turnbull appellants' brief 06950 rev9
TRANSCRIPT
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To be Argued by:
Dunewood Truglia, Esq.
Time Requested:
15 Minutes
Supreme Court of the State of New York
APPELLATE DIVISION: SECOND DEPARTMENT
App. Div. No. 04- 06950
JAMES M. TURNBULL, et al.,
Plaintiffs-Appellants,
against
MTA NEW YORK CITY TRANSIT,
Defendant-Respondent.
BRIEF FOR PLAINTIFFS-APPELLANTS
Dunewood Truglia, Esq.
Attorney for Plaintiffs-Appellants
First Street P.O. Box 222
New Suffolk, NY 11956
631 - 734 - 6450
Kings County Clerks Index No. 26485 / 99Reproduced on Recycled Paper
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TABLE OF CONTENTS
Page No.
TABLE OF AUTHORITIES ............................................................ iv
QUESTIONS PRESENTED ...... .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. . 1
PRELIMINARY STATEMENT ..... .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. ... .. .. .. .. .. .. .. .. .. .. .. .. 2
STATEMENT OF FACTS ..... .. ... .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. 3
RELEVANT PROCEDURAL HISTORY .................................................. 4
SUMMARY OF THE ARGUMENTS ....................................................... 5
THE RENEWAL STANDARD UNDER CPLR 2221(e).......................... 8
REASONABLE EXCUSE PROFFERED
The Vardakis Appraisals ... .. ... .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. ... .. .. .. . 10
No Surprise or Prejudice to Defendant............................ 12
The Diorio Valuation Opinion ............................................... 13
Opinion of John A. Kilpatrick, PhD. regarding work product
of Vardakis appraisals and Diorio opinion ............................. 14
New analytical data showing permanency issue on Renewal.. 15
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ARGUMENT
POINT 1 ABUSE OF DISCRETION ON RENEWAL
Refusal to accept Vardakis Appraisals asprima facieissue of fact on renewal was an abuse of discretion........ 20
Refusal to accept new evidence of permanent damage,
( i.e.,2003 Plume Maps and 2004 Test Borings ) was
abuse of discretion on the facts presented on renewal.... 26
Plaintiffs engaged in no inappropriate discovery........ 28
A rational jury could find for the Plaintiffs
Plaintiffs on the evidence which was presented .................... 31
POINT II ERROR IN PRECLUDING NEW EVIDENCE
Permanent damage evidence showed issue of fact ......... 32
POINT III ERROR IN FAILING TO GRANT FAVORABLE INFERENCE
Court failed to grant most favorable inference to non-
movant on all critical issues of fact and credibility ......... 38
CONCLUSION ............................................................................................ 42
COMPLIANCE CERTIFICATE, Section 670.10.3(f) ............................................ 43
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TABLE OF AUTHORITIES
Cases Page No.
627 Smith St. Corp, v. Bureau of Waste Disposal of Dept. Of Sanit .of CNY.
289 AD2d 472, 735 NYS2d 555 ( 2 Dept. 2001) ...................................... 22
nd
Beliavskaia v. Perkin, 227 AD2d 246,
642 NYS2d 522 ( 1 Dept. 1996) ......................................................... 31st
Canzoneri v. Wigand Corp.,168 AD2d 593,
564 N.Y.S.2d 178 ( 2 Dept. 1990 ) ................................................... 15nd
Cole-Hatchard v. Grand Union, 270 AD2d 447,
705 N.Y.S.2d 605 ( 2 Dept. 2000) .................................................... 9nd
Daniel Perla Associates v. Ginsberg, 256 AD2d 303,
681 N.Y.S.2d 316 ( 2 Dept.1998 )....................... ............................... 9nd
Dunning v. Shell Oil Co.,57 AD2d 16,
393 N.Y.S.2d 129, ( 3 Dept. 1977) ................................................... 31rd
Freese v. Schwartz, 203 AD2d 513 ( 2 Dept. 1994) ................................. 19nd
Friedman v. U-Haul Truck Rental, 216 AD2d 266,
627 NYS2d 765 ( 2 Dept. 1995) ......................................................................... 15nd
Halle v. Fernandez, 286 AD2d 662, 663
730 NYS2d 126 ( 2 Dept. 2001) ........................................................... 16nd
Hill v. Sheehan, 154 AD2d 912,
545 NYS2d 868 ( 4 Dept. 1989) ............................................................ 31th
J.D. Structures, Inc. v. Waldbaum, 282 AD2d 434,
723 NYS2d 205, ( 2 Dept. 2001) ...................................................... 17,18nd
Lambert v. Williams, 218 AD2d 618, 621
631 NYS2d 31 (1 Dept. 1995) .......................................................... 9st
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Leone v. Leewood Serv. Sta., 212 AD2d 669,
624 NYS2d 610, ( 2 Dept. 1995 )nd
lv denied86 NY2d 709 ................................................................................ 31,32
Louniakov v. M.R.O.D. Realty Corp., 282 AD2d 657 ( 2 Dept. 2001) ..... 41nd
Matter of City of New York, 59 NY2d 57, 61 ..................................... 22
Matter of Commerce Holding Corp. v. Board of Assessors of the
Town of Babylon, 88 NY2d 724, 649 NYS2d 932 ( 1996)......................... 25
Melohn v. R&M Combustion Co., Inc.
296 AD2d 323, 744 NYS2d 321 ( 1 Dept.2002) .............................. 31,32st
Metcalfe v. City of New York, 223 AD2d 410,
636 NYS2d 60 ( 1 Dept. 1996) ..... ... .. .. .. ... .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. 9st
Mi Ja Lee v. Glicksman 14 AD3d 669,
789 N.Y.S.2d 276, ( 2 Dept. 2005) ................................................... 9nd
Miceli v. Purex Corp., 84 AD2d 562,
443 NYS2d 269, ( 2 Dept.1981) . .. .. ... .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. ... .. . 19nd
Motts v. Cohen, 264 AD2d 764,
695 NYS2d 384 ( 2 Dept. 1999) ..... .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. 18nd
NAB Construct. Corp v. Great Am. Ins. Co.
