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 Clerk’s Index No. 26485 / 99
Reproduced on Recycled Paper

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............................
The Diorio Valuation Opinion ............................................... Opinion of John A. Kilpatrick, PhD. regarding work product of Vardakis appraisals and Diorio opinion ............................. New analytical data showing permanency issue on Renewal..

12
13

14 15

ii

ARGUMENT

POINT 1

ABUSE OF DISCRETION ON RENEWAL

Refusal to accept Vardakis Appraisals as prima facie issue of fact on renewal was an abuse of discretion........ 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.... Plaintiffs engaged in no “inappropriate discovery”........
A rational jury could find for the Plaintiffs Plaintiffs on the evidence which was presented ....................

20

26 28
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 nonmovant on all critical issues of fact and credibility .........

38

CONCLUSION ............................................................................................

42

COMPLIANCE CERTIFICATE, Section 670.10.3(f) ............................................

43

iii

TABLE OF AUTHORITIES Cases 627 Smith St. Corp, v. Bureau of Waste Disposal of Dept. Of Sanit .of CNY. 289 AD2d 472, 735 NYS2d 555 ( 2 nd Dept. 2001) ...................................... Page No.

22

Beliavskaia v. Perkin, 227 AD2d 246, 642 NYS2d 522 ( 1st Dept. 1996) ......................................................... Canzoneri v. Wigand Corp.,168 AD2d 593, 564 N.Y.S.2d 178 ( 2nd Dept. 1990 ) ................................................... Cole-Hatchard v. Grand Union, 270 AD2d 447, 705 N.Y.S.2d 605 ( 2nd Dept. 2000) .................................................... Daniel Perla Associates v. Ginsberg, 256 AD2d 303, 681 N.Y.S.2d 316 ( 2nd Dept.1998 )....................... ............................... Dunning v. Shell Oil Co.,57 AD2d 16, 393 N.Y.S.2d 129, ( 3rd Dept. 1977) ...................................................
Freese v. Schwartz, 203 AD2d 513 ( 2 nd Dept. 1994) ................................. Friedman v. U-Haul Truck Rental, 216 AD2d 266, 627 NYS2d 765 ( 2nd Dept. 1995) .........................................................................

31

15

9

9

31
19

15

Halle v. Fernandez, 286 AD2d 662, 663 730 NYS2d 126 ( 2nd Dept. 2001) ........................................................... Hill v. Sheehan, 154 AD2d 912, 545 NYS2d 868 ( 4th Dept. 1989) ............................................................ J.D. Structures, Inc. v. Waldbaum, 282 AD2d 434, 723 NYS2d 205, ( 2nd Dept. 2001) ...................................................... Lambert v. Williams, 218 AD2d 618, 621 631 NYS2d 31 (1st Dept. 1995) ..........................................................

16

31

17,18

9

iv

Leone v. Leewood Serv. Sta., 212 AD2d 669, 624 NYS2d 610, ( 2 nd Dept. 1995 ) lv denied 86 NY2d 709 ................................................................................ Louniakov v. M.R.O.D. Realty Corp., 282 AD2d 657 ( 2 nd Dept. 2001) .....

31,32 41

Matter of City of New York, 59 NY2d 57, 61 .....................................
Matter of Commerce Holding Corp. v. Board of Assessors of the Town of Babylon, 88 NY2d 724, 649 NYS2d 932 ( 1996) .........................

22

25

Melohn v. R&M Combustion Co., Inc. 296 AD2d 323, 744 NYS2d 321 ( 1st Dept.2002) ..............................
Metcalfe v. City of New York, 223 AD2d 410, 636 NYS2d 60 ( 1 st Dept. 1996) .................................................................

31,32

9

Mi Ja Lee v. Glicksman 14 AD3d 669, 789 N.Y.S.2d 276, ( 2nd Dept. 2005) ...................................................
Miceli v. Purex Corp., 84 AD2d 562,

9

443 NYS2d 269, ( 2nd Dept.1981) ............................................................
Motts v. Cohen, 264 AD2d 764, 695 NYS2d 384 ( 2 nd Dept. 1999) .................................................................

19

18

NAB Construct. Corp v. Great Am. Ins. Co. 75 AD2d 790, 428 NYS2d 252, affd 53 NY2d 964, 441 NYS2d 658 ( 1981) ..........................................
Negri v. Stop & Shop, Inc., 65 NY2d 625 (1985) ........................................

41 41

Oestreich v. Boyd, 300 AD2d 375, 751 NS2d 413 ( 2nd Dept. 2002) .......................................................... Peebles v. New York City Housing Authority, 295 AD2d 189, 744 NYS2d 13 ( 1st Dept. 2202 ) .........................................................

15

19,25

v

.27 27 21 3......... 720 NYS2d 487 (1st Dept........................ 2000)...... Chin............... Corp..............................Puntino v.. Tishman Const............................. Papaleo............32 16 Sementilli v. 289 Ad2d 217........... 135 AD2d 375........... Article 12 ............. 2001) ................................................................................ 736 NYS2d 233 ( 2 nd Dept.......... Statutes & Rules Navigation Law.... 2001) ..................................... 721 NYS2d 249 ( 2 nd Dept..243 728 NYS2d 372 ( 1st Dept. 1987) ... 2001) ........... TMC Holdings Corp...... Rules of Court 22 NYCRR 202......................27.......................... of New York v............................................. 2001) .... Article 17 ..32 29............... 1992 (6 NYCRR §612-614).............. Getty Petroleum Corp........... 4........... Yohay v. rev.............. City of New York 280 AD2d 374. 2001 ) ............... 31................ Ruscigno................. Toussaint v......... 711 NYS2d 746 ( 2nd Dept...... vi ... 521 NYS2d 434 ( 1st Dept..........30 12 16 Executive Law 160-E....... Environmental Conservation Law.......... 288 AD2d 202.................... 286 AD2d 242.......... Rizzuto v...... Petroleum Bulk Storage Regulations.........21 (d) ......... 18 16 8 Wattson v. Noels Market......... 280 AD2d 665... et seq ....... 733 NYS2d 108 ( 2nd Dept..................... 273 AD2d 465.........

