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

768
CA 11-02518
PRESENT: SMITH, J.P., FAHEY, CARNI, SCONIERS, AND MARTOCHE, JJ.


ROUTE 104 & ROUTE 21 DEVELOPMENT, INC.,
PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

CHEVRON U.S.A., INC., DEFENDANT-RESPONDENT,
ET AL., DEFENDANTS.


KNAUF SHAW LLP, ROCHESTER (ALAN J. KNAUF OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

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


     Appeal from an order of the Supreme Court, Wayne County (John B.
Nesbitt, A.J.), entered February 18, 2011. The order, insofar as
appealed from, dismissed the complaint against defendant Chevron
U.S.A., Inc.

     It is hereby ORDERED that the order insofar as appealed from is
unanimously reversed on the law without costs, the motion is denied in
part and the complaint against defendant Chevron U.S.A., Inc. is
reinstated with respect to the claims under the Navigation Law.

     Memorandum: Plaintiff commenced this action seeking to recover
the costs of its remediation of subsurface oil and gasoline
contamination discovered prior to its purchase of the subject
property, asserting statutory and common-law causes of action.
Plaintiff purchased the subject property in April 2003 and shortly
thereafter conveyed the property to a nonparty, and the remediation
occurred during plaintiff’s ownership of the property. Chevron
U.S.A., Inc. (defendant) subsequently moved for summary judgment
dismissing the complaint against it, as the successor to Gulf Oil
Corporation (Gulf), which was the owner of two underground storage
tanks installed on the property in 1970. Defendant contends that
there was no proof that it or Gulf, as its predecessor in interest,
was a discharger of petroleum products during their ownership of the
property.

     We note at the outset that plaintiff has addressed only its
claims under the Navigation Law against defendant on appeal, and thus
is deemed to have abandoned its other claims against defendant (see
Popolizio v City of Schenectady, 269 AD2d 670, 671; see generally
Ciesinski v Town of Aurora, 202 AD2d 984, 984). We agree with
                                 -2-                          768
                                                        CA 11-02518

plaintiff that Supreme Court erred in granting defendant’s motion with
respect to the Navigation claims. With respect to the Navigation Law
§ 181 (5) claim against defendant, the elements of such a claim are
that the defendant caused or contributed to a discharge of petroleum
and that no discharge occurred during the period in which plaintiff
owned the property (see 1093 Group, LLC v Canale, 72 AD3d 1561, 1562).
Here, defendant had the initial burden of establishing that it did not
cause or contribute to the contamination of the property (see Nappi v
Holub, 79 AD3d 1110, 1112-1113). We conclude that defendant failed to
meet its burden by merely asserting that plaintiff had “no evidence”
that defendant was a discharger. It is well settled that defendant
cannot establish its entitlement to judgment as a matter of law simply
by pointing to gaps in plaintiff’s proof (see Baity v General Elec.
Co., 86 AD3d 948, 950; Orcutt v American Linen Supply Co., 212 AD2d
979, 980). The remaining Navigation Law claim against defendant seeks
contribution “from any responsible party” (§ 176 [8]), and we likewise
conclude that defendant failed to meet its initial burden of
establishing that it was not a responsible party under that section.




Entered:   June 8, 2012                        Frances E. Cafarell
                                               Clerk of the Court
