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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF NEW YORK
`_________________________________________________
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`NEXT MILLENNIUM REALTY LLC and 101 FROST
`STREET ASSOCIATES, L.P.,
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`Plaintiffs,
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`COMPLAINT AND
`DEMAND FOR
`JURY TRIAL
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`Civil Action No.:
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`-against-
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`UTILITY MANUFACTURING CO., INC. and NEST
`EQUITIES, INC.,
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`_________________________________________________
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`Defendants.
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`Plaintiffs Next Millennium Realty LLC (“Next Millennium”) and 101 Frost Street
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`Associates, L.P. (“101 Frost Street”) (together, “Plaintiffs”), complaining of Defendants Utility
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`Manufacturing Co., Inc. (“Utility”) and Nest Equities, Inc. (“Nest”) (together, “Defendants”),
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`allege as follows:
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`INTRODUCTION
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`1.
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`This is an action under the Comprehensive Environmental Response Compensation
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`and Liability Act, 42 U.S.C. Section 9601 et seq. (“CERCLA”) for contribution and
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`indemnification for past and future response costs under Sections 107 and 113(f) of CERCLA; and
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`declaratory judgment under Section 107 of CERCLA and the Declaratory Judgment Act, 28 U.S.C.
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`Section 2201, holding Defendants jointly and severally liable for past and future response costs
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`incurred by Plaintiffs at the Site (defined below).
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`PARTIES
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`2.
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`Plaintiff Next Millennium is a New York Limited Liability Company formed under
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`the laws of the State of New York with a principal place of business in Nassau County, New York.
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`22-CV-2529
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`3.
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`Plaintiff Next Millennium is the current owner of the property located at 89 Frost
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`Street, Westbury, New York.
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`4.
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`Plaintiff 101 Frost Street is a New York Limited Partnership formed under the laws
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`of the State of New York with a principal place of business in Nassau County, New York.
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`5.
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`Plaintiff 101 Frost Street is the current owner of the property located at 101 Frost
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`Street, Westbury, New York.
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`6.
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`Upon information and belief, Defendant Utility is a New York Corporation
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`incorporated under the laws of New York State with a principal place of business in Nassau
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`County, New York.
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`7.
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`Upon information and belief, Defendant Utility is the current, or former, owner of
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`the property located at 700 Main Street, Westbury, New York.
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`8.
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`Upon information and belief, Defendant Nest is a corporation organized under the
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`laws of the State of New York, with a principal place of business in Nassau County, New York.
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`9.
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`Upon information and belief, Defendant Nest is the current, or former, owner of a
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`facility located at 700 Main Street, Westbury, New York.
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`10.
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`Plaintiffs and Defendants are collective referred to as the “Parties.”
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`JURISDICTION AND VENUE
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`11.
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`The Court has jurisdiction over the subject matter of this action pursuant to 28
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`U.S.C §§ 1331, 1337, and 1343; and 42 U.S.C. §§ 9607(a) and 9613(b).
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`12.
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`The Court has the authority to issue a declaratory judgment concerning the rights
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`and liabilities of the parties pursuant to 42 U.S.C. § 9613(b).
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`13.
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`Venue is proper in the Eastern District of New York pursuant to 28 U.S.C. § 1391
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`and 42 U.S.C. § 9613(b) because the facts giving rise to the claims in this action occurred in the
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`County of Nassau and State of New York, and within the jurisdiction of the Eastern District of
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`New York. The Parties reside and conduct, or have conducted, business within the jurisdiction of
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`the United States District Court for the Eastern District of New York.
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`BACKGROUND
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`14.
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`In September of 2011, the United States Environmental Protection Agency (the
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`“EPA”) listed an area of contamination located, in part, in the Town of Hempstead, New York, as
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`the New Cassel/Hicksville Groundwater Contamination Superfund Site (the “Site”).
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`15.
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`The Site comprises an area of groundwater that is contaminated with chemicals and
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`chemical compounds listed, identified or regulated under law as “Hazardous Substances” under
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`CERCLA within the Towns of North Hempstead, Hempstead, and Oyster Bay, Nassau County,
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`New York, and associated source areas (the “Contamination”). The Site is estimated to include 6.5
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`square miles.
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`16. Within the Site is the New Cassel Industrial Area (“NCIA”), an approximately 170-
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`acre area of land, bounded by the Long Island Railroad to the north, Frost Street to the east, Old
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`Country Road to the south, and Grand Boulevard to the southwest.
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`17.
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`The investigation and remediation of the Site is divided into several operable units,
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`including Operable Unit-1 (“OU-1”).
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`18.
