Bennett v State Farm Fire & Cas. Co. (2014 NY Slip Op 50762(U))

Bennett v State Farm Fire & Cas. Co.

2014 NY Slip Op 50762(U) [43 Misc 3d 1224(A)]

Decided on April 21, 2014

Supreme Court, Nassau County

Palmieri, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Order to Show Cause, dated 1-23-14..............................................1

(def. State Farm), dated 3-17-14............................................8

Reply Affidavit, dated 3-26-14.........................................................10

The motion by the plaintiffs pursuant to CPLR 403, CPLR 6311, and, in effect, CPLR 3212, ^[FN1] for a mandatory injunction directing defendants to immediately compensate plaintiffs for costs associated with development of final plans for and subsequent completion of remediation of an oil spill at their residential premises, and restoration of such premises to pre-spill condition, is determined as set forth in this order.

Initially, the Court notes that the case caption submitted by plaintiffs on this motion varies from what is found in the summons and complaint. For accuracy of the Court's records, this decision reflects the caption found in the pleading. The parties are [*2]directed to use henceforth only the caption found in the complaint and in this Decision and Order.

In their complaint plaintiffs allege that on May 12, 2011, an employee of defendant Creative Landscaping by Cow Bay, Inc. ("Cow Bay"), one Giovanni Feo, was performing work on the sprinklers at plaintiffs' home at 83 Elderfields Road, in Manhasset, New York. ^[FN2] He punctured an oil line of the oil heating system.^[FN3]Plaintiffs allege that Cow Bay later admitted the act, and further allege that it notified defendant Star Net Insurance Company ("Star Net"), its insurance carrier.

On May 15, 2011, defendant Lewis Oil Company ("Lewis Oil") was notified that the heating system was not operating. Employees of Lewis Oil appeared at the premises and performed certain work, but it did not resolve the problem, as on May 24, 2011 Lewis Oil was again advised that the system was not working. Plaintiffs allege that without a further investigation Lewis Oil added 726 gallons of heating oil to the tank. Plaintiffs further allege that 528 gallons present in the tank prior to the puncture and the 726 gallons added on May 24 were discharged into the soil around and under the premises. On May 26, 2011 plaintiffs noticed a stong heating oil odor in their home. A Lewis Oil employee then discovered the broken fuel line and made a temporary repair.

On May 26 plaintiffs notified defendant State Farm Fire and Casualty Co. ("State Farm"), their home insurance carrier, of the occurrence.On May 27 plaintiffs also notified the Department of Environmental Conservation ("DEC") about the spill.

On May 27 and May 28, 2011 Cow Bay dug up and removed approximately six truck loads of contaminated soil, and began to backfill the excavation site with clean fill. Plaintiffs halted the backfill because there was evidence, including a strong odor, of heating oil still being present. On May 31 Cow Bay advised plaintiffs that it would not return to conduct further clean up operations and advised plaintiffs to contact their insurance carrier.

State Farm engaged an engineering firm, H2M, to supervise the investigation and remediation of the spill. The DEC made a claim against plaintiffs to clean up the spill and also assigned one of its engineers to supervise. In the Fall of 2011, areas of contaminated soil remained and were identified by H2M. According to the complaint, State Farm authorized and paid for the preparation of plans for the removal of all remaining petroleum-contaminated soil, which led to excavations at the premises through the winter of 2011-2012. However, plaintiffs were advised by a remediation contractor that because the excavations had exposed the home and foundation to the elements and changes in temperatures, extensive structural damage could result. Plaintiffs agreed to a State Farm request to delay temporarily the remediation until spring/summer of 2012, when the work would be completed.

Plaintiffs further allege that by agreement with State Farm excavation sites were temporarily backfilled, but that State Farm reneged on its pledge to finish the remediation in [*3]spring/summer of 2012. During the summer of 2013, plaintiffs and State Farm developed and "are developing" plans for restoration of the premises, but that State Farm would not pay to return the property to its pre-spill condition. Although plaintiffs expended their own funds in the cleanup, a substantial amount of contaminated soil remains. The complaint alleges that "the remediation of the Premises is continuing." Complaint, § 66.

