Court of Claims, June 19, 2019

Thorn Gershon Tymann and Bonanni, LLP (Kyle N. Kordich of counsel) for defendants.

Robert F. Julian, P.C. (Robert F. Julian of counsel) for claimants.

The claim seeks recovery for personal injuries and damages resulting from an accident involving Christopher J. Burke (Burke) on November 18, 2012, at the Utica Harbor Inactive Hazardous Waste Disposal Site Remediation Project (Utica Harbor Remediation Project) in Utica, New York.

Claimants allege that the State of New York, the New York State Canal Corporation, the New York State Department of Environmental Conservation (DEC) and the New York State Thruway Authority (State defendants) are liable under common-law negligence and pursuant to Labor Law § 200 because they negligently supervised and controlled the means and methods of the environmental remediation work at the Utica Harbor Remediation Project, resulting in Burke's accident and injuries and further resulting in derivative damages sustained by claimant Karen Ann Burke.

The State defendants have moved for summary judgment dismissing the claim pursuant [*2]to CPLR 3212 on the grounds that the State defendants are immune from liability and action by the terms of Environmental Conservation Law § 27-1313 (1) (c) and, further, because the State defendants did not direct, supervise or control the allegedly dangerous means and methods of the environmental remediation work being performed by Burke which caused his injuries.

Claimants oppose the State defendants' motion for summary judgment dismissing the claim.

The facts pertinent to the court's consideration of the summary judgment motion follow. The New York State Department of Environmental Conservation issued a record of decision (exhibit G to State defendants' mot papers) on March 30, 2001, setting forth the DEC's plan for remediating the inactive hazardous waste disposal site at Utica Harbor. The DEC remedy included capping contaminated sediments in the Utica Harbor, among other measures.

The DEC record of decision provided a "Site History," including an "Operational/Disposal History" (§ 3 at 5) which found that "some contamination" (in the form of coal tar) at the Utica Harbor site (operable unit 3) came from "a large manufactured {**65 Misc 3d at 399}gas plant (MGP)" which "operated between 1845 and the early 1950's, producing gas for heating and lighting by heat treatment of coal and petroleum products. Other industrial facilities surrounding the harbor have also contributed contamination."

The record of decision (§ 5 at 15) included an "Enforcement Status" which defined "Potentially Responsible Parties" as "those who may be legally liable for contamination at a site" and which recounted that "Niagara Mohawk Power Corporation [now National Grid] consented to the issuance of a NYSDEC Consent Order (Index number D6-0001-9210) on December 7, 1992. The Order obligates Niagara Mohawk [National Grid] to implement a full remedial program."

The record of decision (at 56, Comment 31) shows that National Grid "requests that inaccurate statements in the 'Operational /Disposal History Section' be modified." DEC responded that it "has reviewed the identified language and does not feel a revision is warranted." At National Grid's request, the DEC did modify the "Operational/Disposal History Section" to "reflect that other industries in the area have contributed to the contamination at OU 3" (rec of decision at 56, Comment 30; response 30).

A September 2012 DEC "Fact Sheet" (exhibit J to State defendants' mot papers) regarding the Utica Harbor Remediation Project, states that the project will "address contamination left by a predecessor company [of National Grid], the Utica Gas and Electric Company."

On August 3, 2012, Niagara Mohawk Power Corporation, doing business as National Grid (National Grid), contracted with Maxymillian Technologies, Inc. to perform the hazardous waste remediation work at the Utica Harbor Remediation Project.

Burke, an employee of Maxymillian, was injured on November 18, 2012, at the Utica Harbor Remediation Project allegedly due to the State defendants' negligent supervision and control over the means and methods of the remediation work.

The law governing the court's consideration of the State defendants' summary judgment motion is clear.

As a matter of procedure, a

"motion for summary judgment should be entertained only [*3]after the moving party has established, by competent admissible evidence, that it is entitled to judgment as a matter of law . . . If the movant meets this initial burden, the opposing party is{**65 Misc 3d at 400} required to submit evidence which raises a material issue of fact to preclude an award of summary judgment" (Ware v Baxter Health Care Corp., 25 AD3d 863, 864 [3d Dept 2006]).

