(dissenting). I respectfully dissent. In my view, defendant Smook & Sons Realty Company and its related partners (hereinafter collectively referred to as Smook) are entitled to summary judgment on the ground that Smook did not retain control of the activities on the subject property within the meaning of State of New York v Green (96 NY2d 403, 405 [2001]).
“[A]n owner of contaminated property is liable as a discharger for cleanup costs where the landowner could control the activities occurring on the property and had reason to believe that petroleum products would be stored there” (State of New York v Robin Operating Corp., 3 AD3d 767, 768 [2004], citing State of New York v Green, supra). As reaffirmed in State of New York v Speonk Fuel, Inc. (3 NY3d 720, 724 [2004]), Green “predicated liability on a potentially responsible party’s capacity to take action to prevent an oil spill or to clean up contamination resulting from a spill.” Here, there is no dispute that Smook was the fee owner of the property and that it had actual knowledge that petroleum products would be stored on it. The issue thus narrows to whether Smook had the ability to control the activities on the property (see State of New York v Green, supra).
In support of summary judgment, Smook established that defendant O.S. Free Corporation was granted exclusive possession and use of the property, as well as ownership of the tanks themselves,1 pursuant to their 1983 triple net lease. Smook further established that it exercised no day-to-day control over the activities on the property, had no dealings, financial or otherwise, with any lessee (compare State of New York v Dennin, 17 AD3d 744 [2005], lv dismissed 5 NY3d 824 [2005]), received notice of only one overspill in April 1987 and was never once notified by the Department of Environmental Conservation (hereinafter DEC) of its investigation into any discharge, particularly a December 4, 1987 discharge.2 Having relinquished complete control and possession of both the land and the tanks to Free under the triple net lease, I find that Smook made a prima facie showing that it lacked the capacity to prevent an oil spill or clean up the contamination resulting therefrom.
*1050In opposition to summary judgment, although plaintiff argued that Smook was in a position to know about and report alleged “ongoing discharges” at the property, insufficient evidence was offered to establish that it was in any way involved in the activity, or inactivity, that led to the subject spill or that Smook even knew about the spill and thereafter allowed it to go unabated. Plaintiff argues, and the majority agrees, that Smook had control within the meaning of Green simply because it had the ability to negotiate the terms of its lease with Free.3 In other words, according to plaintiff and adopted by the majority, a landowner can never escape Navigation Law liability for petroleum discharges by contracting away control of the premises to a tenant. I find this holding to be at odds with the language of the statute itself. Navigation Law § 181 (1), unlike other statutory provisions, simply makes no provision for the imposition of strict liability upon a landowner (compare Navigation Law § 181 [3] [a]; ECL § 17-1003 [4]; 17-1007 [2]; 42 USC § 9607 [a]). Rather, liability flows from control. To say that control over lease terms is itself control over the activities on the property relegates this statutory scheme to one imposing strict liability based on status alone, with the possible exception of a midnight dumper or errant truck accident, even though the Legislature has not so provided.
In other words, while I completely agree with the general sentiment that strong public policy considerations exist for imposing liability on a landowner under these circumstances, countenancing such argument is at odds with the clear absence of statutory language imposing strict liability upon landowners under Navigation Law § 181 (1), as well as the Court of Appeals’ express refusal “to impose liability based solely on ownership of contaminated land” since all landowners clearly have the ability to regulate lease terms (State of New York v Green, 96 NY2d 403, 405 [2001], supra [emphasis added]).
In my view, there is no greater evidence that Smook had no authority to control the activities occurring on the property than DEC’s own failure to ever notify Smook of its investigation or decision to clean it up, despite knowledge from the onset that *1051Smook was the fee owner.4 Otherwise stated, DEC’s decision to deal exclusively with Free for nine years without once notifying Smook of its involvement in the matter is itself evidence that Smook had no control over the activities occurring on the property. Furthermore, without notice of the subject contamination, Smook lacked the capacity to clean up the site (cf. State of New York v Speonk Fuel, Inc., 3 NY3d 720 [2004], supra).
I would modify Supreme Court’s order and grant summary judgment to Smook.
Ordered that the order is modified, on the law, without costs, by reversing so much thereof as denied plaintiffs cross motion for partial summary judgment on the issue of liability; cross motion granted; and, as so modified, affirmed.
. Other than noting the lack of a bill of sale for the subject tanks, plaintiff did not controvert Smook’s otherwise sufficient showing that it did not own the tanks.
. In December 1996, Smook was first notified by DEC that it was liable for cleanup and removal costs in excess of $430,000 for a December 4, 1987 discharge on the property.
. Reliance on our prior decision in State of New York v Dennin (17 AD3d 744 [2005], lv dismissed 5 NY3d 824 [2005]) is unwarranted as it involved a sham “oral land contract” between family members six years after an action had been commenced to recover cleanup costs. Moreover, the three-year net lease between the defendant daughter-in-law, who admittedly was the owner of the petroleum system, and the tenant operating the gas station was markedly different than the subject lease.
. Handwritten notes of a DEC engineer dated June 4, 1988 identify Smook as the property owner but indicate that the tenant or operator would be liable because it had “actual possession and control of the product.” Moreover, on March 19, 1991, Free alone signed an agreement granting DEC permission to enter its property for cleanup purposes.