Liane Langstaff

The plaintiff appealed a master's decision dismissing its motion under Rule 32.01 for intrusive testing on the defendant's adjacent property to investigate environmental contamination.

The master found that the proposed testing would not be probative because the plaintiff's construction had already altered the soil and groundwater conditions, and that the prejudice to the defendant outweighed any benefit.

The Superior Court of Justice dismissed the appeal, finding no error of law or palpable and overriding error of fact in the master's exercise of discretion.

The plaintiff, a condominium developer, brought a motion under Rule 32.01 for an order allowing its expert to conduct invasive soil and groundwater testing on the defendants' adjacent property, which operated a dry-cleaning business.

The plaintiff alleged the defendants' property was the source of chlorinated solvent contamination found on its lands.

The court dismissed the motion, finding that the proposed testing would not be probative because the plaintiff's extensive excavation and construction had irrevocably altered the subsurface conditions.

The court also applied the equitable doctrine of laches, noting the plaintiff's unreasonable delay in seeking the inspection prejudiced the defendants.