
    Michael A. Whitesell et al., Respondents, v Barbara S. Walchli, Defendant, and Edward J. Walchli, Appellant.
    (Appeal No. 1.)
    [654 NYS2d 541]
   Order unanimously reversed on the law without costs, motion granted and complaint against defendant Edward J. Walchli dismissed. Memorandum: Supreme Court erred in denying the motion of Edward J. Walchli (defendant) to dismiss the complaint against him for failure to state a cause of action (see, CPLR 3211 [a] [7]). Plaintiffs allege that defendants are responsible for damage to their dairy herd based upon Navigation Law § 181 (1) and (5). Navigation Law § 181 (1) provides that "[a]ny person who has discharged petroleum shall be strictly liable, without regard to fault, for all cleanup and removal costs and all direct and indirect damages, no matter by whom sustained”. Navigation Law § 181 (5) provides that such a claim "may be brought directly against the person who has discharged the petroleum”. Liability as a "discharger” under the statutory scheme is thus "based upon conduct, not status * * * [and] [njothing in the statute could be construed as making a landowner responsible solely because it is a landowner” (Drouin v Ridge Lbr., 209 AD2d 957, 958). Defendant owns a 4.4% interest as a nonoperator in the oil and gas lease on the land. He did not control the operations conducted under the lease. Because defendant cannot be considered a "discharger” subject to liability under Navigation Law § 181 (1) and (5) (see, Drouin v Ridge Lbr., supra, at 958-959), the complaint fails to state a cause of action against him. (Appeal from Order of Supreme Court, Allegany County, Himelein, J.—Dismiss Complaint.) Present—Green, J. P., Pine, Doerr, Boehm and Fallon, JJ.  