Based on the foregoing allegations, plaintiffs allege 13 causes of action. The first Two are against Cow Bay, sounding in negligence for causing the spill and breach of duty to remove the contaminated soil, and seeking and indemnification of costs incurred by plaintiffs. Similar allegations are made against Lewis Oil in the third and fourth causes of action. The fifth cause of action is against a "John Doe" insurance company insuring Lewis Oil, alleging that this carrier is strictly liable under the Navigation Law for all direct and indirect damages caused by the spill. The sixth alleges that all defendants are liable for each one's proportionate share of costs incurred by plaintiffs to investigate and remediate the spill. The seventh is against Star Net for a declaration that it is liable under its policy with Cow Bay for indemnification of plaintiffs for damages caused by Cow Bay. The eighth is also against Star Net pursuant to section 190 of the Navigation Law for strict liability to plaintiffs for all their direct and indirect damages caused by the spill. The ninth cause of action is pled against State Farm, for breach of the insurance contract with plaintiffs.

The tenth (mistakenly identified as the second ninth cause of action in the complaint) is against all defendants for attorney and expert's fees pursuant to Navigation Law § 181. The eleventh (pled as tenth), against all defendants, is for a preliminary injunction, in effect, to prevent restoration of the premises without first removal of all contaminated soil. The twelfth (pled as eleventh) is for declaratory judgment against all defendants in accord with the allegations made in the complaint. The thirteenth cause of action (pled as the twelfth) is against State Farm for breach of the implied covenant of good faith of fair dealing in failing to settle the claims of plaintiff in good faith. The plaintiffs thus seek immediate payment by defendants to remove all remaining petroleum-contaminated soil; restoration of the premises to pre-spill condition; unspecified compensatory and consequential monetary damages; separate consequential monetary damages against State Farm; declaratory judgment; and expert and attorney's fees.

On this motion the plaintiffs essentially repeat the central allegations of the complaint, with some changes/additions of dates, the most important being that "without warning, on or about December 23, 2012 State Farm determined that it would not pay for the engineering and soil/load bearing studies or additional remediation despite our repeated demands and prior agreement... soil/load bearing tests are required to ensure that when petroleum contaminated soil is removed from under and around our home the structural integrity of our house is maintained." They claim that no remediation has occurred for some time. Plaintiffs ask that the Court grant them a mandatory injunction directing defendants to pay for the soil/load bearing tests and to complete the removal of the rest of the contaminated soil so that the home can be restored. They contend that the defendants are responsible for their loss of use and enjoyment of the their home for almost three years. They do not specify where they are living at the present time.

In addition to the foregoing, and of interest, the plaintiffs present a letter annexed to Richard Bennett's moving affidavit, from State Farm to plaintiffs, dated August 20, 2013. This [*4]letter addresses, among other things, plaintiffs' contention that the home should be restored to pre-spill conditions. The State Farm representative stated that "the coverage of your State Farm policy requires us to follow the remediation instructions from the DEC. We believe we are in full compliance with the DEC requirements since that entity has advised us as of December 2011 that no further remediation is required." In prior correspondence State Farm had referred to its policy with plaintiffs and noted that the coverage stemmed from Section II, Liability coverage, because DEC had made a claim against plaintiffs for the cleanup. State Farm's representative stated that there was coverage for the remediation on that basis — but there was no first-party coverage for contamination.

In further support of the motion, plaintiffs' attorney contends that although Cow Bay admitted its role in the spill and filed a claim with Star Net, it abandoned any further efforts as of May 31, 2011. He claims that Lewis Oil "has failed and refused to respond to repeated service of the Summons and Complaint." As to State Farm, counsel asserts that although it initially agreed to compensate plaintiffs for the investigation, remediation and restoration of the premises to pre-spill conditions, and that substantial amounts of contaminated soil were removed, as of December 23, 2011 it too refused to have all the soil removed. He claims that although State Farm is willing to compensate plaintiffs for "some of the restoration of the Premises", it will not pay for the soil/load test or any additional remediation. He contends that unless this test — which he identifies as the ASTM 1143 Quick Load Test ("Load Test") — is completed, the oil spill cannnot be completely remediated and the premises restored to its pre-spill condition because plans must be filed with Village of Flower Hill before the final work is approved and completed, and the plaintiffs regain the full use of their home.

