Opinion
No. 2007/00221.
01-27-2016
Bruce COLEMAN and Rochester Auto Maintenance, Inc., Plaintiffs, v. CHEVRON U.S.A. INC. and Tremarco Corp., Defendants.
Alan J. Knauf, Esq., Melissa M. Slaughter, Esq., and Amy K. Kendall, Esq., of Counsel, Knauf Shaw LLP, Rochester, for Plaintiffs. Beryl Nusbaum, Esq., Greta K. Kolcon, Esq., and Stephen P. Burke, Esq., Woods Oviatt Gilman, LLP, Rochester, for Defendants.
Alan J. Knauf, Esq., Melissa M. Slaughter, Esq., and Amy K. Kendall, Esq., of Counsel, Knauf Shaw LLP, Rochester, for Plaintiffs.
Beryl Nusbaum, Esq., Greta K. Kolcon, Esq., and Stephen P. Burke, Esq., Woods Oviatt Gilman, LLP, Rochester, for Defendants.
THOMAS A. STANDER, J.
DECISION
The Defendants, Chevron U.S.A., Inc. ("Chevron") and Tremarco Corp. (collectively "Defendants"), submit a motion seeking an order granting partial summary judgment to Defendants pursuant to CPLR § 3212[e] as follows:
A. Dismissing Plaintiff, Bruce Coleman's, claim for damages allegedly due to the loss of a sale of real property on the grounds that
1) Plaintiff Bruce Coleman was not a party to the 2003 signed Letter of Intent and has no standing to make this claim;
2) there was no enforceable contract to support such a claim;
3) any negotiations were superseded by a subsequent lease;
4) any claim for loss of such a sale is not a proper measure of damages in this case.
B. Dismissing Plaintiff's Fourth Cause of Action for public nuisance on the grounds that it is duplicative of Plaintiffs' negligence claims and fails as a matter of law;
C. Dismissing all claims by Plaintiff Rochester Auto Maintenance, Inc. on the grounds that it has suffered no damages;
D. Granting such other and further relief as the Court may deem just and proper.
The Plaintiffs, Bruce Coleman ("Coleman") and RAM Maintenance, Inc. ("RAM"), submit a cross-motion for an Order: (1) granting Plaintiffs summary judgment pursuant to CPLR Rule 3212 on all of Plaintiffs' claims; (2) awarding damages and response costs in the amount of $805,857.02, with interest; and (3) granting Plaintiffs such other and further relief as may be just and proper, including Plaintiffs' costs and disbursements.
I. FACTS
The Plaintiffs commenced this action pursuant to the New York State Navigation Law Article 12 ("Oil Spill Act"), and common law and equitable theories for alleged damages at 2861 West Henrietta Road, Town of Brighton, County of Monroe, State of New York ("Property"). Plaintiffs allege a first cause of action under Navigation Law § 181(5), wherein Defendants are strictly liable for the costs of investigation, remediation, cleanup, removal, and response to contamination; and for all associated direct and indirect damages; a second cause of action under Navigation Law § 176(8) for indemnification or contribution for past and future costs of investigation, remediation, cleanup and removal, and response; a third cause of action for negligence; a fourth cause of action for public nuisance; a fifth cause of action for equitable or implied indemnification; and a sixth cause of action for restitution. Plaintiffs seek reimbursement and/or contribution for environmental response costs that Plaintiffs expended and property damages, caused or made necessary by discharges of petroleum, including gasoline, at property located at 2861 West Henrietta Road, Henrietta, Monroe County, New York, resulting in environmental contamination.
The Plaintiffs claim that the Defendants are dischargers under the Navigation Law and thus liable for direct and indirect costs. The Defendants owned the Property from 1957–1975 and operated a gas station. From 1975 until 1993 the Property was owned by others not involved in this litigation.
