environmental contamination throughout the country at the heart of circle is a cost recovery mechanism that allows recovery through indemnification and contribution actions that are liberally construed to promote cleanups of the environment to encourage people to come forward and volunteer to clean up and to avoid years of protracted litigation forcing but i never done that has that count so now we have not your hon here we are fourteen years after the commencement this action fighting over whether or not the parties that contaminated the site have liability under circling the district court decisions below put a stake in the heart of  contribution rights of my client who is an innocent man on the board who voluntarily committed to clean up the environment who has been forced to litigate extensively to go after the people who created the contamination at the site at the core of this argument today is whether or not the decision in commander oil was properly interpreted interpreted by the court below commander allows a landlord to hold a tenant responsible as an owner under circ certain conditions of ownership are met respectfully submitted that you're not you're not happy with amanda oil i gather i'm sorry judge you're not happy with commando oil i am i'm not happy with the way it was applied but the polow i thought one of your points was that we should overall commander or there's a split in the circuits regarding command her own judge and i think that the ninth circuit in six circuit perhaps have it correct but i think the current controlling law on the circuit is commander oil and i think when you apply the facts of this case to commander oil there is really should be no doubt that viability should be had by the defendants as owners under the commander oil standard if you look at the five other theory you know it's there's a lot of cases judge where throughout the country we're control or attendance control the property where the put a subtenant in creates ownership liability under under the helps your side of the think what commander all saying it was a second circuit attempt to say judge that when a landlord gives up so many rights to a at a tenant but the tenant has basically stepped into the shoes of of the owner that tenant five factors the first being the term of the lease and the tenants in rights versus lenders right to use the property in this case spew that the term of the lease was twenty years versus a five year term in command looked at it i used to litigate about these things it's a blumberg form right four pages aren't attached to that is seventy pages of additions always riders to the blumberg form most commercial leases don't have a purchase option most commercial leases don't give the right to tenant to assign and to sublet a property without whim or consent or notice those are not standard provisions in a lease to your client acknowledge that this was a typical lease in the proceedings below no you're on more than one occasion you know now you know if we've acknowledged that the commander oil we've argued that the commander oil factors which was about to go through if you take all five of the factors that are numerated are clearly satisfies four and a half of those criteria in addition to the enumerated factors and see examples given by the second circuit and commander oil of a long lease was ninety nine year term right that's one of the examples yes ok and this was a twenty year term non renewa combination of the property and then if they exercise your option in the first six weeks it was also a term nation yeah that's sort of irrelevant the fact of the matter is in year i don't know nine or ten there was a fire and the landlord took back the property so it wasn't even a twenty year leases that worked out it was a nine or a ten year lease right and the point though is you're on i think the very important point is the least provides of the limo or just can't terminate the lease there needed to be an intervening event before terminations could take place in this case those intervening events were very limited what's the difference between it can't no tenant would sign a lease and put in the investment in a property and a triple net lease situation if the landlord could just willy nilly terminate the lease how does that differentiate this lease from any other lease there are circumstances when the landlord can terminate other wife the tenant is entitled to the quiet enjoyment of the property there are leases run of that provide that terminations may take effect in the landlord sells th leases that provide or not that's an intervening event right just like a fire or number of leases of the just provide the landlord right to terminate and there's a whole number of leases that provide the lender with no right to terminate which tends to be more akin to turning over the property to the tenant and having the tenant stand in the shoes of the landlord to use your language right but that's correct john there's when you go down the the facts so for half of them i believe fits squarely with what commander oil said and the th ree facts and also fit squarely on the benefit of the sublease one exclusively to the defendants in this case the plaintiffs my landlord plaintiff in this case did receive one penny of the additional benefit of the subleas defendants in this case received one hundred percent return on their investment in terms of the rent by subleasing that was to their benefit my client had no ability to consent or denied the sublet my client had no ability to supervise the activities that were being conducted by the subtenants question is whether the tenant is the de facto owner write a check that's exactly what command oil asks are there are a whole list of things that the tenant can't do or that it's required to do he can't alter the site without owner's consent can't cover the sidewalk limitations on posting signs  limitations on use of property that's a whole slew of limitations how does that how is it then that you can argue that the tenant is in essence the if you compare the limitations in the rights that were granted in the commander oil case versus to the rights of them attentions that were granted in this case it's starkly different for example in commander royal the landlord reserve the right to use the office space to to use parts of the property in this case it didn't happen to do reserve the right to inspect the property any time at who has the greater indicia of ownership this is a valuable lease northern state real estate what of that lease very badly and they sued next millennium or spiegel their predecessor and they lost and they had their lease was terminated then the lease required them to put in and pay premiums landlord collected the eight hundred eighty thousand dollars rebuilt that  i think making two and a half the insurance process after the for now making about two and a half million or so but your point is that is the best indication of ownership i would seem so i mean when you look at some of the other issues that has to be speak that difference in power the landlord can alienate the property the critical concept of title you can alienate the property any time they tenant northern state realty co could not it was always on the hook until the landlord either rejected them throughout but was also on the hook during the sublease and that was a condition on any subleasing the landlord didn't have to approve the subtenant but the tenant had to remain full only liable right  so what about the transfer tax point well the transfer tax point that comes up on the exchange of experts and it seems to me that the plaintiff may palance make the argument that because they had they had a interest in you know an option that that was something that would have that could trigger the transfer tax that was their argument some rebuttal to that and our position on that is you know you have an interest that you have a tax on an interest in property it's not just determinative