State v. Ole Olsen, Ltd.

Memorandum. We see no sufficient basis to disturb the determination of the trial court, affirmed at the Appellate Division, that the original owners and developers of this residential tract, defendants Ole Olsen, Ltd. and Richard Grusmark (the latter as an active individual participant and not in consequence solely of his being an officer of the corporate defendant), are liable for the creation of the dangerous and unhealthy sewage conditions which have been found to exist on the properties here involved. In the circumstances here presented they were properly ordered to construct an appropriate corrective sewage disposal system at their own expense. [981] We note that these defendants had conveyed all their interest in the properties in question to the present homeowners or their predecessors in title several years ago. Problems of fashioning remedial relief other than by way of damage against these defendants who no longer hold any interest in the properties, have been obviated in this case. All presently affected homeowners have been made parties to this action. None has. taken exception to that portion of the judgment by which each is directed to permit reasonable entrance on his property for the construction of the corrective sewage disposal system. Nor have the defendants who have been ordered to construct the corrective disposal system raised any question as to the adequacy of the provisions of the judgment to permit construction thereof or to enable them otherwise to perform the obligations imposed on them. Defendants Ole Olsen, Ltd, and Grusmark do challenge the appropriateness of the provisions of the judgment herein as to the future operation of the new sewage disposal system. In our view the judgment should be amended in two respects: to make appropriate provision therein for the right of Ole Olsen, Ltd. and Richard Grusmark, or either of them, following completion and approval of the new sewage disposal system, to make application to the Supreme Court for such further amendment or modification of that judgment with respect to the continuing operation and financing of the sewage disposal system as may be deemed appropriate in the light of the facts, the law and the equities then existing; and to preserve to the Attorney-General the right to seek other appropriate relief against any of the parties to abate the nuisance. The order of the Appellate Division should accordingly be modified to direct such amendment of the judgment, and as so amended, be affirmed. Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuohsberg and Cooke concur. Order modified, with costs to plaintiffs-respondents, in accordance with the memorandum herein and, as so modified, affirmed.