        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1060
CA 16-00502
PRESENT: CARNI, J.P., DEJOSEPH, NEMOYER, TROUTMAN, AND SCUDDER, JJ.


ONE FLINT ST. LLC AND DHD VENTURES NEW YORK, LLC,
PLAINTIFFS-RESPONDENTS-APPELLANTS,

                    V                               MEMORANDUM AND ORDER

EXXON MOBIL CORPORATION, EXXONMOBIL OIL
CORPORATION, DEFENDANTS-APPELLANTS-RESPONDENTS,
ET AL., DEFENDANTS.


MCCUSKER, ANSELMI, ROSEN & CARVELLI, P.C., NEW YORK CITY (PATRICIA
PREZIOSO OF COUNSEL), FOR DEFENDANTS-APPELLANTS-RESPONDENTS.

KNAUF SHAW LLP, ROCHESTER (ALAN J. KNAUF OF COUNSEL), FOR
PLAINTIFFS-RESPONDENTS-APPELLANTS.


     Appeal and cross appeal from an order of the Supreme Court,
Monroe County (Ann Marie Taddeo, J.), entered March 4, 2016. The
order, inter alia, denied that part of plaintiffs’ cross motion
seeking partial summary judgment, granted that part of plaintiffs’
cross motion seeking injunctive relief, and denied the cross motion of
defendants Exxon Mobil Corporation and ExxonMobil Oil Corporation for
partial summary judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by denying plaintiffs’ cross motion in
its entirety and vacating the fourth ordering paragraph, and as
modified the order is affirmed without costs.

     Memorandum: Exxon Mobil Corporation and ExxonMobil Oil
Corporation (defendants) appeal and plaintiffs cross-appeal from an
order that, inter alia, denied their respective cross motions seeking
partial summary judgment on the issue whether plaintiffs are strictly
liable as “dischargers” under Navigation Law § 181 (1) for petroleum
contamination on two parcels of land owned by plaintiffs, which were
part of the former oil refinery operations of defendants’ predecessor,
Vacuum Oil Company. The order also granted that part of plaintiffs’
cross motion seeking injunctive relief, and denied that part of
defendants’ motion seeking leave to amend their answer to include
claims of spoliation of evidence.

     In a prior appeal, we concluded that defendants are strictly
liable as dischargers under Navigation Law § 181 (1) (One Flint St.,
LLC v Exxon Mobil Corp., 112 AD3d 1353, 1354, lv dismissed 23 NY3d
998), and that “plaintiffs failed to meet their initial burden of
                                 -2-                          1060
                                                         CA 16-00502

establishing their entitlement to partial summary judgment on the
issue whether they are entitled to indemnification rather than
contribution” inasmuch as plaintiffs “failed to eliminate any issue of
fact whether petroleum products were discharged during the period of
their ownership” of the parcels (id. at 1355). For reasons stated in
Supreme Court’s decision, we conclude that the court properly denied
those parts of the respective cross motions seeking partial summary
judgment on the issue whether plaintiffs are strictly liable as
dischargers under section 181 (1).

     We agree with defendants, however, that the court erred in
granting that part of plaintiffs’ cross motion seeking a mandatory
injunction requiring defendants “to either commence the clean-up of
the site within a reasonable time of this order or immediately fund
same.” “ ‘A mandatory injunction, which is used to compel the
performance of an act, is an extraordinary and drastic remedy which is
rarely granted and then only under the unusual circumstances where
such relief is essential to maintain the status quo pending trial of
the action’ ” (Zoller v HSBC Mtge. Corp. [USA], 135 AD3d 932, 933; see
Lexington & Fortieth Corp. v Callaghan, 281 NY 526, 531), and that is
not the case here. We therefore modify the order accordingly.

     We reject defendants’ further contention that the court abused
its discretion in denying that part of their motion for leave to amend
their answer to allege spoliation of evidence as part of the factual
recitation inasmuch as such an amendment is not necessary (cf. Ortega
v City of New York, 9 NY3d 69, 73; see generally DeLorm v Wegmans Food
Mkts., 185 AD2d 648, 648).




Entered:   December 23, 2016                    Frances E. Cafarell
                                                Clerk of the Court
