A wide variety of remedies are available for a successful plaintiff in a toxic tort case. In general, "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). See also Doe v. State of New York, 189 A.D.2d 199, 595 N.Y.S.2d 592 (4^th Dep't. 1993) (damages awarded for economic loss were based on pre-injury life-expectancy).
 

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); Scribner v. Summers, 138 F.3d 471 (1998). 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. Jenkins v. Etlinger, 55 N.Y.2d 35, 39, 447 N.Y.S.2d 696, 698 (1982).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); Scribner v. Summers, 138 F.3d 471 (2d Cir. 1998).
 

Permanent property damages may include loss due to stigma that remains even after a property is cleaned up. Nashua Corp. v. Norton Company, 1997 U.S. Dist. LEXIS 5173 (N.D.N.Y. 1997); In Re Paoli Railroad Yard PCB Litigation, 35 F.3d 717 (3d Cir. 1994);see also Scribner v. Summers, 138 F.3d 471 (2d Cir. 1998); Scheg v. Agway, Inc., 229 A.D.2d 963, 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). The New York Court of Appeals has clearly recognized stigma as an element of diminution of property value in both a condemnation case, Criscuola v. Power 

Authority of State of New York, 81 N.Y.2d 649, 602 N.Y.S.2d 588 (1993), and a tax certiorari proceeding. 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, generally no stigma damages can be awarded if there is no physical invasion of the plaintiff's property, since there is no underlying tort. Mehlenbacher v. Akzo Nobel Salt, Inc., Civil Action No. 94-CV-6343L (W.D.N.Y., Sept. 28, 1999); Halliday v. Norton Company, ___ N.Y.2d ___, ___ N.Y.S.2d ___(3d Dep't 1999), mot. den'd __ N.Y.2d __, ___ N.Y.S.2d ___ (2000); cf. Scheg v. Agway, Inc., 229 A.D.2d 963, 645 N.Y.S.2d 687, 688 (4th Dep't 1996); see also Adkins v. Thomas Solvent Co., 440 Mich. 293 (1992); Adams v. Star Enterprise, 51 F.3d 417 (4th Cir.1995).
 

In Mehlenbacher v. Akzo Nobel Salt, Inc., Civil Action No. 94-CV-6343L (W.D.N.Y., Sept. 28, 1999), where the plaintiffs sought stigma damages due to collapse of salt mine under their properties, Judge Larimer took a restrictive view of stigma damages, and held that "[i]n order to recover damages for diminution in value, property owners must show (1) that their property has been physically damaged, or that their use and enjoyment of their property has been unreasonably interfered with, by the defendant's actions, and (2) either that the trespass or nuisance thus created cannot be fully remediated, or that the cost of remediation would exceed the amount by which the value of the property has been diminished." Slip Opinion at 17.
 

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). 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. Likewise, in Gettner v. Getty Oil Col, ___ A.D.2d ___, ___ N.Y.S.2d ___ (2d Dep't 1999), the plaintiff was allowed to recover lost rent, but only for the period in which the cleanup should have been completed. 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
 

Courts have long recognized that an element of damage for nuisance is compensation for discomfort or annoyance. In toxic tort cases, this principle has been extended to allow recovery for "loss of quality of life," including damages for "'inconveniences, aggravation, and unnecessary expenditures of time and effort... as well as other disruption in their lives.'" Ayers v. Jackson Township, 525 A.2d 287 (N.J. 1987); see also 42 Proof of Facts 2d 247 §7; 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 514 U.S. 1082, 115 S.Ct. 1793 (1995). This might involve, for example, compensation for the disruption of home life due to the necessity of using bottled water, or the inability to invite a guest to visit one's home. This may be considered an element of property damages. Scribner v. Summers, CIV No. 6094L (W.D.N.Y. 1996), mod. Scribner v. Summers, 138 F.3d 471 (2d Cir. 1998).
 

5. Personal Injuries/Increased Risk of Personal Injuries
 

Obviously, damages for personal injuries are an available remedy. See, e.g., Hancock v. 330 Hull Realty Corp., 225 A.D.2d 365, 638 N.Y.S.2d 654 (1st Dep't 1996) (verdict of $2,250,000 for personal injuries, including future pain and suffering, due to lead poisoning). However, damages are not available for the mere increase in risk of developing a disease due to exposure to a toxic substance, but rather the damages can only be awarded when a disease is actually manifested. 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); MacMillan v. Kavanaugh, ___ A.D.2d ___ , ___ N.Y.S.2d ___(4th Dept 1999).
 

6. Emotional Distress/"Cancerphobia"
 

While physical contact is generally required, many courts in "toxic tort" cases have indicated that the mere inhalation, ingestion or absorption of a toxic substance is a sufficient contact to justify an award for emotional distress or "cancerphobia" arising out of the reasonable fear of contracting such a disease.Gerardi v. Nuclear Utility Services, 149 Misc.2d 657, 566 N.Y.S.2d 1002 (Sup. Ct. Westchester Co. 1991). However, a plaintiff "must establish both that he or she was in fact exposed to the disease-causing agent and that there is a 'rational basis' for his fear of contracting the disease," and "'rational basis' has been construed to mean the clinically demonstrable presence of [contaminants] in the plaintiff's body, or some indication of... disease." Wolff v. A-One Oil, Inc., 216 A.D.2d 291, 292, 627 N.Y.S.2d 788, 789 (2d Dep't 1995), app. dis'd. 87 N.Y.2d 968, 642 N.Y.S.2d 196 (1996); see also Metro-North Commuter Railroad Co. v. Buckley, 521 U.S. 424, 117 S.Ct. 2113 (1997); Abusio v. Consolidated Edison Co. of New York, Inc., 238 A.D.2d 454, 656 N.Y.S.2d 371 (2d Dep't 1997), app. den'd 90 N.Y.2d 806, 664 N.Y.S.2d 268 (1997); Doner v. Adams Contracting, 208 A.D.2d 1072, 617 N.Y.S.2d 565 (3d Dep't 1994).
 

