Harris v. New England Tank Removal, No. Cv 02 0190630s (Oct. 1, 2002)

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION This case comes to this court on an application for a discharge of Mechanic's Lien.

The law in Connecticut is clear that the burden of establishing probable cause is on the defendant. If probable cause is found, then the plaintiff must establish by clear and convincing evidence that the lien should be reduced, removed, or otherwise modified.

The court finds that New England Tank Removal has established probable cause. The court finds that Charles Harris has not established by clear and convincing evidence that the lien should be reduced, removed, or otherwise modified.

The court finds that the parties entered into a contract for the tank removal on premises known as 25 Heusted Drive in Old Greenwich, Connecticut. See defendants Exhibit A. The court further finds that the soil was contaminated as set forth in Exhibit B.

The court further finds that the parties entered into an agreement to remove the contaminated soil at the cost of $157.00 per ton as set forth in Exhibit C. The court finds that the defendant, New England Tank Removal removed a total of 49.88 tons as set forth on Exhibits D E. The court finds that the amount due for the removal of that contaminated soil was $7,831.16. They had been paid $3,000.00 on account.

The court finds that demand was made for the payment of the $4,831.16 and it is undisputed that that amount has not been paid.

The defense of Charles Harris is set forth in Exhibit #1 and #2 which are his documents and photographs. During the presentation of his case he primarily relied on Exhibit #21 a photo, Attachment 3 of Exhibit #1, and Attachment 2 of Exhibit #1, the site map. He claims that the New England CT Page 12406 Tank Removal took too much clean soil. That they were lax in their standards and that they did not supervise the project properly.

His computations as set forth in Attachment 3, page 1 of 1, leads him to conclude that the contaminated soil was only 16.2 tons. He has essentially done an evaluation of the site and has concluded that only levels 5 and 6 of his analysis were contaminated and accordingly his computation.

By his own admission he is not an expert in this field. He has read extensively and has based his conclusions on his research along with his technical background as a physics major and being involved in various work experiences.

It is clear that New England Tank Removal and its principal Donald MacIntyre are experts in tank removal and in environmental cleanup both by state certifications and by work experience, having removed 1,000 tanks.

The court finds the more credible evidence to be in favor of the New England Tank Removal and makes its ruling accordingly.

KARAZIN, J. CT Page 12407