DVL, Inc. v. Niagara Mohawk Power, Et Al

Aug 2: In the U.S. Court of Appeals, Second Circuit, Summary Order number 11-26-cv. Appealed from the judgment of the United States District Court for the Northern District of New York. Plaintiff-appellant DVL, Inc. (DVL) is a commercial real estate owner that acquired a piece of property in Fort Edward, New York (the DVL Site) in

2002. At the time of acquisition, DVL was unaware that soil at the Site contained quantities of polychlorinated biphenyls (PCBs). In 2003, DVL learned that the New York State Department of Environmental Conservation (DEC) was concerned about PCB contamination at the DVL Site. A preliminary site assessment conducted by an engineering firm retained by DEC from 2003 to 2004 revealed the presence of several types of PCBs in soil at the Site. DVL subsequently hired an environmental consulting

firm to investigate and remediate the contamination at the Site, thereby incurring substantial expenses.

 

    On October 11, 2007, DVL initiated this action against defendants-appellees Niagara Mohawk Power Corporation, National Grid USA, National Grid, and National Grid USA Service Company, Inc. (collectively, Niagara), and General Electric Company (GE), alleging that they had disposed of PCBs at the DVL Site and were therefore liable for DVL's clean-up costs and damages. DVL's complaint asserts claims under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and the New York State common law of indemnification, trespass, and nuisance.

 

    On December 6, 2010, the district court denied DVL's motion for partial summary judgment as to liability, granted Niagara's and GE's motions for summary judgment, and granted GE's cross-motion to strike certain undisclosed expert testimony. The Appeals Court ruled, "We affirm for substantially the reasons set forth in the district court's thorough and well-reasoned opinion."

 

    On the CERCLA issues, the Appeals Court indicates, "The district court held that DVL failed to adduce sufficient evidence that the defendants disposed or arranged for the disposal of PCBs at the DVL Site, and accordingly denied DVL's motion for partial summary judgment as to liability and granted the defendants' motions for summary judgment. We agree with the district court's analysis, and therefore affirm. With respect to GE, DVL argues on appeal that it presented various pieces of circumstantial evidence which, taken together, establish that GE arranged for the disposal of PCBs at the DVL Site. However, much of this evidence concerns activities with no connection to the DVL Site." Finally, the Appeals Court rules, "We have considered all of the plaintiff's arguments in light of all of the evidence in the record and find them to be without merit. Accordingly, we affirm the judgment of the district court."

 

    Access the complete Summary Order (click here). [#Remed, #CA2] 

 

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