of whether or not you have more in debt issue of ownership than the title of you know i'd like to just say a few things i s running time is running and i'd like to say a couple things about how this case comes together because there are some other issues and this is a case with one purpose to get into the coffers of the ad m corporation and and further and so that the appellants have invoked the well known rule that circle is intended amongst other things to make the polluter pay however there are two there are several limitations on that not the least of which is the very basic concept that adham corporation never manufactured anything at eighty nine frost read where the was released never use it did your client clients not settle with the state we settled with the state never sued us we were there one few parties that weren't sued and that's why we weren't before the court when the case was here before however when the state brought a natural resources defense case and we were we had a lot of third parties who were suing us we tried to bring ourselves within that umbrella and we settled for nuisance  and we had to really move to be a part of the case and so if you look at there are some arguments that that seem to fit within commander or oil one question is it was this appropriate and appropriate case for summary judgment or or should there have been a trial with the fact finer weighing the evidence on both sides both sides moved for s both sides moved for summary judgment on this on this issue and i think the facts are developed we have this thing police we have to expert reports from very credible experts that we put in their expert did not take on the central concept that this was a typical lease and the only evidence of there were some taxes between the experts on the two sides right well the there were some differences and the expert on the  now this is when we look at this case well this is a different case than what you've seen before it's not passed a law it's not you know it's not judge jan it's not your first energy case  it's not always all these cases that involve this massive pollution from the manufacture of gas plants where one individual members hobson and mangy they contract with service corporations to run to run the run the operation at the utility they're operating the utility now here there is zero proof zero zilch this is an ownership case and this if you are an owner there strict liability right out of a judge chin there is another issue here and that is that the plaintiffs want to pierce the corporate veil and they want to are they argue that there is a there essentially a single enterprise in the proof all brothers were direct were using and cam to operate lake and processing which is no proof i mean and you know and  there are several attempts to do that are a little bit of setting up for example on page fourteen of appellants opening brief they suggest that property was exchanged back and forth without consideration and they quote reorganized into a partnership really made no difference because the three stockholders became free partners but there's no i don't see any data were ad can which was had developed this business of manufacturing tape and the one one connection that had two connections partly at hand with lincoln processing was that its soul link and process saying some glue or some emotion b operation that from flo empire and all that's left of the profile empire maybe add camp but there it is judge that is i don't think i'm sidestepping that i'm i'm attacking it from processing into a shell and there's nothing like that here and there was you know and you know and presents you know say where were tired of their trial on this issue and they say here's the most telling point most telling point shell operators in the first twenty nine pages deal of that exhibit deals with accounting procedures and bookkeeping and lincoln processing that it looks and in that it says there's a real example of van bookkeeping here sells gugu or a motion to turn link and processing and they're doing it in a way where we think there's a better way to account for they were selling batches every month they would know them and they didn't have  voices well this case you know has ten years of discovery ten years in this government john proof or the nephew who ran abcam testified you know we sold you know i set the price after negotiations with the fat rest of the family and we used as a guide the price of our competitors so there's an arm's length transaction you know pallet says you know bad thing as we use combined financials we did use combining financials these were affiliated corp ford motor company i mean ok and so i passed on and the separate and there are separate financials for each of the philly corporation in and look at the property and the tenant could block the landlord from conducting an inspection why would that be a dispositive factor that would be a strong fit that would be a strong factor and that would be a very strong say you know when he when he starts to split this out very very careful to say when we look at when we look at when we look at this we really have to keep in mind what would be what would be factors that would tempt the other way and i think you have to look at those three examples that the that he gives ninety nine year lease sale leaseback and and a tenant prompts like you say charge exploit maybe exploiting his opportunity and freezing out the land i think my time is up and i would like to add just one thing on judge walker judge walker you know analyze the complaint heard the same complaint sniffing and there we circle of justify holding the landlord libel because he benefits from the property this tenet this landlord that if it immensely from the property and now tenant they put in a tenant who burned down the building with these massive amounts of contamination we're supposed to look at the relationship between the less sure in the less seen that's what this is and said mr resolve made an argument though that and you are the only one asian in a fit when you say they benefit in commander oil that's right that's what commander oil says but the benefit here in my circle says is you look to the parties that benefit and you hold them responsible in this case you only want to benefit from the subways were the defendants in this case and they benefited opinion he said that because it's not a forty nine year lease there is no transfer tax and that's dispositive on how this this should be treated in terms of the transfer their expert was wrong we pointed that out to him that a twenty five year you could buy a twenty year lease with no option how does new york tax law treat that when your lease with no option to rent or no option to buy is not a taxable event the option makes it a taxable event in terms of the transfer suit the laws in new york state at the releases given your honor it was a limited release given with respect to the fire and issues surrounding the fire circle it didn't even exist at the time that release was given it's not a foreseeable event it's a non event under the was the evidence just to piggyback on your adversaries argument there's causation and connection assume domination by well as the evidence of causation there's evidence in the record that lincoln processing installed a dry cleaning machine that used the contamination of concern at the site amounts of that contamination were released into the environment or at least missing from the ad i think that the causation is causation by  listen to judge how did add cam where is the evidence that ad cam caused lincoln to install the machine that you say is the polluting machine i don't think that there is a need to show ad cams causation there's a need to show causation and that they operated as a single we and we disagree with you as you answer that there is no evidence of that correct about cam's causation i don't disagree that point i don't think it's necessary but i don't disagree