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Follow on Google News | New York Navigation Law UpdateNew York’s Navigation Law deals with oil spills, who must clean them up, and who must pay for the damage. Some recent court decisions are of interest.
Benjamin v. Keyspan Corp., 104 A.D.3d 891 (2d Dept. 2013). The normal statute of limitations for a claim of damage to property from petroleum contamination is three years from when the property owner knew or should have known of the problem. In this case, defendant Keyspan showed that the plaintiff had agreed to the installation of monitoring wells on his property, had participated in a survey regarding possible contamination in the area, and was notified of monitoring and testing results in the vicinity of the property at least eight years before the plaintiff filed suit. Thus, the action was dismissed as time-barred. This decision from the Appellate Division, which has jurisdiction over Nassau, Suffolk, Staten Island, Brooklyn, Queens, Westchester, Dutchess, Rockland, Orange and Putnam Counties, underscores the importance of timely action by a property owner who knows or reasonably suspects that his property has been contaminated. State of New York v. Zurich American Insurance Co., 106 A.D.3d 1222 (3d Dept., 2013). The Navigation Law allows any injured party to recover damages, not only from the “discharger”, but also from that person’ The Appellate Division disagreed. It pointed out that the State had not been a party to the earlier lawsuit and was therefore not bound by that court’ Thus, if there is a dispute over policy coverage of a petroleum spill, the insurance carrier should add as a party to any lawsuit the injured party who may have incurred costs as a result of the discharge. That will create “collateral estoppel” State of New York v. C. J. Burth Services, Inc., 39 Misc. 3d 1221(A) (Sup. Ct. Albany Co. 2013). Anyone who violated the Navigation Law may be subject to penalties of up to $25,000 per day, with each day of a continuing violation counting as a new offense. In this case, the State asked the court to impose these penalties on the owners of a gas station, even though the latter claimed that they did not cause any spill and that the contamination had occurred years earlier before they had purchased the property. The State’ The important lesson to be learned from this case is that the net of Navigation Law liability can ensnare not only the person who causes a spill and his/her insurance company, but also a subsequent owner who discovers the contamination and does nothing to address it. To avoid heavy penalties, the innocent owner may consider applying to the Brownfields Program as a “volunteer”. This status allows the owner to limit the cleanup to the boundaries of the property without requiring him or her to investigate and remediate the off-site contaminant plume. For experienced and knowledgeable environmental law and litigation counsel, call us today at 631-493-9800, or contact us online to schedule your consultation. Law Office of Frederick Eisenbud 6165 Jericho Turnpike Commack, NY 11725-2803 www.LI-EnviroLaw.com End
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