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Bruni, Louis - Ruling, June 24, 1993

Ruling, June 24, 1993

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

the alleged Violations of Environmental Conservation Law of the State of New York
Article 25 and Title 6 of the Official Compilation of Codes, Rules and Regulations of
the State of New York Part 661

- by -

LOUIS BRUNI

RESPONDENT

RULING

DEC No. 1-5101

Summary

With service of a Notice of Hearing and Complaint dated July 27, 1992, the Department moved for Summary Order as provided by 622.10. The Respondent filed papers opposing the Motion. After reviewing the papers filed by the Parties, I concluded there was a factual issue about whether the Respondent's alleged actions caused, or could cause, environmental harm to the tidal wetland. A hearing to consider this factual issue began on March 23, 1993.

This ruling addresses two distinct matters discussed at the hearing on March 23, 1993. First, I have reconsidered my ruling about limiting each Party's direct case about whether the Respondent's actions caused, or could cause, environmental impacts to the tidal wetland to the affidavits submitted by the Parties with respect to the Motion for Summary Order.

Second, there is an outstanding request by the Department for an affidavit from the Respondent's expert, Dr. Johnson. Since I have reconsidered my ruling about how the affidavits submitted by the Parties with respect to the Motion for Summary Order will be used, I deny the Department's request.

Using Affidavits a Prefiled Direct Testimony

At the hearing on March 23, 1993, I marked for identification and received into evidence the affidavits filed by the Parties with respect to the Motion for Summary Order. Over the Respondent's objection, I ruled these affidavits would be the prefiled direct testimony about whether the Respondent's alleged actions caused, or could cause, environmental harm to the tidal wetland. The Department did not object to the ruling.

For the following reason, the ruling to limit each Party's direct case to the contents of the affidavits was improper. Though advisable, the applicable rules did not require the Respondent to submit all available proof when he replied to the Department's Motion for Summary Order. Rather, the Respondent needed only to provide enough proof to show there was a genuine issue of fact for adjudication. The Respondent did not need to provide evidence to prevail on the merits about whether the Respondent's actions caused, or could cause, environmental impacts to the tidal wetlands. Although I was concerned about efficiency, protecting the Respondent's rights to present his full case overrides this concern. Therefore, I modify my ruling made at the hearing on March 23, 1993.

The affidavits will continue to serve as prefiled direct testimony about whether the Respondent's actions caused, or could cause, environmental impacts to the tidal wetlands. However, I will not limit each Party's direct case exclusively to the affidavits submitted with respect to the Motion for Summary Order. The Parties may supplement their cases with additional direct testimony.

Request for Prefiled Testimony

In replying to the Motion for Summary Order, the Respondent did not initially file an affidavit from Dr. Johnson. On March 23, 1993, the Department requested an affidavit from the Respondent's expert, Dr. Johnson, to be used as prefiled direct testimony. The Respondent objected to the Department's request. At the hearing, I reserved ruling on the Department's request.

Since I have reconsidered my ruling about how the affidavits submitted by the Parties with respect to the Motion for Summary Order will be used, I deny the Department's request. This ruling, however, does not limit the Department's right to discovery as provided by 622.8.

For the New York State Department
of Environmental Conservation

_____________/s/_____________
By: Daniel P. O'Connell
Administrative Law Judge

Dated: Albany, New York
June 24, 1993

To: Frank A. Doddato, Esq.
Capetola and Doddato
Building C
Two Hillside Avenue
Williston Park, NY 11596
FAX: 516-746-2318

Kathleen M. Shea, Esq.
Assistant Regional Attorney
NYSDEC - Region 1
Building 40, SUNY Campus
Stony Brook, NY 11794
FAX: 516-444-0373

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