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............................ 12
The Diorio Valuation Opinion ............................................... 13
Opinion of John A. Kilpatrick, PhD. regarding work product
of Vardakis appraisals and Diorio opinion ............................. 14
New analytical data showing permanency issue on Renewal.. 15

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........ 20

Refusal to accept new evidence of permanent damage,

( i.e.,2003 Plume Maps and 2004 Test Borings ) was
abuse of discretion on the facts presented on renewal.... 26

Plaintiffs engaged in no “inappropriate discovery”........ 28

A rational jury could find for the Plaintiffs
Plaintiffs on the evidence which was presented .................... 31

POINT II ERROR IN PRECLUDING NEW EVIDENCE

Permanent damage evidence showed issue of fact ......... 32

POINT III ERROR IN FAILING TO GRANT FAVORABLE INFERENCE

Court failed to grant most favorable inference to non-
movant on all critical issues of fact and credibility ......... 38

CONCLUSION ............................................................................................ 42

COMPLIANCE CERTIFICATE, Section 670.10.3(f) ............................................ 43

iii
 TABLE OF AUTHORITIES

Cases Page No.

627 Smith St. Corp, v. Bureau of Waste Disposal of Dept. Of Sanit .of CNY.
289 AD2d 472, 735 NYS2d 555 ( 2 nd Dept. 2001) ...................................... 22

Beliavskaia v. Perkin, 227 AD2d 246,

642 NYS2d 522 ( 1st Dept. 1996) ......................................................... 31

Canzoneri v. Wigand Corp.,168 AD2d 593,

564 N.Y.S.2d 178 ( 2nd Dept. 1990 ) ................................................... 15

Cole-Hatchard v. Grand Union, 270 AD2d 447,

705 N.Y.S.2d 605 ( 2nd Dept. 2000) .................................................... 9

Daniel Perla Associates v. Ginsberg, 256 AD2d 303,

681 N.Y.S.2d 316 ( 2nd Dept.1998 )....................... ............................... 9

Dunning v. Shell Oil Co.,57 AD2d 16,

393 N.Y.S.2d 129, ( 3rd Dept. 1977) ................................................... 31

Freese v. Schwartz, 203 AD2d 513 ( 2 nd Dept. 1994) ................................. 19

Friedman v. U-Haul Truck Rental, 216 AD2d 266,

627 NYS2d 765 ( 2nd Dept. 1995) ......................................................................... 15

Halle v. Fernandez, 286 AD2d 662, 663

730 NYS2d 126 ( 2nd Dept. 2001) ........................................................... 16

Hill v. Sheehan, 154 AD2d 912,

545 NYS2d 868 ( 4th Dept. 1989) ............................................................ 31

J.D. Structures, Inc. v. Waldbaum, 282 AD2d 434,

723 NYS2d 205, ( 2nd Dept. 2001) ...................................................... 17,18

Lambert v. Williams, 218 AD2d 618, 621

631 NYS2d 31 (1st Dept. 1995) .......................................................... 9

iv
Leone v. Leewood Serv. Sta., 212 AD2d 669,
624 NYS2d 610, ( 2 nd Dept. 1995 )
lv denied 86 NY2d 709 ................................................................................ 31,32

Louniakov v. M.R.O.D. Realty Corp., 282 AD2d 657 ( 2 nd Dept. 2001) ..... 41

Matter of City of New York, 59 NY2d 57, 61 ..................................... 22

Matter of Commerce Holding Corp. v. Board of Assessors of the

Town of Babylon, 88 NY2d 724, 649 NYS2d 932 ( 1996) ......................... 25

Melohn v. R&M Combustion Co., Inc.

296 AD2d 323, 744 NYS2d 321 ( 1st Dept.2002) .............................. 31,32

Metcalfe v. City of New York, 223 AD2d 410,

636 NYS2d 60 ( 1 st Dept. 1996) ................................................................. 9

Mi Ja Lee v. Glicksman 14 AD3d 669,

789 N.Y.S.2d 276, ( 2nd Dept. 2005) ................................................... 9

Miceli v. Purex Corp., 84 AD2d 562,

443 NYS2d 269, ( 2nd Dept.1981) ............................................................ 19

Motts v. Cohen, 264 AD2d 764,

695 NYS2d 384 ( 2 nd Dept. 1999) ................................................................. 18

NAB Construct. Corp v. Great Am. Ins. Co.

75 AD2d 790, 428 NYS2d 252,
affd 53 NY2d 964, 441 NYS2d 658 ( 1981) .......................................... 41

Negri v. Stop & Shop, Inc., 65 NY2d 625 (1985) ........................................ 41

Oestreich v. Boyd, 300 AD2d 375,

751 NS2d 413 ( 2nd Dept. 2002) .......................................................... 15

Peebles v. New York City Housing Authority, 295 AD2d 189,

744 NYS2d 13 ( 1st Dept. 2202 ) ......................................................... 19,25

v
Puntino v. Chin, 288 AD2d 202,
733 NYS2d 108 ( 2nd Dept. 2001 ) .......................................................... 16

Rizzuto v. Getty Petroleum Corp., 289 Ad2d 217,

736 NYS2d 233 ( 2 nd Dept. 2001) ................................................................. 31,32

Sementilli v. Ruscigno, 286 AD2d 242,243

728 NYS2d 372 ( 1st Dept. 2001) ............................................................ 16

Tishman Const. Corp. of New York v. City of New York

280 AD2d 374, 720 NYS2d 487 (1st Dept. 2001) .............................. 8

Toussaint v. Noels Market, 280 AD2d 665,

721 NYS2d 249 ( 2 nd Dept. 2001) ................................................................ 18

Wattson v. TMC Holdings Corp., 135 AD2d 375,

521 NYS2d 434 ( 1st Dept. 1987) ...................................................... 12

Yohay v. Papaleo, 273 AD2d 465,

711 NYS2d 746 ( 2nd Dept. 2000)........................................................ 16

Statutes & Rules

Navigation Law, Article 12 .......................................................................... 4,27

Environmental Conservation Law, Article 17 .............................................. 27

Executive Law 160-E, et seq .................................................................... 21

Petroleum Bulk Storage Regulations, rev. 1992 (6 NYCRR §612-614)....... 3,27,32

Rules of Court 22 NYCRR 202.21 (d) ........................................................ 29,30

vi
Rules of Court 22 NYCRR 202.59, et seq. ............................................... 21,22

CPLR §2221(e) .......................................................................................... 8

CPLR Article 31 ......................................................................................... 29,30

Freedom of Information Law ( FOIL) Public Officers Law, Article 6....... 30

Other Authority Cited

Uniform Standards of Professional Appraisal Practice ( USPAP )

Appraisal Standards Board Rules and Advisory Opinion AO-9.................. 23,24

vii
STATEMENT OF QUESTIONS PRESENTED

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.

