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20-3749-cv

Salerno v. City of Niagara Falls

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 6th day of October, two thousand twenty-one.

PRESENT: JOSÉ A. CABRANES,

ROSEMARY S. POOLER,

JOSEPH F. BIANCO,

Circuit Judges.

DOLLY SALERNO, individually and on behalf of all others 

similarly situated, DIANE AMANTIA, individually and on 

behalf of all others similarly situated,

Plaintiffs-Appellants, 20-3749-cv

ROBERT SALERNO, individually and on behalf of all others 

similarly situated, 

Plaintiff, 

v.

CITY OF NIAGARA FALLS, NIAGARA FALLS WATER 

BOARD, GLENN SPRINGS HOLDINGS, INC., GHD

SERVICES, INC., individually and as successor in 

interest to Conestoga Rovers & Associates, MILLER 

SPRINGS REMEDIATION MANAGEMENT, INC.,

SEVENSON ENVIRONMENTAL SERVICES, INC., DAVID 

GROSS CONTRACTING CORP., NRC NY

ENVIRONMENTAL SERVICES, INC., individually and as 

successor in interest to OP-Tech Environmental 
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Services, ROY’S PLUMBING, INC., SCOTT LAWN YARD,

INC., OCCIDENTAL CHEMICAL CORPORATION, 

individually and as successor in interest to Hooker 

Chemical and Plastics Corporation,

Defendants-Appellees,

GROSS PHC LLC, individually and as successor in interest 

to David Gross Contracting Corp and/or Gross 

Plumbing and Heating Co., Inc., GROSS PLUMBING AND 

HEATING CO., INC., OCCIDENTAL PETROLEUM 

CORPORATION, individually and as successor in interest 

to Hooker Chemical and Plastics Corporation, 

Defendants.

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FOR PLAINTIFFS-APPELLANTS: LILIA FACTOR (Paul J. Napoli and Louise 

Caro, on the brief), Napoli Shkolnik PLLC, 

Melville, NY.

FOR DEFENDANTS-APPELLEES: KEVIN M. HOGAN (Joel Blanchet, 

Andrew P. Devine, Joshua Glasgow, on the 

brief), Philips Lytle LLP, Buffalo, NY,

(Sheila L. Birnbaum, Douglas E. Fleming 

III, Lincoln Davis Wilson, Dechert LLP, 

New York, NY, on the brief), for Occidental 

Chemical Corporation, Glenn Springs Holdings, 

Inc., and Miller Springs Remediation 

Management, Inc.

JEFFREY F. BAASE, (Cory J. Weber on the 

brief), Rupp Baase Pfalzgraf Cunningham 

LLC, Buffalo, NY, for Niagara Falls Water 

Board.

JEFFREY C. STRAVINO, Hodgson Russ 

LLP, Buffalo, NY, for GHD Services, Inc., 

individually and as successor in interest to 

Conestoga Rovers & Associates.

*

 The Clerk of the Court is directed to amend the caption as set forth above.
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ALICE J. CUNNINGHAM, The Knoer 

Group, PLLC, Buffalo, NY, for Roy’s 

Plumbing, Inc. 

Jeffrey D. Schulman, Pillinger Miller 

Tarallo LLP, Syracuse, NY, for NRC NY 

Environmental Services, Inc., individually and as 

successor in interest to OP-Tech Environmental 

Services.

Brian Sutter, Sugarman Law Firm, LLP, 

Buffalo, NY, for Scott Lawn Yard, Inc.

Agnieszka Wilewicz, Hurwitz & Fine, 

P.C., Buffalo, NY, for Sevenson 

Environmental Services, Inc.

Mark P. Della Posta, Walsh Roberts & 

Grace LLP, Buffalo, NY, for City of 

Niagara Falls.

Appeal from an order and judgment of the United States District Court for the Western

District of New York (William K. Sessions III, Judge).

UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, 

ADJUDGED, AND DECREED that the order and judgment of the District Court be and hereby 

is AFFIRMED.

