Nonnon v. City of New York

32 A.D.3d 91, 819 N.Y.S.2d 705
CourtAppellate Division of the Supreme Court of the State of New York
DecidedJune 6, 2006
StatusPublished
Cited by28 cases

This text of 32 A.D.3d 91 (Nonnon v. City of New York) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nonnon v. City of New York, 32 A.D.3d 91, 819 N.Y.S.2d 705 (N.Y. Ct. App. 2006).

Opinions

OPINION OF THE COURT

Mazzarelli, J.P.

In this toxic tort litigation concerning the Pelham Bay landfill, we hold that the reports and findings of the expert epidemiologists and toxicologists satisfy the standard employed in Frye v United States (293 F 1013 [DC Cir 1923]), that of general accep[93]*93tance in the scientific community. To hold otherwise would deny redress to these plaintiffs, who are living in an area where they are being systemically poisoned by environmental contaminants, and who have presented sufficient evidence to sustain their burden on summary judgment.

The now inactive 81-acre landfill is owned by the City of New York and was operated by the Department of Sanitation from approximately 1963 until 1979. During that time, it was used to dispose of 2,600 tons of solid waste per day. Over the years, residents made complaints about a number of problems at the landfill, including the improper dumping of hazardous materials, odor emanating from the site, and a yellow mist floating through the air. Residents also claimed that the landfill was illegally receiving industrial wastes, including oil, and carcinogenic liquid and solid wastes from corporations in the area.

There has been much litigation concerning this landfill. In March of 1985, the City commenced an action under the federal Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) against 15 corporate defendants. The City claimed that the corporations had illegally disposed of industrial and chemical waste, containing “hazardous substances” within the meaning of CERCLA, at Pelham Bay, and four other landfills. It asserted that the groundwater had become contaminated, was leaching1 into the surface waters around the landfills, including Jamaica Bay, Eastchester Bay, and Richmond Creek, and was threatening aquifers which are present or potential sources of drinking water for the City’s residents. The City sought recovery of the costs it had incurred in attempting to rid the area of toxins, and damages for injury to natural resources which were affected by pollutants (see City of New York v Exxon Corp., 633 F Supp 609 [SD NY 1986]; 697 F Supp 677 [SD NY 1988]; 744 F Supp 474 [SD NY 1990]). As a result of that suit, the City was awarded millions of dollars (see 766 F Supp 177, 197 [SD NY 1991]). In 1983, the Pelham Bay landfill was classified as an “inactive hazardous waste site” by the New York State Department of Environmental Conservation. This classification means that a significant threat to the public health or environment exists, and that action is required.

Thereafter, in 1985, in response to complaints about dangerous leachate streams and ponds by individuals living in the [94]*94vicinity of the landfill, the City Department of Sanitation (DOS) signed a consent decree with the State Department of Environmental Conservation (DEC). It admitted that it had allowed leachate to enter the surface and groundwaters in violation of state and federal standards, and that it had allowed hazardous waste to be illegally disposed at Pelham Bay while it was in operation (see New York Coastal Fishermen’s Assn. v New York City Dept. of Sanitation, 772 F Supp 162, 163 [SD NY 1991]). The 1985 consent decree required DOS to submit temporary and permanent leachate management plans to the DEC. However, DOS did not comply with the 1985 decree and, as a result, in April 1990 DOS and DEC entered into a second consent decree. This required completion of a remedial plan for cleanup of the Pelham Bay landfill by 1995.

During this time, it became public that hazardous waste was being dumped in this highly populated area. As a result, starting in the early 1980s, local citizens formed an organization called the Pelham Bay Task Force, and an adjunct Scientific Advisory Committee (SAC). The purposes of SAC and the Task Force were to put pressure on the City to evaluate the effect of the hazardous landfill on their community.

PROCEDURAL HISTORY

This appeal concerns nine lawsuits brought against the City between 1991 and 1993 by residents of the Bronx neighborhoods closest to the landfill. Those neighborhoods include: Country Club, Pelham Bay, Spencer Estates, and City Island. In these actions, plaintiffs allege that extended exposure to hazardous substances emanating from the landfill caused the development of either acute lymphoid leukemia or Hodgkin’s disease. The actions were commenced separately, and subsequently consolidated for purposes of the City’s motion to dismiss. They include: (1) Nonnon v City of New York;2 (2) Simp[95]*95son v City of New York;3 (3) Irizarry v City of New York;4 (4) Carollo v City of New York;5 (5) Walsh v City of New York;6 (6) Arisio v City of New York;7 (7) Parmigiano v City of New York;8 (8) Phillips v City of New York;9 and (9) Nessen v City of New York.10 There were 29 plaintiffs in the original nine actions. All claim that the City’s negligence in subjecting them to extended exposure to dangerous levels of carcinogens has proximately caused them injury and/or death.

The City moved to dismiss the claims of 1311 plaintiffs as time-barred, and it sought to dismiss all nine actions for failure [96]*96to state a cause of action. It was the City’s position that plaintiffs failed to allege a viable causal connection between the city landfill and plaintiffs’ cancer. In support of the argument that all of the actions should be dismissed, the City submitted a 1988 study conducted by its Department of Health, specifically the Environmental Epidemiology Unit, within the Division of Community and Occupational Health. The study, entitled “An Evaluation of Childhood Leukemia in the Pelham Bay Area of the Bronx,” was prompted by residents’ concern that the Pelham Bay landfill may have caused elevated disease rates in the surrounding population. The study analyzed all types of leukemia in the Pelham Bay area, as reported to the New York State Cancer Registry from 1974 to 1985. That study concluded that there was no evidence of an increased incidence of childhood leukemia during this period as compared to the incidence rates of childhood leukemias in the rest of the city.

Also submitted by the City was a second Department of Health study conducted in 1994, and an addendum to that report dated 1996. The second study, which was based upon cancer cases reported to the State Department of Health Cancer Registry from 1978 to 1987, examined rates for all types of cancer combined and for 13 specific types of cancer in adults and three types of cancer in children. The City’s 1994 study found that for the diseases it studied in both adults and children in the Pelham Bay area cancer rates generally were consistent with such rates for the rest of the city.

The City also proffered an October 5, 1994 affidavit of Dr. Richard Neugebauer, an epidemiologist. Dr.

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Bluebook (online)
32 A.D.3d 91, 819 N.Y.S.2d 705, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nonnon-v-city-of-new-york-nyappdiv-2006.