These consolidated actions are for personal injury and wrongful deaths allegedly arising from plaintiffs’ exposure to hazardous substances emanating from the Pelham Bay landfill in the Bronx. On a previous appeal, affirming the denial of defendants’ motions to dismiss, inter alia, for failure to state a cause of action, we determined that plaintiffs’ expert evidence did not require that a hearing be held in accordance with Frye v. United States, ruling that neither the deductions of the expert epidemiologists and toxicologists, nor the methodologies employed by them, in reaching their conclusions are premised on the type of novel science implicating the concerns articulated in Frye. Defendants now move for summary judgment in all nine actions, asserting that the evidence fails to show an increased cancer incidence caused by hazardous chemicals emanating from the landfill. We disagree, and affirm the order appealed from.
The now inactive 81–acre Pelham Bay landfill is owned by the City and was operated by the Department of Sanitation (DOS) beginning in 1963 for the disposal of 2,600 tons of municipal solid waste per day. Over the years, surrounding residents complained about odors and the improper and illegal dumping of hazardous materials and industrial waste from corporations in the area. The landfill was ordered to close on December 31, 1978.
In March of 1985, the City commenced an action under the federal Comprehensive Environmental Response, Compensation, and Liability Act of 1980 against 15 corporate defendants. The City claimed that the corporations had illegally disposed of industrial and chemical waste containing hazardous substances at the landfill, contaminating the groundwater and threatening drinking water supplies. As a result of the suit, the City was awarded millions of dollars for the costs incurred in remediating the site and for natural resource injury damages. In 1983, the landfill was classified as an inactive hazardous waste site, which means that a significant threat to the public health or environment exists, and that action is required.
In 1985, the DOS signed a consent decree with the State Department of Environmental Conservation (DEC), in which it admitted that it had allowed hazardous waste to be illegally disposed at the landfill while it was in operation, and that it had allowed leachate to enter the surface and ground waters in violation of state and federal standards. DOS did not comply with the 1985 decree, as a result of which, in April 1990, DOS and DEC entered into a second consent decree, requiring completion of a remedial plan for cleanup of the landfill by 1995.
Between 1991 and 1993, nine separate actions were brought against the City by residents of the neighborhoods closest to the landfill. In these actions, plaintiffs, children and adults and their families or executors, allege that extended exposure to hazardous substances emanating from the landfill caused the development of either acute lymphoid leukemia (ALL) or Hodgkin’s disease.
On September 29, 2000, the City moved to dismiss the nine actions for failure state a cause of action, asserting, inter alia, that plaintiffs had failed to allege or establish a viable causal connection between the landfill and their injury.
The motion court rejected the City’s argument that the claims should be dismissed for failure to state a cause of action. The court found that the City’s citation of reports pertaining to the Fresh Kills landfill, located on Staten Island, had no applicability to the case at bar, and that the City had offered no other evidence in support of its assertion that plaintiffs had failed to assert a causal connection between the landfill and their injury. The court thus denied the City’s motion.
To Be Cont…
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