75 AD2d 790, 428 NYS2d 252,
affd 53 NY2d 964, 441 NYS2d 658 ( 1981) .......................................... 41
Negri v. Stop & Shop, Inc., 65 NY2d 625 (1985) ........................................ 41
Oestreich v. Boyd, 300 AD2d 375,
751 NS2d 413 ( 2 Dept. 2002) .......................................................... 15nd
Peebles v. New York City Housing Authority, 295 AD2d 189,
744 NYS2d 13 ( 1 Dept. 2202 ) ......................................................... 19,25st
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Puntino v. Chin, 288 AD2d 202,
733 NYS2d 108 ( 2 Dept. 2001 ) .......................................................... 16nd
Rizzuto v. Getty Petroleum Corp., 289 Ad2d 217,
736 NYS2d 233 ( 2 Dept. 2001) ................................................................. 31,32nd
Sementilli v. Ruscigno, 286 AD2d 242,243
728 NYS2d 372 ( 1 Dept. 2001) ............................................................ 16st
Tishman Const. Corp. of New York v. City of New York
280 AD2d 374, 720 NYS2d 487 (1 Dept. 2001) .............................. 8st
Toussaint v. Noels Market, 280 AD2d 665,
721 NYS2d 249 ( 2 Dept. 2001) ..... .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. . 18nd
Wattson v. TMC Holdings Corp., 135 AD2d 375,
521 NYS2d 434 ( 1 Dept. 1987) ...................................................... 12st
Yohay v. Papaleo, 273 AD2d 465,
711 NYS2d 746 ( 2 Dept. 2000)........................................................ 16nd
Statutes & Rules
Navigation Law, Article 12 .......................................................................... 4,27
Environmental Conservation Law, Article 17 .............................................. 27
Executive Law 160-E, et seq . .. .. .. .. .. .. .. .. .. .. ... .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. 21
Petroleum Bulk Storage Regulations, rev. 1992 (6 NYCRR612-614)....... 3,27,32
Rules of Court 22 NYCRR 202.21 (d) ........................................................ 29,30
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Rules of Court 22 NYCRR 202.59, et seq................................................ 21,22
CPLR 2221(e) .......................................................................................... 8
CPLR Article 31 ......................................................................................... 29,30
Freedom of Information Law ( FOIL) Public Officers Law, Article 6....... 30
Other Authority Cited
Uniform Standards of Professional Appraisal Practice ( USPAP )
Appraisal Standards Board Rules and Advisory Opinion AO-9.................. 23,24
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STATEMENT OF QUESTIONS PRESENTED
1. Was the material submitted on renewal sufficient to raise a triable issue of
fact to oppose Defendants motion for summary judgment?
The court below answered in the negative.
2. Does the presence of permanent subsurface contamination beneath
Plaintiffs homes present a triable issue on damages sufficient to oppose
Defendants motion for summary judgment?
The court below answered in the negative.
3. Were the non-movant Plaintiffs afforded the benefit of every favorable
inference under the summary judgement standard, that could be drawn from
the new material submitted on renewal?
This question was answered in the negative on each critical issue.
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PRELIMINARY STATEMENT
Plaintiffs have requested that both the instant appeal from denial of their renewal
motion and the companion appeal from dismissal of Plaintiffs claims on summary
judgment (App. Div. No. 03-7302) be heard and decided together.
The gravamen of both of Plaintiffs appeals is that the lower court impermissibly
engaged in issue determination rather than issue finding, with respect to each piece
of evidence brought before it by the Plaintiffs. The lower court disregarded
evidence of permanent damage and diminution of value as a result of subsurface
contamination which remains on Plaintiffs properties today.
The most egregious aspect from the Plaintiffs perspective is that although the
court is supposed to grant the most favorable inference to the non-movants as
detailed herein (as well as the companion appeal App. Div. No. 03-7302), on each
critical piece of evidence in dispute the lower court seemed to do the exact
opposite by seizing on the worst possible inference to be drawn from the facts
presented, [see Point III infra].
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The sole commercial property owner in this action, Plaintiff Miller & Davis, Inc., sold its1
property, stipulated to withdraw its claims and is no longer a party to the action. One of theresidential owners, Plaintiff Maryse Fecu, no longer owns her home at 2331 Utica Avenue. Shetestified on deposition that she lost it through foreclosure in 1999 when she was unable to sellthe property due to the oil spill problem [see R. 912, 935-938 of companion appeal, App. Div.No. 03-7302]. One other original Plaintiff, residential owner Margaret Farrell, 2335 Utica
Avenue, is now deceased and her estate is not a party to this action.
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STATEMENT OF FACTS
The Defendant-Respondent (Defendant) MTA New York City Transit owns and
operates the Flatbush Bus Depot located at 4901 Fillmore Avenue, Brooklyn, NY
(the Depot). The Depot is a regulated petroleum bulk storage facility under 6
NYCRR Parts 612 - 614 (NYS DEC Petroleum Bulk Storage Regulations).
The Plaintiffs are a group of property owners who own nineteen homes located on1
Utica Avenue and East 51 Street in Brooklyn, across from the Depot. Sometimest
in the 1990s the Defendant unlawfully discharged an unknown amount of
petroleum ( mostly diesel fuel oil, estimated at 70,000 to well over 100,000
gallons ) which entered the groundwater at the Depot forming a massive plume of
contamination. Although the Defendants investigation and remediation efforts
have spanned more than a dozen years, Plaintiffs were first told of the existence of
the plume beneath their properties in January 1999. It is undisputed that the
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The Plaintiffs previously withdrew their claim for Violation of Section 111 of the2
Transportation Law in a prior proceeding. All other claims remain as alleged in the AmendedComplaint.
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petroleum plume with its hydrocarbon contamination has not been cleaned up and
remains present beneath the Plaintiffs homes today.
RELEVANT PROCEDURAL HISTORY
The Plaintiffs brought an action and their Amended Complaint [R.24] contained
eight causes of action: (I) Strict Liability under Article 12, 181 of the Navigation
Law; (II) Common Law Negligence; (III) Gross Negligence; (IV) Nuisance; (V)
Trespass; (VI) Taking without Compensation; (VII) Unjust Enrichment; (VIII)
Violation of Section 111 of the Transportation Law. Defendant served an2
Amended Answer on or about September 12, 2000. [R. 35]. Disclosure proceeded
and Plaintiffs thereafter filed a Note of Issue on April 12, 2002 along with a
motion for a trial preference.
Thereafter, Defendant moved for summary dismissal of all claims. Plaintiffs cross-
moved for judgment on liability and sought a trial on damages. The lower court
(Hon. Lawrence S. Knipel) held that the Defendant was liable for the discharge
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Plaintiffs appraisal expert on the summary judgment motion was Domenick Neglia.3
Plaintiffs first appraiser A. Charles Vardakis, died after a lengthy illness in August 2001, [R.49].
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however, the court rejected the Plaintiffs property damage claims finding that the
Plaintiffs could not prove diminution and thereupon granted Defendants motion
dismissing the case. Plaintiffs appealed that decision under App. Div. No. 03-
7302. Plaintiffs also moved to renew under CPLR 2221(e) which motion was
denied.
The Appellate Division has not yet heard Plaintiffs appeal on the original motion
(App. Div. No. 03-7302) therefore the renewal will not violate any prior appellate
decision in this dispute.
SUMMARY OF THE ARGUMENTS
The lower court had found that the Plaintiffs had not made a proper showing on
damages, in particular citing the valuation opinion of the Plaintiffs real estate
expert as conclusory. The lower court also had disregarded entirely the3
evidence on permanent damage to Plaintiffs properties. Plaintiffs then brought a
motion to renew which addressed only these two issues via the new material
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presented. Most ( but not all), of the new material was not in existence at the time
of the lower courts decision. The renewal motion addressed the courts concerns
by submitting new appraisals ( previously in existence ) and, new analytical data
which had not been in existence at the time of the lower courts decision.