Once the moving party has satisfied this obligation, the burden shifts and the party opposing the motion must demonstrate by admissible evidence the existence of a factual issue (Svoboda v Our Lady of Lourdes Mem. Hosp., Inc., 31 AD3d 877 [3d Dept 2006]).

Whether the State defendants are entitled to immunity pursuant to ECL 27-1313 (1) (c) for their allegedly negligent acts or omissions in the course of their responsibility for the environmental remediation work is a threshold issue which the court must consider first.

Environmental Conservation Law § 27-1313 (1) (c) provides as follows:

"Section eight of the court of claims act or any other provision of law to the contrary notwithstanding, the state shall be immune from liability and action with respect to any act or omission done in the discharge of the department's aforesaid responsibility pursuant to this section; provided, however, that this paragraph shall not limit the liability which may otherwise exist for unlawful, willful or malicious acts or omissions on the part of the state, state agencies, or their officers, employees or agents; or for the ownership or responsibility for the disposal of hazardous waste, including the cost of cleanup, pursuant to this section."

The State defendants assert that they are absolutely immune from liability and action arising from their acts or omissions in discharging their responsibility in the Utica Harbor Hazardous Waste Remediation Project, except "for unlawful, willful or malicious acts or omissions" or "for the ownership or responsibility for the disposal of hazardous waste."

State defendants further contend that this immunity precludes any finding of liability for negligence in directing, supervising and controlling the means and manner of the environmental remediation work performed by Burke in the course of the Utica Harbor Remediation Project.

The court finds that the State defendants have satisfied their initial burden as to dismissal of the claim based upon their assertion of immunity "from liability and action" pursuant to ECL 27-1313 (1) (c).{**65 Misc 3d at 401}

State defendants have shown that the Utica Harbor Remediation Project is a covered "inactive hazardous waste disposal site remedial program," that the State defendants' acts or omissions were done in the "discharge of the [State defendants'] responsibility pursuant to" ECL 27-1313 and by demonstrating, via exhibit G at 4-8 and a NYSDEC consent order with Niagara Mohawk dated November 7, 2003 (exhibit I to State defendants' mot papers), that the State defendants did not own or improperly dispose of the hazardous waste or engage in "unlawful, willful or malicious acts or omissions."

State defendants have demonstrated that they were not owners of the hazardous waste. State defendants' exhibit G, the DEC record of decision's "Operational/Disposal History," found that "some contamination" (in the form of coal tar) at the Utica Harbor site (operable unit 3) came from "a large manufactured gas plant (MGP)" which "operated between 1845 and the early 1950's, producing gas for heating and lighting by heat treatment of coal and petroleum products. Other industrial facilities surrounding the harbor have also contributed contamination."

The record of decision further included an "Enforcement Status" which recounted that [*4]"Niagara Mohawk Power Corporation [National Grid] consented to the issuance of a NYSDEC Consent Order (Index number D6-0001-9210) on December 7, 1992. The Order obligates Niagara Mohawk [National Grid] to implement a full remedial program."

Finally, State defendants' exhibit J (Sept. 2012 DEC "Fact Sheet" regarding the Utica Harbor Remediation Project) states that the project will "address contamination left by a predecessor company [of National Grid], the Utica Gas and Electric Company."

Additionally, there is no allegation or evidence that the State defendants either negligently disposed of the hazardous waste or that the State defendants engaged in unlawful, willful or malicious acts or omissions.

State defendants have thus satisfied their initial burden on their summary judgment motion and the burden shifts to claimants to demonstrate the existence of a factual issue:

"In opposition to a motion for summary judgment a party must assemble and lay bare affirmative proof to establish that genuine material issues of fact exist. Only the existence of a bona fide issue raised by evidentiary fact rather than one based on conclusory or irrelevant allegations, will be sufficient{**65 Misc 3d at 402} to defeat a motion for summary judgment where the movant has made out a prima facie basis for the granting of the motion" (Archambault v Martinez, 120 AD2d 632, 632-633 [2d Dept 1986]).

