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Smith v. Vitollo

August 6, 2008

MICHAEL SMITH, PLAINTIFF-RESPONDENT,
v.
ROSE VITOLLO, DEFENDANT-RESPONDENT, AND
DIANA LITWIN, AS ADMINISTRATRIX OF THE ESTATE OF DAVID W. LITWIN, DECEASED, DEFENDANT-APPELLANT, AND WILLIAM SHEEHAN'S ENGINE REBUILDING, ATLAS BRONZE, AND SMITH TOOL COMPANY, INC., DEFENDANTS, AND ROSE VITOLLO, THIRD-PARTY PLAINTIFF,
v.
JANE DOES (1-10), THIRD-PARTY DEFENDANTS.



On appeal from the Superior Court of New Jersey, Chancery Division, Monmouth County, Docket No. C-284-02.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 4, 2008

Before Judges Parrillo, Gilroy and Baxter.

Defendant Diana Litwin, as Administratrix of the Estate of David W. Litwin, deceased,*fn1 appeals from the June 9, 2006 order of the Chancery Division, which among other matters, granted plaintiff Michael Smith summary judgment against David W. Litwin in the amount of $85,906.31, representing $85,431.25 in environmental remediation costs and $475.06 in costs of suit.*fn2

We reverse and remand the matter to the Chancery Division for further proceedings consistent with this opinion.

Although the underlying facts are simple and straightforward, the procedural history is lengthy and tortuous. Smith is the former owner of property located at 204 East Main Street, or Block 95, Lot 7.02, in Manasquan, New Jersey. Located on the property is a building used for commercial purposes. Defendant Rose Vitollo is the owner of property located at 202 East Main Street, or Block 95, Lot 7.01, on which there is located a building used for commercial purposes by defendants, William Sheehan's Engine Rebuilding, Atlas Bronze, and Smith Tool Company, Inc. Lot 7.01 adjoins the northerly property line of Lot 7.02, and an alleyway straddles the property line between the buildings located on each lot. Smith and Vitollo also owned as tenants in common a third lot known as 206 East Main Street, or Block 95, Lot 12, which was used for parking automobiles; the property also contained a 1,000 gallon gasoline underground storage tank (UST).*fn3

On October 25, 1992, Vitollo entered into an installment contract for the sale of her interests in the properties at 202 and 206 East Main Street to Litwin for $175,000, payable over fifteen years, with interest at 8% per annum. Because the properties were used for commercial purposes, the sale was subject to the New Jersey Environmental Cleanup Responsibility Act (ECRA), N.J.S.A. 13:1K-6 to -13.*fn4 Pursuant to the terms of the contract of sale, Litwin agreed to be responsible for any remediation necessary to satisfy ECRA and to hold Vitollo harmless from any damage claims arising therefrom.

In 2002, in anticipation of selling his property interests to a third-party purchaser, Smith engaged James Golden d/b/a Environmental Systems, to perform an environmental study of Lots 7.02 and 12. The investigation identified soil and groundwater contamination on Lot 12, the lot jointly owned by Smith and Vitollo, caused by leakage from the abandoned UST. In addition, soil and groundwater contamination was found in the alleyway separating the buildings on Lots 7.01 and 7.02. Smith requested Vitollo and Litwin's permission for his environmental consultant to enter onto Lot 7.01 to conduct further studies to locate the source of contamination; Vitollo and Litwin refused.

On September 17, 2002, Smith filed a complaint against Vitollo, alleging nuisance by refusing to allow Smith's environmental consultant access to Lot 7.01 to conduct environmental sampling and testing. In his complaint Smith sought: 1) an order "enjoining Defendant Rose Vitollo from continuing the nuisance caused by the pollutants emanating from her property onto the property of the plaintiff and compelling her to clean up the source of contamination"; and 2) compensatory damages. On October 17, 2002, Smith filed an amended complaint adding Litwin, William Sheehan's Engine Rebuilding, Atlas Bronze, and Smith Tool Company, Inc., as defendants.

On October 31, 2002, Vitollo filed her answer to the amended complaint, asserting a counterclaim against Smith for contaminating Lots 7.01 and 12. Vitollo also asserted a cross-claim against Litwin, contending that since the date of their installment contract, Litwin had assumed full possession and control over Lots 7.01 and 12, and was responsible for any necessary environmental remediation and cleanup of the two lots. In her cross-claim, Vitollo alleged: 1) a claim of equitable conversion of the properties by Litwin, seeking damages for the costs of environmental remediation; and 2) a claim for breach of contract, seeking an order compelling Litwin to perform under the contract by indemnifying and holding her harmless from any claims by Smith; and in the alternative, rescission of the contract.

On April 4, 2003, Smith filed a motion seeking to compel Vitollo and Litwin to provide complete and unfettered access to Lot 7.01 to Smith's environmental contractor to perform studies of the property; and to pay one-half of the remediation costs of Lot 12 and of the alleyway between Lots 7.01 and 7.02. The motion was supported by certifications of Smith and Golden, stating that Golden had removed the UST from Lot 12 and that the cost of remediation of that lot was $17,009.50. Attached to Golden's certification was a statement dated March 31, 2003, itemizing the costs associated with the removal of the UST.

Golden also opined in his certification that "the contamination located in the alleyway and boundary line areas of the properties emanated from [Vitollo and Litwin's] property. That is because the amount of contamination is greater on [Vitollo and Litwin's] side of the boundary and the particular contaminant found is consistent with the lubricants and the tooling and machine oil used at one of the businesses on [their] property." This opinion, however, was contrary to the opinion expressed by Golden in his report of February 21, 2003, attached to his certification in which he stated: "Soil samples obtained on both sides of the boundary line are inconclusive [as] [t]o where the source of the [alleyway] contamination [comes from]." Golden estimated the costs of cleanup of the alleyway would be from $18,000 to $22,000.

Litwin opposed the motion, claiming that he was not responsible for the cost of the UST removal and that his environmental specialist, Wilmer C. Bahr of Environmental Recovery Systems, Inc., d/b/a Petroleum Specialists, Inc., had opined that it was "not possible to conclude that the source of the contamination encountered in the alleyway, which is the area where plaintiff seeks payment for one-half of the remediation costs, is from the Vitollo/Litwin property." Vitollo cross-moved ...


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