ELR Citation: ELR 21455
No(s). CV 91-2563 (E.D.N.Y. Mar 10, 1993)

The court holds that a former property owner may not assert affirmative defenses other than those specifically listed in §107(b) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) in the current owner's response cost recovery action. The prior owner raised several affirmative defenses and the current owner objected on the ground that they are not listed in §107(b). The court holds that CERCLA §107(a) liability is subject only to the limited affirmative defenses provided in §107(b). The court holds, however, that if the current owner successfully establishes the prior owner's liability, the principles asserted as to due care may be considered by the court in exercising its discretion in apportioning responsibility for the response costs.

Counsel for Plaintiff
Frederic Block
Block, Amelkin & Hamburger
202 E. Main St., Smithtown NY 11787
(516) 360-0600

Counsel for Defendants
David H. Peirez
Reisman, Peirez, Reisman & Calica
1301 Franklin Ave., Garden City NY 11530
(516) 746-7799