710 F.Supp 466
Plaintiff present owner brought suit against defendant former owner seeking to recover costs associated with ridding a site of various hazardous substances. Both parties filed motions for summary judgment.
-The present owner sought to recover the costs associated with the cleanup of the site at issue pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), 42 U.S.C.S. §§ 9601-9607.
-The present owner further alleged that in the course of the former's owners business it had occasion to use raw materials designated as hazardous under CERCLA and that groundwater and soil testing showed elevated levels of various hazardous substances.
-Throughout its investigation of the site, the present owner repeatedly informed the former owner of its findings and demanded that the former owner assume responsibility.
-The court determined that the presence of material issues of fact precluded the entry of a partial summary judgment in favor of the present owner.
-The court rejected the former owner's argument that the "as is" clause in the parties' agreement precluded recover.
-The court also rejected the former owner's statutory third party defense and the former owner's reliance on equitable estoppel.
Under New York law an "as is" clause in a contract is interpreted to bar only actions based upon breach of warranty. Thus, it has been stated that the purpose of such a clause is to negate the existence of any representations by the seller as to the particular condition, fitness and type of the premises sold. It merely means that the purchaser must take that for which he bargained, reasonable use, wear, tear and natural deterioration are excepted.
OUTCOME: The court denied the motions for summary judgment.
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