2. 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.

3. Were the non-movant Plaintiffs afforded the benefit of every favorable

inference under the summary judgement standard, that could be drawn from

the new material submitted on renewal?

This question was answered in the negative on each critical issue.

1
PRELIMINARY STATEMENT

Plaintiffs have requested that both the instant appeal from denial of their renewal

motion and the companion appeal from dismissal of Plaintiffs’ claims on summary

judgment (App. Div. No. 03-7302) be heard and decided together.

The gravamen of both of Plaintiffs’ appeals is that the lower court impermissibly

engaged in issue determination rather than issue finding, with respect to each piece

of evidence brought before it by the Plaintiffs. The lower court disregarded

evidence of permanent damage and diminution of value as a result of subsurface

contamination which remains on Plaintiffs’ properties today.

The most egregious aspect from the Plaintiffs’ perspective is that although the

court is supposed to grant the most favorable inference to the non-movants as

detailed herein (as well as the companion appeal App. Div. No. 03-7302), on each

critical piece of evidence in dispute the lower court seemed to do the exact

opposite by seizing on the worst possible inference to be drawn from the facts

presented, [see Point III infra].

2
STATEMENT OF FACTS

The Defendant-Respondent (“Defendant”) MTA New York City Transit owns and

operates the Flatbush Bus Depot located at 4901 Fillmore Avenue, Brooklyn, NY

(the “Depot”). The Depot is a regulated petroleum bulk storage facility under 6

NYCRR Parts 612 - 614 (NYS DEC Petroleum Bulk Storage Regulations).

The Plaintiffs are a group of property owners who own nineteen homes1 located on

Utica Avenue and East 51st Street in Brooklyn, across from the Depot. Sometime

in the 1990s the Defendant unlawfully discharged an unknown amount of

petroleum ( mostly diesel fuel oil, estimated at 70,000 to well over 100,000

gallons ) which entered the groundwater at the Depot forming a massive plume of

contamination. Although the Defendant’s investigation and remediation efforts

have spanned more than a dozen years, Plaintiffs were first told of the existence of

the plume beneath their properties in January 1999. It is undisputed that the

1
The sole commercial property owner in this action, Plaintiff Miller & Davis, Inc., sold its
property, stipulated to withdraw its claims and is no longer a party to the action. One of the
residential owners, Plaintiff Maryse Fecu, no longer owns her home at 2331 Utica Avenue. 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. 912, 935-938 of companion appeal, App. Div.
No. 03-7302]. One other original Plaintiff, residential owner Margaret Farrell, 2335 Utica
Avenue, is now deceased and her estate is not a party to this action.

3
petroleum plume with its hydrocarbon contamination has not been cleaned up and

remains present beneath the Plaintiffs’ homes today.

RELEVANT PROCEDURAL HISTORY

The Plaintiffs brought an action and their Amended Complaint [R.24] contained

eight causes of action: (I) Strict Liability under Article 12, §181 of the Navigation

Law; (II) Common Law Negligence; (III) Gross Negligence; (IV) Nuisance; (V)

Trespass; (VI) Taking without Compensation; (VII) Unjust Enrichment; (VIII)

Violation of Section 111 of the Transportation Law.2 Defendant served an

Amended Answer on or about September 12, 2000. [R. 35]. Disclosure proceeded

and Plaintiffs thereafter filed a Note of Issue on April 12, 2002 along with a

motion for a trial preference.

Thereafter, Defendant moved for summary dismissal of all claims. Plaintiffs cross-

moved for judgment on liability and sought a trial on damages. The lower court

(Hon. Lawrence S. Knipel) held that the Defendant was liable for the discharge

2
The Plaintiffs previously withdrew their claim for Violation of Section 111 of the
Transportation Law in a prior proceeding. All other claims remain as alleged in the Amended
Complaint.

4
however, 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. Plaintiffs’ appealed that decision under App. Div. No. 03-

7302. Plaintiffs also moved to renew under CPLR §2221(e) which motion was

denied.

The Appellate Division has not yet heard Plaintiffs appeal on the original motion

(App. Div. No. 03-7302) therefore the renewal will not violate any prior appellate

decision in this dispute.

SUMMARY OF THE ARGUMENTS

The lower court had found that the Plaintiffs had not made a proper showing on

damages, in particular citing the valuation opinion of the Plaintiffs’ real estate

expert3 as “conclusory.” The lower court also had disregarded entirely the

evidence on permanent damage to Plaintiffs’ properties. 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.
Plaintiff’s first appraiser A. Charles Vardakis, died after a lengthy illness in August 2001, [R.
49].

5
presented. Most ( but not all), of the new material was not in existence at the time

of the lower court’s decision. The renewal motion addressed the court’s concerns

by submitting “new” appraisals ( previously in existence ) and, new analytical data

which had not been 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, they were not used on the summary

judgment motion solely due to the death of this appraiser (Vardakis) [R. 49]. The

lower court essentially said that Plaintiffs’ excuse that Vardakis died was not

reasonable and that the appraisals could have been submitted on the first motion. It

also said that even if they had been submitted on the first motion they would be

considered stale ( dated 1999) and therefore of little probative value.

The renewal also addressed the lower 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.

6
Plaintiffs’ environmental expert4 analyzed data which was not in existence at the

time the summary judgment motion was decided in July 2003. 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. His analysis demonstrated the recalcitrance of a significant fraction of

the contaminant which was then confirmed by the March 25, 2004 test boring

results, [R. 261, 263-299]. These results demonstrate empirical support for

Plaintiffs’ claims that, due to the magnitude of the spill, permanent degradation in

the subsurface, [R. 231, 244] had taken place.

The Defendant attacked this new evidence on procedural grounds in the renewal

motion but the issue of permanency remained unanswered. Although the lower

court on renewal did acknowledge that the extent and duration of contamination

may have an impact upon the damages [R.18], inexplicably it did not find the

question of permanence a triable issue, but instead denied renewal of Plaintiffs’

4
Plaintiffs’ environmental experts are Tim Douthit of In Aqua Veritas, Inc., and Dan C. Buzea
of Leggette Brashears & Graham, Inc. 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. 262] and [R. 952-
957, App. Div. No. 03-7302].

