ORDER Plaintiffs Basil Seggos, as Commissioner of the New York State Department of Environmental Conservation (“DEC”), and the State of New York (collectively, “Plaintiffs”) commenced this action asserting claims pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. §9601 et seq., New York Real Property Actions and Proceedings Law §841, and New York common law. According to the complaint, defendants transported and dumped “tens of thousands of tons” of construction and demolition debris containing hazardous materials at the Roberto Clemente Park in Brentwood, New York (the “Park”). Complaint, (“Compl.”), Docket Entry (“DE”) [1], 1. The Complaint divides the defendants into three groups: (1) the Operator/Transporter Defendants1 who allegedly transported construction waste containing hazardous substances from construction sites in the New York City metropolitan area to the Park, Compl.,
8-12; (2) the Arranger-Broker Defendants2 who allegedly acted as brokers between the construction site operators and the Operator/Transporter Defendants for the removal and disposal of the waste; and (3) the Arranger Defendants, who were contractors or subcontractors at the construction sites where the waste was generated.3 The Arranger Defendants made arrangements for the disposal of the materials with the Arranger-Broker Defendants, who in turn arranged for the Operator/ Transporter Defendants to do the actual disposal. Motions to dismiss the complaint were filed by the following defendants: Daytree, Motion, DE [268]; IEV, Motion DE [284]; New Empire, Motion DE [272]; and Building Dev/Dimyon, Motion, DE [279]. A Special Master was appointed to issue a report and recommendation on the motions. See Order, DE [294], [304]. The Special Master issued an Omnibus Report and Recommendation (the “Report), DE [313], recommending that the motions be granted in part and denied in part. He recommended that the Court decline to take judicial notice of materials outside the complaint and deny the motion to dismiss the CERCLA as barred by the statute of limitations. He made further recommendations that (1) Plaintiffs have standing to maintain the action; (2) the determination of whether the state law claims are subject to a three-year or six-year statute of limitations be deferred as the facts are not sufficiently developed at this juncture; (3) the motions to dismiss the CERCLA claim for failure to state a claim be denied; (4) the motions to dismiss the public nuisance claim be denied; (5) the motions to dismiss the negligence claim be granted; (6) Daytree’s motion to dismiss for failure to state a claim against it be denied; and (7) the motions to dismiss based on the “first-to-file rule” be denied.4 I. STANDARD OF REVIEW Pursuant to Rule 53(f)(1) of the Federal Rules of Civil Procedure, the Court in acting on the master’s report or recommendations “may adopt or affirm, modify, wholly or partly reject or reverse, or resubmit to the master with instructions.” FED. R. CIV. P. 53(f)(1). Should a party raise objections to the master’s report, “[t]he court must decide de novo all objections to conclusions of law made or recommended by a master.” FED. R. CIV. P. 53(f)(4). Rule 53 does not, however, specify the scope of review required as to findings of fact and conclusions of law made by a master that are not the subject of objections by a party. Similarly, 28 U.S.C. §636(b)(1), the statute governing review of a Magistrate Judge’s report and recommendation, “does not on its face require any review at all, by either the district court or the court of appeals, of any issue that is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985). In this Circuit, courts considering a Magistrate Judge’s report and recommendation use a clear error standard to review findings of facts and conclusions of law to which no party has objected. See, e.g., Safety-Kleen Sys., Inc. v. Silogram Lubricants Corp., No. 12-CV-4849, 2013 WL 6795963, at *1 (E.D.N.Y. Dec. 23, 2013) (in the absence of an objection, a court “need only satisfy itself that there is no clear error on the face of the record to accept a magistrate judge’s report and recommendation” (internal quotation marks and citation omitted)). Courts reviewing Special Master Reports have also