In 1993 Coleman purchased the Property after having an environmental study completed which determined there was no contamination on the Property in violation of the DEC requirements. The 1993 environmental study, Phase I and Phase II environmental investigation conducted by Empire Soils Investigations, Inc., determined that there were no levels of contamination above DEC standards at the Property. No cleanup was necessary. In 1997 there was also a tank found by Monroe County Water Authority 24 feet from the Property which was reported to the DEC. The DEC reported no contamination was found in the area of the tank.
In 2004 a company named Eureka Petroleum, Inc., owned by Paul Morabito, offered to purchase the Property. RAM entered into a Letter of Intent ("LOI") dated November 4, 2003 to sell the Property and the business operated by RAM to the purchaser. This LOI contained, among other provisions, the opportunity for the purchaser to conduct due diligence on the condition of the property. The LOI was not signed by the property owner, Coleman. The LOI stated as a condition that the property was owned by the seller RAM's landlord and that RAM would take title to the Property prior to or simultaneously with the closing of the transaction.
During the purchasers due diligence an environmental investigation report by Teeter Environmental Services, Inc. revealed that the Property was significantly impacted by petroleum released prior to Coleman's ownership, and concluded the release was during the operation of the gas station by Defendants. The purchaser refused to buy the Property in accordance with the due diligence contingency contained in the LOI.
A new transaction was negotiated for the Property. On or about March 8, 2004, Coleman entered into a Lease Agreement for the Property with Monroe Petroleum LLC, a different company owned by Paul Morabito. The agreement was for a long term lease with a 2% annual increase in rent, and with a ten year option to compel the tenant to purchase the property for $1,331,427 once the contamination on the property was cleaned up. This purchase amount is the same amount contained in the original LOI.
The property was remediated by Saw Environmental Services, Inc. in 2004. There was excavation and removal of soils from the site, screening of the soils, but no groundwater remediation was required. At this time Plaintiff, Coleman, expended $34,657.05 to remediate the contamination on the Property.
Coleman then obtained a "No Further Action" letter from the DEC after cleanup of the Property; and this information was provided to the tenant/purchaser as of April 26, 2005. The Property was not purchased at that time; Plaintiff/Landlord did not require the purchase; and Plaintiff as the Landlord continued to collect the rent. Coleman, collected $465,000 in rental payments. In the fall of 2006 Morabito sold his businesses to DDS Management LLC and became insolvent. DDS fell behind in the rent; stopped paying after September 2007; and was evicted. Coleman says he was unable to re-lease the Property.
Other costs claimed by Plaintiffs are real property taxes of $92,470.35 paid since the Property was vacated by the Tenants. Attorneys' fees of $48,874.50, and disbursements of $3,869.91. The Plaintiffs also submit a fair market value appraisal of the Property of $617,500 as of October 27, 2015.
II. PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT
The Plaintiffs, Coleman and RAM, submit a cross-motion seeking summary judgment pursuant to CPLR Rule 3212 on all of Plaintiffs' claims. The Plaintiffs action alleges claims for violation of the New York State Navigation Law Article 12, § 181(5) for strict liable for the costs of investigation, remediation, cleanup, and removal, and response to contamination, for all associated direct and indirect damages; under Navigation Law § 176(8) for indemnification or contribution for past and future costs of investigation, remediation, cleanup and removal, and response; for negligence; for public nuisance; for equitable or implied indemnification; and for restitution. The burden is on the Plaintiff to establish that the Defendants actually caused or contributed to the discharge of contaminants on the Property so as to be liable as a discharger pursuant to Navigation Law § 181 (see Patel v. Exxon Corporation, 43 AD3d 1323 [4th Dept.2007] ; Starnella v. Heat, 14 AD3d 694,695 [2nd Dept.2005] ).
At oral argument of the parties motions, counsel for the Plaintiff conceded that there is a question of fact raised on Plaintiff's Summary Judgment motion by the expert affidavit of the Defendants, Tyler Gass, P.G., P.Hg. The expert, Mr. Gass, reviewed all the environmental reports; reviewed the report and affidavit of David Engert, Plaintiffs' expert; and relied on known generally accepted scientific procedures, to opine that
there is no basis for a finding either that the contamination reported by Teeter was accurate or correct or that Gulf or Tremarco were the source of the contamination alleged to exist on the property at 2861 West Henrietta Road, Rochester, New York.... [I]t is my opinion, based on a reasonable degree of scientific certainly, that Gulf and Tremarco have no responsibility for the contamination alleged here.