............22 8 29......Rules of Court 22 NYCRR 202...... Freedom of Information Law ( FOIL) Public Officers Law........... ..... CPLR Article 31 ...........................................................59................. et seq............................. Other Authority Cited Uniform Standards of Professional Appraisal Practice ( USPAP ) Appraisal Standards Board Rules and Advisory Opinion AO-9. Article 6...............................24 vii .............................30 30 23............................. CPLR §2221(e) ........ 21................

STATEMENT OF QUESTIONS PRESENTED 1. Does the presence of permanent subsurface contamination beneath Plaintiffs’ homes present a triable issue on damages sufficient to oppose Defendant’s motion for summary judgment? The court below answered in the negative. 2. 1 . Was the material submitted on renewal sufficient to raise a triable issue of fact to oppose Defendant’s motion for summary judgment? The court below answered in the negative. Were the non-movant Plaintiffs afforded the benefit of every favorable inference under the summary judgement standard. 3. that could be drawn from the new material submitted on renewal? This question was answered in the negative on each critical issue.

[see Point III infra]. Div. 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. No. The gravamen of both of Plaintiffs’ appeals is that the lower court impermissibly engaged in issue determination rather than issue finding. 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.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. 2 . The lower court disregarded evidence of permanent damage and diminution of value as a result of subsurface contamination which remains on Plaintiffs’ properties today. 03-7302). 03-7302) be heard and decided together. No. Div. with respect to each piece of evidence brought before it by the Plaintiffs.

She testified on deposition that she lost it through foreclosure in 1999 when she was unable to sell the property due to the oil spill problem [see R. across from the Depot.STATEMENT OF FACTS The Defendant-Respondent (“Defendant”) MTA New York City Transit owns and operates the Flatbush Bus Depot located at 4901 Fillmore Avenue. Plaintiff Maryse Fecu. Plaintiff Miller & Davis. sold its property. NY (the “Depot”). 1 3 . Inc. No. is now deceased and her estate is not a party to this action. Sometime in the 1990s the Defendant unlawfully discharged an unknown amount of petroleum ( mostly diesel fuel oil. The Depot is a regulated petroleum bulk storage facility under 6 NYCRR Parts 612 . no longer owns her home at 2331 Utica Avenue. Plaintiffs were first told of the existence of the plume beneath their properties in January 1999.000 gallons ) which entered the groundwater at the Depot forming a massive plume of contamination. estimated at 70. The Plaintiffs are a group of property owners who own nineteen homes1 located on Utica Avenue and East 51st Street in Brooklyn.614 (NYS DEC Petroleum Bulk Storage Regulations).. residential owner Margaret Farrell.000 to well over 100. Div. One other original Plaintiff. Although the Defendant’s investigation and remediation efforts have spanned more than a dozen years. It is undisputed that the The sole commercial property owner in this action. 2335 Utica Avenue. One of the residential owners. stipulated to withdraw its claims and is no longer a party to the action. 935-938 of companion appeal. 03-7302]. Brooklyn. 912. App.

Plaintiffs crossmoved for judgment on liability and sought a trial on damages. The lower court (Hon. 35]. All other claims remain as alleged in the Amended Complaint. (VIII) Violation of Section 111 of the Transportation Law.petroleum plume with its hydrocarbon contamination has not been cleaned up and remains present beneath the Plaintiffs’ homes today. Disclosure proceeded and Plaintiffs thereafter filed a Note of Issue on April 12. 2000. Defendant moved for summary dismissal of all claims. (III) Gross Negligence. 4 . RELEVANT PROCEDURAL HISTORY The Plaintiffs brought an action and their Amended Complaint [R. (V) Trespass.2 Defendant served an Amended Answer on or about September 12. §181 of the Navigation Law. Thereafter. Lawrence S.24] contained eight causes of action: (I) Strict Liability under Article 12. (IV) Nuisance. (II) Common Law Negligence. (VI) Taking without Compensation. (VII) Unjust Enrichment. Knipel) held that the Defendant was liable for the discharge 2 The Plaintiffs previously withdrew their claim for Violation of Section 111 of the Transportation Law in a prior proceeding. [R. 2002 along with a motion for a trial preference.

” The lower court also had disregarded entirely the evidence on permanent damage to Plaintiffs’ properties. No. the court rejected the Plaintiffs’ property damage claims finding that the Plaintiffs’ could not prove diminution and thereupon granted Defendant’s motion dismissing the case. SUMMARY OF THE ARGUMENTS The lower court had found that the Plaintiffs had not made a proper showing on damages. Charles Vardakis. Plaintiffs’ appealed that decision under App. 5 . in particular citing the valuation opinion of the Plaintiffs’ real estate expert3 as “conclusory. 49]. 03-7302) therefore the renewal will not violate any prior appellate decision in this dispute. No. The Appellate Division has not yet heard Plaintiffs appeal on the original motion (App. died after a lengthy illness in August 2001. [R.however. Div. Plaintiffs also moved to renew under CPLR §2221(e) which motion was denied. 037302. Plaintiff’s first appraiser A. Div. Plaintiffs then brought a motion to renew which addressed only these two issues via the new material 3 Plaintiffs’ appraisal expert on the summary judgment motion was Domenick Neglia.