Further, "mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" to defeat a motion for summary judgment (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

In opposition, the claimants contend that the State defendants have waived any claim that they are entitled to dismissal based upon immunity from liability and action because, contrary to the requirements of CPLR 3018 (b), they have failed to assert such claimed immunity as an affirmative defense.

The court disagrees. Initially, immunity from liability is not an affirmative defense enumerated in CPLR 3018 (b).

CPLR 3018 (b) provides:

"Affirmative defenses. A party shall plead all matters which if not pleaded would be likely to take the adverse party by surprise or would raise issues of fact not appearing on the face of a prior pleading such as arbitration and award, collateral estoppel, culpable conduct claimed in diminution of damages as set forth in article fourteen-A, discharge in bankruptcy, facts showing illegality either by statute or common law, fraud, infancy or other disability of the party defending, payment, release, res judicata, statute of frauds, or statute of limitation. The application of this subdivision shall not be confined to the instances enumerated."

More importantly, this claim has been the subject of voluminous disclosure of reports, decisions, orders, agreements, contracts, maps, plans, correspondence and photographs, as well as numerous depositions, all related to the remediation of the hazardous waste in Utica Harbor. The very essence of the claim is the allegedly negligent means and methods (allegedly directed, supervised and controlled by the State defendants) employed to remediate the hazardous wastes in Utica Harbor. The claim itself refers to the project as an "ongoing Environmental cleanup project to lessen the effects of pollutants located" in Utica Harbor and as a "State Environmental Remediation" project. The claim alleges "regulatory violations" committed by the State defendants.

Consequently, any purported waiver of the immunity statute has been retracted by State defendants' summary judgment{**65 Misc 3d at 403} motion and claimants' opposition thereto; claimants cannot credibly claim to be surprised or prejudiced by the State defendants' assertion, and the court's consideration, of a title contained in an article of the Environmental Conservation Law entitled "Inactive Hazardous Waste Disposal Sites" which sets forth the detailed statutory and regulatory framework for the environmental remediation project which is the subject of the claim (see Rogoff v San Juan Racing Assn., 54 NY2d 883, 885 [1981]; Green Harbour Homeowners Assn., Inc. v Ermiger, 128 AD3d 1142, 1144 [3d Dept 2015]; Lerwick v Kelsey, 24 AD3d 918, 919 [3d Dept 2005]; Sheils v County of Fulton, 14 AD3d 919, 921 [3d Dept 2005], lv denied 4 NY3d 711 [2005]).

The court's conclusion in this regard is further compelled by the decision of the Court of Appeals in Ferres v City of New Rochelle (68 NY2d 446 [1986]), which held that the statutory immunity set forth in General Obligations Law § 9-103 was not required to be pleaded as an affirmative defense or raised by dismissal motion; rather it established the substantive law regarding the duty owed by the governmental entity to the injured plaintiff:

"Before addressing the statute's applicability, we consider plaintiff's contention that defendant should be precluded from relying on General Obligations Law § 9-103 because it failed to plead it as an affirmative defense or to move for dismissal or summary judgment prior to trial. General Obligations Law § 9-103 is not an affirmative defense that must be pleaded (CPLR 3018 [b] . . . ). If the statute is applicable, its sole effect is to establish the substantive law defining the extent of the duty owed to plaintiff, and the facts, which arguably bring the case within the statute, are what plaintiff, himself, asserts—that he was injured at the entrance of the park while engaged in one of the included activities, bicycling. While it would have been better practice to raise the legal issue earlier by way of motion, defendant's failure to do so did not, contrary to plaintiff's contention, result in a waiver. We turn then to a discussion of the statute." (Ferres, 68 NY2d at 450.)

As in Ferres, Environmental Conservation Law § 27-1313 (1) (c) sets forth the substantive law regarding the extent of the duty owed to claimants. Also, as in Ferres, the claim itself places claimants and the State defendants' hazardous waste{**65 Misc 3d at 404} remediation work activities within the parameters of the statute. The claim's explicit theory of recovery is that the State defendants negligently directed, supervised and controlled the means and methods of the hazardous waste remediation at Utica Harbor.

