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Kennedy: Hoosick Falls group takes another try at 'stigma' lawsuit

Kennedy: Hoosick Falls group takes another try at 'stigma' lawsuit

The new suit still claims 'stigma' and seeks the same $2.1 million in damages, but now alleges actual harm
Kennedy: Hoosick Falls group takes another try at 'stigma' lawsuit
Photographer: Shutterstock

File this under the maxim “If at first you don’t succeed, try, try again.”
 
The limited partnership that owns a commercial property in Rensselaer County is back in court, suing manufacturers Saint-Gobain Performance Plastics and Honeywell International once more for the pollution “stigma” it says scotched a real estate deal.
 
This time, though, it brought additional evidence.
 
Hoosick Falls Associates owns the 12-acre parcel just outside the village of Hoosick Falls, where the community’s only supermarket, a Tops Friendly Markets, is the sole tenant.
 
HFA, as it’s known, has owned the property for many years. Prior to Tops, a Grand Union supermarket operated there.
 
In court papers, HFA says it wanted to sell the site for $2.1 million and was in discussions with three interested buyers in late 2015 when news broke that the water in Hoosick Falls was contaminated by perfluorooctanoic acid, or PFOA. The state traced the source to Saint-Gobain and Honeywell, which have several plants in the village and the adjacent town of Hoosick.
 
That sent the three prospects packing, according to HFA, and no serious purchase offer has surfaced since.
 
So HFA put its grievances to paper and sued the two manufacturers in April 2016, claiming the PFOA, a chemical used to create non-stick coating surfaces that has been linked to cancer, created a “public health crisis” that left a stigma on local real estate, including its own.
 
“As such, market value of the [HFA] property has been substantially diminished, if not rendered altogether valueless,” states the lawsuit, which sought to recover the $2.1 million lost when no sale occurred.
 
The lawsuit was amended a few months later to reflect subsequent developments, including Saint-Gobain and Honeywell agreeing to state consent orders for remediation. HFA’s claim of “stigma” remained.
 
But a judge didn’t buy the claim and tossed the lawsuit last year.
 
“[S]tigma is not itself an injury sufficient to support a negligence claim,” wrote Justice Patrick McGrath of Rensselaer County Supreme Court. “The stigma must be the result or consequence of an actual contamination or harm ...”
 
Otherwise, he said, HFA was only alleging foreseeable economic injury by the manufacturers, and they had “no legal duty to protect plaintiff” from that.
  
Apparently undeterred, HFA subsequently hired two environmental consulting firms that separately tested the property’s soil, groundwater and surface water, finding evidence of PFOA above designated safety thresholds.
 
The findings are included in a new lawsuit – mirroring the initial and amended ones – that HFA filed against Saint-Gobain and Honeywell last week.
 
The new suit still claims “stigma” and seeks the same $2.1 million in damages, but now alleges actual harm – “significant contamination of the property by PFOA” at levels “far exceeding” federal standards. Property cleanup, it says, will also cost millions of dollars.
 
Will that be enough “try, try again” to avoid dismissal? We’ll have to stay tuned.
 
Marlene Kennedy is a freelance columnist. Opinions expressed in her column are her own and not necessarily the newspaper’s. Reach her at [email protected].
 

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