Periconi, LLC

Third Department allows a Soil Vapor Intrusion suit to move forward (Part I)

An intermediate state appeals court, the Appellate Division of State Supreme Court, Third Department (upstate) recently allowed a suit to go forward against GE for injury caused by soil vapor intrusion (SVI) where the contamination that was the source of the SVI was discovered 25 years ago.

In Aiken v. General Electric Co., No. 505023, __N.Y.S.2d__ (3d Dep't Dec. 4, 2008), groundwater contamination from defendant GE's property was discovered in 1983 migrating onto neighboring sites, including the plaintiffs' property. Some neighboring homeowners (but not the plaintiffs in this action because they were on municipal water) claimed that defendant contaminated their drinking water wells and sued for property damage. That suit was subsequently settled. Twelve years later, however, the neighboring properties (this time, including the plaintiffs) tested positive for soil vapor from the contaminated groundwater. The plaintiffs initiated this suit for property damage due to the soil vapor. GE moved for summary judgment arguing that the three-year statute of limitation ran from the time the plaintiffs discovered the groundwater contamination, in 1983.

It is undisputed that the correct statute of limitation is the discovery rule found in CPLR 214-c[2]. This issue is when plaintiffs should have reasonably been aware of the presence of soil vapor contamination and the threat it presented to their properties.

Affirming the decision of the lower court, the Third Department ultimately held that the SVI was not discovered until 2005 when plaintiffs' property was tested and, applying the discovery rule of CPLR 214-c[2], the suit was timely. In making its decision, the court noted that plaintiffs "were repeatedly assured by defendant, as well as DEC, that there was no immediate health problem from contaminated ground water and that there was no risk to residents of the Village from exposure to contaminates [sic] in the soil or in the air in homes located above the contaminated ground water plume." The court is saying that, although plaintiffs had to have known of the contamination since 1983, they could not have reasonably discovered the injuries they now claim as a result of the SVI until much later.

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