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`OU-1 addresses an area of shallow and deep groundwater Contamination,
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`approximately 211 acres in size, within and downgradient of the NCIA, within the Towns of North
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`Hempstead and Hempstead.
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`19.
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`In September of 2013, based on the results of the Supplemental Remedial
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`Investigation and Feasibility Study for OU-1, dated July of 2013, EPA issued the Record of
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`Decision (“ROD”) for OU-1, in which it selected a remedy for OU-1. The OU-1 remedy, includes,
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`but is not limited to: (1) a combination of in-situ treatment of groundwater via in-well vapor
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`stripping and extraction of groundwater via pumping and ex-situ treatment of extracted
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`groundwater prior to the discharge to a POTW or reinjection to the groundwater (to be determined
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`during design); (2) in-situ chemical treatment of high concentration contaminant areas, as
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`appropriate; (3) implementation of long-term monitoring of groundwater in OU-1 to ensure the
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`Remedial Action Objectives are achieved; (4) development of a Site Management Plan to ensure
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`the proper management of the remedy post-construction; and (5) institutional controls consisting
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`of maintaining any existing local requirements to prevent installation of drinking water wells and
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`issuing informational devices to limit exposure to contaminated groundwater.
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`20.
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`EPA divided OU-1 into three distinct shallow plumes, identified as the “Eastern
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`Plume,” the “Central Plume,” and the “Western Plume,” together with a deeper plume flowing
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`under the Eastern Plume (the “OU-1 Deep Plume”).
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`21.
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` EPA noticed the Parties in this action (Next Millennium, 101 Frost Street, Utility,
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`and Nest) that they are responsible parties under CERCLA for the Eastern Plume and OU-1 Deep
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`Plume, and demanded the Parties investigate and remediate the Eastern Plume, consisting
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`primarily of Tetrachloroethylene (“PCE”), a Hazardous Substance, and the OU-1 Deep Plume,
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`consisting primarily of Trichloroethylene, a Hazardous Substance.
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`22.
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`On March 22, 2018, EPA issued a Unilateral Administrative Order (“UAO”)
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`directing the Parties to implement an additional Remedial Investigation and Remedial Design
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`(“RI/RD”) for the Eastern Plume and the OU-1 Deep Plume.
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`23.
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`The UAO states that Defendant Nest is the “current owner of a facility located at
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`700 Main Street, Westbury, New York, at which, among other things, PCE was disposed, and thus
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`it is a responsible party within the meaning of Section 107(a)(1) of CERCLA” for the
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`Contamination in the Eastern Plume and OU-1 Deep Plume.
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`24.
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`The UAO also states that Defendant Utility “disposed of, among other things, PCE
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`while operating a facility located at 700 Main Street, Westbury, New York, and thus it is a
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`responsible party within the meaning of Section 107 of CERCLA” for the Contamination in the
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`Eastern Plume and OU-1 Deep Plume.
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`25.
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`On June 15, 2019, EPA issued an amended UAO directing the Parties to implement
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`an additional RI/RD for the Eastern Plume and the OU-1 Deep Plume. The 2018 UAO and 2019
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`Amended UAO are together referred to, hereinafter, as the “UAO.”
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`26.
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`The UAO identified the Parties in this action (Next Millennium, 101 Frost Street,
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`Utility, and Nest”) as the “Eastern Plume Group Respondents.”
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`27.
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`The UAO orders the Eastern Plume Group Respondents jointly and severally liable
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`for response costs at the Site including the “Common Work Elements” and the “OU-1 Statement
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`of Work” as these terms are defined in the UAO.
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`28.
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`Plaintiffs have complied with the amended UAO and Plaintiffs are incurring
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`response costs in implementing the RI/RD as defined in the ROD and UAO, including but not
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`limited to engineering fees, attorneys’ fees, and other expenses and costs relating to mitigating
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`environmental conditions for the benefit of and/or closely tied to the cleanup effort and/or serving
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`a statutory purpose apart from reallocation of costs.
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`29.
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`Plaintiffs have incurred response costs, as defined under CERCLA, and continue to
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`incur response costs in implementing the UAO, including but not limited to engineering fees,
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`attorneys’ fees, and other expenses and costs relating to mitigating environmental conditions for
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`the benefit of and/or closely tied to the cleanup effort and/or serving a statutory purpose apart from
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`reallocation of costs.
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`30.
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`As set forth in the UAO, Defendants are jointly and severally liable for the response
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`costs Plaintiffs have incurred, is incurring, and will incur in implementing the UAO.
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`31.
