In a case that highlights the importance of careful pleading in toxic tort cases, a New York federal court revived a landowner’s nuisance claim related to gasoline contamination, to the extent the Plaintiff sought injunctive relief.  See Plumbing Supply, LLC v. ExxonMobil Oil Corp., 14-cv-3674 (S.D.N.Y. May 27, 2016).

Plaintiff owns a business located between two gasoline stations.  Each station has had several gasoline releases over the last 30 years, which Plaintiff alleges have caused soil and groundwater contamination and hydrocarbon vapor intrusion at Plaintiff’s business.  Remediation activities related to those spills revealed petroleum contamination on Plaintiff’s property as early as May 2008.  Plaintiff brought suit in 2014 against the owners of both stations, alleging among other things common-law negligence, trespass, and nuisance.  These claims are subject to a general three-year statute of limitations.  Defendants moved to dismiss, arguing that Plaintiff knew or should have known of the contamination in 2008.  In a March 2016 opinion, the Court agreed and dismissed the common law and statutory claims. 

Plaintiff moved for reconsideration of the Court’s dismissal of the nuisance claim insofar as Plaintiff sought injunctive relief.  Plaintiff argued that its nuisance claim was not time barred to the extent Plaintiff sought to abate a continuing nuisance.  The Court agreed and granted Plaintiff’s motion to reinstate the nuisance claim for injunctive relief.  It noted New York’s statute of limitations applies only to claims for monetary damages, and found Plaintiff’s complaint clearly alleges that “Defendants are liable, jointly and severally, to abate the nuisance at [Plaintiff’s] site.”  Slip op. at *3.