Although the Vardakis appraisals submitted on renewal had been produced and
given to the Defendant early in the litigation, they were not used on the summary
judgment motion solely due to the death of this appraiser (Vardakis) [R. 49]. The
lower court essentially said that Plaintiffs excuse that Vardakis died was not
reasonable and that the appraisals could have been submitted on the first motion. It
also said that even if they had been submitted on the first motion they would be
considered stale ( dated 1999) and therefore of little probative value.
The renewal also addressed the lower courts failure to find that the issue of
permanency of the contamination beneath Plaintiffs homes was a triable issue of
fact indispensable to the determination of diminution damages.
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Plaintiffs environmental experts are Tim Douthit ofIn Aqua Veritas, Inc., and Dan C. Buzea4
ofLeggette Brashears & Graham, Inc. Each performed different functions in Plaintiffsinvestigation however both said the contamination was permanent due to the large fraction ofsorbed hydrocarbon in the subsurface which is virtually unrecoverable, [R. 262] and [R. 952-957, App. Div. No. 03-7302].
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Plaintiffs environmental expert analyzed data which was not in existence at the4
time the summary judgment motion was decided in July 2003. He found anomalies
in the extent of the contamination represented by Defendants consultant in its
August 2003 and September 2003 data which were not available to Plaintiffs until
early 2004. His analysis demonstrated the recalcitrance of a significant fraction of
the contaminant which was then confirmed by the March 25, 2004 test boring
results, [R. 261, 263-299]. These results demonstrate empirical support for
Plaintiffs claims that, due to the magnitude of the spill, permanent degradation in
the subsurface, [R. 231, 244] had taken place.
The Defendant attacked this new evidence on procedural grounds in the renewal
motion but the issue of permanency remained unanswered. Although the lower
court on renewal did acknowledge that the extent and duration of contamination
may have an impact upon the damages [R.18], inexplicably it did not find the
question of permanence a triable issue, but instead denied renewal of Plaintiffs
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showing on procedural grounds, [R. 17]. Plaintiffs appeal the denial of renewal as
an abuse of discretion which has resulted in substantive unfairness.
THE RENEWAL STANDARD UNDER CPLR 2221(e)
Under the renewal statute, CPLR 2221(e) the moving party bears the burden of
demonstrating a reasonable excuse as to why the evidence was not previously
submitted and must show that the newly offered evidence would change the prior
determination. Although it is clear that renewal is discretionary and not
automatically granted as a second chance, it is also equally clear from the case
law that there is some flexibility in the standard which courts can and do apply.
Courts in all judicial departments have applied that flexibility on occasion to
prevent substantive unfairness from producing a manifestly unjust result. Some
appellate courts have stated that renewal may be granted in the interest of justice.
The Tishman Court ( Tishman Const. Corp. of New York v. City of New York, 280
AD2d 374, 720 NYS2d 487 (1 Dept. 2001) said,st
A motion for leave to renew is intended to bring to the court's attention
new or additional facts which, although in existence at the time the original
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motion was made were unknown to the movant therefore not brought to the
court's attention. ( cit. omit.) This requirement, however is a flexible one
and the court, in its discretion, may also grant renewal in the interest of
justice, upon facts which were known to the movant at the time the originalmotion was made. ( cit. omit.) Indeed, we have held that even if the
vigorous requirements for renewal are not met, such relief may be properly
granted so as not to defeat substantive fairness (Metcalfe v. City of New
York, 233 AD2d 410, 411, 636 NYS2d 60, quotingLambert v. Williams,
218 AD2d 618, 621, 631 NYSA2d 31). The court also mentioned that it saw
no discernible prejudice to the other party.
Plaintiffs do not dispute that renewal is discretionary but that will not prevent this
panel from finding that Plaintiffs submission was indeed sufficient to raise a
triable issue of fact. The Second Department did that just most recently inMi Ja
Lee v. Glicksman, 14 AD3d 669, 789 NYS2d 276, (2 Dept. 2005); also in accordnd
Cole-Hatchard v. Grand Union, 270 AD2d 447, 705 NYS2d 605 (2 Dept. 2000),nd
and Daniel Perla Associates v. Ginsberg, 256 AD2d 303, 681 NYS2d 316 (2nd
Dept. 1998). It is that power ofde novo review for which Plaintiffs pray in the
instant appeal.
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See [R. 48-53] for a complete statement of the circumstances and details of Plaintiffs5
submittals on renewal.
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The statute as amended ( eff. 7/20/99 ) requires that a motion to renew shall be
based upon new facts not offered on the prior motion that would change the prior
determination.. (subd. [e][2]) andthat it shall contain a reasonable justification
for the failure to present such facts on the prior motion (subd. [e][3]). The
statute does not define reasonable and although the case law acknowledges the
limits on discretion is does not define them.
REASONABLE EXCUSE PROFFERED FOR:
THE VARDAKIS APPRAISALS [R. 113]
Vardakis died in August of 2001 after a prolonged illness. Prior to his death it
became apparent that he probably would not be able to testify at trial. That is the
sole reason his earlier appraisals were not submitted on the original motion. Prior5
to Vardakis death Plaintiffs had already begun working with another licensed
appraiser, Neglia and it was his opinion which was used in opposing summary
judgment [R. 990, App. Div. No. 03-7302]. There is no other reason for not
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Comparing the form and format of Vardakis [ R. 113] and Neglia [R. 990, App. Div. 03-7302]6
will illustrate what is being explained. The Neglia opinion is in the form of a detailed affidavitwith exhibits attached while the Vardakis appraisals are in the general appraisal form mostoften seen e.g., when buying a home.
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continuing to work with Vardakis other than that he was terminally ill and died in
August 2001 [ R. 49].
Neglia was not charged with producing full general appraisals (which in any event
had been planned as updates prior to trial). Neglias opinion focused on the bases
for valuation adjustments made by appraisers when environmental impairment was
present. Neglia used eight sources of data and information and made a site
inspection in arriving at his conclusion that environmental contamination of the
magnitude suffered by homeowners here would result in at least some ( i.e.,
greater than 0% ) detriment to fair market value.
However since Neglias opinion was not provided in the general form of a full
appraisal but in the form of an expert affidavit with attachments, the lower court
criticized it because it did not contain numbers, comparables or percentages6
calling it bald and conclusory. The Neglia opinion was however more than
adequate to raise triable issues of fact on environmental impairment and
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diminution of value and Plaintiffs have addressed that at length in the other
appeal [ see Appellants Reply pgs. 19-25, App. Div. No. 03-7302].
No Surprise or Prejudice to Defendant Has Occurred:
The Vardakis appraisals were performed in June 1999 just prior to the commencement of
the litigation and copies were sent at that time, to David C. Boyle, Esq., the Defendants
Assistant General Counsel. The Defendant tried to depose Vardakis and used the
appraisals as an exhibit on its motion which was made to the lower court in June 2001.
The motion was rendered moot because Vardakis died in August, 2001 while that motion
was pending.