State defendants have not waived applicability of the immunity statute.

Claimants have produced no evidence disputing that the Utica Harbor Remediation Project is a covered "inactive hazardous waste disposal site remedial program" and claimants' own pleadings and submissions on the motion (in addition to the voluminous exhibits offered by State defendants) demonstrate that the State defendants were directing, supervising and controlling the remediation of the inactive hazardous waste disposal site within the terms of the statute.

Claimants also argue that the State defendants (Canal Corporation and/or New York State Thruway Authority) own the land containing the hazardous waste or own the hazardous [*5]waste itself, and that the immunity provided by ECL 27-1313 (1) (c) is inapplicable to claimants' Labor Law § 200 claim because State defendants' alleged violation of Labor Law § 200 renders their acts and omissions "unlawful."

Claimants' assertion that, by pleading a Labor Law § 200 claim, in addition to common-law negligence, the alleged acts and omissions of the State defendants are rendered "unlawful" and excepted from the statute's grant of immunity to the State defendants from "liability and action" is unpersuasive. As claimants are aware, "Section 200 of the Labor Law is a codification of the common-law duty imposed upon an owner or general contractor to provide construction site workers with a safe place to work" (Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 877 [1993]; see Christiansen v Bonacio Constr., Inc., 129 AD3d 1156, 1159 [3d Dept 2015]).

Claimants' Labor Law § 200 cause of action is indistinguishable from the claimants' negligence cause of action and merely codifies the preexisting common-law negligence-based duty owed to a worker by an owner or general contractor: "[A]n action brought under [Labor Law § 200] is an action for negligence" (Yearke v Zarcone, 57 AD2d 457, 459 [4th Dept 1977], lv denied 43 NY2d 643 [1977]).

Next, contrary to the assertion by claimants that possible Canal Corporation ownership of the harbor floor or wall{**65 Misc 3d at 405} precludes consideration of ECL 27-1313 (1) (c), the Attorney General has determined that former ECL 27-1313 (1) (b) (now ECL 27-1313 [1] [c]), limits the State's potential liability to: "[S]ituations where the State is the owner of hazardous wastes found at a site or is responsible for the improper disposal of hazardous wastes at a site. It has no application to remediation activities of the Department of Environmental Conservation." (1988 Ops Atty Gen No. 88-F5 at 18-19, 1988 WL 410487, *1, 1988 NY AG LEXIS 69, *1.)

The court agrees. ECL 27-1313 (1) (c) cloaks the State with immunity from liability and action when it is engaged in remediation of an inactive hazardous waste site unless the State itself owns the waste or is itself responsible for the improper disposal of hazardous waste at a site.

Claimants fail to raise an issue of fact as to whether the State defendants own the hazardous waste. Claimants have produced no competent evidence disputing the hazardous waste ownership conclusions set forth in the State defendants' exhibit G, the DEC record of decision's "Operational/Disposal History" which found that "some contamination" (in the form of coal tar) at the Utica Harbor site (operable unit 3) came from "a large manufactured gas plant (MGP)" which "operated between 1845 and the early 1950's, producing gas for heating and lighting by heat treatment of coal and petroleum products. Other industrial facilities surrounding the harbor have also contributed contamination."

The record of decision also included an "Enforcement Status" which recounted that "Niagara Mohawk Power Corporation [National Grid] consented to the issuance of a NYSDEC Consent Order (Index number D6-0001-9210) on December 7, 1992. The Order obligates Niagara Mohawk [National Grid] to implement a full remedial program."

In suggesting, in brief and conclusory fashion, that an issue of fact exists whether State defendants own the hazardous waste at Utica Harbor, claimants rely solely upon a "Settlement [*6]Agreement" (executed on Jan. 30, 2001 and modified in Apr. 2007) between National Grid, the New York State Thruway Authority and the Canal Corporation.