Counsel cites Navigation Law § 181 and § 190, which provide, respectively, that any person who has discharged petroleum is strictly liable for all cleanup costs and for direct and indirect damages, no matter by whom damages were sustained, and that any claims for cleanup and damages by the State or by an insured person may be brought directly against an insurer.

Plaintiffs' request on this motion, therefore, is to direct defendants to immediately compensate plaintiffs for the cost of the Load Test, for the cost of removing all remaining contaminated soil, and for the cost of restoring all their property, both real and personal, to pre-spill conditions.

In opposition, Cow Bay asserts that issues of fact exist as to whether it caused or contributed to the spill, including whether the plaintiffs' own actions or inactions were a factor. An affidavit is submitted by on Giovanni Feo, the employee whom plaintiffs charge initiated the chain of events that led to this suit. He admits that he "nicked" the oil line on May 12, 2011 as he was excavating the ground as part of the process of securing sprinkler heads. However, he contends that no one, including the plaintiffs, informed him that the line was "so close" to the surface, and, relatedly, he states that the line was never marked out by a cone nor by any other means.

Another affidavit is offered by Mark D'Alonzo, Vice President of Cow Bay. He states that after the oil line was damaged, and in an effort to maintain good customer relations, Cow Bay attempted to remove the contaminated soil, before it was determined that experts were needed to perform the work. He contends that upon contact with several oil companies, including Lewis Oil, it became apparent that the affected oil line was not installed at a proper [*5]depth, and was not properly protected. He further states that Cow Bay informed plaintiffs of the foregoing by letter. He concludes that the spill was caused by the plaintiffs themselves, and thus they should be precluded from pursuing a claim pursuant to Navigation Law § 181(5). D'Alonzo submits another affidavit for the purpose of introducing photographs that he asserts shows the punctured line at a depth of 8 to 12 inches, which as noted he contends is insufficiently deep to protect it. Cow Bay's counsel, in addition to arguing the foregoing, points to the fact that there has been no significant discovery in the case.

Star Net also submits opposition, by counsel. It contends that there are issues of fact as to whether plaintiffs caused or contributed to the spill, adopting by reference Cow Bay's opposition. It also argues that summary judgment is premature in view of substantial outstanding discovery. Counsel also notes that it intends to commence a third-party action against Lewis Oil.

State Farm also opposes the motion. It points out, as noted above, that its policy covers liability to the DEC in view of the claim made against the plaintiffs in their capacity as landowner, and in that regard already as paid out some $650,000 to remediate the spill to the satisfaction of the DEC. Because in December, 2011 (undisputedly, an email notification of December 22, 2011 to H2M) the DEC determined that no further remediation of the spill was necessary. Specifically, the email reads, in pertinent part, as follows: "While it is the DEC goal, where practical, to achieve pre-spill conditions... in this case it is not feasible nor will it offer more protection to the environment or public health. Therefore, the cleanup of contaminated soils, consistent with DEC policy and procedures, has been achieved at the site, and no further remedial activities are necessary." The email was sent by Karen Gomez, Regional Spill Engineer at the DEC.

State Farm thus contends that as the plaintiffs were relieved of further responsiblity to the DEC, State Farm's obligation to defend and indemnify the plaintiffs under the policy terminated as a matter of law. The policy did not require State Farm to cover any other loss, including returning the property to pre-spill condition.

