STATE OF NEW YORK,Respondent,vDEBORAH NORRY RONNEY, AlsoKnown as DEBORAH N.MEMORANDUM AND ORDERRONNEN, et al.,Defendants,andDR HOLDINGS LLC,Appellant.________________________________Calendar Date: June 6, 2018Before: Devine, J.P., Clark, Mulvey, Rumsey and Pritzker, JJ.__________Knauf Shaw LLP, Rochester (Alan J. Knauf of counsel), forappellant.Barbara D. Underwood, Attorney General, Albany (FrederickA. Brodie of counsel), for respondent.__________Clark, J.Appeal from an order of the Supreme Court (Melkonian, J.),entered January 30, 2017 in Albany County, which, among otherthings, denied a cross motion by defendant DR Holdings LLC forpartial summary judgment.In October 2014, plaintiff commenced this action pursuantto Navigation Law article 12 alleging that defendants — aspurported owners of a major oil storage facility on certain realproperty in the Town of Tonawanda, Erie County — were strictlyliable for petroleum cleanup and removal costs in the amount of$590,194.66, the total amount expended by the New YorkEnvironmental Protection and Spill Compensation Fund (hereinafterthe Spill Fund) and the Department of EnvironmentalConservation’s American Recovery and Reinvestment Act LeakingUnderground Storage Tank Fund (hereinafter the LeakingUnderground Storage Tank Fund) to remediate the alleged petroleumdischarges at the facility. As alleged by plaintiff, $369,002.66of the total remediation costs were paid with funds from theSpill Fund, while $221,192 came from the Leaking UndergroundStorage Tank Fund. Defendant DR Holdings LLC (hereinafterdefendant) and defendant Deborah Norry Ronnen joined issue andasserted cross claims against defendant Riverview IndustrialCenter, Inc., who ultimately defaulted.1 Following discovery,plaintiff moved for a protective order suppressing certaininadvertently disclosed information. Defendant opposed themotion and cross-moved for partial summary judgment, arguing thatplaintiff was not entitled to recover the $221,192 expended bythe Leaking Underground Storage Tank Fund because, havingreceived those funds by federal grant, any such award wouldconstitute a double recovery. Supreme Court, as relevant here,denied defendant’s cross motion, prompting this appeal.The Navigation Law prohibits the discharge of petroleum andrequires a discharger to immediately notify the Department ofEnvironmental Conservation (hereinafter DEC) of the discharge and“undertake to contain such discharge” (Navigation Law § 176 [1];see Navigation Law §§ 173 [1]; 175). Where a petroleum dischargehas occurred, DEC may retain agents and contractors to clean upand remove the contamination (see Navigation Law § 176 [1], [2][a]), with the cost of such cleanup efforts to be initially paidwith money from the Spill Fund (see Navigation Law § 180 [5])and/or the Leaking Underground Storage Tank Fund, which containsfederal appropriations earmarked for remediating petroleumdischarges (see Pub L No 111-5, 123 US Stat 115, 169; 42 USC §6991b [h] [2]). The owner or operator of a major oil storagefacility that discharges petroleum is “strictly liable, withoutregard to fault, subject to [certain defenses], for all cleanupand removal costs and all direct and indirect damages paid by the[Spill F]und” (Navigation Law § 181 [3] [a]). Plaintiff isrequired to seek recovery of “[c]osts incurred by the [SpillF]und in the cleanup and removal of a discharge when the[discharger] has failed to promptly clean up and remove thedischarge to the satisfaction of [DEC]” (Navigation Law § 187[1]). Plaintiff is also required to seek recovery of remediationcosts incurred by the Leaking Underground Storage Tank Fund (see42 USC § 6991b [h] [6]; US Envtl Protection Agency Directive No.9610.10a at 1-2, 5).By commencing this action, plaintiff fulfilled itsobligation to seek recovery of the $221,192 provided by theLeaking Underground Storage Tank Fund to pay for the costsassociated with cleaning and removing the alleged petroleumdischarges on defendant’s alleged property (see 42 USC § 6991b[h] [6]; US Envtl Protection Agency Directive No. 9610.10a at 1-2, 5). Although it is true that plaintiff received the $221,192by federal grant, defendant provides no support whatsoever forits illogical assertion that plaintiff’s recoupment of thosefunds would amount to a double recovery and, thus, plaintiff’sunjust enrichment. Rather, recovery of the disputed funds wouldmake plaintiff whole for the costs incurred in remediating thepetroleum contamination and replenish the Leaking UndergroundStorage Tank Fund so that the recovered funds could be used topay for other remediation work. Such replenishment is consistentwith the purpose of Navigation Law article 12, which seeks “toensure a clean environment and healthy economy for the state”(Navigation Law § 171). Additionally, as Supreme Court aptlyobserved, an order precluding plaintiff from recouping theLeaking Underground Storage Tank Fund expenditures simply becausethey were federally funded would result in the unjust enrichmentof defendant — an alleged discharger of petroleum. Indeed, theresult sought by defendant would grant a windfall to petroleumdischargers by providing petroleum cleanup and removal at areduced rate. Contrary to defendant’s contention, equitableprinciples do not support such a result (see generally MandarinTrading Ltd. v Wildenstein, 16 NY3d 173, 182 [2011]; Kunze vArito, Inc., 48 AD3d 272, 273-274 [2008]; Alpert v Shea GouldClimenko & Casey, 160 AD2d 67, 72 [1990]). Moreover, adetermination barring plaintiff from seeking to hold defendantstrictly liable for the disputed expenditures would thwart theplain language of Navigation Law § 181, as well as the expresspurposes of Navigation Law article 12 (see Navigation Law § 171)and the American Recovery and Reinvestment Act of 2009 (see Pub LNo 111-5, 123 US Stat 115, 115-116).Nor is plaintiff’s recovery of the disputed funds barred byNavigation Law § 193, which provides that “no person who receivescompensation for damages or cleanup and removal costs pursuant toany other state or federal law shall be permitted to receivecompensation for the same damages or cleanup and removal costsunder [Navigation Law article 12].” Although it is undisputedthat plaintiff received the $221,192 by federal appropriation,such appropriation cannot be reasonably interpreted as“compensation for damages or cleanup and removal costs,” ascontemplated by Navigation Law § 193 (see generally Majewski vBroadalbin-Perth Cent. School Dist., 91 NY2d 577, 583 [1998];Matter of Soriano v Elia, 155 AD3d 1496, 1498 [2017], lv denied___ NY3d ___ [June 27, 2018]). Rather, the federal fundsreceived by plaintiff under the American Recovery andReinvestment Act of 2009 and then deposited into the LeakingUnderground Storage Tank Fund merely provide plaintiff with thefinancial means to carry out its remedial obligations underNavigation Law article 12.We further find defendant’s Drinkwater doctrine argument tobe wholly without merit (see Applehead Pictures LLC v Perelman,80 AD3d 181, 191 [2010]). Defendant’s remaining arguments, tothe extent not expressly addressed herein, have been examined andfound to be similarly lacking in merit. Accordingly, becausedefendant failed to make a prima facie showing of entitlement topartial summary judgment reducing the amount of plaintiff’sclaimed damages, Supreme Court properly denied defendant’s crossmotion.Devine, J.P., Mulvey, Rumsey and Pritzker, JJ., concur.ORDERED that the order is affirmed, without costs.ENTER:Robert D. MaybergerClerk of the Court