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`Upon information and belief, Defendants have failed to incur any response costs,
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`or share in the incurrence of response costs, in implementing the UAO.
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`32.
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`Plaintiffs have also incurred response costs prior to the issuance of the UAO
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`associated with the remediation, investigation, design, and negotiation of consent orders,
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`concerning the Eastern Plume and the OU-1 Deep Plume, including but not limited to engineering
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`fees, attorneys’ fees, and other expenses and costs relating to mitigating environmental conditions
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`for the benefit of and/or closely tied to the cleanup effort and/or serving a statutory purpose apart
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`from reallocation of costs.
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`33.
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`Defendants are jointly and severally liable under CERCLA for the response costs
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`Plaintiffs incurred prior to the issuance of the UAO.
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`34.
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`Upon information and belief, Defendants have failed to incur any response costs,
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`or share in the incurrence of response costs for OU-1, including the Eastern Plume and/or the OU-
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`1 Deep Plume, prior to the issuance of the UAO.
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`35.
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`Plaintiffs will continue to incur future response costs in implementing the UAO,
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`including but not limited to engineering fees, attorneys’ fees, and other expenses and costs relating
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`to mitigating environmental conditions for the benefit of and/or closely tied to the cleanup effort
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`and/or serving a statutory purpose apart from reallocation of costs.
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`36.
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`Defendants are jointly and severally liable under CERCLA for the future response
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`costs Plaintiffs will incur in implementing the UAO.
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`37.
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`Upon information and belief, Defendants refuse to share in the future response costs
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`in implementing the UAO.
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`38.
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`Plaintiffs have also incurred response costs, not including those associated with the
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`UAO, in response to the Contamination at the Site, including but not limited to engineering fees,
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`attorneys’ fees, and other expenses and costs relating to mitigating environmental conditions for
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`the benefit of and/or closely tied to the cleanup effort and/or serving a statutory purpose apart from
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`reallocation of costs.
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`39.
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`Defendants are jointly and severally liable under CERCLA for the response costs
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`incurred in responding to the Contamination at the Site.
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`40.
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`Upon information and belief, Defendants have failed to incur any response costs,
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`or share in the incurrence of response costs for the Contamination at the Site.
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`41.
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`Defendants are either current, former or successor operators, arrangers and/or
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`owners of CERCLA sites and have contributed to the Contamination at the Site, and the
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`groundwater Contamination at the Eastern Plume and the OU-1 Deep Plume.
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`42.
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`As such, Defendants are liable as owners, arrangers, and/or operators under
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`CERCLA for the past and future response costs incurred or to be incurred by Plaintiffs in
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`connection with the investigation and/or remediation of the Site and the Eastern Plume and the
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`OU-1 Deep Plume.
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`AS AND FOR A FIRST CAUSE OF ACTION
`FOR COST RECOVERY UNDER SECTION 107(a) of CERCLA
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`43.
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`Plaintiffs restate and reallege all of the foregoing allegations as if fully set forth
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`herein.
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`44.
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`The Site, including the Defendant’s property located at 700 Main Street, Westbury,
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`New York, is a “facility” as defined under Section 101(9) of CERCLA.
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`45.
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`46.
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`Plaintiffs are “persons” as defined under Section 101(21) of CERCLA.
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`Hazardous Substances were released, discharged, and/or disposed of at 700 Main
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`Street, Westbury, New York, which have impacted the soil and groundwater beneath and at the
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`Site.
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`47.
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`At the time of the releases, discharges, and/or disposal, Defendants, either directly
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`or indirectly, managed, directed, or conducted operations that resulted in the release of hazardous
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`substances at a facility as defined under CERCLA.
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`48.
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`These activities and other activities yet to be identified constitute a disposal of
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`Hazardous Substances at the facility and Site by Defendants.
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`49.
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`Thus, Defendants are liable as owners, arrangers, and/or operators under Section
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`107(a) of CERCLA.
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`50.
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`Plaintiffs have incurred response costs to date and will incur additional response
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`costs in the future for the investigation and remediation of the soil and groundwater Contamination
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`on and beneath the Site, including but not limited to engineering fees, attorneys’ fees, and other
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`expenses and costs relating to mitigating environmental conditions for the benefit of and/or closely
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`tied to the cleanup effort and/or serving a statutory purpose apart from reallocation of costs.
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`51.
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`These response costs incurred and to be incurred by Plaintiffs are consistent with
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`the National Contingency Plan.
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`52.
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`Defendants are liable to Plaintiffs under Section 107 of CERCLA for the response
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`costs incurred by Plaintiffs to date and to be incurred in the future related to the investigation and
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`remediation of the Site, including response costs incurred pursuant to the UAO.