Since the underlying facts of Vardakis were already well known to Defendant, the
renewal should be granted as there can be no surprise or showing of prejudice.
Cases should, whenever possible, be decided on the merits and not on the basis of
technical procedural requirements when an evidentiary showing has been made,
Wattson v. TMC Holdings Corp., 135 A.D.2d 375, 521 N.Y.S.2d 434 (1 Dept.st
1987).
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THE DIORIO VALUATION OPINION [R. 210]
The Diorio valuation opinion was produced in May, 1999 about a month before
the Vardakis appraisals. Diorios opinion was requested by previous counsel for
one of the Plaintiffs (McCormack) who sent a copy of it to Defendant around that
time. A year later this writer took over representation of McCormacks claim and
received the file from McCormacks previous attorney which contained the Diorio
opinion regarding the McCormack residence [R. 210].
Although Diorio was a broker and not a licensed appraiser, the value of realty in
question may be proved by the opinion of any properly qualified witness who need
not be a licensed appraiser. However, since I ( Dunewood Truglia, Esq.) had
never met Diorio and had never worked with him, I was not familiar with his
experience or capabilities and never intended to use his opinion as a primary
source for valuation of any of the affected properties. In any event I already had
the Vardakis appraisals and had met and worked with Vardakis before he became
ill. On the renewal motion the Vardakis and Diorio documents were both
submitted as an attachment to the report of Plaintiffs expert John A. Kilpatrick
[R. 88-112].
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Kilpatrick is also an appraiser in New York and other jurisdictions [R. 110].7
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OPINION OF JOHN A. KILPATRICK, Ph.D. REGARDING THE WORK
PERFORMED BY VARDAKIS AND DIORIO, SUBMITTED ON RENEWAL
Kilpatrick is a specialist whose expertise is in the evaluation of environmentally7
impaired real property [R.83]. He provided background as to the history, literature,
and methodology currently used in the practice of appraisal when dealing with
environmental impairment, [R.88] but his primary role was to evaluate and
introduce and contrast the work product of both Vardakis and Diorio on the
renewal motion.
Kilpatrick reviewed the methods and conclusions of both the Vardakis appraisals
and the Diorio evaluation opinion. Regarding Diorio, Kilpatrick said that even
though Diorio was not a licensed appraiser that Diorio used standard methodology
in his comparison of value both with and without impairment. He also said that the
true value of Diorios work was that it highlights what the broker sees as a duty to
disclose hazardous conditions and the fact that uncertainties of risk will impact the
desirability of the property, hence its value [R. 103].
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After reviewing the appraisals performed by Vardakis, Kilpatrick found that the
Vardakis and Von Ancken ( Defendants) appraisals though different are
functionally equivalent documents which purport to use the same ( more or less )
tools and methods of the industry to arrive at an estimation of value. Their
assumptions differ and therefore so does their work product conclusions [R.103].
The resulting figures are an opinion as to diminution of value (i.e., either greater
than 0% or, not greater than 0% ). An opinion, however which is neither
incompetent nor inappropriate for consideration by the trier of fact.
Since it is within the court's discretion to grant renewal even upon facts known to
the movant at the time of the original motion, see Oestreich v. Boyd, 300 AD2d
375, 751 NYS2d 413 ( 2 Dept. 2002),Friedman v U-Haul Truck Rental, 216nd
AD2d 266, 627 NYS2d 765 ( 2 Dept. 1995) and Canzoneri v Wigand Corp., 168nd
AD2d 593, 564 NYS2d 178 ( 2 Dept. 1990); that is what the Plaintiffs arend
asking this court to do to prevent a manifestly unjust result.
NEW ANALYTICAL DATA NOT IN EXISTENCE PRIOR TO THE LOWER
COURTS DECISION WAS SUBMITTED ON RENEWAL TO DEMONSTRATE
EMPIRICAL EVIDENCE OF PERMANENT SUBSURFACE CONTAMINATION
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The Defendants consultants Plume Maps dated August 25, 2003 and September
29, 2003 respectively were data which were not in existence at the time the
summary judgment motion was decided in July 2003. In fact they did not become
available to the Plaintiffs until early 2004 [R.56]. It continues to be the law that a
court should accept as a reasonable justification for not presenting evidence at
the time of the initial motion, the fact that the evidence was not then known or
available.Puntino v. Chin, 288 AD2d 202, 733 NYS2d 108 (2 Dept. 2001);nd
Halle v. Fernandez, 286 AD2d 662, 663, 730 NYS2d 126 (2 Dept. 2001);nd
Sementilli v. Ruscigno, 286 AD2d 242, 243 728 NYS2d 372 (1 Dept. 2001);st
Yohay v. Papaleo, 273 AD2d 465, 711 NYS2d 746 (2 Dept. 2000).nd
The test borings performed on March 25, 2004 [see R. 263], by the Plaintiffs
tested the empirical basis for the conclusions drawn by Douthit, the Plaintiffs
consultant who was charged with analyzing the anomalous data presented by the
August 2003 and September 2003 data. That data which showed a footprint
approximately double the plumes areal size in September 2003 as compared with
August 2003 [R. 276, 277], could not be dismissed as simply routine fluctuation
and supported Plaintiff theory that the graphic representation of the plume did not
begin to show the extent of contamination actually present in the subsurface. The
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soil borings showed that there is fuel oil contamination in areas both inside and
outside of the historical footprint of the plume maps on the Plaintiffs properties
today. In addition, heavy fuel oil contamination exists in the soil in areas where
the maps no longer show the plume to be present. Douthit said this contamination
( the sorbed fraction in the vadose layer) is virtually unrecoverable
(i.e.,permanent ) without completely removing the impacted soil [R. 271]. This
is a practical impossibility because of the dense configuration of row houses.
This unexplained anomaly which was investigated led to the most significant
confirmation of the permanent damage in the subsurface to date. Although it was
attacked procedurally on renewal, the Defendant could have performed its own
test borings in rebuttal but it did not.
The point here is that even where the evidence being offered on renewal was
available or could have been discovered at the time of the prior motion, a court
may excuse a movants failure to present such evidence on the prior motion, so
long as it finds the justification offered by the movant to be reasonable. The
standard is not one of perfection but reasonableness, under CPLR 2221[e][3],
J.D. Structures, Inc. v. Waldbaum, 282 AD2d 434, 436, 723 NYS2d 205 (2 Dept.nd
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2001); Toussaint v. Noels Market, 280 AD2nd 665, 721 NYS2d 249 (2 Dept.nd
2001);Motts v. Cohen, 264 AD2d 764, 695 NYSA2d 384 (2 Dept. 1999).nd
This Department has held to be a reasonable justification for not presenting
evidence on a prior motion that the attorney seeking renewal did not believe that
the submission of such evidence was necessary.J.D. Structures, Inc. v. Waldbaum,
282 AD2d 434, 436, 723 NYS2d 205 (2 Dept. 2001).nd
In the instant matter, with more than eight thousand pages of DEC records
detailing the magnitude, areal extent and longevity of the spill, with the evidence
of permanent damage presented by Plaintiffs consultant Buzea [ R. 939 App. Div.
