Construction and Environment

In the Matter of Committee for Environmentally Sound Development, Inc. v. City of New York

Court: Supreme Court of New York, New York County
Index #: 190 Misc. 2d 359 (2001)
Citation: 737 N.Y.S. 2d 792
Plaintiff: Committee for Environmentally Sound Development, Inc., et al.
Defendant: City of New York et al.

Facts: The Plaintiffs, consisting of a community environmental group and individual community members, are seeking an order to halt the construction of a development project, which upon completion, would serve a variety of commercial and residential purposes. The Plaintiffs are seeking an order to halt the construction until one of the respondents examines the environmental impact of the alleged changes in the project's size that Plaintiffs claim was made in violation of size restrictions of a 1997 environmental review. Additionally, Plaintiffs are complaining that the Defendant acted out of their legal authority in approving the project and issuing work permits. Lastly, Plaintiffs are requesting further environmental review of the project, citing imminent changes in federal environmental regulations related to carbon monoxide standards. The Defendants, comprised of several parties, are moving to dismiss the petition on several grounds.

Holding: The Court analyzed the historical and legal history of the environmental regulations surrounding the development project and stated that the project is governed under the Final Environmental Impact Statement pursuant to New York State Environmental Quality Review Act, or SEQRA. The Court then concluded that it was the intention of the law for the lead agency to have a continuing obligation to ensure the restrictions imposed by an Environmental Impact Statement as stated are followed. After analyzing the series of transactions between the respondent parties, the Court concluded that the City is the lead agency in this case and has a continuing obligation to monitor the project. In regards to the approval of the size of the project, the Court ordered an additional factual hearing to clarify whether the approval related to the original plans of the project or the amended plans. In regard to the complaint that the Defendant acted out of their legal authority, the Court stated that the Plaintiff had failed to exhaust available administrative remedies before litigating the issue and thus dismissed the complaint. Lastly, the Court dismissed the Plaintiffs' complaint related to imminent changes in federal environmental law, since these laws have not yet been enacted and are not ripe for judicial review.

Submitted: James Periconi, Esq.,

Precis: Faisal Sheikh


Alprof Realty, LLC & VFP Realty, LLC v. Corporation of the Presiding Bishop of The Church of Jesus Christ of Latter-day Saints

Court: United States District Court, Eastern District of New York
Index #: 09-CV -5190 (CBA) (RER)
Citation: (not mentioned)
Plaintiff: Alprof Realty LLC and VFP Realty LLC
Defendant: Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-day Saints

Facts: The Plaintiff, adjacent property owners to the Defendant, are seeking action against the Defendant for contamination of Plaintiff's property, resulting from a spill of a hazardous substance on the Defendant's property that migrated onto the Plaintiff's property via groundwater. The Plaintiff seeks damages, response costs, and injunctive relief under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) and various state laws. The Defendant has filed a counterclaim to recover partial response costs from the Plaintiff by holding the Plaintiff jointly and strictly liable under Section 107 of CERCLA, stating that Plaintiff's property falls under the same definition of the single facility that is at issue in this case.

Holding: The Court, using precedence as guidance, distinguished the Plaintiff's property from the Defendant's property and ruled that they are separate facilities. The Court established that a contaminated site is one that is or was managed as a whole, constitutes a single facility for CERCLA purposes, regardless of whether the area crosses property lines, and that a widely contaminated area should not unnaturally be divided into multiple facilities in order to limit a party's liability. Therefore, given the circumstances in this case, the Plaintiff's property was separately managed, separately owned and separately operated and is not part of the CERCLA facility that encompasses Defendant's property. Thus, the Plaintiff is not liable to the Defendant as owners of the facility, who caused the contamination and have no legal duty to clean up the contamination on the Defendant's property or the resulting migration of the contamination on Plaintiff's property.

Submitted: James Periconi, Esq.,

Precis: Faisal Sheikh


Superior Plus US Holdings, Inc. V. Sunoco, Inc. (R&M) and Sunoco, Inc.

Court: United State District Court, Southern District, New York
Citation: Unpublished Opinion (13 Civ. 7740 (TPG) (S.D.N.Y., 2013)
Plaintiff: Alprof Realty LLC and VFP Realty LLC
Defendant: Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-day Saints

Overview: The Purchaser of an onshore oil storage facility sought summary judgment on its claims for breach of contract and indemnification based upon a Seller's breach of several provisions of a contract of sale.

Facts: In 2009, Plaintiff Superior Plus US Holdings, Inc. ("Superior") purchased an onshore oil storage facility located in Marcy (Oneida County), New York from Defendant Sunoco for $82.5 million. Sunoco operated the facility for twenty-one (21) years prior to the sale. Six of the storage tanks were originally constructed with steel bottom plates that made direct contact with the soil below. During the 1990s, Sunoco modified the tanks by installing new bottoms on top of the existing bottoms.

At the time of closing, Sunoco executed two documents: an Asset Purchase Agreement and an Environmental Agreement. These agreements made several warranties to Superior. Sunoco warrantied that (1) its operations complied with applicable environmental laws; (2) it is in compliance in all material respects to all laws to which the business was subject to; and (3) there were no anticipated material environmental compliance costs associated with the facility. Sunoco agreed to defend, indemnify and hold harmless Superior for any loss sustained as a result of the breach of any warranty.

On October 12, 2012, Superior noticed a leak coming from one of the modified tanks and notified the New York Department of Environmental Conservation. Based upon an inspection, the New York Department of Environmental Conservation issued a Superior Notice of Violation containing six (6) violations regarding the construction, design and modification of the tanks. The New York Department of Environmental Conservation also stated that "it appears that the system has not been operated in compliance for quite some time..." Superior entered into a Consent Order and sent written demand to Sunoco for indemnification under the Contracts of Sale. Sunoco denied the requests.

Holding: The United States District Court granted Superior summary judgment. Summary judgment is only available when a moving party demonstrates the absence of any material fact. To defeat summary judgment, the non-moving party must come forward with "concrete particulars" to show a trial is needed and may not rely on mere conclusory allegations or denials.

The Court found Plaintiff met its initial burden by demonstrating its entitlement to summary judgment. In opposition, Sunoco failed to come forward with any proof in admissible form that would raise an issue of fact. The Court granted Plaintiff's motion and found no issues of triable fact existed. The Court further declared Plaintiff entitled to complete indemnification under the express contractual provisions. The Court noted that under the indemnification provision, the maximum amount Sunoco would be liable for was 5% of the purchase price, or $4.125 million. Since Superior only moved for summary judgment, the Court did not address the amount of actual damages.

Editor's Note: There is no mention in the decision as to whether Superior conducted any pre-contract inspections of the property or the tanks. Would an inspection of the tanks by Plaintiff have led to a different outcome?

Submitted: James Periconi, Esq.,

Precis: Joel Grossbarth