The following papers and the attachments and exhibits thereto have been read on this motion:

Notice of Motion1

Affidavit of Daniel Smith in Support2

Memorandum of Law in Support3

Notice of Cross Motion4

Affirmation in Support of Cross Motion and

in Opposition to Cross Motion5

Memorandum of Law in Support of Cross Motion

and in Opposition to Motion6

Affirmation in Opposition to Cross motion

and in Further Support of Motion7

Affidavit in Opposition to Cross Motion8

Memorandum of Law in Opposition to Cross Motion

and in Further Support of Motion9

Defendant Leon Petroleum, LLC moves for an order barring the opinion of Plaintiff's expert from admission into evidence at trial, or alternatively, for a Frye hearing to determine the admissibility of Plaintiff's anticipated expert testimony.

Plaintiff West Hempstead Water District similarly moves for an order barring the expert opinion of the Defendant's expert from admission into evidence at trial.

The West Hempstead Water District ("Plaintiff") commenced the instant action claiming, inter alia, that Leon Petroleum, LLC ("Defendant") distributed gasoline which contained an additive, Methyl Tertiary Butyl Ether ("MTBE"), which has, and continues, to pollute its water supply.^[FN1] Defendant Leon Petroleum is the only remaining defendant in this action (Order dated November 19, 2012).

In an order dated November 19, 2012, this court (DeStefano, J.) granted the Plaintiff's and [*2]Defendant's motions, pursuant to CPLR 3217(b), for an order discontinuing the action against Defendant conditioned "upon payment by the plaintiff to the defendant the reasonable litigation expenses incurred by it in defending the action". The parties, however, were unable to resolve the issue of payment of "reasonable litigation expenses", the condition was not met, and, thus, the court must now determine the parties' instant motions in limine with respect to the admissibility of the testimonies of their experts.

The Plaintiff's Expert

In its "Expert Disclosure" response pursuant to CPLR 3101(d), Plaintiff identified Andrew Michalski, PhD, CGWP, PG as its expert witness on the subject of MTBE contamination of the Nassau County drinking water aquifer system and groundwater and Plaintiff's drinking water production wells. Michalski has 35 years of consulting and academic experience in hydrogeology and applied geosciences, with emphasis on ground water remediation, regulatory compliance, siting of sensitive waste disposal facilities, evaluation of groundwater resources and expert testimony.

Plaintiff's "Expert Disclosure" provides, in relevant part:

Based upon his review of the records produced by the parties to this action, and correspondence by and among the parties, Dr. Michalski's expert opinions are that: (a) there are known releases at the 345 Old Country Road ^[FN2] station and at or about other locations of Leon Petroleum operations that could have affected groundwater or caused or contributed to the contamination of plaintiff's production wells with MTBE; (b) there are known releases by Leon Petroleum at or about the vicinity of plaintiff's production well capture zone(s) that could have caused or contributed to contamination of plaintiff's production wells with MTBE (Ex. "E" to Defendant's Motion).

The Defendant's Expert

Similarly, in its "Expert Disclosure" response pursuant to CPLR 3101(d), Defendant identified Daniel J. Smith, P.E. as its expert witness on the subject of MTBE contamination of the Nassau County drinking water aquifer system and groundwater and Plaintiff's drinking water production wells. Smith is a licensed professional chemical engineer with over 19 years experience in the environmental industry.

The "Expert Disclosure" of the Defendant reads as follows:

Based upon his review of the records produced by the parties to this action, and correspondence by and among the parties, Mr. Smith's expert opinions are that: (a) there are no known releases at the [*3]NHP station that could have affected groundwater or caused or contributed to any contamination of plaintiff's production wells with MTBE; (b) there are no known releases by Leon Petroleum at our [sic] about the vicinity fo plaintiff's production well capture zone(s) that could have caused or contributed to any contamination of plaintiff's production wells with MTBE (Ex. "A" to Plaintiff's Cross Motion).

Upon the instant applications, the Plaintiff and the Defendant both seek to bar each other's expert opinions from admission into evidence at trial.

Defendant's Motion

The Defendant challenges the Plaintiff's expert opinion evidence on two principal bases. First, according to the Defendant, Plaintiff's expert opinion lacks the proper and necessary evidentiary foundation. And second, the Plaintiff's expert opinion does not rise to the level of scientific certainty required for admissibility into evidence pursuant to New York law under the Frye standards.

With respect to the foundation inquiry, the Defendant argues that the lack of any proper evidentiary foundation, including the lack of any basis on facts in the records or upon any personal knowledge of the facts, renders the Plaintiff's expert opinion deficient.