7
showing on procedural grounds, [R. 17]. Plaintiffs appeal the denial of renewal as

an abuse of discretion which has resulted in substantive unfairness.

THE RENEWAL STANDARD UNDER CPLR §2221(e)

Under the renewal statute, CPLR §2221(e) the moving party bears the burden of

demonstrating a reasonable excuse as to why the evidence was not previously

submitted and must show that the newly offered evidence would change the prior

determination. Although it is clear that renewal is discretionary and not

automatically granted as a “second chance,” it is also equally clear from the case

law that there is some flexibility in the standard which courts can and do apply.

Courts in all judicial departments have applied that flexibility on occasion to

prevent substantive unfairness from producing a manifestly unjust result. Some

appellate courts have stated that renewal may be granted in the interest of justice.

The Tishman Court ( Tishman Const. Corp. of New York v. City of New York, 280

AD2d 374, 720 NYS2d 487 (1st Dept. 2001) said,

“A motion for leave to renew is intended to bring to the court's attention

new or additional facts which, although in existence at the time the original

8
 motion was made were unknown to the movant therefore not brought to the
court's attention. ( cit. omit.) This requirement, however is a flexible one
and the court, in its discretion, may also grant renewal in the interest of
justice, upon facts which were known to the movant at the time the original
motion was made. ( cit. omit.) Indeed, we have held that even if the
vigorous requirements for renewal are not met, such relief may be properly
granted so as not to “‘defeat substantive fairness’” (Metcalfe v. City of New
York, 233 AD2d 410, 411, 636 NYS2d 60, quoting Lambert v. Williams,
218 AD2d 618, 621, 631 NYSA2d 31). The court also mentioned that it saw
no discernible prejudice to the other party.

Plaintiffs do not dispute that renewal is discretionary but that will not prevent this

panel from finding that Plaintiffs’ submission was indeed sufficient to raise a

triable issue of fact. The Second Department did that just most recently in Mi Ja

Lee v. Glicksman, 14 AD3d 669, 789 NYS2d 276, (2nd Dept. 2005); also in accord

Cole-Hatchard v. Grand Union, 270 AD2d 447, 705 NYS2d 605 (2ndDept. 2000),

and Daniel Perla Associates v. Ginsberg, 256 AD2d 303, 681 NYS2d 316 (2nd

Dept. 1998). It is that power of de novo review for which Plaintiffs pray in the

instant appeal.

9
The statute as amended ( eff. 7/20/99 ) requires that a motion to renew “shall be

based upon new facts not offered on the prior motion that would change the prior

determination..” (subd. [e][2]) and that it “shall contain a reasonable justification

for the failure to present such facts on the prior motion “ (subd. [e][3]). The

statute does not define “reasonable” and although the case law acknowledges the

limits on discretion is does not define them.

REASONABLE EXCUSE PROFFERED FOR:

THE VARDAKIS APPRAISALS [R. 113]

Vardakis died in August of 2001 after a prolonged illness. Prior to his death it

became apparent that he probably would not be able to testify at trial. That is the

sole reason his earlier appraisals were not submitted on the original motion.5 Prior

to Vardakis death Plaintiffs had already begun working with another licensed

appraiser, Neglia and it was his opinion which was used in opposing summary

judgment [R. 990, App. Div. No. 03-7302]. There is no other reason for not

5
See [R. 48-53] for a complete statement of the circumstances and details of Plaintiffs’
submittals on renewal.

10
continuing to work with Vardakis other than that he was terminally ill and died in

August 2001 [ R. 49].

Neglia was not charged with producing full general appraisals (which in any event

had been planned as updates prior to trial). Neglia’s opinion focused on the bases

for valuation adjustments made by appraisers when environmental impairment was

present. Neglia used eight sources of data and information and made a site

inspection in arriving at his conclusion that environmental contamination of the

magnitude suffered by homeowners here would result in at least some ( i.e.,

greater than 0% ) detriment to fair market value.

However since Neglia’s opinion was not provided in the general form of a full

appraisal but in the form of an expert affidavit with attachments, the lower court

criticized it because it did not contain numbers, comparables or percentages6

calling it “bald and conclusory.” The Neglia opinion was however more than

adequate to raise triable issues of fact on environmental impairment and

6
Comparing the form and format of Vardakis [ R. 113] and Neglia [R. 990, App. Div. 03-7302]
will illustrate what is being explained. 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.g., when buying a home.

11
diminution of value and Plaintiffs’ have addressed that at length in the other

appeal [ see Appellants’ Reply pgs. 19-25, App. Div. No. 03-7302].

No Surprise or Prejudice to Defendant Has Occurred:

The Vardakis appraisals were performed in June 1999 just prior to the commencement of

the litigation and copies were sent at that time, to David C. Boyle, Esq., the Defendant’s

Assistant General Counsel. The Defendant tried to depose Vardakis and used the

appraisals as an exhibit on its motion which was made to the lower court in June 2001.

The motion was rendered moot because Vardakis died in August, 2001 while that motion

was pending.

Since the underlying facts of Vardakis were already well known to Defendant, the

renewal should be granted as there can be no surprise or showing of prejudice.

Cases should, whenever possible, be decided on the merits and not on the basis of

technical procedural requirements when an evidentiary showing has been made,

Wattson v. TMC Holdings Corp., 135 A.D.2d 375, 521 N.Y.S.2d 434 (1st Dept.

1987).

12
THE DIORIO VALUATION OPINION [R. 210]

The Diorio valuation opinion was produced in May, 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. 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. 210].

Although Diorio was a broker and not a licensed appraiser, the value of realty in

question may be proved by the opinion of any properly qualified witness who need

not be a licensed appraiser. However, since I ( Dunewood Truglia, Esq.) had

never met Diorio and had never worked with him, I was not familiar with his

experience or capabilities and never intended to use his opinion as a primary

source for valuation of any of the affected properties. In any event I already had

the Vardakis appraisals and had met and worked with Vardakis before he became

ill. On the renewal motion the Vardakis and Diorio documents were both

submitted as an attachment to the report of Plaintiffs’ expert John A. Kilpatrick

[R. 88-112].