Plaintiffs allege that they were injured by toxic chemicals that migrated to their property 

from the Love Canal Site.1 Specifically, Dolly Salerno alleges adverse health symptoms, increased 

cancer risk, and diminished property value, and Diane Amantia alleges increased cancer risk, 

diminished property value, and loss of the companionship of her husband, who died of a fastgrowing brain tumor. The District Court (Sessions, Judge) granted Defendants’ motion to dismiss, 

finding that Plaintiffs’ state common law claims were preempted by the Comprehensive 

Environmental Response, Compensation, and Liability Act (“CERCLA”), and that Plaintiffs failed 

to state a claim. We assume the parties’ familiarity with the underlying facts, the procedural history 

of the case, and the issues on appeal. 

We review de novo a district court’s grant of a motion to dismiss for failure to state a claim on 

which relief can be granted, “accepting all factual allegations in the complaint as true and drawing all 

1 For background on the Love Canal Site, see United States v. Hooker Chems. & Plastics Corp., 850 

F. Supp. 993 (W.D.N.Y. 1994).
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reasonable inferences in favor of the plaintiff.” Caro v. Weintraub, 618 F.3d 94, 97 (2d Cir. 2010). 

We may consider documents “attached to the complaint” or “incorporated into [it] by reference,”

ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007), and “where a conclusory 

allegation in the complaint is contradicted by a document attached to the complaint, the document 

controls and the allegation is not accepted as true,” Amidax Trading Grp. v. S.W.I.F.T. SCRL, 671 

F.3d 140, 147 (2d Cir. 2011) (per curiam). “To survive a motion to dismiss, a complaint must 

contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its 

face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 

(2007)).

Dividing Plaintiffs’ allegations into two categories, we find that neither makes out a plausible 

claim for relief. First, Plaintiffs allege that Defendants failed to adequately remediate, monitor, and 

maintain the Love Canal Site. These claims are “conclusory,”2 and they are “contradicted by . . .

document[s] attached to the complaint,” Amidax, 671 F.3d at 147—namely, multiple EPA reports 

indicating that Love Canal contamination is adequately controlled and no further remedial action is 

needed, see, e.g., 69 Fed. Reg. 12,608, 12,611 (2004) (“EPA . . . has determined that all appropriate 

response actions . . . have been implemented at the Site . . . .”). As a result, “the document[s]

control[ ] and the allegation is not accepted as true.” Amidax, 671 F.3d at 147; see also Bartlett v. 

Honeywell Int’l Inc., 737 F. App’x 543, 550–51 (2d Cir. 2018) (summary order) (reaching a similar 

conclusion). The 2011 release within the Colvin Boulevard sanitary sewer does not change the 

outcome, as the EPA concluded that this release “was not the result of recent migration from the 

[Love Canal] Site nor was it the result of a failure of the containment remedy.” App’x 3484.

Second, Plaintiffs allege that Defendants engaged in specific misconduct, including dumping 

toxic waste, leaving inactive sewer channels in place, installing bypass pumps that vaporized or 

vented toxins into the air, and authorizing or using a toxin-disbursing jetting device to clean roads 

and sewers. Plaintiffs fail to adequately link this misconduct to their alleged injuries. For example, 

Plaintiffs do not allege the location of the inactive sewer channels, bypass pumps, or jetting with 

respect to their properties. Further, while Plaintiffs allege that some of the pollutants at their 

properties were found at levels exceeding health and safety standards, they do not specify which 

ones or explain how these chemicals caused their alleged injuries. Thus, Plaintiffs’ alleged facts are 

“merely consistent with” their claim, and “stop[] short of the line between possibility and plausibility 

of ‘entitlement to relief.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557). 

2 See, e.g., App’x 2468 (the City of Niagara Falls failed “to properly maintain and operate the 

water and sewer facilities”), 2469 (the Niagara Falls Water Board failed “to adequately inspect the 

storm water and sewer facilities”), 2471 (alleging, by Occidental Chemical Corporation, “tortious 

conduct in connection with the initial remediation” and “ongoing maintenance, monitoring, and/or 

oversight”).
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We have reviewed all of the arguments raised by Plaintiffs on appeal and find in them no 

basis for reversal.

3 For the foregoing reasons, we AFFIRM the September 30, 2020 order and 

December 11, 2020 judgment of the District Court.4

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk

3 We emphasize that nothing in our holding today precludes Plaintiffs from presenting any 

information regarding pollutants on their property to federal and/or state regulatory authorities in 

an effort to have them determine whether any investigation or remediation is warranted.

4 We need not reach the issue of whether Plaintiffs’ claims are preempted.