In Dangler v. Town of Whitestown, 241 A.D.2d 290, 672 N.Y.S.2d 188 (4^th Dep't 1998), the Appellate Division held that plaintiffs living in the vicinity of a landfill met the two-prong test for establishing a cause of action for cancerphobia. First, plaintiffs presented evidence that they were exposed to disease-causing contaminants from the landfill, including carcinogens. Secondly, plaintiffs provided a "rational basis" for their fear of contracting cancer through medical experts who testified that "plaintiffs had a 'likelihood' of contracting cancer as a result of their exposure to contaminants from the landfill." Furthermore, the Court held plaintiffs were not negligent for moving near a landfill and had not assumed the risk since the defendant told them they were in no danger of exposure from contaminants from the landfill.

7. Medical Monitoring
 

Exposure to a chemical may create a substantial enough risk of future disease that regular medical checkups would be warranted. In such a case, some courts in New York and other states have allowed a recovery for the cost of future "medical monitoring." This is not damages for increased risk, but merely to pay for the necessary cost of addressing the risk. Courts may allow such an award if the risk is sufficiently significant that it is reasonably necessary that a plaintiff obtain periodic medical examinations to monitor his or her health and facilitate early diagnosis and treatment of diseases which might be caused by the exposure. See, e.g., Askey v. Occidental Chemical Corp., 102 A.D.2d 130, 477 N.Y.S.2d 242 (4th Dep't 1984); Dangler v. Town of Whitestown, 241 A.D.2d 290, 672 N.Y.S.2d 188 (4^th Dep't 1998); Gibbs v. E.I. DuPont De Nemours & Co., Inc., 1995 W.L. 60788 (W.D.N.Y. 1995); Patton v. General Signal, 984 F.Supp. 666 (W.D.N.Y. 1997); Cf. Metro-North Commuter Railroad Co. v. Buckley, 521 U.S. 424, 117 S.Ct. 2113 (1997) (medical monitoring not available under the Federal Employers' Liability Act). Some courts have required that where medical surveillance is appropriate, the court should administer a trust funded by the defendant to pay out medical expenses, rather than awarding money directly to the plaintiff. See Ayers v. Jackson Township, 525 A.2d 287 (N.J. 1987).
 
 
 

8. Equitable Remedies
 

A plaintiff may also be able to obtain the equitable remedy of injunction to stop continuing pollution, if he or she can show "irreparable harm." Poughkeepsie Gas Co. v. Citizens' Gas Company, 89 N.Y. 493, 497-8 (1882). Since an injunction is an equitable remedy, the court must balance the equities of the situation, and take into consideration whether the plaintiff has an adequate remedy "at law" by obtaining damages. For instance, a court might allow a factory to continue to emit air pollution which caused a private nuisance due to the public interest in maintaining the local economy, but still require the factory to pay damages to the injured neighbors. Boomer v. Atlantic Cement Co., 26 N.Y.2d 219, 309 N.Y.S.2d 312 (1970). Other equitable remedies, such as restitution or indemnification, may also be available to reimburse a plaintiff for expenditures necessary to remediate toxic contamination. City of New York v. Lead Industries Association, Inc., 222 A.D.2d 119, 644 N.Y.S.2d 919 (1st Dep't 1996).
 
 
 

ALAN J. KNAUF is a partner in the law firm of Knauf Koegel & Shaw, LLP, located at Suite 1250 in the Alliance Building, 183 East Main Street, Rochester, New York 14604. He concentrates his practice in the areas of environmental (including brownfield development, hazardous and solid waste, Superfund and oil spills, and air and water pollution issues), municipal and land use law, and civil litigation. He represents corporations, landowners, governments, and citizens. He is attorney for the Town of Huron, and has represented numerous municipalities in land use matters.
 

Knauf is Co-Chair of the Internet Committee of the Environmental Law Section of the New York State Bar Association, is a former Co-Chair of its Toxic Torts Committee, and serves on the Executive Committee of that Section. He was founding Chairperson of the Environmental Law Committee of the Monroe County Bar Association, and is also Vice-Chair of the Public Service Committee of the Section on Environmental Law, Energy and Resources of the American Bar Association. Knauf served as Chairman of the Center for Environmental Information, Inc. (CEI) from 1994-1996, and has chaired the CEI Annual Survey Course in Environmental Law since 1986. Knauf is an Assistant Adjunct Professor of Environmental Law at the University of Rochester, is an Adjunct Professor of Emergency Preparedness Laws and Regulations at the Rochester Institute of Technology, and is Vice-President of American Recycling & Manufacturing Co., Inc. Knauf maintains the New York Environmental Law Center on the Internet at www.nyenvlaw.com. Knauf received a B.S.C.E. in Environmental Engineering from M.I.T. in 1977, and a J.D. from the University of Michigan in 1980. He is admitted to the bars of New York, Florida, and various federal courts.
 

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