13
OPINION OF JOHN A. KILPATRICK, Ph.D. REGARDING THE WORK

PERFORMED BY VARDAKIS AND DIORIO, SUBMITTED ON RENEWAL

Kilpatrick is a specialist7 whose expertise is in the evaluation of environmentally

impaired real property [R.83]. He provided background as to the history, literature,

and methodology currently used in the practice of appraisal when dealing with

environmental impairment, [R.88] but his primary role was to evaluate and

introduce and contrast the work product of both Vardakis and Diorio on the

renewal motion.

Kilpatrick reviewed the methods and conclusions of both the Vardakis appraisals

and the Diorio evaluation opinion. Regarding Diorio, Kilpatrick said that even

though Diorio was not a licensed appraiser that Diorio used standard methodology

in his comparison of value both with and without impairment. He also said that the

true value of 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, hence its value [R. 103].

7
Kilpatrick is also an appraiser in New York and other jurisdictions [R. 110].

14
After reviewing the appraisals performed by Vardakis, 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. Their

assumptions differ and therefore so does their work product conclusions [R.103].

The resulting figures are an opinion as to diminution of value (i.e., either greater

than 0% or, not greater than 0% ). An opinion, however which is neither

incompetent nor inappropriate for consideration by the trier of fact.

Since it is within the court's discretion to grant renewal even upon facts known to

the movant at the time of the original motion, see Oestreich v. Boyd, 300 AD2d

375, 751 NYS2d 413 ( 2nd Dept. 2002), Friedman v U-Haul Truck Rental, 216

AD2d 266, 627 NYS2d 765 ( 2nd Dept. 1995) and Canzoneri v Wigand Corp., 168

AD2d 593, 564 NYS2d 178 ( 2nd Dept. 1990); that is what the Plaintiffs are

asking this court to do to prevent a manifestly unjust result.

NEW ANALYTICAL DATA NOT IN EXISTENCE PRIOR TO THE LOWER

COURTS DECISION WAS SUBMITTED ON RENEWAL TO DEMONSTRATE

EMPIRICAL EVIDENCE OF PERMANENT SUBSURFACE CONTAMINATION

15
The Defendant’s consultant’s Plume Maps dated August 25, 2003 and September

29, 2003 respectively were data which were not in existence at the time the

summary judgment motion was decided in July 2003. In fact they did not become

available to the Plaintiffs’ until early 2004 [R.56]. It continues to be the law that a

court should accept as a “reasonable justification” for not presenting evidence at

the time of the initial motion, the fact that the evidence was not then known or

available. Puntino v. Chin, 288 AD2d 202, 733 NYS2d 108 (2nd Dept. 2001);

Halle v. Fernandez, 286 AD2d 662, 663, 730 NYS2d 126 (2nd Dept. 2001);

Sementilli v. Ruscigno, 286 AD2d 242, 243 728 NYS2d 372 (1st Dept. 2001);

Yohay v. Papaleo, 273 AD2d 465, 711 NYS2d 746 (2nd Dept. 2000).

The test borings performed on March 25, 2004 [see R. 263], by the Plaintiffs

tested the empirical basis for the conclusions drawn by Douthit, the Plaintiff’s

consultant who was charged with analyzing the anomalous data presented by the

August 2003 and September 2003 data. That data which showed a footprint

approximately double the plume’s areal size in September 2003 as compared with

August 2003 [R. 276, 277], could not be dismissed as simply routine fluctuation

and supported Plaintiff’ theory that the graphic representation of the plume did not

begin to show the extent of contamination actually present in the subsurface. The

16
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. In addition, heavy fuel oil contamination exists in the soil in areas where

the maps no longer show the plume to be present. Douthit said this contamination

( the sorbed fraction in the vadose layer) is virtually unrecoverable

(i.e.,“permanent” ) without completely removing the impacted soil [R. 271]. This

is a practical impossibility because of the dense configuration of row houses.

This unexplained anomaly which was investigated led to the most significant

confirmation of the permanent damage in the subsurface to date. Although it was

attacked procedurally on renewal, the Defendant could have performed its own

test borings in rebuttal but it did not.

The point here is that even where the evidence being offered on renewal was

available or could have been discovered at the time of the prior motion, a court

may excuse a movant’s failure to present such evidence on the prior motion, so

long as it finds the justification offered by the movant to be “reasonable.” The

standard is not one of perfection but reasonableness, under CPLR §2221[e][3],

J.D. Structures, Inc. v. Waldbaum, 282 AD2d 434, 436, 723 NYS2d 205 (2nd Dept.

17
2001); Toussaint v. Noel’s Market, 280 AD2nd 665, 721 NYS2d 249 (2nd Dept.

2001); Motts v. Cohen, 264 AD2d 764, 695 NYSA2d 384 (2nd Dept. 1999).

This Department has held to be a reasonable justification for not presenting

evidence on a prior motion that the attorney seeking renewal did not believe that

the submission of such evidence was necessary. J.D. Structures, Inc. v. Waldbaum,

282 AD2d 434, 436, 723 NYS2d 205 (2nd Dept. 2001).

In the instant matter, with more than eight thousand pages of DEC records

detailing the magnitude, areal extent and longevity of the spill, with the evidence

of permanent damage presented by Plaintiffs’ consultant Buzea [ R. 939 App. Div.

No. 03-7302] and with the DEC Consent Order which squarely placed liability on

the Defendant [ R.920 App. Div. No. 03-7302] there was simply no indication that

further tests would be necessary at the summary judgment level. Plaintiffs used

every bit of evidence on that motion which their resources would allow. They

could not have known that yet another expensive GeoProbe test boring might have

persuaded the lower court that the issue of permanent contamination indeed was a

triable issue in this controversy. It just made no sense.

18
The case of Peebles v. New York City Housing Authority, 295 AD2d 189, 744

NYS2d 13 (1st Dept. 2002) is instructive in this regard. The Peebles, case

concerned an infant Plaintiff who sustained a serious injury due to a bolt

protruding from a playground slide. The Plaintiff did not include an expert's

affidavit contending that such was unnecessary since a protruding bolt on a

playground slide presented a defect that was readily understandable by an

average juror; The Defendant’s expert said the slide was safe and conformed to

industry standards; 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.

Summary Judgment should always be denied if there is any doubt as to the

existence of a triable issue of fact. Freese v. Schwartz, 203 AD2d 513 ( 2nd Dept.

1994 ) and Miceli v. Purex Corp. 84 AD2d 562,443 NYS2d 269, ( 2nd Dept.1981).

