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

1067
CA 14-02111
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND VALENTINO, JJ.


JOANN ABBO-BRADLEY, INDIVIDUALLY AND AS PARENT
AND NATURAL GUARDIAN OF DYLAN J. BRADLEY,
TREVOR A. BRADLEY AND CHASE Q. BRADLEY, INFANTS,
ZACHARY HERR AND MELANIE HERR, INDIVIDUALLY AND
AS PARENTS AND NATURAL GUARDIANS OF COLETON HERR
AND HEATHER HERR, INFANTS, AND NATHAN E. KORSON AND
ELENA KORSON, INDIVIDUALLY AND AS PARENTS AND
NATURAL GUARDIANS OF LOGAN J. KORSON, AN INFANT,
PLAINTIFFS-APPELLANTS-RESPONDENTS,

                    V                             MEMORANDUM AND ORDER

CITY OF NIAGARA FALLS, GLENN SPRINGS
HOLDINGS, INC., GROSS PHC LLC, MILLER SPRINGS
REMEDIATION MANAGEMENT, INC., OXY, INC.,
FORMERLY KNOWN AS OCCIDENTAL CHEMICAL
CORPORATION, INDIVIDUALLY AND AS SUCCESSOR IN
INTEREST TO HOOKER CHEMICALS AND PLASTICS
CORPORATION, OP-TECH ENVIRONMENTAL SERVICES,
DEFENDANTS-RESPONDENTS-APPELLANTS,
ROY’S PLUMBING, INC., DEFENDANT-RESPONDENT,
SCOTT LAWN YARD, INC.,
DEFENDANT-RESPONDENT-APPELLANT,
ET AL., DEFENDANTS.
(APPEAL NO. 1.)


PHILLIPS & PAOLICELLI LLP, NEW YORK CITY (STEPHEN J. PHILLIPS OF
COUNSEL), FOR PLAINTIFFS-APPELLANTS-RESPONDENTS.

CRAIG H. JOHNSON, CORPORATION COUNSEL, NIAGARA FALLS (DOUGLAS A.
JANESE, JR., OF COUNSEL), FOR DEFENDANT-RESPONDENT-APPELLANT CITY OF
NIAGARA FALLS.

PHILLIPS LYTLE LLP, BUFFALO (KEVIN M. HOGAN OF COUNSEL), QUINN EMANUEL
URQUHART & SULLIVAN LLP, NEW YORK CITY, AND KLEINFELD, KAPLAN AND
BECKER, LLP, WASHINGTON, D.C., FOR DEFENDANTS-RESPONDENTS-APPELLANTS
GLENN SPRINGS HOLDINGS, INC., MILLER SPRINGS REMEDIATION MANAGEMENT,
INC., AND OXY, INC., FORMERLY KNOWN AS OCCIDENTAL CHEMICAL
CORPORATION, INDIVIDUALLY AND AS SUCCESSOR IN INTEREST TO HOOKER
CHEMICALS AND PLASTICS CORPORATION.

SCHNITTER CICCARELLI & MILLS PLLC, EAST AMHERST (PATRICIA S.
CICCARELLI OF COUNSEL), FOR DEFENDANT-RESPONDENT-APPELLANT GROSS PHC
LLC.
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                                                         CA 14-02111

PILLINGER MILLER TARALLO, LLP, SYRACUSE (JEFFREY D. SCHULMAN OF
COUNSEL), FOR DEFENDANT-RESPONDENT-APPELLANT OP-TECH ENVIRONMENTAL
SERVICES.

SUGARMAN LAW FIRM, LLP, SYRACUSE (JENNA W. KLUCSIK OF COUNSEL), FOR
DEFENDANT-RESPONDENT-APPELLANT SCOTT LAWN YARD, INC.

THE KNOER GROUP, PLLC, BUFFALO (ROBERT E. KNOER OF COUNSEL), FOR
DEFENDANT-RESPONDENT.


     Appeal and cross appeals from an order of the Supreme Court,
Niagara County (Richard C. Kloch, Sr., A.J.), entered August 20, 2014.
The order granted in part and denied in part the motions of defendants
City of Niagara Falls, Gross PHC LLC, Glenn Springs Holdings, Inc.,
Miller Springs Remediation Management, Inc., Oxy, Inc., formerly known
as Occidental Chemical Corporation, individually and as successor in
interest to Hooker Chemicals and Plastics Corporation, Op-Tech
Environmental Services, Roy’s Plumbing, Inc., and Scott Lawn Yard,
Inc., to dismiss the second amended complaint against them.

     It is hereby ORDERED that said cross appeal of Gross PHC LLC is
unanimously dismissed as moot, and the order is modified on the law by
granting those parts of the motions of defendants City of Niagara
Falls, Glenn Springs Holdings, Inc., Miller Springs Remediation
Management, Inc., Oxy, Inc., formerly known as Occidental Chemical
Corporation, individually and as successor in interest to Hooker
Chemicals and Plastics Corporation, Op-Tech Environmental Services,
and Scott Lawn Yard, Inc., seeking to dismiss the third and fourth
causes of action against them insofar as asserted by each plaintiff as
parent and natural guardian of an infant child or children and
dismissing those causes of action to that extent, and denying those
parts of the motions of those defendants and defendant Roy’s Plumbing,
Inc. seeking to dismiss the first through fourth causes of action
insofar as they seek damages related to the landfill remediation and
sewer project and reinstating those causes of action against those
defendants to that extent, and as modified the order is affirmed
without costs.

     Memorandum: Plaintiffs commenced this action seeking to recover
damages for personal injuries and property damage allegedly caused by
defendants’ failure to properly perform their respective roles in the
plan to remediate the toxic contamination at the Love Canal site
(hereafter, landfill remediation) and in the sewers in the Love Canal
corridor (hereafter, sewer project), as well as for claims related to
a release of Love Canal-era toxins in January 2011 during a sewer
renovation that was outside of the remediation area. Several
defendants moved to dismiss the second amended complaint for, inter
alia, failure to state a cause of action and inadequate pleading.
Supreme Court, in four separate orders, granted those parts of the
motions seeking to dismiss the first four causes of action insofar as
they seek damages allegedly resulting from the landfill remediation
and sewer project, but denied those parts of the motions seeking to
                                 -3-                          1067
                                                         CA 14-02111

dismiss those causes of action insofar as they seek damages allegedly
resulting from the release of toxins in January 2011. Plaintiffs
appeal from each of those orders. In appeal No. 1, defendants City of
Niagara Falls (City), Glenn Springs Holdings, Inc., Miller Springs
Remediation Management, Inc. (MSRM), Oxy, Inc., formerly known as
Occidental Chemical Corporation, individually and as successor in
interest to Hooker Chemicals and Plastics Corporation, Op-Tech
Environmental Services, and Scott Lawn Yard, Inc., cross-appeal from
that part of the order denying their respective motions to dismiss the
second amended complaint in its entirety on the ground that it was not
adequately pleaded with respect to the claims of fraud and
misrepresentation (see CPLR 3016 [b]), or with respect to personal
injuries, property damage, and standing.

     We agree with defendants on their cross appeals in appeal No. 1
that the court erred in denying those parts of their respective
motions seeking to dismiss the third and fourth causes of action,
asserting private nuisance and trespass, as alleged by plaintiffs as
parents and natural guardians of their infant children, inasmuch as
plaintiffs’ children lack an ownership or possessory interest in the
respective properties (see Ivory v International Bus. Machines Corp.,
116 AD3d 121, 128, lv denied 23 NY3d 903). We therefore modify the
order accordingly. We note that defendant Roy’s Plumbing, Inc. did
not cross-appeal from the order and therefore is not entitled to
affirmative relief with respect to the third and fourth causes of
action (see Bennett v McGorry, 34 AD3d 1290, 1291).

     We agree with plaintiffs in appeal Nos. 1 through 4 that the
court erred in dismissing the first through fourth causes of action,
asserting negligence, abnormally dangerous activity, private nuisance,
and trespass, insofar as they seek damages related to the landfill
remediation and sewer project, on the ground that those claims are
barred by judicial estoppel. We therefore further modify the orders
accordingly. MSRM removed this matter to federal district court,
alleging that plaintiffs were challenging a remedy established under
the federal Comprehensive Environmental Response, Compensation, and
Liability Act (CERCLA) (see 42 USC 9601 et seq.), and thus that
federal district court had original jurisdiction to adjudicate the
matter (see Abbo-Bradley v City of Niagara Falls, 2013 WL 4505454 at
*4 [WDNY 2013]). Plaintiffs moved to remand the matter to state court
on the ground that they did not challenge the CERCLA remedy, but
instead challenged defendants’ allegedly faulty performance of their
respective obligations in executing the CERCLA remedy.

     The record establishes that, in opposition to plaintiffs’ motion
to remand the matter, the defendants asserted that “[p]laintiffs’
claims necessarily present substantial and disputed questions of
federal law, including whether the selection, construction and
monitoring of the remedy . . . substantively complied with CERCLA”
(emphasis added). In reply, plaintiffs stated that defendants
“relentlessly mischaracterize [their] complaint” as “ ‘attacking a
CERCLA remedy’ . . . But plaintiffs do not challenge ‘the selection,
construction and monitoring’ of any previous remediation plan.
Plaintiffs make no attack on any decision by EPA, or upon how such a
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                                                         CA 14-02111

decision was reached” (emphasis added).

     As the federal District Court explained, “it is uniformly
recognized that, in enacting CERCLA, Congress expressly disclaimed an
intent to preempt state tort liability for damages caused by the
release of hazardous substances” (Abbo-Bradley, 2013 WL 4505454 at *6;
see 42 USC § 9652 [d]). District Court therefore granted plaintiffs’
motion seeking to remand the matter to Supreme Court, determining that
“plaintiffs seek relief only under common law theories of negligence,
. . . private nuisance, and trespass” (Abbo-Bradley, 2013 WL 4505454
at *7), “[and t]he claims . . . do not expressly challenge the
effectiveness of the [CERCLA] remedy . . . Rather, plaintiffs seek
only to be made whole for any harm proximately caused by defendants’
conduct, whether in performance of operation, maintenance, and
monitoring obligations with respect to the remedy, or during the
[sewer project]” (id. at *10).

     The moving defendants alleged in their respective motions to
dismiss the second amended complaint that plaintiffs had advised
District Court that they were not challenging the “selection,
construction and monitoring of any previous remediation plan” and that
plaintiffs were therefore judicially estopped from challenging the
selection, construction or monitoring of the remediation plan, i.e.,
the CERCLA remedy, in the second amended complaint. Supreme Court
agreed with the moving defendants that plaintiffs were challenging the
CERCLA remedy in the second amended complaint and dismissed on the
ground of judicial estoppel the claims applying to the landfill
remediation and sewer project in the first through fourth causes of
action. That was error. The doctrine of judicial estoppel prohibits
a party who has assumed a position in one legal proceeding, and
prevailed on that position, from assuming a contrary position in
another proceeding because the party’s interests have changed (see
Popadyn v Clark Constr. & Prop. Maintenance Servs. Inc., 49 AD3d 1335,
1336). Here, however, we conclude that plaintiffs’ position was
consistent in both the federal and state court matters inasmuch as
they maintained that they did not challenge the CERCLA remedy, as the
moving defendants alleged, but instead challenged defendants’
performance of their respective obligations in executing the CERCLA
remedy.

     We have reviewed the remaining contentions raised by plaintiffs
in their appeals and the remaining contentions of defendants on their
respective cross appeals and conclude that they are without merit.




Entered:   October 2, 2015                      Frances E. Cafarell
                                                Clerk of the Court
