Town of Petersburgh v. 3M Co.

"The purpose of awarding damages in a tort action is to make the plaintiff whole and, when a plaintiff seeks to recover damages for an injury to property, the proper measure of damages is typically the lesser of the cost to repair or the diminution of market value. The damages cannot be remote, contingent or speculative. They need not be immediate, but need to be so near to the cause only that they may be reasonably traced to the event" (WFE Ventures, Inc. v GBD Lake Placid, LLC, 197 AD3d 824, 834 [3d Dept 2021] [internal quotation marks, brackets and citations omitted]). "Double recovery is not permitted for a single injury, even if a [plaintiff] can prove separate causes of action that result in the same injury" (Hauser v Fort Hudson Nursing Ctr., Inc., 202 AD3d 45, 53 [3d Dept 2021] [citations omitted]). The damages sought here center upon plaintiff's assertion that water that has been treated to remove contaminants is not equivalent to water that is wholly uncontaminated. In this regard, we are mindful that, even where property has been ostensibly restored, damages may yet remain. The record reflects that plaintiff was not a party to DEC's consent order with Taconic and, critically, that order addresses remediation efforts and expenses but not the acquisition of an alternate clean water source. Plaintiff's subsequent related settlement agreements with Taconic â​​ which agreements did not involve defendants â​​ likewise do not cover costs related to obtaining a new water source. To be sure, plaintiff acknowledges that it has already received significant recovery under the foregoing agreements. Nevertheless, upon this record, we agree that plaintiff has demonstrated that the relief sought in the instant matter has not yet been fully addressed. Accordingly, plaintiff's claims for monetary damages related to the acquisition of a clean water source alternative are not barred by the doctrine of double recovery (see generally Schwed v Turoff, 73 AD2d 615, 615 [2d Dept 1979]). To the extent that aspects of plaintiff's desired relief are encompassed by the consent order and settlement agreements, such damages may be offset so that the "nonsettling [*2]defendants should not bear more than their fair share of a plaintiff's loss" so as to avoid the possibility of double recovery (Whalen v Kawasaki Motors Corp., 92 NY2d 288, 292 [1998]; see General Obligations Law § 15-108 [a]; Napierski v Finn, 229 AD2d 869, 871 [3d Dept 1996]). We also reject defendant's related contention that plaintiff's asserted damages are speculative, warranting dismissal. To begin, it is undisputed that plaintiff has indeed already suffered the PFOA contamination of its water source. Moreover, in addressing the motivation underlying the damages sought in the instant matter, plaintiff submitted the affidavit of Heinz Noeding, a town council member, who emphasized significant challenges encountered and concerns raised by residents who have private wells and currently rely upon at-home water filtration systems for PFOA removal. Noeding further averred that plaintiff has faced population decline and associated challenges since the contamination of its water source, due to stigma for its "well-known water pollution problem." Accepting the foregoing as true and according plaintiff the benefit of every possible favorable inference, we cannot conclude that the damages claimed are wholly speculative (see WFE Ventures, Inc. v GBD Lake Placid, LLC, 197 AD3d at 834-835), or that plaintiff failed to demonstrate a basis for stigma-associated damages as alleged (see Matter of Commerce Holding Corp. v Board of Assessors of Town of Babylon, 88 NY2d 724, 732 [1996]; Turnbull v MTA N.Y. City Tr., 28 AD3d 647, 649 [2d Dept 2006]; see generally Halliday v Norton Co., 265 AD2d 614, 617 [3d Dept 1999], lv denied & dismissed 94 NY2d 894

[2000]).

Finally, we reject defendant's argument that dismissal of the complaint was warranted under the doctrine of primary jurisdiction. "Under the doctrine of primary jurisdiction, a court has the discretion to refrain from exercising jurisdiction over a matter where an administrative agency also has jurisdiction, and the determination of the issues involved, under a regulatory scheme, depends upon the specialized knowledge and experience of the agency" (Romine v Laurito, 186 AD3d 913, 915 [3d Dept 2020], appeal dismissed 36 NY3d 939 [2020], appeal dismissed & lv denied 36 NY3d 1088 [2021][citations omitted]). "The doctrine of primary jurisdiction is intended to co-ordinate the relationship between courts and administrative agencies to the end that divergence of opinion between them not render ineffective the statutes with which both are concerned, and to the extent that the matter before the court is within the agency's specialized field, to make available to the court in reaching its judgment the agency's views concerning not only the factual and technical issues involved but also the scope and meaning of the statute administered by the agency" (Calle v National Grid USA Serv. Co., Inc., 230 AD3d 556, 556-557 [2d Dept 2024] [internal quotation marks and citations omitted]; accord Frasier v Niagara Mohawk Power [*3]Corp., ___ AD3d ___, ___, 2026 NY Slip Op 01110, *2 [3d Dept 2026]). "There is no fixed formula governing the application of the doctrine to the facts of a particular case. Rather, the court must determine in each case whether the reasons for the doctrine are present and whether the purposes of the doctrine will be served by its application" (Frasier v Niagara Mohawk Power Corp., ___ AD3d at ___, 2026 NY Slip Op 01110, *2 [internal quotation marks and citations omitted]).

Defendant is correct that DEC has relevant expertise and has been directly involved in establishing the PFOA- remediation efforts and related monitoring in the underlying matter. Significantly, however, "the consent order and other announcements, upon which defendant relies, do not address all of the relief requested by plaintiff[ ]," nor do they involve defendant, and there is no basis in the record to conclude that DEC has otherwise taken action in this regard (Burdick v Tonoga, Inc., 191 AD3d at 1222). Indeed, DEC may never consider the merits of an alternate clean water source, as is sought by plaintiff here. Defendant's position that a resolution in favor of plaintiff in the instant matter will necessarily conflict with DEC's efforts to address the underlying PFOA contamination is unsupported. Accordingly, we agree that application of the doctrine of primary jurisdiction is not warranted here (see Frasier v Niagara Mohawk Power Corp., ___ AD3d at ___, 2026 NY Slip Op 01110 at *2; Burdick v Tonoga, Inc., 179 AD3d at 1222; compare Romine v Laurito, 186 AD3d at 915).

Garry, P.J., Clark, Fisher and Ryba, JJ., concur.