The lower court, in the instant appeal, found there were no triable facts in this case

because it apparently did not believe that the physical presence of contamination

shown to be permanent, in and of itself equates to damage. Juries have been

allowed to determine these issues on much smaller discharge and contamination

19
evidence than Plaintiffs have amassed here and it is manifestly unfair to deny them

the opportunity to have their claims heard by an impartial jury. Clearly all of the

items produced are no less than reasonably arguable and that is the standard.

POINT I - ABUSE OF DISCRETION ON RENEWAL TO DISREGARD

EVIDENCE OF TRIABLE ISSUE OF FACT ON DAMAGES

The Vardakis Appraisals

The lower court’s refusal to accept the Vardakis appraisals as raising a genuine

issue of fact on renewal is an abuse of discretion. The Vardakis appraisals are

competent evidence produced by a licensed appraiser, ( now deceased ). The

documents are prima facie evidence of what they purport to be [R.113]. They are

the functional equivalent of the Defendant’s submission and they are in customary

certified appraisal format [R. 155]. As such they are competent to raise a triable

issue of fact on the issue of diminution. For the lower court to say that they are

stale or of little probative value is to engage in issue determination which is

improper and which usurps the role of the jury. It is for the trier of fact to

determine the weight to be given an otherwise competent, relevant and material

20
piece of documentary evidence. This set of appraisals was produced

contemporaneously with the disclosure of the contaminant plume in 1999 at which

point copies were given to the Defendant.

The Vardakis appraisals are not inconsistent with any law such as Executive Law

160-E, et seq. which governs State Certified and Licensed Appraisers and their

work product. In addition, although the Vardakis appraisals are also not being

used in a tax assessment review (22 NYCRR 202.59 et seq.), or in an eminent

domain proceeding (22 NYCRR 202.61) they do not seem to contravene any of

those regulations either.

If these certified appraisals are the work product of an experienced qualified

appraiser which Vardakis certainly was [R. 199-208] and if neither the Defendant

nor the lower court can point to any violation of law or regulation in his work,

then what basis is there to disregard this evidence in toto? Can the court implicitly

find Vardakis incredible and unworthy of belief. There is no basis for that

inference in the decision and no support for it in the record.

21
There is no rule of law which prohibits the use of the information in these

documents just because they were produced in 1999. In fact the Uniform Rules of

Court cited above ( .e.g., 22 NYCRR 202.59 et seq.), address how a party can even

amend or supplement at trial upon such conditions as the court may direct. There

is no justification for the lower court to have refused to allow that Vardakis was

competent to show evidence of a triable issue of fact. For the lower court to go as

far as it did was an abuse of its role as issue finder.

The lower court’s comment that because the Vardakis appraisals were done in

1999 they have little probative value [R. 19]. In fact the Vardakis appraisals

cannot be disregarded as stale and of no value since they were produced at the

time of the discovery of the damage by Plaintiffs. Routinely in condemnation

cases at least, the valuation date is the date of the taking ( the date of the damage).

Admittedly this is but one of several accepted methods of determining property

damage but is not in and of itself wrong in any respect. To be sure, the measure of

damages must reflect the fair market value of the property at some point in time

otherwise there could never be any recovery (see Matter of City of New York, 59

NY2d 57, 61; 627 Smith St. Corp. v Bureau of Waste Disposal of Dept. of

Sanitation of City of N.Y., 289 AD2d 472, 473).

22
In light of the foregoing, it was error for the lower court find that the Vardakis

appraisals were “of little probative value with regard to damages based upon the

values of the affected properties today” [R. 19]. Even if true, 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, the day of the damage.

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. 100-

101]. Appraisers are governed by the Uniform Standards of Professional Appraisal

Practice ( USPAP)8 competency rules. 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. He further states that the debate was settled in 2002 by the

adoption of Advisory Opinion9 AO-9 [R. 218] which now shows that the appraiser

who fails to account for known environmental issues, such as exist in this case,

may be running afoul of the USPAP Competency rules.

8
Uniform Standards of Professional Appraisal Practice Rules of the Appraisal Standards
Board along with its Advisory Opinions govern the ethics and practice of Appraisers.
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, pgs. 36, 44 and in the instant appeal at R. 993-996, 1045.

23
Vardakis considered the impairment of permanent contamination while Von

Ancken did not, [R. 101]. Vardakis evaluated the properties as they were at the

time of his appraisal. Von Ancken essentially valued everything as if it were not

contaminated since he was betting that everything would be cleaned up in five

years. When an appraiser is engaged to render an opinion as to value he does so in

the present considering conditions as they exist at the time his valuation opinion is

made and not based on “extraordinary assumption,” e.g., involving remediation of

a condition “in futuro” which of course may or may not come to pass [R. 51, 101].

Vardakis gave his opinion of value based on the present conditions which

included a reasonable adjustment for contamination. The adjustment was one

which an appraiser has both a duty and an obligation to make under the standards

of good appraisal practice as specified by USPAP Advisory Opinion 9 (AO-9), [R.

218]. The lower court said nothing about this and upon competing methodologies

chose the one based on the prediction of a five year clean-up which may or may

not ever happen. It was error to have determined such an important point against

the Plaintiffs and certainly is not consistent with the most favorable inference to

which the Plaintiffs are entitled [ cf. also Point III, infra].

24
Failure to have presented the Vardakis appraisals on the original motion did not

prejudice the Defendant in any way. Plaintiffs’ gained no tactical advantage

whatsoever and cannot rationally be accused of sloth, venial intent or not laying

their case bare. In any event, the Defendant has had the information since 1999.

Plaintiffs still believe that a spill of the magnitude and areal extent of the

discharge complained of does not need an expert at all for the average person can

well grasp the idea of a plume of petroleum beneath a residence. This is fully

discussed in Appellants’ Briefs pgs. 50-53 in the companion appeal App. Div. No.

03-7302. It was also the same “reasonable excuse” that was accepted by the

appellate court on renewal, in Peebles, ( cit. supra ).

Stigma and impairment due to environmental contamination have been recognized

by the Court of Appeals, as constituting unique factors affecting the value of real

property. Matter of Commerce Holding Corp. v. Board of Assessors of the Town of

Babylon,88 NY2d 724, 649 NYS2d 932 ( 1996). The Court in Commerce also

endorsed a flexible approach to valuation recognizing the unsuitability of the strict

application of traditional valuation techniques to contaminated properties. Both

25
the legislature and the courts have sanctioned and upheld compensation in

situations identical to what has occurred here, subject only to proof at trial.