(Affidavit of Tyler Gass, P.G., P.Hg., Nov. 13, 2015, ¶ 's 24–25). The Plaintiffs alleged claims for damages are all based on the Defendants being dischargers of contaminants on the Property.
The Plaintiffs concede there is a triable question of fact regarding their allegations of Defendants being a discharger of contaminants. The Plaintiffs fail to meet their initial burden on summary judgment to establish that they are entitled to judgment as a matter of law. Even if the Plaintiffs were determined to meet their burden for summary judgment, the Defendants submit evidence sufficient to raise a triable issue of fact defeating summary judgment on Plaintiffs claims (see Sweet v. Texaco, Inc., 67 AD3d 1322,1323 [4th Dept.2009] ).
The motion of the Plaintiffs for summary judgment, on all their causes of action, is DENIED.
III. DEFENDANTS' PARTIAL SUMMARY JUDGMENT MOTION
The Defendants also move for summary judgment to dismiss specific claims of the Plaintiffs for damages allegedly due to the loss of a sale of real property; for public nuisance; and all claims by Plaintiff, Rochester Auto Maintenance, Inc. The Defendants argue that they are entitled to judgment as a matter of law dismissing these claims.
The initial burden is on the Defendants to establish by sufficient evidence they are entitled to judgment as a matter of law. The burden then shifts to the Plaintiffs to submit evidence which raises a triable issue of fact to defeat the motion for summary judgment.
A. Claims of Rochester Auto Maintenance, Inc. (RAM)
The Defendants submit sufficient evidence to establish as a matter of law that Plaintiff, Rochester Auto Maintenance, Inc., does not have any claims for damages against the Defendants under the Navigation Law; for negligence; for public nuisance; for equitable or implied indemnification; or for restitution. The documentation shows that RAM never owned the real Property at issue. Plaintiff Bruce Coleman purchased the Property in 1993 and has owned it continuously since that time.
The documentation demonstrates that in 2003 RAM entered into the LOI with a buyer, Eureka, for the purchase and sale of the Property, including the business, land and buildings, from RAM (Letter of Intent, Exhibit C–8). According to the LOI the closing was subject to various conditions precedent. One condition was a statement that some of the properties are owned by Seller–RAM's landlord and that Seller–RAM shall take title prior to closing (Letter of Intent, Exhibit C–8, ¶ 2). RAM never took title to the Property at issue. The LOI was also contingent on due diligence by the buyer as to the physical condition of the property. During the due diligence the buyer discovered that the Property at issue was contaminated, and did not want to purchase the contaminated Property (Affidavit of Morabito, ¶ 13–15).
The entire transaction between RAM and Eureka for the Property and businesses under the LOI was renegotiated (see Affidavit of Morabito, ¶ 17). RAM entered into the renegotiated transaction with Coleman individually and a different company owned by Morabito. In this new or renegotiated Purchase and Sale Agreement RAM agreed to sell its business only. The renegotiated transaction closed in 2004, wherein RAM sold its business for the exact same price as was originally stated in the original LOI. The purchase and sale documents show that RAM consummated the sale of its business for that price.
The Plaintiff characterizes the second LOI as ‘renegotiated’ but in fact this is a new contract with different parties and different elements.
The Defendants have met their burden to establish that they are entitled to judgment as a matter of law dismissing the Complaint of RAM as against Defendants because RAM has never owned the Property at issue in the Complaint and cannot allege claims under the Navigation Law, negligence, or common law for damages to property it has never owned. The burden then shifts to the Plaintiffs to submit evidence raising a triable issue of fact.