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`AS AND FOR A SECOND CAUSE OF ACTION
`FOR CONTRIBUTION UNDER SECTION 113(f)(1) OF CERCLA
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`53.
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`Plaintiffs restate and reallege all of the foregoing allegations as if fully set forth
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`herein.
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`54.
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`Pursuant to Section 113(f)(1) of CERCLA, “any person may seek contribution from
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`any other person who is liable or potentially liable under [Section 107(a) of CERCLA], during or
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`following any civil action under [Section 106 or 107(a) of CERCLA].”
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`55.
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`56.
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`57.
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`Each Defendant is a “person” within the meaning of Section 113(f)(1) of CERCLA.
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`Each Defendant is liable or potentially liable under Section 107(a) of CERCLA.
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`Plaintiffs have incurred response costs to date and will incur additional response
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`costs in the future for the investigation and/or remediation of the soil and groundwater on and
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`beneath the Site, including but not limited to engineering fees, attorneys’ fees, and other expenses
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`and costs relating to mitigating environmental conditions for the benefit of and/or closely tied to
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`the cleanup effort and/or serving a statutory purpose apart from reallocation of costs.
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`58.
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`Plaintiffs are entitled to contribution from each Defendant under Section 113(f)(1)
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`of CERCLA or the response costs Plaintiffs have incurred and will incur in responding to the
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`release or threatened release of Hazardous Substances from the Site.
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`AS AND FOR A THIRD CAUSE OF ACTION
`FOR A DECLARATORY JUDGMENT UNDER
`SECTION 113(g)(2) OF CERCLA
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`59.
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`Plaintiffs restate and reallege all of the foregoing allegations as if fully set forth
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`herein.
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`60.
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`Plaintiffs have incurred response costs to date and will incur additional response
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`costs in the future for the investigation and/or remediation of the soil and groundwater on and
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`beneath the Site, including but not limited to engineering fees, attorneys’ fees, and other expenses
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`and costs relating to mitigating environmental conditions for the benefit of and/or closely tied to
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`the cleanup effort and/or serving a statutory purpose apart from reallocation of costs.
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`61.
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`An actual controversy exists between Plaintiffs and Defendants concerning the
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`obligations and legal liability for response costs which have been incurred and will be incurred in
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`the future by Plaintiffs in connection with the investigation and remediation of Contamination at
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`the Site.
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`62.
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`Defendants are liable to Plaintiffs under CERCLA and New York State Common
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`Law, as specified in this Complaint.
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`63.
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`Absent a judicial declaration setting forth the Parties’ rights and obligations with
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`respect to these response costs, a multiplicity of actions may result. Pursuant to 28 U.S.C. § 2201,
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`Section 113(g)(2) of CERCLA, 42 U.S.C. § 9613(g)(2), and Section 3001 of the New York Civil
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`Practice Law and Rules, Plaintiffs seek entry of a judgment declaring that each Defendant is liable
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`as alleged in this Complaint, and setting forth each Defendant’s share of liability to Plaintiffs for
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`all response costs that have been incurred and for all future response costs that may be incurred by
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`Plaintiffs in connection with the investigation and remediation of the Site, including, but not
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`limited to those incurred pursuant to the UAO.
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`AS AND FOR A FOURTH CAUSE OF ACTION
`FOR A DECLARATORY JUDGMENT UNDER
`SECTION 107(a)(4)(b) OF CERCLA
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`64.
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`Plaintiffs restate and reallege all of the foregoing allegations as if fully set forth
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`herein.
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`65.
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`As specified above, Defendants have liability as operators and owners under
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`CERCLA.
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`66.
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`Plaintiffs have incurred response costs to date and will incur additional response
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`costs in the future for the remediation of the soil and groundwater on and beneath the Site,
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`including but not limited to engineering fees, attorneys’ fees, and other expenses and costs relating
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`to mitigating environmental conditions for the benefit of and/or closely tied to the cleanup effort
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`and/or serving a statutory purpose apart from reallocation of costs. The response costs include the
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`amounts paid for the investigation and remediation of the soil and groundwater Contamination and
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`the implementation of the remedy for the Site. Defendants are responsible parties under CERCLA
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`for these response costs.
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`67.
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`Plaintiffs are entitled to a declaratory judgment pursuant to Section 107(a)(4)(B)
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`holding Defendants responsible for the existence of hazardous substances at the Site and
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`Defendants liable for the current and future response costs for the Site.
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`AS AND FOR A FIFTH CAUSE OF ACTION
`FOR A DECLARATORY JUDGMENT UNDER
`THE DECLARATORY JUDGMENT ACT
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`68.
