companies and law firms) were forced to move their businesses out of a building for a month due to PCB contamination caused by an explosion of defendant's transformer. They were allowed to make claims for damages due to interruption of their businesses, including lost profits, and additional business expenses such as "rental expense, lost subscriber revenue, lost installation revenue, employee overtime, lost sales commission, employee wages and additional advertising expense." Under the doctrine of avoidable consequence, a plaintiff may be able to recover for the costs of such things as bottled water, testing water and installing filters in order to avoid damages from a contaminated water supply. Leicht v. Town of Newburgh Water District, 213 A.D.2d 604, 624 N.Y.S.2d 506 (2d Dep't 1995).

4. Loss of Quality of Life. A plaintiff may recover damages for "loss of quality of life," including damages for "'inconveniences, aggravation, and unnecessary expenditures of time and effort... as well as to other disruption in their lives,'" Ayers v. Jackson Township, 525 A.2d 287 (N.J. 1987). According to Ayers, this can be considered an element of property damages. In Scribner v. Summers, CIV No. 6094L (W.D.N.Y., Nov. 15, 1996), the district court awarded $12,000 for loss of quality of life damages to owners of an industrial property.

5. Injunction. If irreparable harm can be shown, an injunction may also be available to stop a continued trespass or nuisance. Poughkeepsie Gas Co. v. Citizens' Gas Company, 89 N.Y. 493, 497-8 (1882). However, the availability of injunctive relief is subject to a balancing of the equities, so that only damages are available in some cases. Boomer v. Atlantic Cement Co., 26 N.Y.2d 219, 309 N.Y.S.2d 312 (1970).

E. Statute of Limitations. Under CPLR 214-c (enacted in 1986), the three-year statute of limitations for property damages and personal injuries (as well as limitations periods applicable to claims against the state and municipalities) arising out of "latent effects of exposure to any substance," runs "from the date of discovery of the injury by the plaintiff or from the date when through the exercise of reasonable diligence such injury should have been discovered by the plaintiff, whichever is earlier." CPLR 214-c(2). Subdivision 4 of the law also provides that a plaintiff has one year after the time of discovery of the cause of the injury to bring suit (provided that such discovery is within five years from the time of discovery of the injury) if he can show that "technical, scientific or medical knowledge and information sufficient to ascertain the cause of his injury had not been discovered, identified or determined" prior to the expiration of the three-year period after discovery of the injuries. CPLR 214-c(4).

In Wetherill v. Eli Lilly & Co., ___ N.Y.2d ___, ___ N.Y.S.2d ___, 1997 N.Y. 10 (Feb. 11, 1997), the Court of Appeals held that "the time for bringing [an] action begins to run under the statute when the injured party discovers the primary condition on which the claim is based," even if the cause has not yet been determined, subject only to the limited extension under subdivision 4 of CPLR 214-c. See also Annunziato v. City of New York, ___ A.D.2d ___, 647 N.Y.S.2d 850 (2d Dep't 1996).

In Jensen v. General Electric Co., 82 N.Y.2d 77, 603 N.Y.S.2d 420 (1993), the Court of Appeals held that CPLR 214-c extinguished the doctrine of "continuing trespass" for purposes of claims for damages, although a claim for an injunction may continuously reaccrue (with the limitations period continuously restarting) if contamination continues to seep. Nonetheless, Jensen left the doctrine still viable for claims for injunctive relief. See also Annunziato v. City of New York, ___ A.D.2d ___, 647 N.Y.S.2d 850 (2d Dep't 1996). Furthermore, in continuous exposure cases, the statute of limitations begins to run from the date of the injury (extended in some cases by CPLR 214-c to the date of discovery) rather than the date of last exposure to the substance. Snyder v. Town Insulation, Inc., 81 N.Y.2d 429, 599 N.Y.S.2d 515 (1993).

The issue of when a plaintiff "should have known" is generally a question of fact, and the statute is construed liberally in a plaintiff's favor. Cochrane v. Owens Corning, 219 A.D.2d 557, 631 N.Y.S.2d 358, 367 (1st Dep't 1995); Scherrer v. Time Equities, Inc., 218 A.D.2d 116, 634 N.Y.S.2d 680 (1st Dep't 1995). In Bimbo v. Chromalloy American Corp., ___ A.D.2d ___, 640 N.Y.S.2d 623 (3d Dep't 1996), the Third Department held that an issue of fact was presented as to whether well contamination put a landowner on notice to soil and shallow groundwater contamination.

CPLR 214-c also provides that the 90-day time limit to file a notice of claim for a tort claim against a municipality does not begin to run until the time of discovery of an injury from the latent effects of exposure to a toxic substance. Failure to comply is fatal. Bluitt v. Ridge Fire District, ___ A.D.2d ___, 646 N.Y.S.2d 553 (2d Dep't 1996). The generic extension of time under CPLR 203(g) for undiscovered injuries has been held inapplicable to cases that fall under CPLR 214-c. Annunziato v. City of New York, ___ A.D.2d ___, 647 N.Y.S.2d 850 (2d Dep't 1996).

Under CPLR 213, the six-year limitations applies to claims for contract, mistake and fraud. While the statute may be tolled pending discovery of fraud, under CPLR 203(f), fraud claims may have to brought within two years of discovery of discovery. See McKinney's Practice Commentary C:203.12. A six-year statute of limitations also applies to indemnification and contribution theories, and these claims may not even accrue until cleanup costs are incurred. 750 Country Road Realty Corp. v. Exxon Corp., ____ A.D.2d ___, 645 N.Y.S.2d 186 (4^th Dep't 1996); 145 Kisco Ave. Corp. v. Dufner Enterprises, Inc., 198 A.D.2d 482, 604 N.Y.S.2d 963 (2d Dep't 1993).