The Plaintiffs argue that RAM suffered actual damages because a party may enter a contract even when it does not have the power to sell and convey. Plaintiffs assert that RAM is on the face of the LOI and is the party with actual damages from the loss of sale resulting from the contamination. Plaintiffs reasoning is that Coleman, as President and sole member of RAM, would have deeded the property to RAM upon the sale to buyer; and but for the contamination the sale would have occurred for the purchase price in the LOI. Plaintiffs submit affidavits of Coleman and from Morabito, President of the buyer of properties under the LOI, stating the intent of the LOI was for Coleman to transfer the property to RAM. Plaintiffs claim that a triable question of fact exists as to damages claimed by RAM.
In assessing whether summary judgment dismissing all claims of RAM is warranted, the Court must accept all proof in favor of the Plaintiff, RAM. RAM seeks damages under the strict liability oil spill act for damages caused when a discharger contaminates real property; for negligence; and for other tort causes of action. The evidence shows that RAM ran a business on the Property, while the Property was owned by Bruce Coleman. Coleman was the President of RAM at the time. The corporation, RAM, and the individual, Bruce Coleman are separate entities.
Although the LOI had a contingency that RAM would obtain title of the Property from the landlord prior to any closing; such title never was transferred to RAM from Coleman. There was no contract between RAM and Coleman for the sale and transfer of the subject Property. Interestingly, when the sale of other properties under the LOI was consummated, Coleman was a party to the agreement and transferred the properties directly to the purchaser and RAM never took title to those properties either.
The evidence unequivocally establishes that RAM has never owned the Property at issue. There is no proof submitted of any damages to RAM under any of the causes of action stated in the Complaint against the Defendants as dischargers under the Navigation Law. The Plaintiffs fail to submit any proof raising a triable question of fact as to damages to RAM from any actions of the Defendants. The motion of the Defendants for summary judgment dismissing all claims by Plaintiff, Rochester Auto Maintenance, Inc., on the grounds that it has suffered no damages is GRANTED.
B. Damages Due to Loss of a Sale of Real Property (Coleman)
The Defendants submit a motion seeking to dismiss Plaintiff, Bruce Coleman's, claim for damages allegedly due to the loss of the sale of the real Property at issue in this action. The Defendants assert several grounds for dismissal: Plaintiff Bruce Coleman was not a party to the 2003 signed Letter of Intent ("LOI") and has no standing to make this claim; there was no enforceable contract to support such a claim; any negotiations were superseded by a subsequent lease; and any claim for loss of such a sale is not a proper measure of damages in this case.
The Defendants submit documentation showing that Bruce Coleman was not a party to the 2003 LOI and was not a signatory to the LOI (Letter of Intent, Exhibit C–8). The documentation offered by Defendants in support of its position includes, among other things, the LOI; the subsequent renegotiated agreement wherein the Property at issue was not included in the sale; the Lease Agreement between Coleman and the tenant for the Property; other environmental reports; and deposition testimony (Purchase and Sale Agreement, Exhibit C–9; Lease Agreement, Exhibit C–11; and Phase I and Phase II Environmental Site Assessment, Exhibit C–3; Teeter Environmental Report, Figure 3, Exhibit C–10). The Defendants also submit a Decision of Honorable Michael A. Telesca, United States District Court of the Western District of New York, October 24, 2012 (Exhibit H).
Bruce Coleman signed the LOI only as President of RAM.
Defendants conclude based on all the documentation and deposition testimony submitted that they have shown sufficient evidence to establish that they are entitled to summary judgment dismissing claims by Plaintiff, Coleman, for damages due to loss of a sale of the Property. The documentation, deposition testimony, and affidavits sufficiently establish that the Defendants are entitled to summary judgment. The burden then shifts to the Plaintiff, Coleman.
Plaintiff, Coleman, argues procedurally that the Defendants waived the defense of lack of standing by failing to raise it by motion or in the responsive pleading pursuant to CPLR Rule 3211[e]. Substantively, Plaintiff argues that lost profits are recoverable in common law causes of action so long as they are reasonably certain, and not remote, contingent or speculative. Further that the lost profits are recoverable under the Oil Spill Act as indirect damages. Plaintiff asserts that there is not a requirement that a contract exist, only that the lost profits are reasonably certain.