The "Settlement Agreement" offers no evidence, or any information whatsoever as to ownership of the hazardous waste at issue and (at 7, para 9) provides that "nothing in this Agreement shall be construed or deemed to place any responsibility or liability on Niagara Mohawk or [the New York State{**65 Misc 3d at 406} Thruway Authority or Canal Corporation] for any response costs, damages, or response, removal or remedial actions at the Site, nor as an admission of same."

The claimants have failed to raise an issue of fact whether the State defendants owned the hazardous waste which is the subject of the Utica Harbor Remediation Project.

Claimants next urge that ECL 27-1313 (1) (c) provides no immunity with respect to claimants' Labor Law § 200 claim because the immunity extends only to decisions as to how to remediate a particular inactive waste disposal site. Claimants offer, as examples of such remediation decisions: "[H]ow to dispose of hazardous materials removed from a site, or the decision perhaps to leave hazardous materials in place and cap them with sediments, which apparently was the DEC's decision in this instance."

The court disagrees. The examples cited by claimants would have no need of ECL 27-1313 (1) (c) immunity for the State defendants to avoid negligence-based liability because such governmental decisions are already protected by judicially-created governmental function immunity from liability for discretionary governmental action (see Garrett v Holiday Inns, 58 NY2d 253, 261 [1983]; Kircher v City of Jamestown, 74 NY2d 251 [1989]; Lauer v City of New York, 95 NY2d 95 [2000]; Pelaez v Seide, 2 NY3d 186 [2004]; Laratro v City of New York, 8 NY3d 79 [2006]; McLean v City of New York, 12 NY3d 194 [2009]; Valdez v City of New York, 18 NY3d 69 [2011]; Metz v State of New York, 20 NY3d 175 [2012]; Applewhite v Accuhealth, Inc., 21 NY3d 420 [2013]).

Claimants also argue, hypothetically, in their memorandum of law, that potentially finding the State defendants immune from otherwise tortious acts or omissions committed in the course of the Utica Harbor Remediation Project, such as constructing a defective scaffold or negligently driving a car, would be absurd. This argument not only ignores claimants' own allegations that the State defendants' liability is based explicitly upon their supervision and control over the remediation work, but also suggests that claimants misapprehend the nature of the immunity granted by ECL 27-1313, which is absolute statutory sovereign immunity, subject to the stated limited exceptions, rather than judicially-created governmental function immunity.

Claimants' interpretation of ECL 27-1313 would reduce the absolute sovereign immunity (subject to the limited exceptions){**65 Misc 3d at 407} intended by the statute to an immunity akin to judicially-created governmental function immunity in which the state is required to show that it engaged in a discretionary governmental, rather than proprietary, activity in order to be protected by the immunity. ECL 27-1313 (1) (c) is intended as much more than a restatement of previously existing governmental function immunity.

Importantly, the Attorney General's opinion, cited earlier, references the legislative history of ECL 27-1313:

"The legislative history of chapter 536 confirms this construction of the paragraph in question. The Governor noted in his approval memorandum that '[t]he State of New [*7]York, in its sovereign capacity, supervises, monitors and otherwise participates in remediation activities for the protection of public health and the environment. The legislation reconfirms the State's common law privilege of sovereign immunity for the acts of its officials and employees when fulfilling these duties, as long as the conduct of such officials and employees is not willfully and maliciously tortious or otherwise unlawful' (Approval Memorandum of the Governor, July 30, 1987). See also, July 29, 1987 Memorandum for the Governor from Robert Abrams, Attorney General, p 6; July 23, 1987 memorandum to Evan Davis, Counsel to the Governor, from Langdon Marsh, Executive Deputy Commissioner, Department of Environmental Conservation, pp 1-2; July 24, 1987 letter to Evan Davis, Counsel to the Governor, from State Senator Daly" (1988 Ops Atty Gen No. 88-F5 at 21, 1988 WL 410487, *3, 1988 NY AG LEXIS 69, *6-7 [emphasis added]).

