                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: June 11, 2015                     519843
________________________________

FAIRVIEW PLAZA, INC.,
                    Appellant,
      v                                     MEMORANDUM AND ORDER

ESTATE OF PETER J. RIGOS,
   Deceased, et al.,
                    Respondents.
________________________________


Calendar Date:   April 21, 2015

Before:   Lahtinen, J.P., McCarthy, Garry and Rose, JJ.

                             __________


      Freeman Howard, PC, Hudson (Paul M. Freeman of counsel),
for appellant.

      Rapport Meyers, LLP, Hudson (Victor Meyers of counsel), for
respondents.

                             __________


Garry, J.

      Appeal from an order of the Supreme Court (Zwack, J.),
entered January 7, 2014 in Columbia County, which, among other
things, granted summary judgment in defendants' favor and
dismissed the complaint.

      Plaintiff is the owner of Fairview Plaza, a strip mall
located in the Town of Greenport, Columbia County. From 1971
until his death in 1993, Peter J. Rigos (hereinafter decedent)
was the sole proprietor of a laundromat and dry cleaning business
known as Wash-Rite Coin Laundry and Dry Cleaning, which leased
space from plaintiff in Fairview Plaza. Defendant Judith Rigos,
decedent's widow, frequently assisted decedent in the daily
operations of the business during this time period. Defendant
                              -2-                519843

John Rigos, decedent's son, also occasionally assisted in the
operation of the business and, beginning in 1989, began working
there on a full-time basis. Decedent's lease term expired in
1996 and John Rigos – doing business as Wash-Rite Laundry –
subsequently entered into a new lease with plaintiff. In 2002,
plaintiff engaged a firm to conduct an environmental site
assessment at Fairview Plaza. The results of the assessment
suggested that the ground and soil behind Wash-Rite had been
contaminated by the chemical perchloroethylene, also known as
PERC. PERC had been used in the dry cleaning machines at Wash-
Rite until approximately 1985 and had been stored in a tank in
the vicinity of where the contamination was discovered.
Plaintiff initiated this action and asserted claims pursuant to
Navigation Law article 12 seeking to recover costs it has
incurred in remediating the property. Supreme Court denied
plaintiff's motion for summary judgment, and instead granted
defendants summary judgment, dismissing the complaint against
them. Plaintiff appeals.

      Plaintiff contends that Supreme Court erred in determining
that there was no showing that PERC constituted "petroleum," as
that term is defined under Navigation Law article 12, and,
therefore, in finding no basis for imposing liability upon
defendants. We disagree. Navigation Law article 12 provides a
private cause of action through which an aggrieved party may
recover damages sustained as a result of another's discharge of
petroleum (see Navigation Law § 181 [5]; Wheeler v National
School Bus Serv., 193 AD2d 998, 999 [1993]). Petroleum is
defined under the statute as "oil or petroleum of any kind and in
any form including, but not limited to, oil, petroleum, fuel oil,
oil sludge, oil refuse, oil mixed with other wastes and crude
oils, gasoline and kerosene" (Navigation Law § 172 [15]).

      Here, in support of its motion for summary judgment,
plaintiff submitted, among other things, the affidavit of an
environmental remediation expert who opined that data obtained
from an analysis of the groundwater behind Wash-Rite "suggest[ed]
a release of [PERC], a volatile petroleum-derived compound."
Essentially, plaintiff argues that this finding that PERC is
petroleum derived is sufficient to support imposition of
                                -3-                519843

liability under the Navigation Law.1 This would constitute a
novel expansion of the law; plaintiff does not cite to, nor can
we find, any case in which PERC has been deemed to constitute
petroleum under the Navigation Law. At least two other courts
have come to the opposite conclusion, finding that PERC does not
constitute petroleum under the Navigation Law (see Carman Realty,
LLC v Ju Cherl Yoon, 2007 NY Slip Op 34136[U], *4 [Sup Ct, Albany
County 2007]; Major v Astrazeneca, Inc., 2006 WL 2640622, *22,
2006 US Dist LEXIS 65225, *65 [ND NY, Sept. 13, 2006, Nos. 5:01-
CV-618 (Lead) (FJS/GJD), 5:00-CV-1736 (Member) (FJS/GJD)]). As
defendant argues, the vast and diverse range of products and
substances derived from petroleum – many of which pose none of
the same dangers as petroleum itself – would make a per se rule
imposing liability for the discharge of any petroleum-derived
substance unworkable. Accordingly, we find no error in Supreme
Court's determination that PERC is not petroleum as defined under
Navigation Law article 12 (see Jackson v Gas Co., 2 AD3d 1104,
1106 [2003]; Sweeney v McCormick, 159 AD2d 832, 833 [1990]) and,
thus, summary judgment was properly granted to defendants on
plaintiff's Navigation Law claim.

      Finally, as plaintiff's indemnification and contribution
claims were premised solely on defendants' alleged liability
under the Navigation Law, Supreme Court also properly dismissed
those causes of action (see CPLR 1401; State of New York v
Passalacqua, 19 AD3d 786, 790 [2005]).

        Lahtinen, J.P., McCarthy and Rose, JJ., concur.




    1
        Notably, language in the expert's accompanying report
supports the opposite conclusion, that is, that PERC is not
properly classified as petroleum. The report explains that "[n]o
petroleum groundwater contamination has been found to exist
within the site evaluated. Conversely, chlorinated organic
contaminants identified in groundwater collected adjacent to the
rear entrance of the Wash-Rite facility do suggest the release of
the dry cleaning chemicals (i.e., PERC)."
                        -4-                  519843

ORDERED that the order is affirmed, with costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
