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Claims against city in Anaya lawsuit dismissed

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Judge rules that plaintiff can amend pleadings

A state district judge granted the city of Roswell’s request to have claims against it dismissed in a lawsuit about one of the city’s Superfund sites.

In his decision Monday, New Mexico 5th Judicial District Court Judge Thomas Lilley also gave the plaintiff, Lynda Anaya, the right to amend her complaint within a month.

A lawsuit filed November 2019 by Lynda Anaya, the widow of Raymond Anaya, against both the city and the New Mexico Environment Department alleges that the governmental entities and some of their employees acted negligently by failing to take adequate steps to inform people of the dangers at the site and by giving business licenses to dry cleaning operations, although those operations were considered primary sources of chemical pollutants.

Raymond Anaya passed away at age 73 in November 2017 after he began to experience health problems in 2008, according to his widow. In addition to being a locally known businessman, Anaya was a community volunteer, a former Golden Gloves boxer and, together with Lynda, the parent of five sons.

Lynda Anaya contends in her lawsuits — which include a separate wrongful death lawsuit filed against Taylor Investments Inc. and five individuals that she has identified as property owners — that her husband’s symptoms were the result of the hazardous chemicals in the area of 508 W. Second St., where the Anayas ran a tax accounting and consulting business for many years.

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The state was aware of contaminants in the area starting about 2012, according to the suit. Eventually the office building was included as part of the West Second and Lea Avenue Superfund site by the U.S. Environmental Protection Agency and placed on a national priority list for clean-up and remediation efforts.

State and federal authorities have said that chemical pollutants have seeped into the groundwater. While the dumping or leaking of solvents by dry cleaning operations are considered a major factor, underground gasoline tanks also could have contributed to problems. Vapor intrusion samples also have detected fumes from the pollutants.

In her lawsuit against the governmental entities, Anaya states that code enforcement officials and other city employees knew about the contamination and should have done more to protect her husband and the public.

Lilley, who serves in the Chaves County division, ruled in favor of the city’s motion to dismiss based solely on legal issues rather than considering any arguments about the facts of the case.

Lilley said that Anaya is alleging only negligence on the part of the city and its code enforcement officers, not a more serious offense. Negligence does not cause a governmental entity in New Mexico to lose sovereign immunity as provided by the Torts Claims Act, Lilley decided.

“The facts as stated, even if taken as true, are insufficient to establish a waiver of immunity enjoyed by the city under the Torts Claims Act,” Lilley wrote.

He noted that Anaya’s lawyer had said during hearings that he and his client might want to change the pleadings to specify that code enforcement officials could be considered similar to law enforcement officers with a duty to act and to describe specific actions or lack of actions alleged to have been harmful.

Lilley had noted some possible legal issues with that argument as well, but he gave Anaya and her lawyers 30 days to amend the claim.

The New Mexico Environment Department also has filed for a motion to dismiss, with a hearing regarding that held June 23. Lilley was still considering that issue as of press time.

The wrongful death lawsuit is before 5th Judicial District Judge Jared Kallunki, who also presides in Chaves County. The defendants in that lawsuit have denied negligence or responsibility in their answers to Anaya’s complaint.

Calls to lawyers representing Anaya and the city of Roswell were not returned by press time.

Senior Writer Lisa Dunlap can be reached at 575-622-7710, ext. 351, or at reporter02@rdrnews.com.