ORDERED that the motion of the Plaintiffs Edward Russo and Vincent Russo to reargue and [*2]renew a decision of this Court that granted the motion of the Defendants KeySpan Corp., KeySpan Energy Corp., and KeySpan Gas East Corp. to dismiss the action of the Plaintiffs is denied.

Certain facts have not changed since this Court issued its decision on October 26, 2007, granting the motion to dismiss. In this civil action the Plaintiffs seek damages and injunctive relief against the Defendants based upon their alleged exposure to contaminants from the migration of these contaminants in underground plumes. It is alleged that the plumes emanate from a decommissioned manufactured gas plant(hereinafter "MGP") located in Bay Shore, New York. The Bay Shore facility formerly was owned by predecessor corporations of the KeySpan Defendants. This litigation raises issues of public concern because the effect of the plumes on the health, safety and welfare of the persons directly in the path of the contaminants, the real property and natural resources allegedly adversely affected by the pollutants in the plumes and the financial costs involved with remediating the plumes of contaminants that potentially will be borne by all of the ratepayers of KeySpan if those expenses are passed through to the utility's customers.

The Plaintiffs Edward Russo and Vincent Russo own real property located at 1627 Union Boulevard, Bay Shore, New York. According to the Defendants, in May of 2002, representatives from Key Span met personally with Plaintiff Edward Russo on two separate occasions to provide him with environmental data concerning the presence of contaminants on the Plaintiffs' property and to obtain Russo's consent to conduct additional environmental testing at the Plaintiffs' real property. Two KeySpan employees, Theodore Leissing and Joseph Giordano, who were present at this meeting submitted affidavits in support of the prior motion to dismiss wherein it is alleged that at this meeting Edward Russo told the KeySpan representatives that he was a retired LILCO gas plant worker who had performed work at the Bay Shore MGP facility.

At a subsequent meeting held on May 20, 2002, KeySpan, through Giordano, offered to purchase the real property of the Plaintiffs. In July of 2002, at another face to face meeting with Giordano, Russo declined KeySpan's offer to purchase his real property. Russo was informed that KeySpan wished to purchase this property to aid in the remediation efforts. Russo did indicate that he was willing to cooperate with KeySpan to facilitate the remediation of the property in an effort to remove or remediate the contaminants in the soil on the property. Theodore Leissing, the Project Manager at KeySpan Corporation, specifically alleges in his affidavit that in May of 2002 he explained to Russo that KeySpan had detected the presence of MGP byproducts in and around the area of a former pond, part of which extended onto the Plaintiffs' property.

It is axiomatic that "(a) motion for leave to renew is addressed to the sound discretion of the court" (Matheus v. Weiss, 20 AD3d 454, 454-455, 797 NYS2d 774). The motion for leave to renew must be based upon "new facts not offered on the prior motion that would change the prior determination" (CPLR 2221[e][2] ) and must contain "reasonable justification for the failure to present such facts on the prior motion" (CPLR 2221[e][3]). It "is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation" (Matter of Weinberg, 132 AD2d 190, 210, 522 NYS2d 511). It has been held that the Supreme Court lacks the discretion to consider newly presented facts on a motion to reargue and renew where there is no reasonable [*3]excuse presented for the failure to submit those facts on the earlier motion (see, Worrell v. Parkway Estates, LLC, 43 AD3d at 437, 840 NYS2d 817).

The Plaintiffs have offered no reason why the affidavit of Edward Russo submitted on this motion to reargue was not submitted on the Defendants' previous motion to dismiss. While this Court sympathizes with the Defendants and recognizes their familial health concerns, the various illnesses and problems incurred by the residents of the real property have not even colorably been connected to the Defendants by any scientific proof. This Court has always granted the parties in this litigation the time needed to marshal proof to support allegations, recognizing the complex nature of this litigation and the related litigations. However, the Court notes that it has been Plaintiffs' counsel who has refused the requests for adjournments made by the Defendants and required the Defendants to engage in additional motion practice to address that problem.

CPLR § 214-c states:

Notwithstanding the provisions of section 214, the three year period within which an action to recover damages for personal injury or injury to property caused by the latent effects of exposure to any substance or combination of substances, in any form, upon or within the body or upon or within property must be commenced shall be computed from the date of discovery of the injury by the plaintiff or from the date when through the exercise of reasonable diligence such injury should have been discovered by the plaintiff, whichever is earlier.

CPLR 214-c provides a three-year statute of limitations period for latent injuries to person or property caused by exposure to harmful substances beginning on the date the injury is discovered or the date when the injury should have been discovered by a reasonably diligent plaintiff, whichever is earlier (cite omitted). It is well-settled that CPLR 214-c applies to actions to recover damages caused by contamination by any substance, including petroleum(cites omitted).