No. 03-7302] and with the DEC Consent Order which squarely placed liability on
the Defendant [ R.920 App. Div. No. 03-7302] there was simply no indication that
further tests would be necessary at the summary judgment level. Plaintiffs used
every bit of evidence on that motion which their resources would allow. They
could not have known that yet another expensive GeoProbe test boring might have
persuaded the lower court that the issue of permanent contamination indeed was a
triable issue in this controversy. It just made no sense.
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19
The case ofPeebles v. New York City Housing Authority, 295 AD2d 189, 744
NYS2d 13 (1 Dept. 2002) is instructive in this regard. ThePeebles, casest
concerned an infant Plaintiff who sustained a serious injury due to a bolt
protruding from a playground slide. The Plaintiff did not include an expert's
affidavit contending that such was unnecessary since a protruding bolt on a
playground slide presented a defect that was readily understandable by an
average juror; The Defendants expert said the slide was safe and conformed to
industry standards; However thePeebles Court said the new evidence presented
with a reasonable excuse presented a classic conflict between experts and held that
the motion court erred in granting summary judgment since the engineer's report
proffered on renewal said the slide deviated from accepted industry standards.
Summary Judgment should always be denied if there is any doubt as to the
existence of a triable issue of fact.Freese v. Schwartz, 203 AD2d 513 ( 2 Dept.nd
1994 ) andMiceli v. Purex Corp. 84 AD2d 562,443 NYS2d 269, ( 2 Dept.1981).nd
The lower court, in the instant appeal, found there were no triable facts in this case
because it apparently did not believe that the physical presence of contamination
shown to be permanent, in and of itself equates to damage. Juries have been
allowed to determine these issues on much smaller discharge and contamination
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evidence than Plaintiffs have amassed here and it is manifestly unfair to deny them
the opportunity to have their claims heard by an impartial jury. Clearly all of the
items produced are no less than reasonably arguable and that is the standard.
POINT I - ABUSE OF DISCRETION ON RENEWAL TO DISREGARD
EVIDENCE OF TRIABLE ISSUE OF FACT ON DAMAGES
The Vardakis Appraisals
The lower courts refusal to accept the Vardakis appraisals as raising a genuine
issue of fact on renewal is an abuse of discretion.The Vardakis appraisals are
competent evidence produced by a licensed appraiser, ( now deceased ). The
documents areprima facie evidence of what they purport to be [R.113]. They are
the functional equivalent of the Defendants submission and they are in customary
certified appraisal format [R. 155]. As such they are competent to raise a triable
issue of fact on the issue of diminution. For the lower court to say that they are
stale or of little probative value is to engage in issue determination which is
improper and which usurps the role of the jury. It is for the trier of fact to
determine the weight to be given an otherwise competent, relevant and material
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21
piece of documentary evidence. This set of appraisals was produced
contemporaneously with the disclosure of the contaminant plume in 1999 at which
point copies were given to the Defendant.
The Vardakis appraisals are not inconsistent with any law such as Executive Law
160-E, et seq. which governs State Certified and Licensed Appraisers and their
work product. In addition, although the Vardakis appraisals are also not being
used in a tax assessment review (22 NYCRR 202.59 et seq.), or in an eminent
domain proceeding (22 NYCRR 202.61) they do not seem to contravene any of
those regulations either.
If these certified appraisals are the work product of an experienced qualified
appraiser which Vardakis certainly was [R. 199-208] and if neither the Defendant
nor the lower court can point to any violation of law or regulation in his work,
then what basis is there to disregard this evidence in toto? Can the court implicitly
find Vardakis incredible and unworthy of belief. There is no basis for that
inference in the decision and no support for it in the record.
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22
There is no rule of law which prohibits the use of the information in these
documents just because they were produced in 1999. In fact the Uniform Rules of
Court cited above ( .e.g., 22 NYCRR 202.59 et seq.), address how a party can even
amend or supplement at trial upon such conditions as the court may direct. There
is no justification for the lower court to have refused to allow that Vardakis was
competent to show evidence of a triable issue of fact. For the lower court to go as
far as it did was an abuse of its role as issue finder.
The lower courts comment that because the Vardakis appraisals were done in
1999 they have little probative value [R. 19]. In fact the Vardakis appraisals
cannot be disregarded as stale and of no value since they were produced at the
time of the discovery of the damage by Plaintiffs. Routinely in condemnation
cases at least, the valuation date is the date of the taking ( the date of the damage).
Admittedly this is but one of several accepted methods of determining property
damage but is not in and of itself wrong in any respect. To be sure, the measure of
damages must reflect the fair market value of the property atsome point in time
otherwise there could never be any recovery (seeMatter of City of New York, 59
NY2d 57, 61; 627 Smith St. Corp. v Bureau of Waste Disposal of Dept. of
Sanitation of City of N.Y., 289 AD2d 472, 473).
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Uniform Standards of Professional Appraisal Practice Rules of the Appraisal Standards8
Board along with its Advisory Opinions govern the ethics and practice of Appraisers.
The applicability of Advisory Opinion AO-9" and the controversy over its use and mis-use in9
this case was the subject of much debate between the parties and is discussed at length inAppellants Brief, pgs. 36, 44 and in the instant appeal at R. 993-996, 1045.
23
In light of the foregoing, it was error for the lower court find that the Vardakis
appraisals were of little probative value with regard to damages based upon the
values of the affected properties today [R. 19]. Even if true, its puzzling why the
court would seize upon today as the only proper yardstick when the case law
provides at least one valid alternative, the day of the damage.
Plaintiffs expert Kilpatrick mentions five shortcomings in the Von Ancken
(Defendants) appraisal which underscore the difference of opinion which experts
can have over both methodology and conclusions when value is at issue [R. 100-
101]. Appraisers are governed by the Uniform Standards of Professional Appraisal
Practice ( USPAP) competency rules. Kilpatrick states that at the time Vardakis8
expressed his opinion ( 1999 ) there was ongoing debate in the appraisal
profession as to the proper methods of addressing environmental contamination
and impairment. He further states that the debate was settled in 2002 by the
adoption of Advisory Opinion AO-9 [R. 218] which now shows that the appraiser9
who fails to account for known environmental issues, such as exist in this case,
may be running afoul of the USPAP Competency rules.
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Vardakis considered the impairment of permanent contamination while Von
Ancken did not, [R. 101]. Vardakis evaluated the properties as they were at the
time of his appraisal. Von Ancken essentially valued everything as if it were not
contaminated since he was betting that everything would be cleaned up in five
years. When an appraiser is engaged to render an opinion as to value he does so in
the presentconsidering conditions as they exist at the time his valuation opinion is
made and not based on extraordinary assumption, e.g., involving remediation of
a condition in futuro which of course may or may not come to pass [R. 51, 101].
Vardakis gave his opinion of value based on the present conditions which
included a reasonable adjustment for contamination. The adjustment was one
which an appraiser has both a duty and an obligation to make under the standards
of good appraisal practice as specified by USPAP Advisory Opinion 9 (AO-9), [R.