Most ( but not all). The renewal also addressed the lower court’s 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. of the new material was not in existence at the time of the lower court’s decision. Although the Vardakis appraisals submitted on renewal had been produced and given to the Defendant early in the litigation.presented. new analytical data which had not been in existence at the time of the lower court’s decision. 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. 6 . The renewal motion addressed the court’s concerns by submitting “new” appraisals ( previously in existence ) and. 49]. 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. they were not used on the summary judgment motion solely due to the death of this appraiser (Vardakis) [R.

263-299]. App. [R.Plaintiffs’ environmental expert4 analyzed data which was not in existence at the time the summary judgment motion was decided in July 2003. The Defendant attacked this new evidence on procedural grounds in the renewal motion but the issue of permanency remained unanswered.. inexplicably it did not find the question of permanence a triable issue. These results demonstrate empirical support for Plaintiffs’ claims that. 244] had taken place. 2004 test boring results. 231.18]. 952957. [R. 262] and [R. but instead denied renewal of Plaintiffs’ Plaintiffs’ environmental experts are Tim Douthit of In Aqua Veritas. Although the lower court on renewal did acknowledge that the extent and duration of contamination may have an impact upon the damages [R. He found anomalies in the extent of the contamination represented by Defendant’s consultant in its August 2003 and September 2003 data which were not available to Plaintiffs until early 2004. due to the magnitude of the spill. Inc. Buzea of Leggette Brashears & Graham. Div. Each performed different functions in Plaintiffs’ investigation however both said the contamination was permanent due to the large fraction of sorbed hydrocarbon in the subsurface which is virtually unrecoverable. [R. 261. 4 7 . His analysis demonstrated the recalcitrance of a significant fraction of the contaminant which was then confirmed by the March 25. permanent degradation in the subsurface. 03-7302]. Inc. and Dan C. No.

Although it is clear that renewal is discretionary and not automatically granted as a “second chance. Corp. 17]. The Tishman Court ( Tishman Const. “A motion for leave to renew is intended to bring to the court's attention new or additional facts which. of New York v. 720 NYS2d 487 (1st Dept. City of New York. 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. 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. [R.showing on procedural grounds. 280 AD2d 374. 2001) said. Some appellate courts have stated that renewal may be granted in the interest of justice.” 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. although in existence at the time the original 8 .

705 NYS2d 605 (2ndDept. such relief may be properly granted so as not to “‘defeat substantive fairness’” (Metcalfe v. 681 NYS2d 316 (2nd Dept. 256 AD2d 303. 1998). The court also mentioned that it saw no discernible prejudice to the other party. upon facts which were known to the movant at the time the original motion was made. 270 AD2d 447. 2000). 631 NYSA2d 31). 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. 2005). may also grant renewal in the interest of justice. Glicksman. ( cit. 411. omit. omit. 9 . Grand Union. in its discretion. Williams. It is that power of de novo review for which Plaintiffs pray in the instant appeal. ( cit. Ginsberg. however is a flexible one and the court. also in accord Cole-Hatchard v. we have held that even if the vigorous requirements for renewal are not met. (2nd Dept.) Indeed.motion was made were unknown to the movant therefore not brought to the court's attention. 233 AD2d 410. 14 AD3d 669. 789 NYS2d 276. 621. quoting Lambert v. 636 NYS2d 60. and Daniel Perla Associates v. The Second Department did that just most recently in Mi Ja Lee v. 218 AD2d 618.) This requirement. City of New York.

There is no other reason for not See [R. 5 10 . [e][2]) and that it “shall contain a reasonable justification for the failure to present such facts on the prior motion “ (subd.. No. The statute does not define “reasonable” and although the case law acknowledges the limits on discretion is does not define them. Div. [e][3]). 990. 48-53] for a complete statement of the circumstances and details of Plaintiffs’ submittals on renewal. 113] Vardakis died in August of 2001 after a prolonged illness. App. 03-7302]. Prior to his death it became apparent that he probably would not be able to testify at trial.” (subd. REASONABLE EXCUSE PROFFERED FOR: THE VARDAKIS APPRAISALS [R. Neglia and it was his opinion which was used in opposing summary judgment [R.The statute as amended ( eff. That is the sole reason his earlier appraisals were not submitted on the original motion.5 Prior to Vardakis death Plaintiffs had already begun working with another licensed appraiser. 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.

Div. App. However since Neglia’s opinion was not provided in the general form of a full appraisal but in the form of an expert affidavit with attachments. Neglia’s opinion focused on the bases for valuation adjustments made by appraisers when environmental impairment was present. 6 11 . Neglia was not charged with producing full general appraisals (which in any event had been planned as updates prior to trial)..” The Neglia opinion was however more than adequate to raise triable issues of fact on environmental impairment and Comparing the form and format of Vardakis [ R. when buying a home.g. 990. 49]. 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.continuing to work with Vardakis other than that he was terminally ill and died in August 2001 [ R. the lower court criticized it because it did not contain numbers. 113] and Neglia [R. 03-7302] will illustrate what is being explained. comparables or percentages6 calling it “bald and conclusory.e. greater than 0% ) detriment to fair market value. The Neglia opinion is in the form of a detailed affidavit with exhibits attached while the Vardakis appraisals are in the general appraisal form most often seen e..