State Farm further offers the affidavit of Arthur Bopp, a Claim Representative, who sets forth the relevant portions of the policy supporting the foregoing contention. Bopp recites, on personal knowledge, State Farm's actions, including offering plaintiffs a choice of remediation contractors, and that there was no separate agreement to restore the property to pre-spill condition. Rather, he states that after the DEC ruling State Farm agreed to do no more than to backfill open excavation sites to protect the plaintiffs' home during the winter of 2011. Of note is a letter Bopp annexes to his affidavit, which is to plaintiffs' counsel from Robert W. Schick, P.E., Director of the DEC's Division of Environmental Remediation. In that letter, dated August 21, 2012, Schick refers to past communications from plaintiffs and their attorney, but he essentially upheld the DEC's initial position as expressed by Karen Gomez in December, 2011. He indicated that while there was still contamination, it posed a "minimal" threat and thus DEC would not spend the funds to excavate that soil, some 900 additional tons at depths up to 30 feet below grade.

In view of the foregoing, State Farm therefore contends that summary judgment is inappropriate because there is a clear issue of fact as to any further liability on State Farm's part for any additional remediation, and that issues also exist as to the cause of the spill and the scope of plainitiffs' loss. Counsel also states that discovery is still pending, and thus refers to CPLR [*6]3212(f) as an additional basis for denying the plaintiffs' motion.

In reply, plaintiffs offer the affidavit of Michael Flynn, the President of Eastern Environmental Solutions, Inc. ("EES"), which had been engaged by plaintiffs and had its bills paid by State Farm. He describes EES's efforts to remove contaminated soil, including the removal of approximately 555 tons of such soil, but also states that there is considerable additional contaminated soil remaining, 30-35 feet below grade at one excavation site, and 10 feet below the concrete basement floor, as well as elsewhere. Flynn confirms plaintiffs' statement that in December of 2011 State Farm and H2M, its on-site supervisor, and plaintiffs, had agreed to a temporary suspension of remediation activities until the spring of 2012. EES then temporarily backfilled the open sites, and also requested approval for the "Load Test" described above (as part of a Shoring Plan, obviously having to do with insuring the structural integrity of the house), and additional engineering services required by the Village of Flower Hill Building Department. A few days after the request, however, EES was advised of the DEC determination noted above, and as a result State Farm would not fund the additional services.

In addition, plaintiff Richard Bennett submits an affidavit in which he avers 1) that Star Net does not deny that its policy was in effect at the time of the spill and that Cow Bay admits it caused the spill; 2) that Cow Bay's defense that the oil line was negligently installed too close to the surface was based on speculation only, and that, in any event, the location of the fuel oil tank was marked by a plastic cone and had been so marked for the entire time Cow Bay had worked at the premises; 3) that State Farm did not submit an affidavit from someone with knowledge, as Bopp had replaced the first representative, and had never visited the home; 4) that prior to the end of December, 2011 State Farm had agreed to provide relevant coverage to plan and complete all needed work, and H2M, the company it had engaged to supervise, had approved the development of engineering plans in the amount of $21,875.00; and 5) that DEC's action declaring that its requirements had been satisfied post-dates the agreement with H2M and State Farm and, in addition, the Nassau County Fire Marshall had issued a violation, which is an open and unresolved claim.

Generally speaking, to obtain summary judgment it is necessary that the movant establish its claim or defense by the tender of evidentiary proof in admissible form sufficient to warrant the court, as a matter of law, in directing judgment in its favor. CPLR 3212 (b). In negligence cases, there may be more than one proximate cause of the injury-causing occurrence (Lopez v Reyes-Flores, 52 AD3d 785 [2d Dept. 2008]), and thus the proponent of the motion must establish freedom from comparative negligence as a matter of law. Pollack v Margolin, 84 AD3d 1341 (2d Dept. 2011). Absent this initial showing, the court should deny the motion, without passing on the sufficiency of the opposing papers. Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 (1985).