218]. The lower court said nothing about this and upon competing methodologies
chose the one based on the prediction of a five year clean-up which may or may
not ever happen. It was error to have determined such an important point against
the Plaintiffs and certainly is not consistent with the most favorable inference to
which the Plaintiffs are entitled [ cf. also Point III, infra].
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Failure to have presented the Vardakis appraisals on the original motion did not
prejudice the Defendant in any way. Plaintiffs gained no tactical advantage
whatsoever and cannot rationally be accused of sloth, venial intent or not laying
their case bare. In any event, the Defendant has had the information since 1999.
Plaintiffs still believe that a spill of the magnitude and areal extent of the
discharge complained of does not need an expert at all for the average person can
well grasp the idea of a plume of petroleum beneath a residence. This is fully
discussed in Appellants Briefs pgs. 50-53 in the companion appeal App. Div. No.
03-7302. It was also the same reasonable excuse that was accepted by the
appellate court on renewal, inPeebles, ( cit. supra ).
Stigma and impairment due to environmental contamination have been recognized
by the Court of Appeals, as constituting unique factors affecting the value of real
property.Matter of Commerce Holding Corp. v. Board of Assessors of the Town of
Babylon,88 NY2d 724, 649 NYS2d 932 ( 1996). The Court in Commerce also
endorsed a flexible approach to valuation recognizing the unsuitability of the strict
application of traditional valuation techniques to contaminated properties. Both
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26
the legislature and the courts have sanctioned and upheld compensation in
situations identical to what has occurred here, subject only to proof at trial.
LOWER COURT REFUSED TO ACCEPT THE (DEFENDANTS) AUGUST 2003,
SEPTEMBER 2003 PLUME MAPS OR THE PLAINTIFFS MARCH 25, 2004
TEST BORING DATA AS EVIDENCE ON ISSUE OF PERMANENT DAM AGES
Defendants plume maps dated August 2003 and September 2003 submitted on
renewal were not in existence and were not even available to the Plaintiffs until
early 2004. The analysis of the new data indicated that the plume of contamination
had not been adequately represented and was not the same thing as what the
graphic representation purported to show; the soil borings of March 25, 2004
demonstrated that longevity and permanency were major issues which had been
summarily disregarded by the lower court.
This constitutes substantive unfairness for several reasons. The Defendants
environmental expert had argued vigorously that the plume was temporary and
shrinking according to his plume maps. However, it is the subsurface
contamination that is the issue, not simply the plumes graphic representation
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It is presumably based on whatever computer modeling parameters are being used which10
means that the graphic can be adjusted or made to shrink.
Note that May 2005 will mark the beginning of the eighth year ( since May 1998 ) in which11
the Defendants remediation system has been operating with no end in sight.
E.g., Environmental Conservation Law, 17,et seq. Navigation Law, Article 12, Petroleum12
Bulk Storage Regulations, 6 NYCRR 612, 613, 614; significance discussed in companionappeal Appellants Brief, pgs. 28-29, App. Div. No.03-7302.
27
since that is an estimate of the areal extent of liquid phase only. and, it is10
presumably based on whatever modeling parameters are being used which means
that the graphic can be He also said that a significant majority of the plume would
be extracted from the groundwater within 5 years ( R. 505, App. Div. No.
037302) Most significantly no one, not the Defendant or its expert, nor any11
regulatory agency, nor the law itself, has suggested that its even possible to12
remove all of the contamination discharged and present beneath the Plaintiffs
homes at this densely developed spill site. If that in and of itself does not
constitute a triable issue with respect to valuation (damage) then just how would a
controversy over diminution for permanent damages ever find its way to a jury?
Finally, the maps directly contradict what the Defendant tried to establish, that the
contamination is shrinking. Not so, the plume may be shrinking due to collection
of liquid phase product, ground water fluctuation or other factors, but the plume is
only a fractional component of the problem, it is not the problem. Judge Knipels
analysis misses the mark when he comments that because the soil borings are close
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to the edge of the plume at its greatest area, the anomaly cited is just due to the
groundwater fluctuation. What the Plaintiffs have showed with Douthits opinion
and the GeoProbe soil boring results of March 25, 2004, is that there is no linear
correlation at all between the size of the liquid phase plume, as depicted by the
Defendant on its August 2003 and September 2003 plume maps, and the presence
of heavy contamination both in site areas shown to be, (a.) within the historical
plume footprint but that no longer are due to a shrinking footprint ( e.g., SB-1,
[R. 274, 295]) and, (b.) those that have never been shown to be within such
footprint at all, (e.g., SB-2 [R.286, 297]). See also [ R.233, 238, 239, 262, 270,
274, 276].
What then is the criteria which the lower court used to measure the weight to be
given this new data in order to satisfy itself that permanent contamination is not a
triable issue? The courts answer to that question was to preclude everything on
procedural grounds by deciding that the Plaintiffs had engaged in inappropriate
discovery.
PLAINTIFFS ENGAGED IN NO INAPPROPRIATE DISCOVERY
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The Court erred in precluding the Plaintiffs new data by mis-characterizing it as
inappropriate post note of issue discovery. This was an abuse of discretion which
closed the door on the only possible way for Plaintiffs to show that the subsurface
contamination of their properties is now a permanent fixture. The cases cited by
the Court are inapposite because the common thread in all of them is discovery as
it relates to a demands or proceedings against a party and not unilaterally
produced work product or material prepared for litigation as the Plaintiffs made
use of here. Plaintiffs were unable to find any authority characterizing the
unilateral efforts of a party preparing for trial without the involvement of anyone
else, as constituting discovery i.e., a demand or proceeding as contemplated
under CPLR Article 31 or 22 NYCRR 202.21(d). Nothing the Plaintiffs did and
nothing produced on renewal violates anything in their previously filed Note of
Issue or Statement of Readiness. Instead, some of the strongest renewal evidence
on this hotly disputed issue was thrown out by the court on purely procedural
grounds [R. 17].
For the lower court to criticize and preclude Plaintiffs on the basis of
inappropriate post note of issue discovery warrants reversal. The data were
assembled and collected as material prepared for litigation by Plaintiffs on their
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Public Officers Law Article 613
30
own initiative, on Plaintiffs own properties, and at Plaintiffs own considerable
expense. In fact it was similar to the expenditure of time and effort of Defendant in
gathering information for its own renewal submission [ R. 316 ] which the court
did not criticize.
Would the court have similarly frowned on the Plaintiffs continuing efforts to use
the Freedom of Information Law as also constituting inappropriate post note of13
issue discovery? Plaintiffs have managed to obtain much information about the
misfeasance of the Defendant through their use of FOIL which, the Plaintiffs are
convinced might otherwise never have seen the light of day.
Since personal residences are involved, people want to feel comfortable that the
information they have access to, whether documents or analytical results, is not
being filtered through the one responsible for the contamination in the first place.