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. 03-7302].2d 434 (1st Dept. whenever possible.. Boyle. the renewal should be granted as there can be no surprise or showing of prejudice.Y. 2001 while that motion was pending. to David C. Div. 1987).D.diminution of value and Plaintiffs’ have addressed that at length in the other appeal [ see Appellants’ Reply pgs. TMC Holdings Corp. The motion was rendered moot because Vardakis died in August. 19-25.2d 375. App. Wattson v. 135 A. 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.. Cases should. No. the Defendant’s Assistant General Counsel.S. be decided on the merits and not on the basis of technical procedural requirements when an evidentiary showing has been made. Since the underlying facts of Vardakis were already well known to Defendant. 12 . 521 N. Esq.

Kilpatrick [R.THE DIORIO VALUATION OPINION [R. 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. 88-112]. 13 . 210]. 210] The Diorio valuation opinion was produced in May. In any event I already had the Vardakis appraisals and had met and worked with Vardakis before he became ill. 1999 about a month before the Vardakis appraisals. Diorio’s opinion was requested by previous counsel for one of the Plaintiffs (McCormack) who sent a copy of it to Defendant around that time. However. On the renewal motion the Vardakis and Diorio documents were both submitted as an attachment to the report of Plaintiffs’ expert John A. since I ( Dunewood Truglia. Although Diorio was a broker and not a licensed appraiser.) had never met Diorio and had never worked with him. the value of realty in question may be proved by the opinion of any properly qualified witness who need not be a licensed appraiser. A year later this writer took over representation of McCormack’s claim and received the file from McCormack’s previous attorney which contained the Diorio opinion regarding the McCormack residence [R. Esq.

103].OPINION OF JOHN A. REGARDING THE WORK PERFORMED BY VARDAKIS AND DIORIO. He provided background as to the history. 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. 7 Kilpatrick is also an appraiser in New York and other jurisdictions [R.83]. hence its value [R. 110].88] but his primary role was to evaluate and introduce and contrast the work product of both Vardakis and Diorio on the renewal motion. Regarding Diorio. He also said that the true value of Diorio’s 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. SUBMITTED ON RENEWAL Kilpatrick is a specialist7 whose expertise is in the evaluation of environmentally impaired real property [R. KILPATRICK. Ph.D. literature. and methodology currently used in the practice of appraisal when dealing with environmental impairment. [R. Kilpatrick reviewed the methods and conclusions of both the Vardakis appraisals and the Diorio evaluation opinion. 14 .

. 564 NYS2d 178 ( 2nd Dept. Kilpatrick found that the Vardakis and Von Ancken ( Defendant’s) 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.103]. 300 AD2d 375. Friedman v U-Haul Truck Rental. Boyd. see Oestreich v.e. The resulting figures are an opinion as to diminution of value (i. either greater than 0% or. 168 AD2d 593. 1995) and Canzoneri v Wigand Corp. not greater than 0% ). 627 NYS2d 765 ( 2nd Dept. 2002). 751 NYS2d 413 ( 2nd Dept. that is what the Plaintiffs are asking this court to do to prevent a manifestly unjust result. however which is neither incompetent nor inappropriate for consideration by the trier of fact.After reviewing the appraisals performed by Vardakis. Their assumptions differ and therefore so does their work product conclusions [R. 216 AD2d 266.. 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. NEW ANALYTICAL DATA NOT IN EXISTENCE PRIOR TO THE LOWER COURTS DECISION WAS SUBMITTED ON RENEWAL TO DEMONSTRATE EMPIRICAL EVIDENCE OF PERMANENT SUBSURFACE CONTAMINATION 15 . 1990). An opinion.

663. 2003 and September 29. 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. 286 AD2d 662.56]. Ruscigno. 243 728 NYS2d 372 (1st Dept. 273 AD2d 465. 288 AD2d 202. Papaleo. That data which showed a footprint approximately double the plume’s areal size in September 2003 as compared with August 2003 [R. 730 NYS2d 126 (2nd Dept. The test borings performed on March 25.The Defendant’s consultant’s Plume Maps dated August 25. Chin. Puntino v. The 16 . Sementilli v. 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. 2000). Halle v. by the Plaintiffs tested the empirical basis for the conclusions drawn by Douthit. the Plaintiff’s consultant who was charged with analyzing the anomalous data presented by the August 2003 and September 2003 data. 2001). 711 NYS2d 746 (2nd Dept. 276. 263]. 733 NYS2d 108 (2nd Dept. Yohay v. 2004 [see R. 2001). 277]. 2003 respectively were data which were not in existence at the time the summary judgment motion was decided in July 2003. the fact that the evidence was not then known or available. Fernandez. In fact they did not become available to the Plaintiffs’ until early 2004 [R. 2001). 286 AD2d 242.

heavy fuel oil contamination exists in the soil in areas where the maps no longer show the plume to be present. under CPLR §2221[e][3]. 282 AD2d 434. Inc. 17 . 436. 723 NYS2d 205 (2nd Dept. 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.e.“permanent” ) without completely removing the impacted soil [R. In addition.D. v.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 Plaintiff’s properties today. Waldbaum. This is a practical impossibility because of the dense configuration of row houses.. Structures. a court may excuse a movant’s failure to present such evidence on the prior motion. the Defendant could have performed its own test borings in rebuttal but it did not. J. so long as it finds the justification offered by the movant to be “reasonable. Douthit said this contamination ( the sorbed fraction in the vadose layer) is virtually unrecoverable (i. Although it was attacked procedurally on renewal.” The standard is not one of perfection but reasonableness. 271]. This unexplained anomaly which was investigated led to the most significant confirmation of the permanent damage in the subsurface to date.