If such a prima facie case is made, the burden shifts to the non-moving party. To defeat the motion for summary judgment the opposing party must come forward with evidence to demonstrate the existence of a material issue of fact requiring a trial. CPLR 3212 (b); see also GTF Marketing, Inc. v. Colonial Aluminum Sales, Inc., 66 NY2d 965 (1985); Zuckerman v. City of New York, 49 NY2d 557 (1980). The non-moving party must lay bare all of the facts at its disposal regarding the issues raised in the motion. [*7]Mgrditchian v. Donato, 141 AD2d 513 (2d Dept. 1988). Conclusory allegations are insufficient (Zuckerman v. City of New York, supra), and the defending party must do more than merely parrot the language of the complaint or bill of particulars. There must be evidentiary proof in support of the allegations. Fleet Credit Corp. v. Harvey Hutter & Co., Inc., 207 AD2d 380 (2d Dept. 1994); Toth v. Carver Street Associates, 191 AD2d 631 (2d Dept. 1993). The Court may also search the record and grant summary judgment in favor of a nonmoving party with respect to a cause of action or issue that is the subject of a motion for summary judgment without the necessity of a cross-motion. CPLR 3212(b); Katz v. Waitkins, 306 AD2d 442 (2d Dept. 2003).

Although plaintiffs themselves are strictly liable for the spill as landowners with control over their property (State of New York v Green, 96 NY2d 403 [2001]), and thus had a claim made against them by the DEC, they may seek redress from those who were actually responsible for the spill. Id., citing White v Long, 85 NY2d 564, 568 (1995); Navigation Law § 181(5). Plaintiffs thus have a private right of action against Cow Bay and Lewis Oil under both Navigation Law article 12 and the common law, as there is no dispute that both are responsible for the discharge of a petroleum product on plaintiffs' property. Navigation Law § 172(8); Navigation Law §§ 181(1), (5); Navigation Law § 193; see Leone v Leewood Serv. Sta., 212 AD2d 669 (2d Dept. 1995); White v Long, 229 AD2d 178 (3d Dept. 1997). Their insurance carriers for these dischargers are also liable to plaintiffs pursuant to Navigation Law § 190. As noted there is strict liability under the statute, and a discharger and its carrier, if any, will be liable for both direct and indirect damages suffered by an injured party, regardless of fault. Navigation Law § 181(1); Navigation Law § 190.

In this case the plaintiffs may assert their statutory claim against Cow Bay, Lewis Oil and their insurers because plaintiffs are injured parties. Here, they have made a sufficient prima facie showing that the Cow Bay and Star Net defendants were, respectively, a discharger and an insurer of the discharger for purposes of liability under the Navigation Law.^[FN4]The burden thus shifts to these defendants to demonstrate that an issue of fact exists as to whether plaintiffs were at all responsible themselves, as their private claims must be predicated on their own freedom from blame. Tifft v Bigelow's Oil Serv., Inc., 70 AD3d 1248 (3d Dept. 2010); General Cas. Ins. Co. v Kerr Heating Prods., 48 AD3d 512 (2d Dept. 2008).

This burden has not been met. Cow Bay admits that it damaged the oil line that resulted in the spill. It is therefore strictly liable under the Navigation Law. The Court rejects its claim that plaintiffs bear some responsibility for the spill based upon the alleged shallow placement of the oil line, as there was no proof that plaintiffs themselves installed the line, or gave permission for another to install it, in the position complained of. The photographs advanced do not show how shallow or deep the line was at the time of the spill, and in any event do not demonstrate that plaintiffs were responsible for its placement. Finally, there is no expert proof submitted that, even assuming plaintiffs had some say or approved the placement of the oil line, such placement constituted a negligent act or varied from acceptable safety standards. Mark D'Alonzo's statement [*8]that several oil companies, including Lewis Oil, had indicated that the affected oil line was not installed at a proper depth and was not properly protected is clearly inadmissible hearsay. As Star Net has adopted Cow Bay's position, there is no additional proof offered by this party for the Court to evaluate and it too has thus failed to meet its burden.

In view of the foregoing, summary judgment should be granted in favor of plaintiffs against Cow Bay and Star Net, as there are no material issues of fact regarding the responsibility of Cow Bay for the spill and Star Net as its insurer. Malin v Bill Wolf Petroleum Corp., 272 AD2d 527 (2d Dept. 2000). Under the Navigation Law, Cow Bay and Star Net are also liable for both direct and indirect costs to complete the remediation of the spill, including restoring the property to its condition before the spill occurred. Navigation Law §181(1); Sunrise Harbor Realty LLC v 35 th Sunrise Corp., 86 AD3d 562 (2d Dept. 2011); AMCO Intl. v Long Is. R. R. Co., 302 AD2d 338 (2d Dept. 2003). If the property cannot be restored to its pre-spill condition, the proper measure of damages is the total amount of the diminution of of the property's value, plus the cost of repairs. Turnbull v MTA New York City Transit, 28 AD3d 647 (2d Dept.2006).The trial of this action against Cow Bay and its insurer Star Net under the Navigation Law shall thus be limited to plaintiffs' damages. Discovery will be held upon a schedule to be made at the conference directed in this Decision and Order