It is about as far from getting a favorable inference on this critical evidence as is
possible [see Point III, infra]. It constitutes substantive unfairness by attempting
to shoehorn the Plaintiffs own privileged material prepared for litigation into
something it is not. i.e.,discovery within the meaning of CPLR Article 31 or 22
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NYCRR 202.21(d). SeeBeliavskaia v. Perkin, 227 AD2d 246, 642 NYS2d 522 (1st
Dept. 1996),Hill v. Sheehan, 154 AD2d 912, 545 NYS2d 868 ( 4 Dept. 1989),th
Dunning v. Shell Oil Co.,57 A.D.2d 16, 393 N.Y.S.2d 129, ( 3 Dept. 1977).rd
A RATIONAL JURY COULD FIND FOR PLAINTIFFS ON THE EVIDENCE
PRESENTED BOTH IN THE COURT BELOW
Finally, if there any rational basis upon which a jury could have found for the
Plaintiffs on the evidence they have come forward with then summary judgment
and denial of renewal were improper and are reversible error.
The facts and law inLeone v. Leewood Serv. Sta., 212 AD2d 669, 624 NYS2d 610
( 2 Dept.1995 ), lv denied86 NY2d 709, Rizzuto v. Getty Petroleum Corp., 289nd
Ad2d 217 736 NYS2d 233 ( 2 Dept. 2001), and,Melohn v. R&M Combustion,nd
296 AD2d 323, 744 NYS2d 321 ( 1 Dept. 2002) should be controlling in thest
instant matter. All are petroleum discharge damage cases alleging diminution of
value, after trial the jury awarded diminution damages and all three verdicts were
upheld on appeal.
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This estimate was made by Plaintiffs consultant Buzea (Leggette, Brashears & Graham,14
Inc. R. 942 App. Div. No. 03-7302 ). Buzea also found significant gaps in the Defendantsmonthly product inventory reconciliation records required to be kept under the Petroleum BulkStorage Regs., 6 NYCRR 613.4(a) see R. 943-944 App. Div. No. 03-7302. The total amount ofproduct the Defendant actually discharged will probably never be disclosed.
32
In the two cases heard in this Department with which this writer is most familiar
(Leone v. Leewood Serv. Sta., andRizzutov. Getty Petroleum Corp.), the plaintiffs
were residential property owners who alleged diminution damage under the
Navigation Law due to subsurface and ground water contamination from a
discharge of petroleum. The evidence on diminution damages which went to the
jury consisted of opposing opinions on value and was almost identical to the
evidence on diminution in the instant case except for the amount of product
discharged ( only around 200 gallons inLeone and approximately 2000 gallons in
Rizzuto). The instant case involves a staggeringly higher amount (estimated at
70,000 to well over 100,000 gallons ) of discharged petroleum. The14
contamination has not been remediated and is still present beneath Plaintiffs
homes today. These Plaintiffs have the same right to a jury determination of their
claims as did the Plaintiffs in theLeone andRizzuto cases, both of which were
upheld by the Second Department.
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POINT II - COURT ERRED IN DISMISSING PLAINTIFFS NEW
EVIDENCE OF PERMANENT CONTAMINATION ON RENEWAL
Perhaps the most disputed element in this case is the permanency of the
contamination on the Plaintiffs' properties. On renewal, the lower court
misapprehended the empirical evidence presented which supported establishing
permanent damage. More troubling is that by engaging in issue determination with
respect to this crucial point, the court effectively foreclosed it as a question of fact.
Its apparent that the lower court in fact did just that or it could not have come to
the decision it did with that critical question still unresolved. The only way the
court could do so was to disregard all of Plaintiffs evidence including the new test
boring data submitted on renewal. If the court had not rejected the entire issue of
permanency (even though failing to say so explicitly), it could not have
determined that issue against the Plaintiffs on the evidence which was presented.
This cannot be said to have been anything less than issue determination.
The Plaintiffs say that the only way to establish that their properties cannot be
restored to pre-spill conditions is to show the permanency of the contamination.
The only way to show this as far as possible in the future all the way up to trial, is
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to continue to sample and test for the presence of subsurface contamination. Any
testing the Defendant does presents a question of fact to be evaluated with the
other evidence on the issue of damages. It is an egregious error at the summary
judgment stage for the court to preclude the Plaintiffs from doing the same
especially since the issue involves their homes. No regulatory agency has
ventured to say that the contamination will not be a permanent component in the
subsurface and neither have any of the Defendants environmental consultants.
The Defendant continues to sidestep the issue by promising only that it will
continue remediation into the future. Thats admissible in mitigation, but its
hardly a reason to allow Defendant to escape answering the damages claims before
a jury altogether.
The court exceeded its role when it disregarded hard evidence in support of this
critically important issue on renewal. It either misunderstood the fact that the
graphic representation on a plume map is not the barometer of contamination
present or alternatively, it simply refused to accept what the law has previously
allowed: that the documented physical presence of this underground contaminant
on someone elses property equates to some measure of compensable damage and
at the very leastis a genuine issue of triable fact.
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Mis-labeling the new evidence as nothing new is a procedural attack but it
misses the merits of what has been demonstrated:
1. That the amount of product which a pumping well pulls in is
not a measure of the actual contamination present over time.
2. That the amount of product removed is not a measure of
contamination because neither the Defendant nor anyone else
knows how much liquid product was discharged or how much
remains beneath the Plaintiffs homes today.
3. Air testing certainly does not show the measure of
contamination remaining regardless of the number of tests.
4. Ground water fluctuation is not a measure of the amount of
contamination left beneath Plaintiffs homes either.
Again the point not to be missed is that the contamination is not a function of any
particular plume map graphic that the Defendant happens to offer. The published
literature states that only about 60% of the spilled product is recoverable, [R. 385].
The only way to validate that claim with evidence up to the point of trial is by test
borings which are very expensive to produce.
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After more than seven years of trying to remove the liquid phase portion [see R.
384], the results of the test borings confirm that massive soil contamination is
present. Defendant stated on renewal that the anomaly which triggered the renewal
motion is nothing more that a routine fluctuation in the measured dimension and
thickness of the diesel fuel plume caused by water table fluctuation [R. 367]. If
that was all there was to it, the Defendant would have produced similar routine
anomalies where a later month also showed a tremendous increase in product area
over an earlier month. It did not because it could not. The anomaly found by
Plaintiffs expert in the newly acquired evidence (August 2003, September 2003)
was unique and forced a re-visiting of Defendants prior pronouncements about
the contamination. Rather than face it on the merits it did the only thing it could, it
attacked the renewal on procedural grounds by mislabeling it as nothing new. If
it is truly nothing new then the appellate panel will have every reason to reverse
the lower court for ignoring the prior evidence presented on this point alone.
The significance of the new evidence is that it not that it simply contravenes the
predictions of the Defendants expert but that it demonstrates empirically that
heavy contamination is present today, not in theory but in reality, in areas which
were formerly shown to be within the plumes footprint but are no longer, on any
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of the Defendants maps, at least none which Plaintiffs have seen. The new data
shows that the contamination present is not remotely connected to the shrinking
plume maps. Although the Defendant puts great emphasis on these graphics to
show the problem is going away. When a later plume map shows approximately a
100% increase in liquid product area [R. 276, 277] as compared with an earlier
one, it gives one pause, in light of the historical failure of Defendant to store its
petroleum safely at the Depot for well over a decade.
