An owner of a property adjacent to gasoline station that was contaminated by leaking underground storage tanks sued professional consultants who had investigated and removed contamination from the tanks, arguing that they had failed to prevent contamination from the site migrating onto their property. One legal theory by the plaintiff was the consultants were strictly liable under the New York Navigation Law, as discharges of petroleum. Although the state statute provides for an immunity defense for those who have responded to discharges of petroleum for purposes of corrective action, the defendants failed to raise the immunity defense during their trial. The appellate court held that the case should not be dismissed on a summary judgment motion because there were triable issues of fact raised by the plaintiff concerning the consultants’ responsibility under the state law and the various common law theories. Hilltop Nyac Corp. V. TRMI Holdings, Inc., Nos. 98-07500, 98-07503 (N.Y. Ap. Div., 2d Dept. Aug 30, 1999).
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