The position of the Plaintiff, Coleman, is that the LOI established the price to be paid to Coleman for the Property, regardless of whether the LOI was legally binding; that the purchase of the Property was reasonably certain in that Morabito and his companies purchased other properties. Plaintiff concludes that but for the contamination revealed by the Teeter Phase II report, the Property would have been sold for $1,331,427 at a closing in March 2004, and thus, Plaintiff is entitled to the damages under the claims alleged in the Complaint.
i. Standing
The Defendants argue that the Plaintiff, Bruce Coleman, was not a party to the 2003 signed Letter of Intent and has no standing to make the claim for lost profits from the lack of the sale of real property under the LOI. " ‘Standing to sue’ means that party has sufficient stake in an otherwise justiciable controversy to obtain judicial resolution of that controversy" (Black's Law Dictionary, 6th ed., p. 1405). "The most critical requirement of standing ... is the presence of "injury in fact-an actual legal stake in the matter being adjudicated" (citation omitted )" (Security Pacific National Bank at 279).
The individual Coleman was not a party to the LOI with the buyer. Further, though RAM is a party to the LOI, there is no evidence of any written agreement for RAM to purchase the property from Coleman. RAM is a separate entity from Coleman, the individual who owned the property and still owns the property. Coleman individually has no rights under the LOI.
Coleman individually does not have standing in this action because he does not have sufficient stake in an otherwise justiciable controversy to obtain judicial resolution of that controversy. Coleman does not have an injury in fact because he could not enforce the LOI or any of its terms; nor does he submit an enforceable agreement with RAM to purchase the property.Any benefits flowing from the LOI, which in any event is merely an agreement to reach a formal agreement, do not reach Coleman individually. Coleman has no standing to make any claims under the LOI for damages allegedly due to loss of the sale of the property.
Even though this Court has determined that Coleman does not have standing to make any claims based on the LOI, the Court considers the other arguments for summary judgment on lost profits.
ii. No Enforceable Contract and Subsequent Lease Agreement
The Defendants also assert that they are entitled to summary judgment as a matter of law on the claim for lost profits because there was no enforceable contract to support such a claim.
The Plaintiff, Coleman's, position is that but for the contamination from the dischargers, the transaction in the LOI would have been consummated under the Purchase and Sale Agreement in 2004.
First, the Letter of Intent is an agreement to agree. A formal purchase and sale agreement, with all the necessary terms, clauses and provisions was yet to be completed. Further, Coleman is not a party to the LOI with the purchaser of the Property. Coleman signed the LOI in his capacity as President of RAM only. Coleman individually was not a party to the LOI and has no rights under the LOI.
RAM entered into the LOI to sell the business, land and buildings to Eureka (Exhibit C–8). At the time of the LOI, RAM did not own title to the Property. The LOI states that some of the properties are owned by Seller–RAM's landlord and that Seller–RAM shall take title prior to closing; one of these properties is the Property at issue (Exhibit C–8, ¶ 2). However, RAM never took title to the Property and RAM had no enforceable contract to purchase the Property at issue from Coleman.
The terms set forth in the LOI unequivocally state that the closing of the deal was subject to various conditions precedent, including due diligence as to the physical condition of the property. The buyer conducted environmental testing and obtained a report showing contamination on the Property. Once the buyer discovered during due diligence that the Property at issue was contaminated, it did not want to purchase the contaminated Property (Affidavit of Morabito, ¶ 13–15). The terms of the LOI allowing due diligence was followed; the buyer found contamination; the buyer did not have to go forward with the transaction. There is no legally enforceable contract upon which a lost profits claim can be based.
