HALLIDAY v. NORTON COMPANY (1999)

Appeals (1) from an order of the Supreme Court (Ferradino, J.), entered May 11, 1998 in Saratoga County, which granted motions by defendants General Electric Company, Cohoes Memorial Corporation and Town of Halfmoon for summary judgment dismissing the complaint in action Nos. 1 and 2, and (2) from an order of said court, entered November 12, 1998 in Saratoga County, which, inter alia, granted motions by defendants Norton Company, Norton International Inc. and Allied Signal Inc. for summary judgment dismissing the complaint in action No. 1.

Plaintiffs, residents of the Town of Halfmoon in Saratoga County, commenced action No. 2 in 1993 against the Town and Norton Company, Norton International Inc. (hereinafter jointly referred to as Norton), General Electric Company (hereinafter GE), Cohoes Memorial Corporation (hereinafter Cohoes Hospital) and Allied Signal Inc. claiming personal injuries and property damage as a result of alleged contamination from the disposal in the 1960s of toxic and hazardous waste in a landfill located in close proximity to plaintiffs' homes.   This court previously dismissed the action with respect to all defendants, with the exception of the Town, based upon a jurisdictional defect (235 A.D.2d 709, 652 N.Y.S.2d 158).   In 1995, plaintiffs recommenced the claim against these defendants (action No. 1) and, thereafter, GE served plaintiffs with various discovery demands including interrogatories requesting specific information as to plaintiffs' allegations regarding the deposit of toxic waste at the landfill, the migration of waste from the landfill, the contamination of plaintiffs' property and how the contamination caused the alleged injuries suffered by plaintiffs.   Plaintiffs failed to respond to the demands, prompting GE to move pursuant to CPLR 3124 and 3126 for an order of preclusion.   Supreme Court issued a conditional order of preclusion pursuant to CPLR 3126(2), to which plaintiffs consented, barring plaintiffs from offering any evidence encompassed by the discovery demands that was not provided within 60 days of the order.

Following plaintiffs' compliance with the preclusion order, GE moved and Cohoes Hospital cross-moved in action No. 1 for summary judgment pursuant to CPLR 3212 dismissing the complaint;  the Town moved for summary judgment in action No. 2.   Supreme Court granted the motions and dismissed the complaint in action No. 1 against GE and Cohoes Hospital and the complaint in action No. 2 against the Town.   Thereafter, Norton and Allied sought summary judgment in action No. 1 dismissing the complaint, which was granted by Supreme Court.   Plaintiffs now appeal Supreme Court's orders in action Nos. 1 and 2.²

 “It is axiomatic that once a movant for summary judgment makes a ‘prima facie showing of entitlement to judgment as a matter of law’, the nonmoving party must submit admissible evidence demonstrating a triable issue of fact” (Iwaszkiewicz v. Callanan Indus., 258 A.D.2d 776, 777, 685 N.Y.S.2d 827, 828, quoting Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572;  see, Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718;  Cheeseman v. Inserra Supermarkets, 174 A.D.2d 956, 958, 571 N.Y.S.2d 358).   Here, in support of its motion for summary judgment, defendants submitted evidence that the Department of Environmental Conservation had engaged in a study of the landfill and tested the soil and wells of adjacent homeowners, and had concluded that there was no contamination of the water or soil and no significant levels of toxic materials were discovered.   These findings were supported by a separate study undertaken by the Department of Health.   Based on our review of the record, plaintiffs failed to adequately rebut defendants' prima facie showing of entitlement to summary judgment, offering no evidence or expert testimony disputing the findings of no contamination.   Similarly, their discovery responses, provided four years after the commencement of the initial lawsuit, did not set forth admissible evidence sufficient to defeat the motions.

 Plaintiffs' further contention that the defendants other than GE are not entitled to summary judgment because they neither made discovery demands nor moved for preclusion is unavailing.   These defendants also proffered a prima facie showing of entitlement to summary judgment and plaintiffs' submissions in opposition to the motions were devoid of adequate evidence in admissible form to counter defendants' proof.   Accordingly, inasmuch as plaintiffs failed to raise a question of fact with respect to contamination, Supreme Court properly granted summary judgment to defendants (see, Prato v. Vigliotta, 253 A.D.2d 749, 750, 677 N.Y.S.2d 380;  State of New York v. Tarrytown Corporate Ctr. II, 208 A.D.2d 1009, 1010-1011, 617 N.Y.S.2d 383;  Kulpa v. Stewart's Ice Cream, 144 A.D.2d 205, 206-207, 534 N.Y.S.2d 518).

 To the extent that plaintiffs' opposition to the motions can be construed as contending that they have not had an opportunity to obtain the necessary evidence and expert testimony, we find that they have insufficiently demonstrated how further discovery might reveal the existence of relevant evidence (see, Landes v. Sullivan, 235 A.D.2d 657, 658, 651 N.Y.S.2d 731).   Additionally, plaintiffs had ample opportunity to procure evidence and there is no indication that they were prevented from obtaining discovery during the four years prior to the summary judgment motions (see, Meath v. Mishrick, 68 N.Y.2d 992, 994-995, 510 N.Y.S.2d 560, 503 N.E.2d 115;  Fine Arts Enters. v. Levy, 149 A.D.2d 795, 796, 539 N.Y.S.2d 827).  Moreover, GE's motion to preclude, consented to by plaintiffs, required that discovery responses be submitted within the time period established by Supreme Court.

 Lastly, we reject plaintiffs' assertion that even if defendants were properly granted summary judgment dismissing those causes of action requiring evidence of exposure or trespass, their claims seeking damages for diminution in property values arising from a “stigma” (see, e.g., Putnam v. State of New York, 223 A.D.2d 872, 636 N.Y.S.2d 473) were dismissed in error.   Again, plaintiffs failed to adequately rebut defendants' proof establishing that there was no contamination in plaintiffs' soil or water wells, or in the surrounding neighborhood.   Any alleged consequential damages emanating, in part, from the adverse publicity associated with the landfill (see, Cottonaro v. Southtowns Indus., 213 A.D.2d 993, 625 N.Y.S.2d 773, lv. dismissed 86 N.Y.2d 886, 635 N.Y.S.2d 951, 659 N.E.2d 774) were, therefore, not proven to have arisen from the migration of toxins or from defendants' actions (see generally, Chenango Inc. v. County of Chenango, 256 A.D.2d 793, 681 N.Y.S.2d 640).

ORDERED that the orders are affirmed, with one bill of costs.

FOOTNOTES

2.   By order of this court, the appeals were consolidated.

GRAFFEO, J.

CARDONA, P.J., CREW III and MUGGLIN, JJ., concur.