LOWER COURT REFUSED TO ACCEPT THE (DEFENDANT’S) AUGUST 2003,

SEPTEMBER 2003 PLUME MAPS OR THE PLAINTIFFS MARCH 25, 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. The analysis of the new data indicated that the plume of contamination

had not been adequately represented and was not the same thing as what the

graphic representation purported to show; the soil borings of March 25, 2004

demonstrated that longevity and permanency were major issues which had been

summarily disregarded by the lower court.

This constitutes substantive unfairness for several reasons. The Defendant’s

environmental expert had argued vigorously that the plume was temporary and

shrinking according to his plume maps. However, it is the subsurface

contamination that is the issue, not simply the plume’s graphic representation

26
since that is an estimate of the areal extent of liquid phase only.10 and, 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. 505, App. Div. No.

037302)11 Most significantly no one, not the Defendant or its expert, nor any

regulatory agency, nor the law itself,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. If that in and of itself does not

constitute a triable issue with respect to valuation (damage) then just how would a

controversy over diminution for permanent damages ever find its way to a jury?

Finally, the maps directly contradict what the Defendant tried to establish, that the

contamination is shrinking. Not so, the plume may be shrinking due to collection

of liquid phase product, ground water fluctuation or other factors, but the plume is

only a fractional component of the problem, it is not the problem. Judge Knipel’s

analysis misses the mark when he comments that because the soil borings are close

10
It is presumably based on whatever computer modeling parameters are being used which
means that the graphic can be “adjusted” or made to shrink.
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
E.g., Environmental Conservation Law, § 17,et seq. Navigation Law, Article 12, Petroleum
Bulk Storage Regulations, 6 NYCRR 612, 613, 614; significance discussed in companion
appeal Appellants’ Brief, pgs. 28-29, App. Div. No.03-7302.

27
to the edge of the plume at its greatest area, the anomaly cited is just due to the

groundwater fluctuation. What the Plaintiffs have showed with Douthit’s opinion

and the GeoProbe soil boring results of March 25, 2004, is that there is no linear

correlation at all between the size of the liquid phase plume, as depicted by the

Defendant on its August 2003 and September 2003 plume maps, and the presence

of heavy contamination both in site areas shown to be, (a.) within the historical

plume footprint but that no longer are due to a “shrinking footprint” ( e.g., SB-1,

[R. 274, 295]) and, (b.) those that have never been shown to be within such

footprint at all, (e.g., SB-2 [R.286, 297]). See also [ R.233, 238, 239, 262, 270,

274, 276].

What then is the criteria which the lower court used to measure the weight to be

given this new data in order to satisfy itself that permanent contamination is not a

triable issue? The court’s answer to that question was to preclude everything on

procedural grounds by deciding that the Plaintiffs’ had engaged in “inappropriate

discovery.”

PLAINTIFFS’ ENGAGED IN NO “INAPPROPRIATE DISCOVERY”

28
The Court erred in precluding the Plaintiffs’ new data by mis-characterizing it as

inappropriate post note of issue discovery. This was an abuse of discretion which

closed the door on the only possible way for Plaintiffs to show that the subsurface

contamination of their properties is now a permanent fixture. The cases cited by

the Court are inapposite because the common thread in all of them is discovery as

it relates to a demands or proceedings against a party and not unilaterally

produced work product or material prepared for litigation as the Plaintiffs made

use of here. Plaintiffs were unable to find any authority characterizing the

unilateral efforts of a party preparing for trial without the involvement of anyone

else, as constituting “discovery” i.e., a demand or proceeding as contemplated

under CPLR Article 31 or 22 NYCRR 202.21(d). Nothing the Plaintiffs’ did and

nothing produced on renewal violates anything in their previously filed Note of

Issue or Statement of Readiness. Instead, some of the strongest renewal evidence

on this hotly disputed issue was thrown out by the court on purely procedural

grounds [R. 17].

For the lower court to criticize and preclude Plaintiffs on the basis of

inappropriate post note of issue “discovery” warrants reversal. The data were

assembled and collected as material prepared for litigation by Plaintiffs on their

29
own initiative, on Plaintiffs’ own properties, and at Plaintiffs’ own considerable

expense. In fact it was similar to the expenditure of time and effort of Defendant in

gathering information for its own renewal submission [ R. 316 ] which the court

did not criticize.

Would the court have similarly frowned on the Plaintiffs’ continuing efforts to use

the Freedom of Information 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, the Plaintiffs are

convinced might otherwise never have seen the light of day.

Since personal residences are involved, people want to feel comfortable that the

information they have access to, whether documents or analytical results, is not

being filtered through the one responsible for the contamination in the first place.

It is about as far from getting a favorable inference on this critical evidence as is

possible [ see Point III, infra]. It constitutes substantive unfairness by attempting

to shoehorn the Plaintiffs’ own privileged material prepared for litigation into

something it is not. i.e.,“discovery” within the meaning of CPLR Article 31 or 22

13
Public Officers Law Article 6

30
NYCRR 202.21(d). See Beliavskaia v. Perkin, 227 AD2d 246, 642 NYS2d 522 (1st

Dept. 1996), Hill v. Sheehan, 154 AD2d 912, 545 NYS2d 868 ( 4th Dept. 1989),

Dunning v. Shell Oil Co.,57 A.D.2d 16, 393 N.Y.S.2d 129, ( 3rd Dept. 1977).

A RATIONAL JURY COULD FIND FOR PLAINTIFFS ON THE EVIDENCE

PRESENTED BOTH IN THE COURT BELOW

Finally, if there any rational basis upon which a jury could have found for the

Plaintiffs on the evidence they have come forward with then summary judgment

and denial of renewal were improper and are reversible error.

The facts and law in Leone v. Leewood Serv. Sta., 212 AD2d 669, 624 NYS2d 610

( 2nd Dept.1995 ), lv denied 86 NY2d 709, Rizzuto v. Getty Petroleum Corp., 289

Ad2d 217 736 NYS2d 233 ( 2nd Dept. 2001), and, Melohn v. R&M Combustion,

296 AD2d 323, 744 NYS2d 321 ( 1st Dept. 2002) should be controlling in the

instant matter. All are petroleum discharge damage cases alleging diminution of

value, after trial the jury awarded diminution damages and all three verdicts were

upheld on appeal.