Div. 723 NYS2d 205 (2nd Dept. 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. Noel’s Market. No. 03-7302] there was simply no indication that further tests would be necessary at the summary judgment level. In the instant matter. Structures. Waldbaum. Inc. 280 AD2nd 665. Plaintiffs used every bit of evidence on that motion which their resources would allow. 18 . 436. 1999). No.D. Motts v. with more than eight thousand pages of DEC records detailing the magnitude. v. 2001). with the evidence of permanent damage presented by Plaintiffs’ consultant Buzea [ R. 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. Cohen.2001). Div. 264 AD2d 764. areal extent and longevity of the spill. 2001). J. Toussaint v.920 App. 282 AD2d 434. 721 NYS2d 249 (2nd Dept. 03-7302] and with the DEC Consent Order which squarely placed liability on the Defendant [ R. 939 App. 695 NYSA2d 384 (2nd Dept.

The Defendant’s expert said the slide was safe and conformed to industry standards.443 NYS2d 269. Purex Corp. 1994 ) and Miceli v.The case of Peebles v. Summary Judgment should always be denied if there is any doubt as to the existence of a triable issue of fact. The Peebles. 84 AD2d 562. 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. 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. case concerned an infant Plaintiff who sustained a serious injury due to a bolt protruding from a playground slide. 2002) is instructive in this regard. 744 NYS2d 13 (1st Dept.1981). Juries have been allowed to determine these issues on much smaller discharge and contamination 19 . The lower court. 295 AD2d 189. in the instant appeal. Freese v. ( 2nd Dept. Schwartz. New York City Housing Authority. in and of itself equates to damage. 203 AD2d 513 ( 2nd Dept. However the Peebles 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.

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. As such they are competent to raise a triable issue of fact on the issue of diminution.ABUSE OF DISCRETION ON RENEWAL TO DISREGARD EVIDENCE OF TRIABLE ISSUE OF FACT ON DAMAGES The Vardakis Appraisals The lower court’s refusal to accept the Vardakis appraisals as raising a genuine issue of fact on renewal is an abuse of discretion. ( now deceased ). The documents are prima facie evidence of what they purport to be [R. The Vardakis appraisals are competent evidence produced by a licensed appraiser.113]. relevant and material 20 . 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. They are the functional equivalent of the Defendant’s submission and they are in customary certified appraisal format [R. POINT I . It is for the trier of fact to determine the weight to be given an otherwise competent. 155]. Clearly all of the items produced are no less than reasonably arguable and that is the standard.

et seq. or in an eminent domain proceeding (22 NYCRR 202. then what basis is there to disregard this evidence in toto? Can the court implicitly find Vardakis incredible and unworthy of belief.). If these certified appraisals are the work product of an experienced qualified appraiser which Vardakis certainly was [R. 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.piece of documentary evidence. which governs State Certified and Licensed Appraisers and their work product. The Vardakis appraisals are not inconsistent with any law such as Executive Law 160-E.61) they do not seem to contravene any of those regulations either. There is no basis for that inference in the decision and no support for it in the record. 199-208] and if neither the Defendant nor the lower court can point to any violation of law or regulation in his work.59 et seq. In addition. although the Vardakis appraisals are also not being used in a tax assessment review (22 NYCRR 202. 21 .

). The lower court’s comment that because the Vardakis appraisals were done in 1999 they have little probative value [R. 473). 22 . Routinely in condemnation cases at least. 61. v Bureau of Waste Disposal of Dept.. 289 AD2d 472. 22 NYCRR 202. the valuation date is the date of the taking ( the date of the damage). 627 Smith St. address how a party can even amend or supplement at trial upon such conditions as the court may direct. 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. Corp. 59 NY2d 57. 19]. Admittedly this is but one of several accepted methods of determining property damage but is not in and of itself wrong in any respect..g. For the lower court to go as far as it did was an abuse of its role as issue finder. In fact the Uniform Rules of Court cited above ( . To be sure. of Sanitation of City of N. 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.There is no rule of law which prohibits the use of the information in these documents just because they were produced in 1999. the measure of damages must reflect the fair market value of the property at some point in time otherwise there could never be any recovery (see Matter of City of New York.e.Y.59 et seq.

9 The applicability of “Advisory Opinion AO-9" and the controversy over its use and mis-use in this case was the subject of much debate between the parties and is discussed at length in Appellants’ Brief. Even if true. 218] which now shows that the appraiser who fails to account for known environmental issues. pgs.In light of the foregoing. Appraisers are governed by the Uniform Standards of Professional Appraisal Practice ( USPAP)8 competency rules. 36. 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. Kilpatrick states that at the time Vardakis expressed his opinion ( 1999 ) there was ongoing debate in the appraisal profession as to the proper methods of addressing environmental contamination and impairment. the day of the damage. such as exist in this case. 44 and in the instant appeal at R. 1045. 8 23 . 19]. He further states that the debate was settled in 2002 by the adoption of Advisory Opinion9 AO-9 [R. Uniform Standards of Professional Appraisal Practice Rules of the Appraisal Standards Board along with its Advisory Opinions govern the ethics and practice of Appraisers. 100101]. may be running afoul of the USPAP Competency rules. 993-996. Plaintiffs expert Kilpatrick mentions five shortcomings in the Von Ancken (Defendant’s) appraisal which underscore the difference of opinion which experts can have over both methodology and conclusions when value is at issue [R. it’s puzzling why the court would seize upon “today” as the only proper yardstick when the case law provides at least one valid alternative.