Claimants' misapprehension of the nature of the immunity conferred by ECL 27-1313 (1) (c) is made clear by the following provision in the above-quoted approval memorandum of the Governor:

"The legislation reconfirms the State's common law privilege of sovereign immunity for the acts of its officials and employees when fulfilling these duties [supervising, monitoring and otherwise participating in remediation activities for the protection of public health and the environment], as long as the conduct of such officials and employees is not willfully and maliciously tortious, or otherwise unlawful" {**65 Misc 3d at 408}(Governor's Approval Mem, Bill Jacket, L 1987, ch 536, 1987 McKinney's Session Laws of NY at 2698).

The reference in ECL 27-1313 to Court of Claims Act § 8, as well as the legislative history quoted above, indicates that the legislative intent underlying ECL 27-1313 (1) (c) was to create absolute statutory sovereign immunity covering all acts and omissions of the state in remediating an inactive hazardous waste site, subject to the stated exceptions, as such immunity existed prior to enactment of Court of Claims Act § 8, and that it was not intended to provide only an immunity similar to judicially-created governmental function immunity.

Court of Claims Act § 8 provides, at relevant part, as follows:

"The state hereby waives its immunity from liability and action and hereby assumes liability and consents to have the same determined in accordance with the same rules of law as applied to actions in the supreme court against individuals or corporations, provided the claimant complies with the limitations of this article."

Prior to the enactment of Court of Claims Act § 8, the Court of Appeals had held, in denying liability in a claim alleging the state's respondeat superior liability based upon the negligence of state officers and agents, that under the predecessor statute (Code Civ Pro § 264) to Court of Claims Act § 8, the state had waived its immunity from suit (action) but retained its sovereign immunity as to liability for the acts and omissions of its officers and agents (Smith v State of New York, 227 NY 405, 409-410 [1920]).

With regard to the distinction drawn in Smith between immunity from suit (action) as opposed to immunity from liability, it is noteworthy that ECL 27-1313 (1) (c) provides that the State defendants "shall be immune from liability and action," a much broader sovereign immunity protection than that provided by judicially-created governmental function immunity (emphasis added).

Brown v State of New York (89 NY2d 172, 180-181 [1996]) explains that

"the Legislature subsequently enacted a new statute [Court of Claims Act § 8] to [*8]overcome the ruling in Smith. That revision, the substance of which was incorporated into the statute now before us, 'extended, supplemented and enlarged' the waiver {**65 Misc 3d at 409}to remove the defense of sovereign immunity for tort actions . . .

"The waiver includes all claims over which the Court of Claims has jurisdiction—appropriation, breach of contract and torts—and applies the rule of respondeat superior to the State."

The legislature's intention to grant the state protection from liability and action equivalent to absolute sovereign immunity, by enactment of ECL 27-1313 (1) (c), is clearly demonstrated by the statute's introductory phrase prefacing the grant of immunity: "Section eight of the court of claims act or any other provision of law to the contrary notwithstanding."

Examining the historical background of sovereign immunity, the enactment of section 8 of the Court of Claims Act "to overcome the ruling in Smith" (89 NY2d at 180) and the legislative history of ECL 27-1313, it is abundantly clear that ECL 27-1313 (1) (c) provides protection to the state from liability and action commensurate with absolute sovereign immunity as existed prior to the enactment of Court of Claims Act § 8, when the state is supervising, monitoring or participating in the remediation of an inactive hazardous waste disposal site, such as the Utica Harbor Remediation Project.

Claimants have failed to raise an issue of fact with respect to the State defendants' entitlement to summary judgment pursuant to CPLR 3212 and ECL 27-1313 (1) (c).

The legislature's broad grant of sovereign immunity in ECL 27-1313 (1) (c) precludes, as a matter of law, under the facts presented on this motion, any liability on the part of State defendants for common-law negligence or under Labor Law § 200 with respect to their alleged supervision and control over the inactive hazardous waste remediation work undertaken in the Utica Harbor Remediation Project.

In view of the foregoing, the court need not consider the State defendants' additional ground for dismissal.

The State defendants' motion for summary judgment dismissing the claim is granted. The claim is dismissed.