As Lewis Oil has not answered, summary judgment is unavailable against it because issue has not been joined. CPLR 3212 (a). However, in the interests of justice and judicial economy, and in view of service of this motion on Lewis Oil, giving it notice of plaintiffs' application for ultimate relief against it, the Court elects to treat so much thereof that is directed to Lewis Oil as an application for a default judgment. So treated, a default judgment is hereby granted against Lewis Oil, with damages to be assessed upon the trial on damages directed herein with respect to Cow Bay and its insurer. Notwithstanding Lewis Oil's default, it remains a party to the action, and the other parties shall be entitled to disclosure from Lewis Oil pursuant to CPLR article 31.

Obviously, no relief can be granted against Lewis Oil's unnamed insurer, assuming it has one.

The Court notes that liability against multiple parties under article 12 of the Navigation Law is joint and several. State v Passalacqua, 19 AD3d 786 (3d Dept. 2005).

The Court denies summary judgment as against State Farm. Unlike the circumstances of the defendant parties discussed above, the plaintiffs have no recourse against their insurer under the Navigation Law separate and apart from the common law of contracts under the relevant insurance policy, and in that regard State Farm, not the plaintiffs, is entitled to relief under its policy. Further, significant issues of material fact preclude summary judgment on what remains of plaintiffs' case against it.

Because the plaintiffs have been found here not to have contributed to the happening of the spill, they are not liable either to Cow Bay or Lewis Oil, or their insurers, under the Navigation Law, as Cow Bay and Lewis Oil each had a role in actually causing the discharge and thus are barred from making a private claim. Tifft v Bigelow's Oil Serv., Inc., supra; General Cas. Ins. Co. v Kerr Heating Prods., supra. Nor can either make a claim for contribution or indemnification under the common law, as Cow Bay and its insurer have failed to raise an issue of fact regarding plaintiffs' lack of fault, and Lewis Oil has defaulted in pleading and has not participated on this motion. [*9]

Thus, the only entity that could or can look to plaintiffs pursuant to Navigation Law § 181, and to their insurer State Farm pursuant to Navigation Law § 190, would be the State of New York through the DEC. It is undisputed that it did make a claim, and State Farm undertook a defense of its insureds under the liability section of the plaintiffs' homeowner policy. It has paid significant sums under that policy and a related supplemental personal umbrella liability policy in furtherance of defending and indemnifying plaintiffs for that claim. However, the plaintiffs have cited no authority indicating that the Navigation Law provides for a direct action against one's own insurer for damages arising from a spill for which the insured is responsible under the statute, separate and apart from what is available under the policy, and the Court itself can find no basis for such a claim. Rather, any claim made against a homeowner's insurer under Navigation Law § 190 necessarily involves the policy and whether the insurer has a duty to indemnify under its terms. See State of New York v Capital Mutual Ins. Co., 213 AD2d 888 (3d Dept. 1995).

Plaintiffs may, of course, seek the declaration that their policy with State Farm provides for the coverage sought — in this case, to restore the property to its pre-spill condition. In that regard, the policy itself, annexed by plaintiffs to their moving papers, and a letter from State Farm dated September 7, 2011, also annexed, clearly favors the insurer.