Further, CERCLA 309, 42 U.S.C. 9658, provides an "exception to state statutes," pursuant to which the "federally required commencement date" supersedes any date for commencement of the state statute of limitations in a case involving

personal injury, or property damages, which are caused or contributed to by exposure to any hazardous substance, or pollutant or contaminant, released into the environment from a facility.

42 U.S.C. 9658(a)(1). The "federally required commencement date" is defined as "the date plaintiff knew (or reasonably should have known) that the personal injury or property damages... were caused or contributed to by the hazardous substance or pollutant or contaminant concerned." 9658(b)(4)(A).

Under CERCLA 309, the three-year New York state statute of limitations does not begin to run until a plaintiff knows, or should know, that a hazardous substance is the cause of his injury. Kowalski v. Goodyear Tire & Rubber Co., 841 F.Supp. 104 (W.D.N.Y. 1994); see also Soo Line Railroad Co. v. B.J. Carney & Co., 797 F.Supp. 1472, 1487 (D. Minn. 1992); Angeles Chemical Co., Inc. v. Spencer & Jones, 44 Cal. App.4th 112, 51 Cal. Rptr. 2d 594 (Ct. App. 1996); Tucker v. Southern Wood Piedmont Co., 28 F.3d 1089 (11^th Cir. 1994). Since petroleum is not a CERCLA "hazardous substance," this provision does not apply to oil spill cases that do not also involve hazardous substances.

In some cases, CERCLA 309 may allow a longer period to sue than CPLR 214-c. CERCLA 309, unlike CPLR 214-c, requires discovery of both the injury and the cause, and might have saved the plaintiffs in cases like Annunziato v. City of New York, ___ A.D.2d ___, 647 N.Y.S.2d 850 (2d Dep't 1996), who did not discover the cause until long after their injuries. Further, it is not clear how the statute would apply to "continuing trespass" cases like Jensen v. General Electric Co., 82 N.Y.2d 77, 603 N.Y.S.2d 420 (1993). Further, CERCLA 309 apparently applies to contract claims otherwise governed by a six-year statute under CPLR 213. Soo Line Railroad Co. v. B.J. Carney & Co., 797 F.Supp. 1472, 1487 (D. Minn. 1992).

F. Preemption By Government Action. The ability of DEC and other governmental agencies to proceed through administrative action does not necessarily preempt available common law remedies. State v. Schenectady Chemicals, Inc., 103 A.D.2d 33, 479 N.Y.S.2d 1010 (3d Dep't 1984); State v. Monarch Chemicals, Inc., 90 A.D.2d 907, 456 N.Y.S.2d 867 (3d Dep't 1982); Osarczuk v. Associated Universities, Inc., Index No. 2836/96 (Sup. Ct. Suffolk Co. 9/4/96). However, in Scribner v. Summers, CIV No. 6094L (W.D.N.Y., Nov. 15, 1996) (appeal pending), the court held that the defendant's promise to clean up the property precluded a claim for permanent property damages; cf. Commerce Holding Corp. v. Board of Assessors of the Town of Babylon, 88 N.Y.2d 724, 649 N.Y.S.2d 932 (1996). However, certain federal statutes may preempt common law claims. See, e.g., June v. Laris, 205 A.D.2d 166, 618 N.Y.S.2d 138 (3d Dep't 1995), app. dis'd 85 N.Y.2d 955, 628 N.Y.S.2d 47 (1995) (preemption under FIFRA).

G. Damage to Uncontaminated Properties. The courts had been divided as to whether nearby property owners whose land is not contaminated may sue for loss of value caused by an environmental problem, perhaps based upon an anticipatory nuisance claim. See 81 N.Y. Jur. 2d Nuisances 64 (anticipatory nuisance). Some cases have allowed recovery, at least where there was a physical invasion in the past. See In Re Paoli Railroad Yard PCB Litigation, 35 F.3d 717 (3d Cir. 1994). Other courts have refused to allow any damages without a physical invasion of the plaintiff's property. Adkins v. Thomas Solvent Co., 440 Mich. 293 (1992); Steimer v. Bausch & Lomb, Inc., Index No. 12308/93 (Sup. Ct. Monroe Co. 1994, Wisner, J.); Adams v. Star Enterprise, 51 F.3d 417 (4th Cir. 1995).

In Nalley v. General Electric Company, 165 Misc.2d 803, 630 N.Y.S.2d 452 (Sup. Ct. Rensselaer Co. 1995), the court refused to allowed a claim for damages where the plume of contamination had not entered plaintiffs' property, since "it was incumbent upon the plaintiffs to produce competent and convincing proof, through qualified experts, demonstrating the immediate effects of property contamination and/or, at the very least, a reasonable probability and expectation of contamination in the future."

However, the Fourth Department adopted a new rule in Scheg v. Agway, Inc., __ A.D.2d __, 645 N.Y.S.2d 687 (4th Dep't 1996). The court first decided that CPLR 214-c(2) does not apply to cases involving claims for stigma damages due to a nearby landfill, where the plaintiffs' properties have never actually been contaminated. The court went on to hold that the "complaint, insofar as it alleges that the value of their property was diminished as a result of its proximity to the landfill, does state a cause of action." This rule was followed in Osarczuk v. Associated Universities, Inc., Index No. 2836/96 (Sup. Ct. Suffolk Co. 9/4/96) (court also rejected claim that the state's ownership of groundwater precluded claim for contamination of property), but it remains to seen how far other courts will follow Scheg.