Thereafter, the entire transaction between RAM and the buyer for various properties and businesses under the LOI was renegotiated (see Affidavit of Morabito, ¶ 17).The new Purchase and Sale Agreement involved different parties: it was entered into by RAM; Coleman, an Individual; and Rochester Lube LLC, as agent for Tibarom Inc.This new agreement provided that the business owned by RAM would be purchased. The Property at issue owned by Coleman was not being purchased in the ‘new’ Purchase and Sale Agreement. This ‘new’ Purchase and Sale Agreement contains an integration clause:
This Agreement contains the entire understanding among the parties hereto with respect to the subject matter hereof, and except as herein contained supersedes all prior and contemporaneous agreements and understandings, inducements or conditions, express or implied, oral or written.
(Purchase and Sale Agreement, Exhibit C–9, ¶ 21.9). This new agreement was executed "no earlier than February 26, 2004" (Affidavit of Morabito, ¶ 17). Plaintiff advises that this closing occurred in March 2004. There can be no lost profits claim under the Purchase and Sale Agreement because this transaction does not include the purchase of the Property at issue.
On or about the time of the sale of the RAM business, Coleman entered into a Lease Agreement ("Lease") to lease the Property at issue to Monroe Petroleum LLC (Lease Agreement, Exhibit C–11). The Lease term was from 2004 to 2033, with rent of $113,171.29 plus a 2% annual increase. This Lease contains an option to purchase during the first ten years subject to certain restrictions at the price of $1,331,427.00; and a provision that upon Landlord providing evidence of a no further action letter for the NYS Department of Environmental Conservation, Tenant will purchase the Property (Lease Agreement, Exhibit C–11). This Lease also includes an integration clause:
This Lease and the Purchase and Sale Agreement [related to the Lease] embody the full agreement of the parties and supersede any and all prior understandings or commitments concerning the subject matter of this Lease.
(Lease Agreement, Exhibit C–11). The Lease Agreement between Coleman and the Tenant is a new transaction entered into in March 2004 with favorable rent terms, an annual 2% rent increase, and a ten year option to purchase at the LOI price.
Plaintiff, Coleman, argues that the renegotiated Purchase and Sale Agreement (between RAM, Coleman and the buyer) and the new Lease Agreement (between Coleman and the tenant) would not have been necessary but for the contamination found on the Property. Further that the contamination is what caused the transaction envisioned under the LOI not to close and deprived Coleman of the profits of $1,331,427 for the sale of the Property in March 2004.
The difficulty with this reasoning is that any sale of the Property by Coleman, who was not a party to the LOI, was totally uncertain, remote, contingent and speculative (see AMCO International, Inc. v. Long Island Railroad Company, 302 A.D.2d 338,340 [2nd Dept.2003] [lost profits awarded where profits were reasonably certain] ). Further, the LOI contains provisions to conduct due diligence on the condition of the property, which makes the sale of the Property uncertain, contingent and speculative. The sale was contingent on the outcome of the environmental studies. The buyer, in accordance with the buyer's rights under the LOI, determined not to purchase the Property once contamination was found. There is no basis for a lost profit claim based on buyer's proper exercise of his rights under the LOI. Further, there is no basis for a lost profit claim by Coleman, because he was not a party to the LOI.
There are no lost profits from the new Purchase and Sale Agreement because the Property at issue here is not part of that transaction.
There are no lost profits from the separate Lease Agreement which contained an integration clause. The Plaintiff, Coleman, entered into this beneficial business deal, with favorable rent payments over a long term, an annual increase, a guaranty, an option to purchase without deduction for rent paid, and ten years to decide to enforce his option to purchase. Coleman never attempted to enforce this agreement until tenants defaulted, had to be evicted and the involved companies had become insolvent.
The Plaintiff, Coleman, fails to demonstrate a triable question of fact as to the claim for lost profits from the failure to be able to sell the real Property.
iii. Not a Proper Measure of Damages
The Defendants assert that any claim for lost profits from the loss of a sale of the Property is not a proper measure of damages in this case.
Defendants assert that the Property in question is still owned by the Plaintiff, Coleman. The Property is not listed for sale and the owner only has it listed for leasing. The Plaintiff has not suffered any damages. Defendant again alleged the lost sale in 2004 is entirely uncertain, remote and speculative because the renegotiated Purchase and Sale Agreement did not include the Property at issue. The Plaintiff Coleman was not a party to the LOI; and cannot claim lost profits from an agreement to which he had no interest.
