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Meyer v. Constantinou

Superior Court of New Jersey, Appellate Division

November 15, 2013

ALAN E. MEYER, Receiver for CLARKE BROTHERS, INC., and CLARKE BROTHERS, INC., a New Jersey Corporation, Plaintiffs-Appellants,
v.
MICHAEL CONSTANTINOU, JAMES CONSTANTINOU, SJ PRODIGY, INC. and HAN J. LIM d/b/a ATLANTIC CLEANERS, SILVER HANGER MANASQUAN, INC. and JOHN O'CONNOR d/b/a ATLANTIC CLEANERS, a dissolved corporation, MANASQUAN PLAZA, INC., Defendant-Respondents.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 24, 2013

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-5712-08.

Robert L. Gutman argued the cause for appellants (Carluccio, Leone, Dimon, Doyle & Sacks, L.L.C., attorneys; Mr. Gutman, of counsel; Christopher J. Dasti, on the brief).

Mary Lou Delahanty argued the cause for respondents Silver Hanger of Manasquan, Inc., d/b/a Atlantic Cleaners, a dissolved corporation and John O'Connor (Delahanty & McGrory, L.L.C., attorneys; Ms. Delahanty, of counsel; R. Kevin McGrory, on the brief).

Han J. Lim, respondent pro se for SJ Prodigy Inc. and Han Lim d/b/a Atlantic Cleaners.

Before Judges Sapp-Peterson and Nugent.

PER CURIAM

Plaintiffs, Alan E. Meyer, receiver for Clarke Brothers, Inc., and Clarke Brothers, Inc., [1] appeal from a 2012 Law Division order that dismissed without prejudice their 2008 complaint alleging their property had been contaminated by chemicals discharged from a neighboring dry-cleaning business. The Law Division order referred the environmental claims alleged in the complaint to the New Jersey Department of Environmental Protection (DEP) and dismissed without prejudice the remaining tort claims. We affirm.

I.

We derive the following facts from the pleadings and motion record. Plaintiff, Alan E. Meyer, is the court-appointed receiver for Clarke Brothers, Inc., a company that owns property in the Borough of Manasquan (the Clarke Property) where it once operated an auto repair facility and gas station. Defendants, Michael Constantinou and James Constantinou, owned three lots contiguous to the Clarke Property, which they developed as a three-unit retail shopping center in 1996. Plaintiffs allege in their amended complaint that one of the commercial units in the shopping center has been operated as a dry-cleaning business since 1996: First, from 1996 through May 11, 2007, by Silver Hanger Manasquan, Inc., [2] whose principal is defendant John O'Connor; next, from May 11, 2007, until the date plaintiffs filed their complaint, by defendant Prodigy, Inc., whose principal is defendant Han J. Lim.

In 2007, while remediating contamination caused by chemicals that had leaked from underground gasoline and waste oil tanks on their property, plaintiffs discovered the ground was contaminated by tetrachloroethylene, also known as perchloroethylene (PCE).[3] According to plaintiffs' complaint, PCE is a "chlorinated solvent primarily used in dry cleaning operations" and is also a carcinogen. Plaintiffs denied in their complaint that they had used any chlorinated solvent in their business.

On October 5, 2007, the New Jersey Department of Environmental Protection (DEP) informed Peter Clarke, a principal of Clarke Brothers, that no further action was necessary for the remediation of the contamination caused by the underground storage tanks. The letter contained an "Initial Notice and Case Assignment Referral, " and specifically excluded from DEP's no further action determination the PCE soil contamination. The case assignment referral confirmed that Peter Clarke had "submitted a Memorandum of Agreement (MOA) for the non-UST related contamination." The referral also stated that a "Preliminary Assessement (PA) . . . is necessary[, ]" in that "[i]f areas of concern are identified, a site investigation (SI) . . . is also necessary." DEP informed Clarke that "any PCE contamination identified on-site above cleanup criteria would require remediation."

According to their complaint, plaintiffs retained an environmental consulting firm to investigate the source of the PCE contamination.[4] Plaintiffs allege in their complaint that "[t]he additional soil sampling combined with the remedial investigation confirmed that the source of ...


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