31
In the two cases heard in this Department with which this writer is most familiar

(Leone v. Leewood Serv. Sta., and Rizzuto v. Getty Petroleum Corp.), the plaintiffs

were residential property owners who alleged diminution damage under the

Navigation Law due to subsurface and ground water contamination from a

discharge of petroleum. The evidence on diminution damages which went to the

jury consisted of opposing opinions on value and was almost identical to the

evidence on diminution in the instant case except for the amount of product

discharged ( only around 200 gallons in Leone and approximately 2000 gallons in

Rizzuto). The instant case involves a staggeringly higher amount (estimated at

70,000 to well over 100,000 gallons14 ) of discharged petroleum. The

contamination has not been remediated and is still present beneath Plaintiffs’

homes today. These Plaintiffs have the same right to a jury determination of their

claims as did the Plaintiffs in the Leone and Rizzuto cases, both of which were

upheld by the Second Department.

14
This estimate was made by Plaintiffs’ consultant Buzea ( Leggette, Brashears & Graham,
Inc. R. 942 App. Div. No. 03-7302 ). Buzea also found significant gaps in the Defendant’s
monthly product inventory reconciliation records required to be kept under the Petroleum Bulk
Storage Regs., 6 NYCRR 613.4(a) see R. 943-944 App. Div. No. 03-7302. The total amount of
product the Defendant actually discharged will probably never be disclosed.

32
POINT II - COURT ERRED IN DISMISSING PLAINTIFFS’ NEW

EVIDENCE OF PERMANENT CONTAMINATION ON RENEWAL

Perhaps the most disputed element in this case is the permanency of the

contamination on the Plaintiffs' properties. On renewal, the lower court

misapprehended the empirical evidence presented which supported establishing

permanent damage. More troubling is that by engaging in issue determination with

respect to this crucial point, the court effectively foreclosed it as a question of fact.

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. The only way the

court could do so was to disregard all of Plaintiffs’ evidence including the new test

boring data submitted on renewal. If the court had not rejected the entire issue of

permanency (even though failing to say so explicitly), it could not have

determined that issue against the Plaintiffs on the evidence which was presented.

This cannot be said to have been anything less than issue determination.

The Plaintiffs say that the only way to establish that their properties cannot be

restored to pre-spill conditions is to show the permanency of the contamination.

The only way to show this as far as possible in the future all the way up to trial, is

33
to continue to sample and test for the presence of subsurface contamination. Any

testing the Defendant does presents a question of fact to be evaluated with the

other evidence on the issue of damages. It is an egregious error at the summary

judgment stage for the court to preclude the Plaintiffs from doing the same

especially since the issue involves their homes. No regulatory agency has

ventured to say that the contamination will not be a permanent component in the

subsurface and neither have any of the Defendant’s environmental consultants.

The Defendant continues to sidestep the issue by promising only that it will

continue remediation into the future. That’s admissible in mitigation, 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. It either misunderstood the fact that the

graphic representation on a plume map is not the barometer of contamination

present or alternatively, it simply refused to accept what the law has previously

allowed: that the documented physical presence of this underground contaminant

on someone else’s property equates to some measure of compensable damage and

at the very least is a genuine issue of triable fact.

34
Mis-labeling the new evidence as “nothing new” is a procedural attack but it

misses the merits of what has been demonstrated:

1. That the amount of product which a pumping well pulls in is

not a measure of the actual contamination present over time.

2. That the amount of product removed is not a measure of

contamination because neither the Defendant nor anyone else

knows how much liquid product was discharged or how much

remains beneath the Plaintiffs homes today.

3. Air testing certainly does not show the measure of

contamination remaining regardless of the number of tests.

4. Ground water fluctuation is not a measure of the amount of

contamination left beneath Plaintiffs homes either.

Again the point not to be missed is that the contamination is not a function of any

particular plume map graphic that the Defendant happens to offer. The published

literature states that only about 60% of the spilled product is recoverable, [R. 385].

The only way to validate that claim with evidence up to the point of trial is by test

borings which are very expensive to produce.

35
After more than seven years of trying to remove the liquid phase portion [see R.

384], the results of the test borings confirm that massive soil contamination is

present. Defendant stated on renewal that the anomaly which triggered the renewal

motion is nothing more that a routine fluctuation in the measured dimension and

thickness of the diesel fuel plume caused by water table fluctuation [R. 367]. If

that was all there was to it, the Defendant would have produced similar “routine”

anomalies where a later month also showed a tremendous increase in product area

over an earlier month. It did not because it could not. The anomaly found by

Plaintiffs expert in the newly acquired evidence (August 2003, September 2003)

was unique and forced a re-visiting of Defendant’s prior pronouncements about

the contamination. Rather than face it on the merits it did the only thing it could, it

attacked the renewal on procedural grounds by mislabeling it as “nothing new.” If

it is truly “nothing new” then the appellate panel will have every reason to reverse

the lower court for ignoring the prior evidence presented on this point alone.

The significance of the new evidence is that it not that it simply contravenes the

predictions of the Defendant’s expert but that it demonstrates empirically that

heavy contamination is present today, not in theory but in reality, in areas which

were formerly shown to be within the plume’s footprint but are no longer, on any

36
of the Defendant’s maps, at least none which Plaintiffs have seen. The new data

shows that the contamination present is not remotely connected to the “shrinking

plume maps.” Although the Defendant puts great emphasis on these graphics to

show the problem is going away. When a later plume map shows approximately a

100% increase in liquid product area [R. 276, 277] as compared with an earlier

one, it gives one pause, in light of the historical failure of Defendant to store its

petroleum safely at the Depot for well over a decade.

The March 25, 2004 analytical data shows significant hydrocarbon contamination

trapped in the vadose layer exactly as explained by the Plaintiffs’ expert Douthit,

[R. 261, 263-299]. His report states that a significant fraction of this contamination

is unrecoverable [R. 231, 244]. Certainly the Defendant, with its resources, could

have gathered data in the same way to refute this latest evidence of permanence,

on the renewal motion but it did not. Instead of meeting the challenge on the

merits, it attacked it on procedural grounds.

The soil and ground water will remain contaminated and in this respect, a spill of

this magnitude results in virtually permanent damage to the subsurface due to the

practical difficulty of removing sorbed hydrocarbon from the subsurface soil [R.

37
240, 262]. This issue is material and can only be proved (i.e., with reasonable, not

absolute certainty ) by periodic analysis of test borings performed on the

Plaintiffs’ lands collected right up to the time of trial. The lower court said this

was inappropriate and not allowed after filing a note of issue [R. 16].

