Nonnon v. City of New York

88 A.D.3d 384, 932 N.Y.2d 428
CourtAppellate Division of the Supreme Court of the State of New York
DecidedSeptember 15, 2011
StatusPublished
Cited by11 cases

This text of 88 A.D.3d 384 (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, 88 A.D.3d 384, 932 N.Y.2d 428 (N.Y. Ct. App. 2011).

Opinion

OPINION OF THE COURT

Manzanet-Daniels, J.

These consolidated actions are for personal injuries and wrongful deaths allegedly arising from plaintiffs’ exposure to hazardous substances emanating from the Pelham Bay landfill in the Bronx. On a previous appeal, affirming the denial of defendants’ motions to dismiss, inter alia, for failure to state a cause of action, we determined that plaintiffs’ expert evidence did not require that a hearing be held in accordance with Frye v United States (293 F 1013 [DC Cir 1923]) (32 AD3d 91, 103-108 [2006], affd 9 NY3d 825 [2007] [“Nonnon I”]), ruling that “neither the deductions of the expert epidemiologists and toxicologists, nor the methodologies employed by them, in reaching their conclusions [are] premised on the type of ‘novel science’ implicating the concerns articulated in Frye” (Nonnon I, 32 AD3d at 103). Defendants now move for summary judgment in all nine actions, asserting that the evidence fails to show an increased cancer incidence caused by hazardous chemicals emanating from the landfill. We disagree, and affirm the order appealed from.

The now inactive 81-acre Pelham Bay landfill is owned by the City and was operated by the Department of Sanitation (DOS) beginning in 1963 for the disposal of 2,600 tons of municipal solid waste per day. Over the years, surrounding residents complained about odors and the improper and illegal dumping of hazardous materials and industrial waste from corporations in the area. The landfill was ordered to close on December 31, 1978.

In March of 1985, the City commenced an action under the federal Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 USC, ch 103, § 9601 et seq.) against 15 corporate defendants. The City claimed that the corporations had illegally disposed of industrial and chemical [387]*387waste containing hazardous substances at the landfill, contaminating the groundwater and threatening drinking water supplies. As a result of the suit, the City was awarded millions of dollars for the costs incurred in remediating the site and for natural resource damages (see City of New York v Exxon Corp., 766 F Supp 177, 197, 200 [SD NY 1991]). In 1983, the landfill was classified as an “inactive hazardous waste site,” which means that a significant threat to the public health or environment exists, and that action is required (Nonnon I, 32 AD3d at 93).

In 1985, DOS signed a consent decree with the State Department of Environmental Conservation (DEC), in which it admitted that it had allowed hazardous waste to be illegally disposed at the landfill while it was in operation, and that it had allowed leachate to enter the surface and ground waters in violation of state and federal standards (Nonnon I, 32 AD3d at 94; see New York Coastal Fishermen’s Assn. v New York City Dept. of Sanitation, 772 F Supp 162, 163 [SD NY 1991]). DOS did not comply with the 1985 decree, as a result of which, in April 1990, DOS and DEC entered into a second consent decree, requiring completion of a remedial plan for cleanup of the landfill by 1995 (Nonnon I, 32 AD3d at 94).

Between 1991 and 1993, nine separate actions were brought against the City by residents of the neighborhoods closest to the landfill (Nonnon I, 32 AD3d at 94). In these actions, plaintiffs, children and adults and their families or executors, allege that extended exposure to hazardous substances emanating from the landfill caused the development of either acute lymphoid leukemia (ALL) or Hodgkin’s disease (id.).1

On September 29, 2000, the City moved to dismiss the nine actions for failure state a cause of action, asserting, inter alia, that plaintiffs had failed to allege or establish a viable causal connection between the landfill and their injuries (Nonnon I, 32 AD3d at 95-96).

The motion court rejected the City’s argument that the claims should be dismissed for failure to state a cause of action. The court found that the City’s citation of reports pertaining to the Fresh Kills landfill, located on Staten Island, had no applicability to the case at bar, and that the City had offered no other evidence in support of its assertion that plaintiffs had failed to as[388]*388sert a causal connection between the landfill and their injuries. The court thus denied the City’s motion (Nonnon I, 1 Misc 3d 897, 898-900 [2003]).

This Court affirmed, rejecting the City’s argument that the scientific methodologies employed by plaintiffs’ experts were insufficient to establish that plaintiffs’ cancers were caused by exposure to substances emanating from the landfill (Nonnon I, 32 AD3d at 103-108).

After this Court granted leave to appeal, the Court of Appeals affirmed on the ground that the City’s motion had never been converted to one for summary judgment and plaintiffs, therefore, “were not put on notice of their obligation to make a complete record and to come forward with any evidence that could possibly be considered” (Nonnon I, 9 NY3d at 827). Noting that plaintiffs “suggest that due to the equivocal procedural posture of this case, they have not had the opportunity to submit all of their evidence relevant to a determination of causation,” the Court of Appeals held that the City is “not now entitled” to dismissal of plaintiffs’ complaints for failure to state a cause of action (id.).

On or about October 12, 2007, the City filed a motion for summary judgment.2 Among other things, the City relied on a July 21, 2000 Department of Health (DOH) Public Health Assessment and a June 1, 1993 Woodward-Clyde Baseline Risk Assessment pertaining to the landfill. The 2000 report discussed potential contaminant exposure pathways and the results of two epidemiological studies conducted by DOH’s Environmental Epidemiology Unit, a 1988 study of childhood leukemia and a 1994 DOH cancer incidence study. The 1988 study, a statistical comparison of the incidence of childhood leukemia among children in Bronx districts 4 and 6 during the period from 1974 through 1985, as compared to New York City as a whole, found “scant evidence” of an increased incidence of childhood leuke[389]*389mia in the community adjacent to the landfill.3 The 1994 DOH study contained the following statistically elevated findings: the annual incidence of lung cancer in women; the cumulative incidence of colon cancer and leukemias in men; and the cumulative incidence of kidney cancer among residents living closer to the cancer than further away. The authors of the study determined, however, that these findings did not present a pattern consistent with potential exposures from the landfill. While acknowledging that “one of the most well documented chemical exposures associated with leukemia is benzene,” the authors concluded that there was no evidence of cancer patterns consistent with exposure to the landfill, and that exposure levels were likely too low to result in a detectable increase in cancer rates.

The 1993 Woodward-Clyde report discussed exposure pathways and noted that for area residents, both adults and children, the potential carcinogenic risks posed by inhalation of volatile organic compounds (VOCs) were below the risk level considered negligible by the Environmental Protection Agency (EPA) in setting cleanup goals under Superfund.

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Bluebook (online)
88 A.D.3d 384, 932 N.Y.2d 428, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nonnon-v-city-of-new-york-nyappdiv-2011.