. [R. infra].Vardakis considered the impairment of permanent contamination while Von Ancken did not. [R. 24 . 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.” e. 51. 218]. 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). 101].g. When an appraiser is engaged to render an opinion as to value he does so in the present considering conditions as they exist at the time his valuation opinion is made and not based on “extraordinary assumption. 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. 101]. also Point III. Vardakis gave his opinion of value based on the present conditions which included a reasonable adjustment for contamination. Vardakis evaluated the properties as they were at the time of his appraisal. involving remediation of a condition “in futuro” which of course may or may not come to pass [R. Von Ancken essentially valued everything as if it were not contaminated since he was betting that everything would be cleaned up in five years.

Div. ( cit.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. Stigma and impairment due to environmental contamination have been recognized by the Court of Appeals. in Peebles. Board of Assessors of the Town of Babylon. In any event. Plaintiffs’ gained no tactical advantage whatsoever and cannot rationally be accused of sloth. No. supra ). Matter of Commerce Holding Corp. Both 25 . the Defendant has had the information since 1999. venial intent or not laying their case bare. v. This is fully discussed in Appellants’ Briefs pgs. 50-53 in the companion appeal App. 03-7302. It was also the same “reasonable excuse” that was accepted by the appellate court on renewal.Failure to have presented the Vardakis appraisals on the original motion did not prejudice the Defendant in any way. 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. as constituting unique factors affecting the value of real property.

LOWER COURT REFUSED TO ACCEPT THE (DEFENDANT’S) AUGUST 2003. the soil borings of March 25. not simply the plume’s graphic representation 26 . subject only to proof at trial. The Defendant’s environmental expert had argued vigorously that the plume was temporary and shrinking according to his plume maps. 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. 2004 demonstrated that longevity and permanency were major issues which had been summarily disregarded by the lower court. 2004 TEST BORING DATA AS EVIDENCE ON ISSUE OF PERMANENT DAMAGES Defendant’s 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. However.the legislature and the courts have sanctioned and upheld compensation in situations identical to what has occurred here. This constitutes substantive unfairness for several reasons. SEPTEMBER 2003 PLUME MAPS OR THE PLAINTIFFS MARCH 25. it is the subsurface contamination that is the issue.

the maps directly contradict what the Defendant tried to establish.et seq. § 17. significance discussed in companion appeal Appellants’ Brief. not the Defendant or its expert. that the contamination is shrinking. Petroleum Bulk Storage Regulations. ground water fluctuation or other factors. 10 27 . Div. 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. Navigation Law. 613. 28-29.. Article 12. nor the law itself. 037302)11 Most significantly no one. No. Judge Knipel’s analysis misses the mark when he comments that because the soil borings are close It is presumably based on whatever computer modeling parameters are being used which means that the graphic can be “adjusted” or made to shrink.g. App. it is 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. 12 E. Environmental Conservation Law.since that is an estimate of the areal extent of liquid phase only. Div.03-7302. 614. 11 Note that May 2005 will mark the beginning of the eighth year ( since May 1998 ) in which the Defendant’s remediation system has been operating with no end in sight.12 has suggested that its even possible to remove all of the contamination discharged and present beneath the Plaintiffs homes at this densely developed spill site. the plume may be shrinking due to collection of liquid phase product. No. 505. pgs. App. 6 NYCRR 612. Not so.10 and. it is not the problem. nor any regulatory agency. but the plume is only a fractional component of the problem.

2004. 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 court’s answer to that question was to preclude everything on procedural grounds by deciding that the Plaintiffs’ had engaged in “inappropriate discovery. (e. (b.to the edge of the plume at its greatest area. and the presence of heavy contamination both in site areas shown to be. 270.) within the historical plume footprint but that no longer are due to a “shrinking footprint” ( e.g.) those that have never been shown to be within such footprint at all. [R. SB-2 [R.233. 274. What the Plaintiffs have showed with Douthit’s opinion and the GeoProbe soil boring results of March 25.” PLAINTIFFS’ ENGAGED IN NO “INAPPROPRIATE DISCOVERY” 28 . See also [ R.286. 239.g.. 262. 274. SB-1. 297]). is that there is no linear correlation at all between the size of the liquid phase plume. 295]) and. as depicted by the Defendant on its August 2003 and September 2003 plume maps. 238. the anomaly cited is just due to the groundwater fluctuation.. (a. 276].

some of the strongest renewal evidence on this hotly disputed issue was thrown out by the court on purely procedural grounds [R. 17]. 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. Instead.The Court erred in precluding the Plaintiffs’ new data by mis-characterizing it as inappropriate post note of issue discovery. Nothing the Plaintiffs’ did and nothing produced on renewal violates anything in their previously filed Note of Issue or Statement of Readiness.e. 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. 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 29 .21(d). 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. a demand or proceeding as contemplated under CPLR Article 31 or 22 NYCRR 202.

Would the court have similarly frowned on the Plaintiffs’ continuing efforts to use the Freedom of Information Law13 as also constituting inappropriate post note of issue discovery? Plaintiffs have managed to obtain much information about the misfeasance of the Defendant through their use of FOIL which. is not being filtered through the one responsible for the contamination in the first place.e.. people want to feel comfortable that the information they have access to.own initiative. infra]. It constitutes substantive unfairness by attempting to shoehorn the Plaintiffs’ own privileged material prepared for litigation into something it is not. i. on Plaintiffs’ own properties. whether documents or analytical results.“discovery” within the meaning of CPLR Article 31 or 22 13 Public Officers Law Article 6 30 . 316 ] which the court did not criticize. and at Plaintiffs’ own considerable expense. the Plaintiffs are convinced might otherwise never have seen the light of day. In fact it was similar to the expenditure of time and effort of Defendant in gathering information for its own renewal submission [ R. Since personal residences are involved. It is about as far from getting a favorable inference on this critical evidence as is possible [ see Point III.