In a case involving the Plaintiffs and another Defendant, wherein Plaintiffs were seeking lost profits due to an alleged lost sale of property based on the same exact Letter of Intent present in this action, the Federal District Court Judge addresses the same issues and dismissed the claim for lost profits. The Decision of Hon. Michael A. Telesca, Federal District Court for the Western District of New York, issued October 24, 2012 states:
Here, Plaintiffs have not sold the Site at a loss compared to the price offered by Eureka in 2004. Plaintiffs also have not shown that they would have sold the Site to another buyer, but for the contamination. And significantly, Plaintiffs admit that since the bankruptcy of DDS, they have preferred to lease the Site rather than sell it.
Even accepting the argument that, but for the contamination, the sale to Eureka would have been completed, Plaintiffs have not offered evidence of the existence of an actual sale of the Site or even a proposed sale from which the Court could determine whether Plaintiffs have actually incurred a loss. Plaintiffs have not attempted to sell the Site since 2004 and offer no information regarding whether the market value of the Site has decreased such that the Site could not be sold, either for profit or at a loss. Plaintiffs have not cited, and the Court has not found, any legal authority to support their lost profits theory. The Court finds, therefore, that a claim for lost profits is not the proper measure of damage in this case. Accordingly, Plaintiffs' claim for lost profits is dismissed with prejudice.
(Coleman v. Atlantic Richfield Company, 2012 U.S. Dist. LEXIS 152923 [J.Telesca, W.D.NY 2012] ).
The Defendants establish that they are entitled to judgment as a matter of law.
The burden shifts to Plaintiff. Plaintiff, Coleman, cannot establish that lost profits on the sale of real estate is a proper measure of damages in this case. Plaintiff's claim for lost profits from the loss of a sale of the property is uncertain, remote and speculative and he fails to raise a question of fact on that issue. Plaintiff, Coleman, fails to submit evidence to show a triable issue of fact.
iv. Conclusion
The motion of the Defendants for summary judgment dismissing Plaintiff, Bruce Coleman's claim for damages allegedly due to the loss of a sale of the real Property at 2861 West Henrietta Road, Town of Brighton, County of Monroe, State of New York, is GRANTED.
C. Public Nuisance
The Defendants seek summary judgment dismissing Plaintiffs Fourth Cause of Action for public nuisance on the grounds that it is duplicative of Plaintiffs' negligence claim and fails as a matter of law.
Plaintiffs state that they agree with Defendants that one cannot seek duplicate damages for negligence and nuisance, but argues they have exercised the right to plead in the alternative.
At oral argument, upon questioning by the Court, Plaintiffs' counsel indicated that a public nuisance may exist when contamination from discharges creates a groundwater issue or threat to groundwater.
The Defendants establish that the alleged contamination on the Property did not impact the public at large. There is no evidence showing that the groundwater was threatened by any contamination on the Property. There is no evidence that any other property was impacted by any contamination from the Property.The Defendants submit sufficient evidence to establish that they are entitled to judgment as a matter of law.
The burden shifts to the Plaintiff. Plaintiff argues that the contamination caused an environmental hazard that required the attention of the NYS Department of Conservation. Thus Plaintiffs conclude that the Defendants have interfered with the environment, a right common to all, which Plaintiffs were forced to remediate. This is Plaintiffs basis for Defendants being liable for public nuisance.
The Plaintiff has failed to submit evidence sufficient to show a triable issue of fact on the cause of action for public nuisance. There is no evidence that the alleged contamination affected the public at large or any other property. The motion of the Defendants, Chevron U.S.A. Inc. and Tremarco Corp., for summary judgment dismissing the claims for public nuisance is GRANTED.
SUBMIT ORDER
Counsel for the Defendants, Chevron U.S.A. Inc. And Tremarco Corp ., shall submit an Order, with this Bench Decision attached, upon approval of all Counsel.