POINT III - THE COURT ERRED BY FAILING TO GRANT ANY

FAVORABLE INFERENCE TO NON-MOVANTS

Perhaps the clearest example of the lower court’s failure to grant the most

favorable inference to conflicting evidence is found in Plaintiff’s reply on the

renewal motion [R. 378-380]. Here, the Plaintiffs’ presented the affidavit of an

employee of former Plaintiff Miller & Davis, Inc. Plaintiffs candidly

acknowledged the possibility for conflicting inferences [R. 379] in an effort to

alert the court that there were at least two ways of looking at the information.15

The Plaintiffs also pointed out however, that since the evidence was sworn

testimony, there was no reason to choose to discredit the employee’s statements

about the negative effects his firm experienced because of the environmental

problem. Not only did the court seize upon the worst inference in this instance [ R.

15
See Affidavit of Jay Gittleman, V.P. of former Plaintiff Miller & Davis, Inc. [R. 398-400]
submitted in Plaintiff’s Reply to rebut the innuendo directed at Plaintiffs’ counsel in the Affidavit
of Defendant’s Assistant General Counsel, David C. Boyle [R. 316, par.4].

38
21] but it is typical of what occurred in the lower court on virtually every piece of

evidence proffered in both the original motion [ as detailed in Appellants’ Brief

pgs. 29-31 and 65-68, App. Div. No. 03-7302] and on renewal [R. 379].

Even after highlighting this [R. 390, 394] in the moving papers the lower court

continued to accept the worst possible inferences to be drawn, [R. 17]. The record

shows that nothing the Plaintiffs proffered resulted in the granting of the fair

inferences to which they were entitled as non-movants. [See Appellants’ Brief pgs.

29-31, 39-43, 65-68, Appellants’ Reply pgs. 10, 18, 21-23 App. Div. No. 03-7302

for additional exemplars.]

Another example of credibility determination occurred on renewal when Plaintiffs’

submitted nine additional affidavits of purchasers whose homes are outside of the

plume’s footprint, [R. 54]. Of these nine properties (which were all previously

cited by the Defendant and accepted by the court as evidence of no diminution )

not one property has ever been above or even close to the plume; seven persons

gave affidavits stating that they did not even know about the contamination at the

time of their purchase while two persons said they had heard about the spill prior

to purchasing their properties but both stated in their affidavits that because their

39
properties were not over or even adjacent to the plume that it did not impact their

purchase decisions, [R. 64-81].

Although these purchases were cited by the Defendant [R. 1039, App. Div. 03-

7302]) as evidence of no diminution and absence of stigma, the Defendant never

even inquired what those purchasers knew or didn’t know. The Plaintiffs certainly

did inquire and obtained affidavits from them which were submitted to the court.

That information was summarily ignored, not once but twice. The lower court was

never persuaded that the concept of market value implicitly depends on having

knowledge in order to make an informed decision ( see Kilpatrick, R. 101). It is

illogical by definition to consider these sales as evidence of “no market value

diminution” if there was (a) no prior knowledge of the spill (seven of the nine said

exactly that) or (b) if their properties were not even close to the plume or adjacent

to it ( all nine sales) meaning not comparable. Yet the lower court apparently made

a negative credibility determination again on renewal as it did on the seven owners

who likewise gave sworn statements which were detailed in the first appeal ( R.

935, 995, 1006-1021, App. Div. 03-7302). Even if the court believed that some

other definition of market value should control, it was required to grant the most

favorable inference, not entirely discount unchallenged sworn testimony on a key

material issue.

40
The balancing of the equities decidedly favor the Plaintiffs who are innocent of

wrongdoing. If the issue is even close as to whether the movant could have

discovered the evidence with due diligence, the movant should be given the

benefit of the doubt and renewal should be granted. As stated in the concurring

opinion of Justice Lupiano in NAB Construct. Corp v. Great Am. Ins. Co. 75

AD2d 790, 428 NYS2d 252, affd 53 NY2d 964, 441 NYS2d 658 ( 1981), " as I

perceive truth to be the handmaiden of justice, common sense dictates favoring the

[evidence] as enjoying the status of newly discovered."

When deciding a motion for summary judgment, the court must view the evidence

in a light most favorable to the non-moving party and must give that party every

reasonable inference which can be drawn from the evidence. Negri v. Stop & Shop,

Inc., 65 NY2d 625 ( 1985); and Louniakov . M.R.O.D. Realty Corp., 282 AD2d

657 ( 2nd Dept. 2001). Certainly a reasonable inference would be that the average

person would not knowingly pay as much for a property with a permanently

contaminated subsurface, other things being equal. There is no fairer inference.

The Plaintiffs did not receive the benefit of doubt either on the renewal or the

original motion.

41
CONCLUSION

Liability is not in doubt and is not arguable however damages in this case clearly

are. The lower court’s decision contains irreconcilable inconsistencies and has

discounted competent and material evidence presented by the Plaintiffs on

renewal. Its decision on renewal should be reversed and the Plaintiffs case restored

to the trial calender.

Dated: New Suffolk, NY

April 8, 2005

Respectfully Submitted,

_______________________________
Dunewood Truglia, Esq.
Attorney for Plaintiffs-Appellants
First Street P.O. Box 222
New Suffolk, NY 11956
631 - 734 - 6450 Fax 631 - 734 - 5152

42
Supreme Court of the State of New York
APPELLATE DIVISION: SECOND DEPARTMENT

JAMES M. TURNBULL, et al., App. Div. No. 04-06950

Plaintiffs-Appellants,

— against — CERTIFICATE OF
COMPLIANCE WITH
MTA NEW YORK CITY TRANSIT, Section 670.10.3(f)
Defendant-Respondent..

The undersigned attorney for Appellants certifies that the enclosed brief complies with rule
670.10.3(f) of the Rules of Court for Computer-generated Brief - Proportionally Spaced
Typeface; The brief was prepared on a computer using a proportionally spaced typeface as
follows:

Name of Typeface: Times New Roman

Point Size: 14

Line Space: Double

The total number of words in the brief is: 9600 words, inclusive of point headings and footnotes
and exclusive of pages containing the table of contents, table of citations, proof of service,
certificate of compliance, or any authorized addendum containing statues, rules, regulations, etc.

Dated: New Suffolk, NY

April 8, 2005 __________________________________
Dunewood Truglia, Esq.
Attorney for Plaintiffs-Appellants
First Street P.O. Box 222
New Suffolk, NY 11956
631 - 734 - 6450 Fax 631 - 734 - 5152

43