Specifically, the allegations in the complaint and all subsequent discovery in this case were limited by the Plaintiff to operations of the Defendant within Plaintiff's Relevant Geographic Area ("RGA"), which Plaintiff itself defined as a two-mile radius around its drinking water production wells. The Plaintiff does not dispute this fact in their papers. Notwithstanding the two-mile RGA and the concomitant limitations on discovery, Plaintiff's expert intends to testify that releases at Defendant's Carle Place site "could have" impacted the Plaintiff's production wells. Importantly, the Carle Place site is outside the Plaintiff's two-mile RGA and is over 3.6 miles away from Plaintiff's nearest production wells.

In view of the fact that there have been no allegations in the complaint or any discovery pertaining to the Carle Place site, the court concludes that the proffered expert opinion of the Plaintiff - that there are known releases at the Carle Place site that could have affected the groundwater or contaminated the Plaintiff's wells - is lacking in factual foundation insofar as it is not based upon any facts in record or facts personally known to the Plaintiff's expert (see Vetere v Garcia, 211 AD2d 631 [2d Dept 1995] Coffey v Callichio, 136 AD2d 673 [2d Dept 1988]).

The Defendant additionally argues that Plaintiff's expert opinion that relates to causation - Defendant's operations could have affected groundwater, or caused, or contributed to the contamination of Plaintiff's production wells - are based upon speculation and conjecture and, as such, does not meet the standards of reliability and admissibility under New York law. [*4]

"Although the use of the words "possible" and "could have been" do not necessarily destroy the probative value of an expert's opinion which is otherwise forfeited by detailed explanation and other facts in the record which add to its reasonableness and probable correctness'", a review of the record at bar discloses that the proffered causation testimony of the Plaintiff's expert was based on mere speculation and, as such, the opinion of Plaintiff's expert, Andrew Michalski, is barred from admission at a trial in this action (see Nieves v City of New York, 91 AD2d 938 [1st Dept 1983]).^[FN3]

Accordingly, that branch of the Defendant's motion seeking to disqualify the Plaintiff's expert is granted.

Plaintiff's Cross Motion

The Plaintiff cross-moves to preclude the expert testimony of Defendant's expert, Daniel Smith, on the ground that Smith does not have the requisite skill and experience necessary to warrant the title of "expert". Specifically, according to the Plaintiff, there is nothing in Defendant's "expert disclosure" that indicates Smith possesses the requisite qualifications, training, education, experience and/or expertise to opine on the issues that will be addressed in the trial of this matter, specifically, hydrogeology, plume tracking, and historical groundwater data analysis with regard to MTBE contamination (Plaintiff's Memorandum of Law at p 13).

The qualifications of a witness as an expert is a determination within the sound discretion of the trial court (Smith v City of New York, 238 AD2d 500 [2d Dept 1997]). "Long observation, actual experience and/or study may qualify a witness as an expert in a field" (McLamb v Metropolitan Suburban Bus Authority, 139 AD2d 572 [2d Dept 1988]).

The court concludes, after a review of Smith's curriculum vitae ("CV"), that Smith is qualified to testify as an expert witness on the subject of the alleged MTBE contamination of the Nassau County drinking water aquifer system. Moreover, the fact that Smith may not have been a "specialist" in hydrology or hydrogeology does not go to the admissibility of Smith's testimony but rather to its weight, which is evaluated by the trier of fact (see id; see also Fuller v Preis, 35 NY2d 425, 431 [1974] McLamb v Metropolitan Suburban Bus Authority, 139 AD2d at 573, supra ["once a witness is allowed to testify as an expert, the extent of the witness's qualifications becomes a matter to be weighed by the trier of fact"] De Luca v Kameros, 130 AD2d 705 [2d Dept 1987] ["any alleged lack of skill or expertise . . . was merely a factor to be considered by the jury"]).^[FN4]

Based on the foregoing, it is hereby

Ordered that the branch of Defendant's motion in limine seeking to bar the opinion testimony of Plaintiff's expert, Andrew Michalski, from admission into evidence at trial is granted, and it is further

Ordered that the branch of Defendant's motion seeking, in the alternative, a Frye hearing with respect to the Plaintiff's expert, Andrew Michalski, is denied as academic; and it is further

Ordered that the Plaintiff's cross motion is denied.

This constitutes the decision and order of the court.

Dated: January 6, 2014

_____________________________

Hon. Vito M. DeStefano, J.S.C.