determined, without discussion but with citation to authority involving review of a Magistrate Judge’s report, that those portions of a Special Master’s Report to which no objections have been made are reviewed for clear error. See, e.g., CA, Inc. v. New Relic, Inc., No. CV 12-5468, 2015 WL 13753674, at *6 (E.D.N.Y. Sept. 28, 2015) (“[t]he Court reviews the portions of the Special Master’s R&R which have no objections for clear error” (citing Benicorp Ins. Co. v. Nat’l Med. Health Card Sys., 447 F. Supp. 2d 329, 331 (S.D.N.Y. 2006)); CA, Inc. v. Simple.com, Inc., 780 F. Supp. 2d 196, 208 (E.D.N.Y. 2009) (in the absence of objections, “the Special Master’s findings of fact or legal conclusions will not be overturned unless clearly erroneous” (citing Benicorp, 447 F. Supp. 2d at 331; FED. R. CIV. P. 72(b))). Here, the Special Master’s findings of fact or legal conclusions to which there have been no objections will be reviewed for clear error. Plaintiffs have filed objections as to some of the Report’s conclusions, see DE [317], as have all the moving Defendants. See COD Objections, DE [315]; New Empire Objections, DE [316]; IEV Objections, DE [318]; Daytree Objections, DE [319], and Building Dev/Dimyon Objections, DE [321]. Several of the non-moving Defendants have also filed objections to the Report.5 II. DISCUSSION A. Timeliness of the CERCLA Claim Pursuant to CERCLA, upon release of hazardous substances into the environment, liability may be imposed for “damages for injury to, destruction of, or loss of natural resources, including the reasonable costs of assessing such injury, destruction, or loss resulting from such a release.” 42 U.S.C. §9607(a)(4)(C). “The term ‘natural resources’ means land, fish, wildlife, biota, air, water, ground water, drinking water supplies, and other such resources belonging to, managed by, held in trust by, appertaining to, or otherwise controlled by…any State or local government…” 42 U.S.C. §9601 (16). Claims under CERCLA for natural resource damages must be commenced within three (3) years of “[t]he date of the discovery of the loss and its connection with the release in question.” 42 U.S.C. §9613(g)(1). Plaintiffs commenced this action on May 4, 2017, seeking to recover natural resource damages “including the lost use of the Park during the time it was closed.” Compl. 230. They do not seek recovery of remediation or removal costs,6 but rather seek natural resource damages for the loss of use of the Park resulting from Defendants’ alleged conduct. 1. Accrual of the Claim The Special Master reached several conclusions concerning implementation of the CERCLA statute of limitations. He recommended that for accrual purposes, the “date of discovery” be the date of constructive, not actual, knowledge of the loss. Report at 20 (citing Merck & Co. v. Reynolds, 559 U.S. 633, 644-48, 130 S. Ct. 1784, 176 L. Ed. 2d 582 (2010); Comm’r of the Dep’t of Planning & Natural Res. v. Century Alumina, Co., Civ. Action No. 05-0062, 2010 WL 2772695, at *4 (D. V.I. July 13, 2010), amended on other grounds, 2010 WL 3310726 (D. V.I. Aug. 20, 2010)). Accordingly, he recommended that the date of discovery be “the date that Plaintiffs first knew or with reasonable diligence would have known of the loss and its connection with the release of [the] hazardous substance in question.” Neither party has objected to the application of a constructive notice standard, and as the Court finds no clear error in this determination, the recommendation is adopted. Defendants do object to the Special Master’s conclusions regarding what constitutes “the loss” within the meaning of §9613(g)(1). Defendants argue that the loss is injury to the natural resource and thus Plaintiffs’ claim accrued upon discovery of injury to the Park from the dumping of hazardous substances. Plaintiffs counter that the loss is “the lost use of the Park while it was closed for cleanup of hazardous substances,” that the Park was closed on May 5, 2014 “to investigate dumping” and the results of testing of soil samples taken on May 8 and 9, 2014 “revealed hazardous substances, necessitating that the Park remain closed for cleanup of those hazardous substances.” Report at 17 (quoting Plaintiffs’ Memorandum at 11, DE [273]); see also Compl.
