Slowinski Atkins, LLP obtains dismissal of $1.4 million cleanup claim on eve of trial for Chevron U.S.A. Inc. and Getty Oil Company as sanction for spoliation of evidence

Feb 18, 2019 | SA News

Slowinski Atkins, LLP obtains dismissal of $1.4 million cleanup claim on eve of trial for Chevron U.S.A. Inc. and Getty Oil Company as sanction for spoliation of evidence.

White Plains, NY – Slowinski Atkins, LLP obtained a dismissal in favor of Chevron U.S.A. Inc. and Getty Oil Company of a commercial property owner’s $1.4 million damage claim under the Navigation Law for alleged contamination to property in Yonkers resulting from former gasoline service station operations.

The case was scheduled to go to trial on April 29, 2019 when Judge Linda S. Jamieson in the Supreme Court, Westchester County, dismissed the action as a sanction for spoliation of evidence after plaintiff’s environmental consultant inspected the underground storage tanks at the property and determined they were riddled with numerous holes and made from insufficiently secure steel but then recycled the tanks immediately upon removal, thereby denying Chevron and Getty the opportunity to conduct their own inspection.

Plaintiff alleged that Chevron and Getty were the owners of four 3,000 gallon USTs that had been abandoned on the property in 1984 and that the service station had been converted to a deli and the asphalt resurfaced, covering the USTs, which were unknown to plaintiff who acquired the property in foreclosure in 1991. Plaintiff claimed that it was an innocent owner singled out by the New York State Department of Environmental Conservation for the remediation costs after the USTs were discovered in 2012, whereupon plaintiff filed an action against Chevron and Getty under the Navigation Law to recover the costs.

After denying Chevron’s and Getty’s motion for summary judgment based on spoliation in a June 6, 2018 decision, the Court granted a motion for reargument in a decision filed on January 18, 2019 just three months before it was scheduled for trial. The Court reconsidered the defendants’ contention that they were severely prejudiced by not being able to inspect the USTs and instead having to rely upon the plaintiff’s inspection and “having reviewed the case law on the topic, the Court is persuaded by movants’ argument.” The Court held that the spoliation sanction of dismissal is appropriate “where a litigant, intentionally or negligently, disposes of crucial items of evidence… before the adversary has an opportunity to inspect them”, and that the spoliator may be punished by striking of the pleading. Accordingly, the Court dismissed Chevron and Getty from the action. Dagro Associates II, LLC v. Chevron U.S.A. Inc. and Getty Oil Company (Sup. Ct., Westchester Cty., Index No. 59531/2015).

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