The March 25, 2004 analytical data shows significant hydrocarbon contamination
trapped in the vadose layer exactly as explained by the Plaintiffs expert Douthit,
[R. 261, 263-299]. His report states that a significant fraction of this contamination
is unrecoverable [R. 231, 244]. Certainly the Defendant, with its resources, could
have gathered data in the same way to refute this latest evidence of permanence,
on the renewal motion but it did not. Instead of meeting the challenge on the
merits, it attacked it on procedural grounds.
The soil and ground water will remain contaminated and in this respect, a spill of
this magnitude results in virtually permanent damage to the subsurface due to the
practical difficulty of removing sorbed hydrocarbon from the subsurface soil [R.
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See Affidavit of Jay Gittleman, V.P. of former Plaintiff Miller & Davis, Inc. [R. 398-400]15
submitted in Plaintiffs Reply to rebut the innuendo directed at Plaintiffs counsel in the Affidavitof Defendants Assistant General Counsel, David C. Boyle [R. 316, par.4].
38
240, 262]. This issue is material and can only be proved (i.e., with reasonable, not
absolute certainty ) by periodic analysis of test borings performed on the
Plaintiffs lands collected right up to the time of trial. The lower court said this
was inappropriate and not allowed after filing a note of issue [R. 16].
POINT III -THE COURT ERRED BY FAILING TO GRANT ANY
FAVORABLE INFERENCE TO NON-MOVANTS
Perhaps the clearest example of the lower courts failure to grant the most
favorable inference to conflicting evidence is found in Plaintiffs reply on the
renewal motion [R. 378-380]. Here, the Plaintiffs presented the affidavit of an
employee of former Plaintiff Miller & Davis, Inc. Plaintiffs candidly
acknowledged the possibility for conflicting inferences [R. 379] in an effort to
alert the court that there were at least two ways of looking at the information.15
The Plaintiffs also pointed out however, that since the evidence was sworn
testimony, there was no reason to choose to discredit the employees statements
about the negative effects his firm experienced because of the environmental
problem. Not only did the court seize upon the worst inference in this instance [ R.
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21] but it is typical of what occurred in the lower court on virtually every piece of
evidence proffered in both the original motion [ as detailed in Appellants Brief
pgs. 29-31 and 65-68, App. Div. No. 03-7302] and on renewal [R. 379].
Even after highlighting this [R. 390, 394] in the moving papers the lower court
continued to accept the worst possible inferences to be drawn, [R. 17]. The record
shows that nothing the Plaintiffs proffered resulted in the granting of the fair
inferences to which they were entitled as non-movants. [See Appellants Brief pgs.
29-31, 39-43, 65-68, Appellants Reply pgs. 10, 18, 21-23 App. Div. No. 03-7302
for additional exemplars.]
Another example of credibility determination occurred on renewal when Plaintiffs
submitted nine additional affidavits of purchasers whose homes are outside of the
plumes footprint, [R. 54]. Of these nine properties (which were all previously
cited by the Defendant and accepted by the court as evidence of no diminution )
not one property has ever been above or even close to the plume; seven persons
gave affidavits stating that they did not even know about the contamination at the
time of their purchase while two persons said they had heard about the spill prior
to purchasing their properties but both stated in their affidavits that because their
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properties were not over or even adjacent to the plume that it did not impact their
purchase decisions, [R. 64-81].
Although these purchases were cited by the Defendant [R. 1039, App. Div. 03-
7302]) as evidence of no diminution and absence of stigma, the Defendant never
even inquired what those purchasers knew or didnt know. The Plaintiffs certainly
did inquire and obtained affidavits from them which were submitted to the court.
That information was summarily ignored, not once but twice. The lower court was
never persuaded that the concept of market value implicitly depends on having
knowledge in order to make an informed decision ( see Kilpatrick, R. 101). It is
illogical by definition to consider these sales as evidence of no market value
diminution if there was (a) no prior knowledge of the spill (seven of the nine said
exactly that) or (b) if their properties were not even close to the plume or adjacent
to it ( all nine sales) meaning not comparable. Yet the lower court apparently made
a negative credibility determination again on renewal as it did on the seven owners
who likewise gave sworn statements which were detailed in the first appeal ( R.
935, 995, 1006-1021, App. Div. 03-7302). Even if the court believed that some
other definition of market value should control, it was required to grant the most
favorable inference, not entirely discount unchallenged sworn testimony on a key
material issue.
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The balancing of the equities decidedly favor the Plaintiffs who are innocent of
wrongdoing. If the issue is even close as to whether the movant could have
discovered the evidence with due diligence, the movant should be given the
benefit of the doubt and renewal should be granted. As stated in the concurring
opinion of Justice Lupiano inNAB Construct. Corp v. Great Am. Ins. Co. 75
AD2d 790, 428 NYS2d 252, affd 53 NY2d 964, 441 NYS2d 658 ( 1981), " as I
perceive truth to be the handmaiden of justice, common sense dictates favoring the
[evidence] as enjoying the status of newly discovered."
When deciding a motion for summary judgment, the court must view the evidence
in a light most favorable to the non-moving party and must give that party every
reasonable inference which can be drawn from the evidence.Negri v. Stop & Shop,
Inc., 65 NY2d 625 ( 1985); and Louniakov . M.R.O.D. Realty Corp., 282 AD2d
657 ( 2 Dept. 2001). Certainly a reasonable inference would be that the averagend
person would not knowingly pay as much for a property with a permanently
contaminated subsurface, other things being equal. There is no fairer inference.
The Plaintiffs did not receive the benefit of doubt either on the renewal or the
original motion.
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Supreme Court of the State of New YorkAPPELLATE DIVISION: SECOND DEPARTMENT
JAMES M. TURNBULL, et al., App. Div. No. 04-06950
Plaintiffs-Appellants,
against CERTIFICATE OF
COMPLIANCE WITH
MTA NEW YORK CITY TRANSIT, Section 670.10.3(f)
Defendant-Respondent..
The undersigned attorney for Appellants certifies that the enclosed brief complies with rule
670.10.3(f) of the Rules of Court for Computer-generated Brief - Proportionally Spaced
Typeface; The brief was prepared on a computer using a proportionally spaced typeface as
follows:
Name of Typeface: Times New Roman
Point Size: 14
Line Space: Double
The total number of words in the brief is: 9600 words, inclusive of point headings and footnotes
and exclusive of pages containing the table of contents, table of citations, proof of service,
certificate of compliance, or any authorized addendum containing statues, rules, regulations, etc.
Dated: New Suffolk, NY
April 8, 2005 __________________________________
Dunewood Truglia, Esq.
Attorney for Plaintiffs-Appellants
First Street P.O. Box 222
New Suffolk, NY 11956