Under "Section 1-Coverages" at "Coverage A-Dwelling", damage to land, including costs to restore land, is specifically excluded at paragraph 3. At "Coverage B-Personal Property", "Section 1-Additional Coverages" at paragraph 3 damage to trees, shrubs and other plants are covered, but the causes of such covered damages do not include contamination by a petroleum spill. Finally, at "Section 1 - Losses Not Insured", at paragraph (1)( j), losses from "contamination" are not covered, "regardless of whether the loss occurs suddenly or gradually [or] arises from natural or external forces". Such language unambiguously includes oil spills such as the one at bar, as petroleum products are pollutants and thus, when leaked, obviously contaminate the site of such leakage. Therefore, direct first-party coverage for an oil spill does not exist under the policy. See Tartan Oil Corp. v Clark, 258 AD2d 457 (2d Dept. 1999); State of New York v Capital Mutual Ins. Co., supra; see also Ziankoski v Boonville Oil Co., Inc., 241 AD2d 951 (4th Dept. 1997) [under policy coverage existed only for claims made against insured for oil spill, but not yet triggered].

The Court thus concludes that no coverage is available under the policy for damages caused by the oil spill, excepting coverage for liability incurred by the insured pursuant to "Section II - Liability". However, this section gives State Farm the right to settle any claim, as it decides is appropriate, and in its letter to plaintiffs dated September 7, 2011, indicated that State Farm would consider its policy obligation satisfied when the DEC claim was settled and closed. Thus, under the terms of the policy, once a claim no longer was pending, State Farm was not obligated to continue making payments for the cleanup, as it was only as a result of a claim that it had to do so. Ziankoski v Boonvill Oil Co., Inc., supra. As the DEC has declared itself satisfied with the remediation after significant involvement and payment by State Farm, its claim has been resolved, and thus State Farm's obligation to plaintiffs under the policy also has been satisfied.

The contention by plaintiffs that an open violation issued by the Fire Marshall exists is mentioned for the first time in reply, and should not be considered for that reason. Luft v. Luft, 52 AD3d 479 (2d Dept. 2008). In any event, despite a statement from Mr. Bennett that he [*10]annexed the Violation Order as an exhibit, the same is missing from the papers submitted to the Court, and there is no additional statement or proof that State Farm ever was notified and that a request for coverage based thereon was made. However, the Court makes no determination as to such coverage for this or any other claim, known or unknown, that may yet be made against plaintiffs as a result of this oil spill. It rules here only in the context of the present motion and the applicable standards for summary judgment.

It also should be noted that neither Cow Bay nor Star Net counterclaimed against the plaintiffs for any relief, and under this present Decision and Order would be precluded from doing so now.

Accordingly, upon a search of the record the Court grants partial summary judgment to State Farm in this action and declares that under the terms of its policy it has no duty to pay for additional remediation of the property.

This does not completely end the case against State Farm, however, as the plaintiffs have asserted that a separate agreement was made under which State Farm agreed to provide additional coverage, specifically, to restore the plaintiffs' property to pre-spill condition, and thus, in effect, should be estopped from relying upon the policy to deny such additional coverage. However, summary judgment in favor of plaintiffs against State Farm based upon the foregoing must be denied, as plaintiffs own motion papers do not establish this agreement as existing and binding on State Farm as a matter of law, as it has not established all the elements of an estoppel claim. Key among them is detrimental reliance by plaintiffs on the alleged promise by State Farm. See Schwartz v Miltz, 77 AD3d 723 (2d Dept. 2010).

Moreover, State Farm's responsive papers and plaintiffs' reply thereto indicate the existence of material issues of fact regarding the making of this alleged agreement. These issues are comprised of but not limited to the question of H2M's agency for State Farm as its principal, and matters of credibility. These cannot be resolved on this motion. Further, as the action is in its early stages and disclosure is merely beginning, summary judgment would be inappropriate at this time.

In sum, the Court grants summary judgment to plaintiffs as against Cow Bay and Star Net on the issue of liability, and the case shall proceed against these parties on the issue of damages. A default judgment is granted to plaintiffs against Lewis Oil, with an assessment of damages to await the trial.

Further, upon a search of the record partial summary judgment is granted to State Farm in this action declaring that it has no additional financial obligation to plaintiffs under the terms of the policy.

Counsel for all parties are directed to appear for a conference before the

undersigned on June 5, 2014, at 9:30 a.m., to schedule discovery in accord with this order.

This shall constitute the Decision and Order of this Court.