3/8/85); see also Dep. of Peter
Safran, 12/14/94, 40:23 to 41:16, attached as Ex. 6 to Silverman Certif.
This letter from Peter Safran, a New West employee, informed CECOS that
some hazardous items had not been removed from the property, including,
inter alia, four fifty-five gallon drums labeled "waste benzene," one of
which developed a leak, and a fifty-five gallon drum of sodium cyanide
with a loose top. See Silverman Certif., Ex. 20.
Braka testified that he was aware of both the age and the prior use of
the property when New West purchased it. See Braka Dep. I, 243:4-15.
Indeed, the potential environmental hazards on the Orange Street property
were no secret, as explained in New West's Complaint: "During the period
when Westinghouse owned and operated, and/or leased, the Orange Street
site, it employed, inter alia, various materials including diesel fuels,
solvents, degreasing materials, p[o]lychlorinated biphenyls (PCBs),
trichloroethelene, and other hazardous substances in its manufacturing
business at said property." Compl. ¶ 11, attached to Silverman
Certif. as Ex. 3.
Thus, the summary judgment record contains no genuine question of
material fact regarding whether New West had knowledge of environmental
hazards on the Orange Street property in late 1987. New West had six
years from that point in which to pursue a cause of action, but did not
do so. Accordingly, I shall grant Viacom's Motion for Partial Summary
Judgment on Counts Six through Nine*fn12 of the Complaint. Accord
Amland, 808 F. Supp. at 1193 (finding claims based on environmental
contamination time-barred as a matter of law and noting "[i]t is well
within the province of this court to deal with issues which are
potentially factual in nature.").
In Count Three of the Complaint, New West seeks indemnifi-cation as a
third-party beneficiary for its environmental clean-up costs directly
from Viacom's insurance carrier. See Compl. ¶¶ 35-37. New West has
agreed, however, "to dismiss Count Three of its Complaint without
prejudice to bring and renew such claim at a later time." Br. in Opp'n to
Mot. for Partial Summ. J. at 36. Viacom does not consent to dismissal of
this claim without prejudice, see Reply Br. in Further Supp. of Mot. for
Partial Summ. J., at n. 2, p. 3. Accordingly, this court shall grant
summary judgment on Count Three as unopposed on the merits, with
prejudice, pursuant to Fed.R.Civ.P. 56(e). When confronted with a properly
supported motion for summary judgment, New West cannot simply respond by
withdrawing its indemnification claims in an attempt to preserve the
merits of those claims for another day or for another forum. Id.; see
also Amland, 808 F. Supp. at 1196.
For the reasons stated above, I shall grant the Motion for Partial
Summary Judgment of Defendant, Viacom, Inc., on
Count Three and Counts
Six through Nine of the Complaint. The parties have stipulated to the
dismissal of Count Two with prejudice, and Count Four shall be dismissed
in accordance with Judge Walls' ruling in New West I, 909 F. Supp. at
228. The Court shall enter an appropriate form of Order.
This matter having come before the Court on the Motion of Defendant,
Viacom, Inc., for Partial Summary Judgment, pursuant to Fed.R.Civ.P. 56,
James Stewart, Esq., LOWENSTEIN SANDLER, P.C., and Mark D. Shepherd,
Esq. and Lisa G. Silverman, Esq., BABST, CALLAND, CLEMENTS AND ZOMNIR,
P.C., appearing on behalf of Defendant, Howard P. Davis, Esq., THE LAW
OFFICES OF HOWARD P. DAVIS, ESQ., and Marisa Y. Paradiso, Esq., THE LAW
OFFICES OF MARISA Y. PARADISO, appearing on behalf of Plaintiff, New West
Urban Renewal Co.; and,
The Court having considered the submissions of the parties, for the
reasons set forth in the OPINION filed concurrently with this ORDER;
IT IS, on this 18th day of November, 2002, hereby ORDERED that:
1. Counts Two and Four of New West's Complaint are DISMISSED with
2. Viacom's Motion for Partial Summary Judgment on Count Three and
Counts Six through Nine of the Complaint is GRANTED.