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`Plaintiffs restate and reallege all of the foregoing allegations as if fully set forth
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`herein.
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`69.
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`As specified above, Defendants have liability as operators and owners under
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`CERCLA.
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`70.
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`Plaintiffs have incurred response costs to date and will incur additional response
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`costs in the future for the remediation of the groundwater on and beneath the Site. These response
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`costs include any and all reimbursement of EPA for past and future response costs incurred by
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`EPA. Defendants are responsible parties under CERLCA for EPA’s costs.
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`71.
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`Plaintiffs have incurred cost and will incur additional response costs investigation
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`and remediating the Site, including but not limited to engineering fees, attorneys’ fees, and other
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`expenses and costs relating to mitigating environmental conditions for the benefit of and/or closely
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`tied to the cleanup effort and/or serving a statutory purpose apart from reallocation of costs.
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`72.
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`Plaintiffs are entitled to a declaratory judgment pursuant to 28 U.S.C. § 2201(a)
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`holding Defendants responsible for the existence of hazardous substances at the Site and holding
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`Defendants liable for the current and future response costs for the Site.
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`AND AS FOR A SIXTH CAUSE OF ACTION
`FOR COMMON LAW INDEMNIFICATION
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`73.
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`Plaintiffs restate and reallege all of the foregoing allegations as if fully set forth
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`herein.
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`74.
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`Plaintiffs may be lawfully compelled to incur response costs and damages in
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`investigating and remediating Hazardous Substances and Contamination disposed of by each
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`Defendant at the Site, including but not limited to engineering fees, attorneys’ fees, and other
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`expenses and costs relating to mitigating environmental conditions for the benefit of and/or closely
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`tied to the cleanup effort and/or serving a statutory purpose apart from reallocation of costs.
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`75.
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`Each Defendant is required to indemnify Plaintiffs for any response costs or
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`damages that Plaintiffs may incur in connection with the Site as a result of Defendants actions or
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`failures to act relating to mitigating costs and damages at the Site, including but not limited to
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`engineering fees, attorneys’ fees, other expenses and costs relating to mitigating environmental
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`conditions.
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`76.
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`herein.
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`AS AND FOR A SEVENTH CAUSE OF ACTION
`FOR RESTITUTION
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`Plaintiffs restate and reallege all of the foregoing allegations as if fully set forth
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`77.
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`Defendants have and continue to have duties and obligations to investigate and
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`remediate and abate the Hazardous Substances and Contamination at the Site.
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`78.
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`Defendants have failed and continue to fail to perform their duties or to satisfy their
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`obligations, which have been and continue to be performed and satisfied by Plaintiffs incurring
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`past and/or future response costs or damages owned and owing by Defendants relating to
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`mitigating costs and damages at the Site, including but not limited to engineering fees, attorneys’
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`fees, other expenses and costs relating to mitigating environmental conditions. Plaintiffs therefore
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`are entitled to compensation from Defendants.
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`WHEREFORE, Plaintiffs demand judgment on the Complaint, as follows:
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`1.
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`On the First Cause of Action, monetary judgment against Defendants for all costs
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`incurred by Plaintiffs to the date of the judgment;
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`2.
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`On the Second Cause of Action, monetary judgment against Defendants for
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`Defendants’ share of responses costs incurred by Plaintiffs to the date of the judgment;
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`3.
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`On the Third, Fourth, and Fifth, Causes of Action, a declaratory judgment holding
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`Defendants liable for all response costs incurred by Plaintiffs to date, to be incurred in the future;
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`4.
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`On the Sixth Cause of Action, ordering Defendants to indemnify Plaintiffs for any
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`response costs or damages that Plaintiffs may incur in connection with the Site;
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`5.
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`On the Seventh Cause of Action, monetary judgment against Defendants for all
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`response costs incurred by Plaintiffs to the date of the judgment; and
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`6.
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`Such other and further relief as the Court deems just and proper.
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`Pursuant to Fed. R. Civ. Pro. 38, Plaintiffs demand a jury on all issues so triable.
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`JURY DEMAND
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`Dated: May 3, 2022
`Albany, New York
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`WHITEMAN OSTERMAN & HANNA LLP
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`_/s/ Jon E. Crain
`Jon E. Crain, Esq.
`Hilda M. Curtin, Esq.
`Attorneys for Plaintiffs
`Next Millennium Realty, LLC
`101 Frost Street Associates, L.P.
`One Commerce Plaza, Suite 1900
`Albany, New York 12260
`(518) 487-7600
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`By:
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`14
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