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

517
CA 12-02006
PRESENT: FAHEY, J.P., CARNI, SCONIERS, AND WHALEN, JJ.


VINCENT AUTOMOTIVE, INC., MICHAEL MANCUSO AND
DOMINIC MANCUSO, PLAINTIFFS-APPELLANTS,

                    V                             MEMORANDUM AND ORDER

CHEVRON U.S.A. INC., DEFENDANT-RESPONDENT.


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

WOODS OVIATT GILMAN LLP, ROCHESTER (GRETA K. KOLCON OF COUNSEL), FOR
DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Monroe County (David
Michael Barry, J.), entered December 21, 2011. The order granted the
motion of defendant for summary judgment and denied the cross motion
of plaintiffs to compel defendant to respond to a notice of
deposition.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by denying the motion in part,
reinstating the first and second causes of action, and granting the
cross motion and as modified the order is affirmed without costs.

     Memorandum: Plaintiffs commenced this action seeking to recover
investigation, remediation, cleanup and removal costs arising from oil
and gasoline contamination that was discovered during the time they
owned the subject property. Defendant moved for summary judgment
dismissing the complaint on the ground that its predecessor, Gulf Oil
Corporation (Gulf), was not responsible for any contamination of the
property, and thus it was not liable for that contamination as a
successor in interest to Gulf. Plaintiffs cross-moved, inter alia, to
compel defendant to respond to their notice of deposition. Supreme
Court granted the motion and denied the cross motion.

     We note at the outset that plaintiffs have addressed only the
first two causes of action that are based upon the Navigation Law and
are thus deemed to have abandoned their other causes of action (see
Route 104 & Rte. 21 Dev., Inc. v Chevron U.S.A., Inc., 96 AD3d 1491,
1492). We agree with plaintiffs that the court erred in granting
defendant’s motion with respect to the Navigation Law causes of
action. Contrary to the court’s determination, we conclude that
defendant did not meet its initial burden on the motion by submitting
the affidavit of the attorney who is employed by defendant to
                                 -2-                           517
                                                         CA 12-02006

supervise environmental litigation in New York involving Gulf. That
affidavit is without evidentiary value inasmuch as the attorney had no
personal knowledge of the relevant facts (see Cleary v Wallace Oil
Co., 55 AD3d 773, 777; Wright v Rite-Aid of NY, 249 AD2d 931, 931).
His assertions concerning Gulf’s purported lack of involvement with
the subject property or the petroleum discharge thereon consist of
double hearsay (see generally Bielak v Plainville Farms, 299 AD2d
900), and thus fail to satisfy the “strict requirement” imposed upon
the movant to “tender . . . evidentiary proof in admissible form”
(Friends of Animals v Association Fur Mfrs., 46 NY2d 1065, 1067-1068).
Nor did defendant meet its burden of establishing that it did not
cause or contribute to the contamination by asserting that plaintiffs
have “no evidence” with respect thereto (Route 104 & Rte. 21 Dev.,
Inc., 96 AD3d at 1492). “[D]efendant cannot establish its entitlement
to judgment as a matter of law simply by pointing to gaps in
plaintiff[s’] proof” (id.; see Orcutt v American Linen Supply Co., 212
AD2d 979, 980).

     Finally, we conclude that plaintiffs’ cross motion to compel
defendant’s deposition should have been granted (see CPLR 3101 [a];
see generally Garrett v Community Gen. Hosp of Greater Syracuse, 288
AD2d 928, 929).




Entered:   June 7, 2013                        Frances E. Cafarell
                                               Clerk of the Court
