PATEL v. EXXON CORPORATION (2004)

Plaintiffs commenced this action seeking remediation and non-remediation damages that they sustained as a result of the leakage of petroleum from underground storage tanks on their property.   On a prior appeal, we held that Supreme Court properly granted that part of the cross motion of Exxon Corporation (defendant) for summary judgment dismissing as time-barred those causes of action seeking non-remediation damages (Patel v. Exxon Corp. [Appeal No. 2], 284 A.D.2d 1007, 1008, 726 N.Y.S.2d 527, lv. dismissed 96 N.Y.2d 937, 733 N.Y.S.2d 376, 759 N.E.2d 375).   We further held that the court properly denied that part of defendant's cross motion seeking to dismiss the indemnification cause of action for recovery of remediation costs (id.).   Plaintiffs now appeal from an order in which the court, inter alia, denied their motion for leave to renew portions of defendant's initial cross motion, and defendant cross-appeals from the same order in which the court otherwise denied its subsequent cross motion for summary judgment dismissing plaintiffs' indemnification cause of action for recovery of remediation costs.   We affirm.

 The court did not abuse its discretion in denying plaintiffs' motion for leave to renew.   Plaintiffs failed to establish that the purported new information was not in existence or was not available at the time of defendant's initial cross motion (see CPLR 2221[e][2] );  Boreanaz v. Facer-Kreidler, 2 A.D.3d 1481, 1482, 770 N.Y.S.2d 516;  Computerized Med. Imaging Equip. v. Diasonics Ultrasound, 303 A.D.2d 962, 964-965, 758 N.Y.S.2d 228.   Plaintiffs further failed to set forth a “reasonable justification for the failure to present such facts on the prior motion” (2221[e][3];  see Computerized Med. Imaging Equip., 303 A.D.2d at 964-965, 758 N.Y.S.2d 228;  Kopra v. Aquino, 298 A.D.2d 880, 747 N.Y.S.2d 833, lv. dismissed in part and denied in part 99 N.Y.2d 573, 755 N.Y.S.2d 706, 785 N.E.2d 728;  Giardina v. Parkview Ct. Homeowners' Assn., 284 A.D.2d 953, 730 N.Y.S.2d 585, lv. dismissed 97 N.Y.2d 700, 739 N.Y.S.2d 99, 765 N.E.2d 302).   The court also properly denied defendant's cross motion.   Defendant established in support of its cross motion that the State of New York remediated the site at no cost to plaintiffs and executed a release discharging plaintiffs from any liability to the State for the cleanup costs.   In opposition to the cross motion, however, plaintiffs established that they have incurred attorney's fees related to the cleanup of the petroleum contamination, and such expenses may be recovered under their indemnification cause of action for recovery of remediation costs (see AMCO Intl. v. Long Is. R.R. Co., 302 A.D.2d 338, 340-341, 754 N.Y.S.2d 655;  Strand v. Neglia, 232 A.D.2d 907, 909, 649 N.Y.S.2d 729, lv. dismissed 89 N.Y.2d 1086, 659 N.Y.S.2d 859, 681 N.E.2d 1306).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: