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

717
CA 10-02322
PRESENT: CENTRA, J.P., FAHEY, CARNI, SCONIERS, AND GREEN, JJ.


DORIS BAITY, ET AL.,
PLAINTIFFS-RESPONDENTS-APPELLANTS,

                    V                             MEMORANDUM AND ORDER

GENERAL ELECTRIC COMPANY,
DEFENDANT-APPELLANT-RESPONDENT.


BOND, SCHOENECK & KING, PLLC, SYRACUSE (S. PAUL BATTAGLIA OF COUNSEL),
FOR DEFENDANT-APPELLANT-RESPONDENT.

FARACI LANGE, LLP, ROCHESTER (STEPHEN G. SCHWARZ OF COUNSEL), FOR
PLAINTIFFS-RESPONDENTS-APPELLANTS.


     Appeal and cross appeal from an order of the Supreme Court,
Cayuga County (Thomas G. Leone, A.J.), entered October 18, 2010. The
order denied the motion of defendant for summary judgment and denied
the cross motion of plaintiffs for partial summary judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiffs commenced this action seeking to recover
for damages to their property arising from the discharge of toxic
chemicals into the ground from an industrial plant formerly operated
by defendant, as well as medical monitoring costs associated
therewith. Plaintiffs asserted causes of action for, inter alia,
negligence, public nuisance and trespass. Defendant contends on
appeal that Supreme Court erred in denying its motion for summary
judgment dismissing the second amended complaint, and plaintiffs
contend on their cross appeal that the court erred in denying their
cross motion for partial summary judgment on the issue of the source
of the groundwater contamination of their real property. We affirm.

     Before 1968, defendant used trichloroethylene (TCE) to clean
metal parts at its plant and disposed of the waste containing TCE by
placing it in unlined earthen evaporation pits. It is undisputed that
plaintiffs’ drinking water wells were contaminated with TCE and its
degradation products, i.e., dichloroethylene and vinyl chloride.
Groundwater at defendant’s plant site was also found to contain TCE.
According to plaintiffs, their last exposure to any of those toxins
occurred in the year 2000. It is also undisputed that plaintiffs have
not to date manifested any disease as a result of their alleged
exposure to the toxins. In addition, the parties agree that the
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                                                         CA 10-02322

toxins are rapidly excreted by the human body and thus cannot be
detected in plaintiffs’ bodies by any recognized scientific or medical
test or examination. Nevertheless, with respect to that part of its
motion for summary judgment dismissing the claims for medical
monitoring costs, defendant assumed, without conceding, that
plaintiffs had been exposed to the toxins through the use of their
contaminated water wells. Defendant’s expert toxicologist also
assumed but did not concede that TCE, “in a sufficient dose, might
pose a carcinogenic risk to humans.”

     In support of its motion, defendant relied on language that
appears in our decision in Allen v General Elec. Co. (32 AD3d 1163) in
contending that plaintiffs “must establish both that [they were] in
fact exposed to the disease-causing agent and that there is a rational
basis for [their] fear of contracting the disease” (id. at 1165
[internal quotation marks omitted]; see Abusio v Consolidated Edison
Co. of N.Y., 238 AD2d 454, 454-455, lv denied 90 NY2d 806).
Defendant, however, offered no affirmative evidence establishing that
plaintiffs’ alleged exposure to TCE was not capable of causing cancer
or that plaintiffs were not exposed to sufficient levels of TCE to
cause cancer (see Parker v Mobil Oil Corp., 7 NY3d 434, 448, rearg
denied 8 NY3d 828). Indeed, defendant merely asserted, e.g., that
“plaintiffs cannot and do not have admissible proof,” and that
“plaintiffs[] have insufficient evidence.”

     We conclude that the court properly denied that part of
defendant’s motion for summary judgment dismissing the claims for
medical monitoring costs. We note at the outset that plaintiffs do
not seek damages for emotional distress based upon their “fear of
developing cancer” (Wolff v A-One Oil, 216 AD2d 291, 292, lv dismissed
87 NY2d 968; see Conway v Brooklyn Union Gas Co., 189 AD2d 851).
Rather, plaintiffs’ “theory of liability [for medical monitoring
damages] grows out of the invasion of the body by the foreign
substance, with the assumption being that the substance acts
immediately upon the body[,] setting in motion the forces [that]
eventually result in disease” (Askey v Occidental Chem. Corp., 102
AD2d 130, 136). Under that theory, “defendant is liable for
‘reasonably anticipated’ consequential damages [that] may flow later
from that invasion although the invasion itself is ‘an injury too
slight to be noticed at the time it is inflicted’ ” (id.; see Schmidt
v Merchants Despatch Transp. Co., 270 NY 287, 300-301). Thus,
contrary to defendant’s contention, in order to establish its
entitlement to judgment as a matter of law dismissing the claims for
medical monitoring costs, defendant was required to “establish with a
degree of reasonable medical certainty through expert testimony . . .
that such expenditures are [not] ‘reasonably anticipated’ to be
incurred by reason of [plaintiffs’] exposure” to TCE (Askey, 102 AD2d
at 137). To the extent that our decision in Allen holds otherwise, it
is no longer to be followed.

