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Rockland County Supreme Court Allows Injured Firefighter’s Claim To Proceed Against Rockland Green In Negligent Handling Of Toxic Chemical Case
In September, RCBJ reported on Richard Fenner, a firefighter who suffered serious injuries last year when he inhaled chlorine gas at Rockland Green’s Bowline Transfer Station after being called in to extinguish a dumpster fire. According to reports prepared at the time of the incident, buckets of chlorine were improperly carted by Capasso Carting from Crystal Clear Pools in Nanuet and accepted at the transfer station even though Bowline was not a hazardous waste processing facility. A fire broke out in the trailer, and at the time, seven firefighters who responded to extinguish the fire were taken to Westchester Medical Center to be treated and evaluated for the possible inhalation of unknown chemicals.
Fenner suffered chest burns and was referred to a pulmonologist. In the year since the incident, Fenner developed Chronic Obstructive Pulmonary Disease (COPD), permanent and irreversible damage to his lungs and lung capacity, and severe and irreversible damage to his heart, according to his claim.
Fenner had to apply to Rockland County Supreme Court for permission to sue Rockland Green because he had not filed a “Notice of Claim” detailing his injuries within 90 days of the incident, as required by law. Despite acknowledging that chlorine was improperly accepted and stored at Bowline, that multiple firefighters were treated at Westchester Medical Center, and that it had specific knowledge of the incident (though it claimed it had no knowledge of Fenner’s particular injury), Rockland Green asked the Court to deny Fenner the right to sue for his injuries because he missed the 90-day notice deadline.
New York State law enables a court to allow for a late filing when the claimant has a reasonable excuse for the delay, and the governing agency is not substantially prejudiced in its defense of the claim.
Rockland Green claimed that it was prejudiced by Fenner’s late filing, saying that it was denied an opportunity to properly investigate the claim, and that its insurance company might deny coverage. It was unclear if Rockland Green ever reported the fire, or the improper storage of hazardous materials, to its insurer.
Fenner charges that Rockland Green (and its employees and agents) knew or should have known that toxic chlorine was combusting in the trailer. Fenner claims Rockland Green failed to properly care for the toxic chemicals; failed to implement adequate safety policies and procedures to prevent accidents; failed to enforce the rules of the recycling center which prohibits the storage of toxic chemicals; failed to ensure the trailer was an appropriate vessel for the storage of toxic chemicals; failed to properly inspect vehicles dumping waste at the recycling center; failed to warn the responders and disclose to them the existence of toxic chemicals; failed to handle toxic chemicals properly; and a host of other failures to manage the toxic chemicals and protect the first responders at the scene.
Fenner provided extensive documentary evidence to the Court, including statements made by Rockland Green Chairperson Howard Phillips to the media at the time of the fire. He provided incident reports, showing actual knowledge of the gravity of the incident at the time of the fire by a Rockland Green supervisory employee, as well as reports from the DEC and Rockland County Sheriff’s Office.
Acting Supreme Court Justice David Fried considered the evidence presented and found that Rockland Green had actual knowledge of the incident within the 90-day notice period, and that it had omitted from its presentation of facts that it also knew that the firefighters were being evaluated and treated for “possible inhalation of unknown chemicals.” The Court also found that Rockland Green knew at the time that chlorine may have been on site before the fire broke out. Justice Fried also rejected the possible denial of insurance coverage as speculative and questionable.
Fried entered an order permitting Fenner to file a late “Notice of Claim” which will enable him to pursue his lawsuit against Rockland Green for the injuries he suffered based on his claim that Rockland Green negligently handled toxic chemicals at its Bowline transfer station.
Court Order Rockland Green To Produce Unredacted Documents for In Camera Review Sought By RCBJ On Animal Shelter Contract Award
In August, Rockland County Business Journal reported on a lawsuit it filed against Rockland Green (the former County Solid Waste Authority) in Rockland County Supreme Court, alleging that Rockland Green illegally withheld documents requested under New York’s Freedom of Information Law (FOIL).
RCBJ was working on a story investigating whether Rockland Green improperly steered the award of the construction contract for its new animal shelter last December to a “preferred” vendor, an out-of-state contractor that had never built an animal shelter, and was not the low bidder.
Through a Freedom Of Information Act request filed in December of 2024, RCBJ requested information about the bids, the reasons for rejection of local and regionally-based businesses in favor of the out-of-state contractor. After many months of delay, and many administrative appeals, Rockland Green turned over hundreds of pages of redacted documents and withheld all documents related to its actual selection process, including the facts it relied on in making its final decision.
RCBJ filed suit in Rockland County Supreme Court in July alleging Rockland Green failed to comply with its FOIL obligations. RCBJ requested disclosure of unredacted documents, attorney’s fees and costs.
Rockland Green, represented by outside counsel, The West Group, answered claiming it had complied with its legal obligations, that RCBJ had not exhausted its administrative remedies, and that the complaint filed “failed to state a cause or action.”
In an accompanying affidavit by its Executive Director Gerard Damiani, it claimed that it was not obligated to award contracts to low bidders, that the proposals for the shelter contained sensitive financial information from its vendors that it needed to protect, that the proposals contained trade secrets that it needed to protect, that it allows its vendors to determine what should be exempt from FOIL disclosures, and that it might have liability for disclosing the information.
Rockland Green also claimed for the first time in its response that some of the documents were attorney-client privileged and exempt from disclosure,
RCBJ asserted in reply that Rockland Green’s failure to raise the attorney-client and other privilege issues in the administrative appeals likely amounted to a waiver of that privilege, if it existed at all.
Rockland Green sought to file an additional reply (a sur reply) to re-argue that point, but the Court did not permit the filing.
On October 28, Justice Hal Greenwald entered an order requiring Rockland Green to produce the withheld and unredacted documents to the Court to allow the Court to review them in camera (in chambers) so it could judge the propriety of the exemptions claimed by Rockland Green.
Under FOIL, all government records are presumptively open for public inspection unless they fall within an enumerated statutory exemption. The exemptions are narrowly construed and the burden is on the agency asserting the exemption to articulate a particular and specific justification for denying access.
Greenwald found Rockland Green’s claims of exemption conclusory and lacking explanation as to the contents of the records it was refusing to disclose. Greenwald challenged Rockland Green’s sweeping assertions that the information redacted fit squarely into the type of information intended to be protected from disclosure, or that any of the redacted information was actually a trade secret or confidential.
The Court also found Rockland Green failed to provide specific, persuasive evidence related to privacy allegations, and said, “Respondent’s opposition is rife with conclusory assertions that are not supported by any facts, rendering the arguments insufficient.”
As to assertions that the material relied on by the agency in its deliberations were exempt, the Court could neither agree nor disagree. The court could not address Rockland Green’s first-time assertion of attorney-client privilege as it had not presented any evidence in support of its claim.
The Court ordered the unredacted documents be produced to the court for review on or before November 21st and that a subsequent decision be held in abeyance pending the court’s review of the documents.
Rockland Green’s attorneys sought to have a compliance conference set for December 9th converted to a hearing to give them an opportunity to reargue what it termed “critical matters” allowing the parties to “have the opportunity to clarify the various arguments at issue.” The Court did not accommodate Rockland Green’s request.
Rockland Green provided unredacted documents and privilege logs to the Court on November 20.