All are petroleum discharge damage cases alleging diminution of value.Y. Hill v. Sheehan. The facts and law in Leone v.21(d). 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.2d 16. 1977). Rizzuto v. Perkin. See Beliavskaia v..2d 129. 744 NYS2d 321 ( 1st Dept. 624 NYS2d 610 ( 2nd Dept..57 A. and. Melohn v. 154 AD2d 912.NYCRR 202. Sta. 642 NYS2d 522 (1st Dept. 227 AD2d 246. lv denied 86 NY2d 709. Leewood Serv. 2002) should be controlling in the instant matter. 1996). after trial the jury awarded diminution damages and all three verdicts were upheld on appeal.. 296 AD2d 323.S. Getty Petroleum Corp. R&M Combustion. 31 . Dunning v. 212 AD2d 669.D. 1989). A RATIONAL JURY COULD FIND FOR PLAINTIFFS ON THE EVIDENCE PRESENTED BOTH IN THE COURT BELOW Finally. 2001). 393 N. 289 Ad2d 217 736 NYS2d 233 ( 2nd Dept. ( 3rd Dept. Shell Oil Co. 545 NYS2d 868 ( 4th Dept.1995 ).

Div. 03-7302. No. These Plaintiffs have the same right to a jury determination of their claims as did the Plaintiffs in the Leone and Rizzuto cases. and Rizzuto v. R. both of which were upheld by the Second Department. 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 in Leone and approximately 2000 gallons in Rizzuto)..000 to well over 100. 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. Leewood Serv. No. Getty Petroleum Corp. Inc. The contamination has not been remediated and is still present beneath Plaintiffs’ homes today. Div. 943-944 App. 942 App.).000 gallons14 ) of discharged petroleum. The instant case involves a staggeringly higher amount (estimated at 70. The total amount of product the Defendant actually discharged will probably never be disclosed. Sta. This estimate was made by Plaintiffs’ consultant Buzea ( Leggette. Buzea also found significant gaps in the Defendant’s monthly product inventory reconciliation records required to be kept under the Petroleum Bulk Storage Regs. 14 32 . Brashears & Graham.. 6 NYCRR 613.4(a) see R.In the two cases heard in this Department with which this writer is most familiar (Leone v. 03-7302 ).

More troubling is that by engaging in issue determination with respect to this crucial point. On renewal.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. It’s 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. If the court had not rejected the entire issue of permanency (even though failing to say so explicitly). the lower court misapprehended the empirical evidence presented which supported establishing permanent damage. The only way the court could do so was to disregard all of Plaintiffs’ evidence including the new test boring data submitted on renewal. 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.POINT II . is 33 . This cannot be said to have been anything less than issue determination. The only way to show this as far as possible in the future all the way up to trial. it could not have determined that issue against the Plaintiffs on the evidence which was presented. the court effectively foreclosed it as a question of fact.

That’s admissible in mitigation. The Defendant continues to sidestep the issue by promising only that it will continue remediation into the future.to continue to sample and test for the presence of subsurface contamination. It either misunderstood the fact that the graphic representation on a plume map is not the barometer of contamination present or alternatively. 34 . 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. it simply refused to accept what the law has previously allowed: that the documented physical presence of this underground contaminant on someone else’s property equates to some measure of compensable damage and at the very least is a genuine issue of triable fact. but it’s 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. Any testing the Defendant does presents a question of fact to be evaluated with the other evidence on the issue of damages. 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 Defendant’s environmental consultants.

2. Ground water fluctuation is not a measure of the amount of contamination left beneath Plaintiffs homes either. 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. 385]. 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. That the amount of product which a pumping well pulls in is not a measure of the actual contamination present over time. 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. 4.Mis-labeling the new evidence as “nothing new” is a procedural attack but it misses the merits of what has been demonstrated: 1. 35 . Air testing certainly does not show the measure of contamination remaining regardless of the number of tests. 3. [R.

The anomaly found by Plaintiffs expert in the newly acquired evidence (August 2003. Rather than face it on the merits it did the only thing it could. 384]. 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. not in theory but in reality. The significance of the new evidence is that it not that it simply contravenes the predictions of the Defendant’s expert but that it demonstrates empirically that heavy contamination is present today. it attacked the renewal on procedural grounds by mislabeling it as “nothing new. in areas which were formerly shown to be within the plume’s footprint but are no longer. September 2003) was unique and forced a re-visiting of Defendant’s prior pronouncements about the contamination.After more than seven years of trying to remove the liquid phase portion [see R. It did not because it could not. the results of the test borings confirm that massive soil contamination is present. on any 36 .” 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. 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.

on the renewal motion but it did not. it gives one pause. 37 . 2004 analytical data shows significant hydrocarbon contamination trapped in the vadose layer exactly as explained by the Plaintiffs’ expert Douthit. 244]. The new data shows that the contamination present is not remotely connected to the “shrinking plume maps. His report states that a significant fraction of this contamination is unrecoverable [R. 277] as compared with an earlier one. The soil and ground water will remain contaminated and in this respect. When a later plume map shows approximately a 100% increase in liquid product area [R. The March 25. Certainly the Defendant. at least none which Plaintiffs have seen. with its resources. could have gathered data in the same way to refute this latest evidence of permanence. 263-299]. 276. Instead of meeting the challenge on the merits. [R.” Although the Defendant puts great emphasis on these graphics to show the problem is going away. 231. 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. in light of the historical failure of Defendant to store its petroleum safely at the Depot for well over a decade. 261.of the Defendant’s maps. it attacked it on procedural grounds.