     It is well established that “[a] moving party must affirmatively
establish the merits of its cause of action or defense and does not
meet its burden by noting gaps in its opponent[s’] proof” (Orcutt v
                                 -3-                           717
                                                         CA 10-02322

American Linen Supply Co., 212 AD2d 979, 980; see Swimm v Bratt, 15
AD3d 976, 977). Here, defendant failed to submit any evidence
establishing to a reasonable degree of medical certainty that the
costs of future medical monitoring are not reasonably likely to be
incurred as a result of plaintiffs’ exposure to TCE (cf. Hellert v
Town of Hamburg, 50 AD3d 1481, 1482, lv denied 11 NY3d 702).

      We reject defendant’s further contention that the court erred in
denying that part of its motion for summary judgment dismissing the
“claim” for punitive damages. First, although the complaint alleges
reckless conduct sufficient to support an award of punitive damages,
it does not in fact assert such a claim. Second, in any event,
defendant failed to submit evidence entitling it to that relief
inasmuch as, with respect thereto, defendant submitted only an
attorney’s affidavit containing a conclusory footnote, which had no
evidentiary value. Third, we note that the determination whether a
plaintiff is entitled to an award of punitive damages “should ‘reside
in the sound discretion of the original trier of the facts,’ ” i.e.,
at the time of trial (Fordham-Coleman v National Fuel Gas Distrib.
Corp., 42 AD3d 106, 114, quoting Nardelli v Stamberg, 44 NY2d 500,
503).

     We reject defendant’s contention that its disposal of TCE on its
property prior to 1968 was not negligent as a matter of law and thus
that the court should have granted that part of its motion for summary
judgment dismissing the negligence cause of action. The statements of
defendant’s experts that defendant “comported with industry standards
[do] not establish as a matter of law that [defendant] was not
negligent” (Gardner v Honda Motor Co., 214 AD2d 1024, 1024; see
Trimarco v Klein, 56 NY2d 98, 106-107). Moreover, “[i]rrespective of
the absence of a statutory [or regulatory] obligation, [defendant]
remain[ed] subject to [its] common-law duty” (Jacqueline S. v City of
New York, 81 NY2d 288, 293, rearg denied 82 NY2d 749; see also
Mercogliano v Sears, Roebuck & Co., 303 AD2d 566). Inasmuch as
defendant failed to submit sufficient evidence establishing its
entitlement to judgment as a matter of law, the court properly denied
that part of the motion with respect to the negligence cause of
action, regardless of the sufficiency of plaintiffs’ opposing papers
(see generally Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).
We reject defendant’s further contention that the court erred in
denying that part of its motion for summary judgment dismissing the
cause of action for trespass. We conclude that there are triable
issues of fact whether defendant had “good reason to know or expect”
that the toxins would pass from its industrial plant to plaintiffs’
property (Phillips v Sun Oil Co., 307 NY 328, 331; see Hilltop Nyack
Corp. v TRMI Holdings, 264 AD2d 503, 505).

     With respect to that part of defendant’s motion for summary
judgment dismissing the public nuisance cause of action, it is well
settled that the seepage of chemical wastes into a public water supply
constitutes a public nuisance (see generally Copart Indus. v
Consolidated Edison Co. of N.Y., 41 NY2d 564, 568, rearg denied 42
NY2d 1102; State of New York v Monarch Chems., 90 AD2d 907).
Nevertheless, “[a] public nuisance is actionable by a private person
                                 -4-                           717
                                                         CA 10-02322

only if it is shown that the person suffered special injury beyond
that suffered by the community at large” (532 Madison Ave. Gourmet
Foods v Finlandia Center, Inc., 96 NY2d 280, 292, rearg denied 96 NY2d
938). We conclude that defendant failed to meet its burden of
establishing that the contamination of plaintiffs’ private water wells
did not constitute a special injury beyond that suffered by the public
at large (see Booth v Hanson Aggregates N.Y., Inc., 16 AD3d 1137,
1138).

     We reject defendant’s contention that the court erred in
considering the opposing affidavits of plaintiffs’ experts, i.e., a
geography professor with 25 years of experience in researching
historical waste management practices and water pollution, and an
environmental attorney with over 35 years of experience in drinking
water supply contamination litigation and enforcement of the Clean
Water Act through employment with the United States Environmental
Protection Agency between 1973 and 1986. “It is within the sound
discretion of the trial court to determine whether a witness [is
qualified] as an expert[,] and that determination should not be
disturbed ‘in the absence of serious mistake, an error of law or abuse
of discretion’ ” (Saggese v Madison Mut. Ins. Co., 294 AD2d 900, 901,
quoting Werner v Sun Oil Co., 65 NY2d 839, 840). Contrary to
defendant’s contention, “[t]he expert[s’] qualifications go to the
weight rather than the admissibility of” the opinions in their
affidavits (Williams v Halpern, 25 AD3d 467, 468).

     Finally, we conclude that the court properly denied plaintiffs’
cross motion for summary judgment on the issue of the source of the
contamination. The papers before the court on that issue “presented a
credibility battle between the parties’ experts, and issues of
credibility are properly left to a jury for its resolution” (Barbuto v
Winthrop Univ. Hosp., 305 AD2d 623, 624).




Entered:   July 8, 2011                         Patricia L. Morgan
                                                Clerk of the Court
