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November 18, 2002


The opinion of the court was delivered by: Stephen M. Orlofsky, District Judge.



The law does not protect those who sleep on their rights. Here, Plaintiff, New West Urban Renewal Co. ("New West"), waited for at least seven years, and perhaps longer, before it sought damages for the environmental contamination of property that it purchased from Westinghouse, Inc. ("Westinghouse"), the predecessor-in-interest to the Defendant, Viacom, Inc. ("Viacom").*fn1 Viacom now moves for partial summary judgment on all but the First and Fifth*fn2 Counts of the Complaint based on the expiration of the statute of limitations. Whether these claims are time-barred depends on the applicability of New Jersey's "discovery rule," an equitable tolling doctrine. For the reasons discussed below, I find that the discovery rule does not toll New West's environmental contamination claims, which are barred by the six-year statute of limitations. Accordingly, Viacom's motion for partial summary judgment shall be granted.


The parties in this action are no strangers to litigation. In fact, New West and Westinghouse litigated the same property dispute in 1995, and Judge Walls, my esteemed colleague, issued an opinion deciding the parties' cross-motions for partial summary judgment, reported at New West Urban Renewal Co. v. Westinghouse Elec. Corp., 909 F. Supp. 219 (D.N.J. 1995) (hereafter, "New West"). Although New West I summarizes the facts at issue in this case, I will briefly review them here.

On December 29, 1983, Westinghouse sold New West property located at "Orange and High Streets, more particularly referred to as Block 47 Lot 40." Certif. of Marisa Y. Paradiso, Esq. in Opp'n to Summ. J., 9/11/02 ("Paradiso Certif."), Ex. 3. Westinghouse had used the property since the 1880's as a manufacturing facility. New West I, 909 F. Supp. at 221. After New West received title to the property, Westinghouse continued its occupancy for one year under the lease agreement. Id. During its lengthy occupancy of the property, Westinghouse had utilized various hazardous substances that were discharged and released into the soil and buildings at the property. Id. Westinghouse also kept hazardous materials in its underground storage tanks, which were released into the surrounding soils and buildings. Id.

On October 16, 1987, New West entered into an option contract with Newark Ventures, Inc. ("Newark Ventures") to purchase the Orange Street property. See Certif. of Lisa G. Silverman ("Silverman Certif."), 6/6/02, Ex. 8. This contract was never executed because Newark Ventures cancelled the contract by letter dated December 15, 1987. See id., Ex. 16. This cancellation was based on reports issued in 1987 by Accutech Environmental Services, Inc. ("Accutech") and PMK Engineering & Testing, Inc. ("PMK"), which "identif[ied] six areas of environmental concern," id., and gave certain minimum estimates for the cost of clean-up that approached $500,000. See id.; see also Exs. 12-14.

In 1992, New West conducted a preliminary environmental investigation of the property to evaluate potential development options. See New West I, 909 F. Supp. at 222. This investigation revealed the presence of unlawful environmental contaminants, such as PCB's, or polychlorinated biphenyls. See id. New West sent two demand letters to Westinghouse to provide indemnification for the costs to monitor, assess, evaluate and clean up the environmental contamination at the Property. Id. Westinghouse refused to do so. Id.

New West filed its original Complaint on March 9, 1994, and both parties moved for partial summary judgment. Judge Walls granted each party's motions as follows: (1) the Court rejected Westinghouse's argument that, under the "as is" clause of the contract of sale, New West had assumed liability for remedying the environmental contamination of the purchased property, New West I, 909 F. Supp at 224; (2) although New Jersey's Environmental Cleanup Responsibility Act ("ECRA"), N.J.S.A. §§ 13:1K-6, et seq., became effective as of December 31, 1983, after the closing date of the sale, Westinghouse was still liable because it continued to operate the property after the ECRA's effective date, see New West at 227; and (3) the Court found that New West's ECRA claim against Westinghouse was time-barred under the six-year statute of limitations, see id. at 228.*fn3

The parties entered into a Partial Settlement and Stay Agreement in 1996, and the action was administratively terminated without prejudice by Court Order dated March 11, 1996. See Silverman Certif., Exs. 2 and 19. Unable to reach an agreement, New West notified the Court in writing on September 1, 2000 that it was terminating the stay. See Ex. 2, at p. 2. The parties then entered into a Tolling Agreement, in which the parties agreed to dismiss all outstanding claims and counterclaims in the old case, Civ. A. No. 94-1033, and commence a new action by filing a new Complaint and obtaining a new docket number. See Silverman Certif., Ex. 2, ¶¶ 1-2. The Tolling Agreement also provided "that any and all applicable statute of limitations or other time bars (such as laches or the like) relevant to any claims they previously asserted . . . are . . . tolled for the period from the date the previous action was commenced (March 9, 1994) to the date when the new action is commenced." Id. ¶ 5.

In its successive Complaint commencing the present action, Civil Action No. 01-707, New West alleges that: (1) Viacom is liable for costs under the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"), 42 U.S.C. § 9601, et seq.; (2) Viacom individuals are liable under CERCLA; (3) New West is entitled to indemnification under Viacom's operators' insurance policies; (4) Viacom is liable under the New Jersey ECRA, see Note 3, supra; (5) Viacom is liable under the New Jersey Spill Compensation and Control Act, N.J.S.A §§ 58:10-23.11, et seq.; (6) Viacom is subject to strict liability; (7) Viacom acted negligently; (8) Viacom is liable for fraudulent non-disclosure based on Westinghouse's knowledge of environmental problems with the property; and (9) Viacom breached the covenant of good faith and fair dealing. See Complaint ¶¶ 21-77. At this time, New West has agreed to dismiss Counts Two and Three*fn4 of the Complaint. See Br. in Opp'n to Mot. for Partial Summ. J., at pp. 35-36. Viacom seeks partial summary judgment on Count Three and Counts Six through Nine of the Complaint.*fn5

This Court has jurisdiction over the federal claims in this action under 28 U.S.C. § 1331 (2002) and over the supplemental state law claims under 28 U.S.C. § 1367. I have considered the submissions of the parties and decided this motion on the papers without oral argument pursuant to Fed.R.Civ.P. 78 (2002). For the reasons set forth below, Defendants' Motion for Partial Summary Judgment shall be granted.


The legal standard governing summary judgment is well-settled. Summary judgment is proper only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c) (West 2002); see also Anderson v. Consol. Rail Corp. ("Conrail"), 297 F.3d 242, 247 (3d Cir. 2002). An issue is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Conrail, 297 F.3d at 247 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A fact is material if it bears on an essential element of the plaintiff's claim. Abraham v. Raso, 183 F.3d 279, 287 (3d Cir. 1999) (citing Anderson, 477 U.S. at 248-251). Thus, to survive a motion for summary ...

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