15 The Plaintiffs also pointed out however. 262]. there was no reason to choose to discredit the employee’s statements about the negative effects his firm experienced because of the environmental problem. Inc. The lower court said this was inappropriate and not allowed after filing a note of issue [R. with reasonable. Inc. par.4]. 15 38 .THE COURT ERRED BY FAILING TO GRANT ANY FAVORABLE INFERENCE TO NON-MOVANTS Perhaps the clearest example of the lower court’s failure to grant the most favorable inference to conflicting evidence is found in Plaintiff’s reply on the renewal motion [R. that since the evidence was sworn testimony. Boyle [R. [R.240. the Plaintiffs’ presented the affidavit of an employee of former Plaintiff Miller & Davis. See Affidavit of Jay Gittleman. Here. 378-380]. 398-400] submitted in Plaintiff’s Reply to rebut the innuendo directed at Plaintiffs’ counsel in the Affidavit of Defendant’s Assistant General Counsel. of former Plaintiff Miller & Davis. V. 316. 16].P. Plaintiffs candidly acknowledged the possibility for conflicting inferences [R. not absolute certainty ) by periodic analysis of test borings performed on the Plaintiffs’ lands collected right up to the time of trial. 379] in an effort to alert the court that there were at least two ways of looking at the information. David C.. POINT III . This issue is material and can only be proved (i. Not only did the court seize upon the worst inference in this instance [ R.e.

29-31. App. No. 394] in the moving papers the lower court continued to accept the worst possible inferences to be drawn. Even after highlighting this [R. 21-23 App. Div. Appellants’ Reply pgs. [R. [See Appellants’ Brief pgs. No.] Another example of credibility determination occurred on renewal when Plaintiffs’ submitted nine additional affidavits of purchasers whose homes are outside of the plume’s footprint. 29-31 and 65-68. 39-43. 390. Div. [R. 17]. 18. 65-68. 03-7302 for additional exemplars. 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 39 . 54].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. 03-7302] and on renewal [R. 10. 379]. The record shows that nothing the Plaintiffs proffered resulted in the granting of the fair inferences to which they were entitled as non-movants. 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.

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. 64-81]. App. Even if the court believed that some other definition of market value should control. 03-7302).properties were not over or even adjacent to the plume that it did not impact their purchase decisions. 995. That information was summarily ignored. App. 037302]) as evidence of no diminution and absence of stigma. the Defendant never even inquired what those purchasers knew or didn’t know. 40 . 1039. 1006-1021. 101). Div. it was required to grant the most favorable inference. R. not entirely discount unchallenged sworn testimony on a key material issue. [R. 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. Although these purchases were cited by the Defendant [R. 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. Div. The Plaintiffs certainly did inquire and obtained affidavits from them which were submitted to the court.

The Plaintiffs did not receive the benefit of doubt either on the renewal or the original motion. 441 NYS2d 658 ( 1981). Realty Corp." When deciding a motion for summary judgment.The balancing of the equities decidedly favor the Plaintiffs who are innocent of wrongdoing. Co. If the issue is even close as to whether the movant could have discovered the evidence with due diligence. There is no fairer inference.. Inc. other things being equal. Stop & Shop. Negri v.D. M. 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. 65 NY2d 625 ( 1985). Ins. 75 AD2d 790. " as I perceive truth to be the handmaiden of justice.R. 428 NYS2d 252. and Louniakov . 2001). common sense dictates favoring the [evidence] as enjoying the status of newly discovered. 282 AD2d 657 ( 2nd Dept. Certainly a reasonable inference would be that the average person would not knowingly pay as much for a property with a permanently contaminated subsurface. Great Am. Corp v. affd 53 NY2d 964. 41 .. As stated in the concurring opinion of Justice Lupiano in NAB Construct.O. the movant should be given the benefit of the doubt and renewal should be granted.

Dated: New Suffolk.6450 Fax 631 . Attorney for Plaintiffs-Appellants First Street P.CONCLUSION Liability is not in doubt and is not arguable however damages in this case clearly are. Box 222 New Suffolk.734 . Esq. The lower court’s decision contains irreconcilable inconsistencies and has discounted competent and material evidence presented by the Plaintiffs on renewal. NY April 8. Its decision on renewal should be reversed and the Plaintiffs case restored to the trial calender.5152 42 .O. 2005 Respectfully Submitted.734 . NY 11956 631 . _______________________________ Dunewood Truglia.

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.5152 43 .Proportionally Spaced Typeface. Esq. or any authorized addendum containing statues. regulations. — against — MTA NEW YORK CITY TRANSIT.10. NY 11956 631 . table of citations.3(f) of the Rules of Court for Computer-generated Brief . Attorney for Plaintiffs-Appellants First Street P. rules. CERTIFICATE OF COMPLIANCE WITH Section 670. et al. Plaintiffs-Appellants. Box 222 New Suffolk.10.734 . inclusive of point headings and footnotes and exclusive of pages containing the table of contents. TURNBULL. 2005 __________________________________ Dunewood Truglia. proof of service. No. Div.3(f) App. 04-06950 The undersigned attorney for Appellants certifies that the enclosed brief complies with rule 670.. Dated: New Suffolk.O.. Defendant-Respondent. certificate of compliance.734 .Supreme Court of the State of New York APPELLATE DIVISION: SECOND DEPARTMENT JAMES M. NY April 8. etc.6450 Fax 631 .

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