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14-1702-cv 

State of NY v. Adamowicz et al.

UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT 

SUMMARY ORDER 

Rulings by summary order do not have precedential effect. Citation to a summary order filed on or 

after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and 

this court’s Local Rule 32.1.1. When citing a summary order in a document filed with this court, a 

party must cite either the Federal Appendix or an electronic database (with the notation “summary 

order”). A party citing a summary order must serve a copy of it on any party not represented by 

counsel. 

At a stated term of the United States Court of Appeals for the Second Circuit, held at the 

Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 23rd

day of April, two thousand fifteen. 

PRESENT: 

 

GUIDO CALABRESI, 

JOSÉ A. CABRANES, 

CHRISTOPHER F. DRONEY, 

Circuit Judges. 

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STATE OF NEW YORK, 

 Plaintiff-Counter Defendant-Appellee,

 

 -v.- No. 14-1702-cv 

DEBORAH M. ADAMOWICZ, in her capacity as preliminary executor 

of the estate of Michael Adamowicz III, Ph.D. et al.,

Defendants-Cross Defendants-Counters Claimants-Appellants. 

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FOR APPELLANTS: RALPH A. HUMMEL, (Theodore W. Firetog, 

Farmingdale, NY, Robinson & Associates, 

P.C., Syosset, NY on the brief) Woodbury, NY. 

FOR APPELLEE: ANDREW W. AMEND (Barbara D. Underwood, 

Anisha S. Dasgupta, on the brief), Office of the 

Solicitor General, for Eric T. Schneiderman, 

Attorney General of the State of New York, 

New York, NY. 
 

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Appeal from a July 21, 2014 judgment of the United States District Court for the Eastern 

District of New York (Tucker L. Melançon, Judge, of the United States District Court for the 

Western District of Louisiana, sitting by designation). 

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 

AND DECREED that the July 21, 2014 judgment of the District Court is AFFIRMED. 

The State of New York filed suit against appellants, owners of a property on Long Island, as 

well as other defendants (collectively, the “defendants”) for recovery of its environmental cleanup 

costs under the Comprehensive Environmental Response, Compensation, and Liability Act 

(“CERCLA”), 42 U.S.C. § 9601 et seq. The District Court (Sandra L. Townes, Judge) granted summary 

judgment for the State on the issue of defendants’ liability but held that defendants were entitled to 

a trial regarding the State’s cleanup costs. Following a bench trial on damages, the District Court 

(Tucker L. Melançon, Judge) entered a final judgment ordering defendants to pay $6,731, 096.17 to 

the State for its response costs, as well as requiring them to cover the State’s future response costs 

associated with appellants’ property. 

On appeal, appellants contend that the District Court erred in concluding that there was no 

genuine factual dispute as it related to their statutory defense of third-party liability. We assume the 

parties’ familiarity with the underlying facts and the procedural history of the case. 

DISCUSSION 

We review a district court’s grant of summary judgment de novo, drawing all reasonable 

factual inferences in the non-moving party’s favor. Velazco v. Columbus Citizens Found., 778 F.3d 409, 

410 (2d Cir. 2015) (per curiam). 

Congress enacted CERCLA to create a “broad remedial statute designed to enhance the 

authority of the EPA to respond effectively and promptly to toxic pollutant spills that threatened the 

environment and human health.” B.F. Goodrich Co. v. Murtha, 958 F.2d 1192, 1197 (2d Cir. 1992). As 

CERCLA is a remedial statute, it must be “construed liberally to effectuate its two primary goals: (1) 

enabling the [Government] to respond efficiently and expeditiously to toxic spills, and (2) holding 

those parties responsible for the releases liable for the costs of the cleanup.” Id. at 1198. 
 

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In the case at hand, appellants do not dispute that their property falls within CERCLA’s 

domain, that their property was contaminated, that the financial costs incurred by the State to 

remediate that contamination qualified for reimbursement, or that the District Court properly 

calculated the amount of those costs. Appellants only challenge the District Court’s grant of 

summary judgment as it relates to their affirmative defense under 42 U.S.C. § 9607(b)(3). 

Section 9607(b)(3) sets forth a limited affirmative defense from liability under CERCLA. An 

otherwise liable defendant can seek shelter under this limited defense if he can establish that the 

release of a “hazardous substance and the damages resulting therefrom were caused solely by . . . an 

act or omission of a third party other than an employee or agent of the defendant, or than one 

whose act or omission occurs in connection with a contractual relationship, existing directly or 

indirectly, with the defendant.” 42 U.S.C. § 9607(b)(3). The defendant also must establish that “(a) he 

exercised due care with respect to the hazardous substance concerned . . . in light of all relevant 

facts and circumstances, and (b) he took precautions against foreseeable acts or omissions of any 

such third party and the consequences that could foreseeably result from such acts or omissions.” Id. 

Appellants’ main argument is that the contamination was caused not by their tenant, 

National Heatset Printing Corp. (“NH”), but by contractors removing NH’s printing presses. 

Importantly, appellants allege that this all occurred at a time when NH’s bankruptcy filing severed 

NH’s contractual relationship with the appellant. 

We agree with the District Court that appellants fail to meet their burden in establishing a 

genuine factual dispute as it relates to their affirmative defense. As an initial matter, vague assertions 

about the possibility that unidentified contractors caused the contamination does not create a triable 

issue. Moreover, even if we accept appellants’ unsubstantiated argument regarding the source of the 

contamination, it still falls short of establishing the last two elements required to raise an affirmative 

defense: that they demonstrated due care and took proper precautions. As to these, there was no 

genuine factual dispute that appellants had knowledge of NH’s operations and authority over and 

access to the property being contaminated. It thus cannot be said that appellants “took all 

precautions with respect to the particular waste that a similarly situated reasonable and prudent 

person would have taken in light of all relevant facts and circumstances.” N.Y. v. Lashins Arcade Co., 

91 F.3d 353, 361 (2d Cir. 1996) (internal quotation marks omitted). 
 

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CONCLUSION 

We have considered defendant’s remaining arguments and find them without merit. 

Accordingly, we AFFIRM the July 21, 2014 judgment of the District Court. 

FOR THE COURT, 

Catherine O’Hagan Wolfe, Clerk of Court