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Costell, Milton - Ruling 2, October 29, 2001

Ruling 2, October 29, 2001

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

the Alleged Violation of Articles 19, 33 & 71 of the Environmental Conservation Law ("ECL")
of the State of New York and Title 6 of the Official Compilation of Codes, Rules and Regulations
("6 NYCRR") of the State of New York, parts 325 & 211,

- by -

MILTON COSTELL,

Respondent

Ruling on Motion For Protective Order

Case No. R1-2000927-72

Proceedings

Pursuant to Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York (6 NYCRR) section 624.7, the New York State Department of Environmental Conservation Staff ("Department" or Staff") has moved for a protective order with regards to Milton Costell's ("Respondent") Motion to Produce dated October, 2001. Staff alleges that a protective order should be issued with regards to the majority of the discovery demands made by the Respondent.

Staff made its motion on or about October 12, 2001 by sending to the Respondent the Motion for Protective Order with Affirmation of Karen A. Murphy, Esq., Regional Attorney for the Department's Region One office, dated October 9, 2001 (with attached exhibits). Staff also filed said documents with the Department's Office of Hearings and Mediation Services on or about October 12, 2001. 6 NYCRR 624.7 directs that objections to discovery must be made within 10 days of receipt of the discovery demands. The Motion to Produce was dated October, 2001, no specific day. It was received on October 5, 2001 by the Office of Hearings and Mediation Services.

Respondent opposed Staff's motion by affidavit of Milton Costell served on October 25, 2001, in unsigned form. It was acknowledged by Staff that Respondent was not available to receive mail from the time the motion was served until October 24, 2001 and it was agreed that the Respondent would not be required to serve any response to the motion until after that date. Respondent contacted the Office of Hearings and Mediation Services on October 23, 2001 and agreed to serve his responsive pleadings by October 25, 2001. The unsigned affidavit opposing the motion was served by facsimile by Respondent on October 25, 2001.

This matter is an enforcement proceeding commenced by Staff in October, 2000. The Complaint served upon Respondent in October, 2000 alleged that Respondent violated 6 NYCRR 325.2(b) "in that he caused or allowed chlorine compressed gas be(sp) attached to a pool filtration system which unitizes chlorine compressed gas in a residential area (at his residence) in violation of the labeling instructions". Also, that the Respondent violated 6 NYCRR 211.2 by causing or allowing a release into the outdoor atmosphere of chlorine compressed gas at his residence located at 4 Sandstone Lane Stony Brook, NY on or about May 22, 2000. A verified answer was timely served by Respondent denying the essential allegations of the complaint.

By motion dated February 14, 2001 Staff moved to amend the complaint to include additional allegations of violations. Respondent was granted two extensions of time to answer and/or oppose the motion and no response was received. By ruling dated May 2, 2001, the Staff's motion to amend the complaint was granted. An amended complaint was served. The amended complaint included the violations alleged in the original complaint and alleged that Respondent violated Environmental Conservation Law ("ECL") sections 33-1301(10) and 33-1503(1) in that he removed a quarantined item (can of compressed chlorine gas) without the Commissioner's permission.

No answer was served by Respondent with respect to the amended complaint.

A pre-hearing conference was held on September 13, 2001. Both parties were in attendance. An adjudicatory hearing was scheduled for November 8 & 9, 2001 and a schedule for discovery was also set at the conference.

Discovery Procedures

Section 624.7, "Discovery" provides, in pertinent part: (b) Within 10 days of the final designation of the issues any party has the right to serve a discovery demand upon any other party demanding that party provide:

(1) documents, in general conformance with CPLR 3120(a)(1)(i). CPLR 3120(a)(1)(i) allows for discovery among parties of documents or things in the other party's control. (CPLR refers to New York Civil Practice Law and Rules)

Section 624.7(d) allows a party against whom discovery is demanded to move for a protective order within 10 days of the discovery demand. The motion may seek to deny, limit, condition or regulate the use of any disclosure device in order to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice.

Discussion

The Respondent's Motion to Produce requests the production of "...all records, correspondence, reports, telephone call memos, notices or any information bearing on any matters whatsoever in the referenced file for the inspection of the Respondent..." The Motion also identifies with more specificity, other documents sought. I will first address the general demand noted above.

The Respondent's first and most general demand, "all records ... bearing on any matters whatsoever..." is broad and vague at its very best. Respondent must identify with some particularity what documents he seeks for two important reasons. First, the demand can not be properly responded to if it is unclear. Second, if a protective order is sought, the demand must be specific enough to determine whether it is a proper demand. Neither can be said of the first demand contained in the Motion to Produce. Both the CPLR and case law have clearly established that discovery demands must be specific. The Appellate Division, First Judicial Department reversed a lower court's denial of the motion for a protective order and ruled in Allsbrooks v. McCrory's Inc., "Since plaintiffs' demand for the statements of witnesses is overly broad and the documents sought are not "specifically designated" therein, as required by CPLR 3120 (subd. [a], par. 1), we cannot even begin to assess whether the statements are immune from discovery under CPLR 3101 (subd. [d]) or are discoverable under 3101 (subd. [g])" Allsbrooks v. McCrory's Inc. ,440 N.Y.S.2d 325, N.Y.A.D.,1981. The same is true with Respondent's initial demand. Staff's motion for a protective order is granted with respect to this demand.

The Respondent has five additional demands and they shall be addressed individually. The first remaining demand states " Produce payroll records for the subject payroll period, of all DEC employees participating in the Friday night search mission at the premises at Four Sandstone Lane, Stony Brook. Indicate hours worked and/or overtime payment for the reference property." Prior to the commencement of the enforcement action, DEC personnel entered the Respondent's property on July 6, 2000 after having been granted an Administrative Inspection Warrant. The parties have previously indicated that DEC Staff had entered Respondent's property on two separate occasions. The first entry occurred with the Respondent's consent and the second entry resulted from Staff's appearance at the property with the above referenced warrant. It is unclear to me which property inspection Respondent is referring to. However, Staff records will reflect whether this is the first or second inspection. Despite that lack of specificity on the date, the demand asks for two separate documents. It seeks the payroll records of DEC employees who were present as well as hours worked and time and/or overtime payment.

Staff opposes this demand as being overbroad and burdensome and that it seeks access to documents that are privileged and protected by discovery. Staff argues that payroll records are irrelevant to this proceeding. Respondent, in his affidavit in opposition to the motion, argues that the request for payroll records is specific, clear and relevant. He seeks them to establish whether DEC employees were paid overtime "...to violate my rights by an unreasonable nighttime search at 9:30 p.m. on Friday night, on my Sabbath?" I fail to see how the issue of pay is any way relevant to the enforcement proceeding. The Respondent has not raised any affirmative defense in his answer to the original complaint that would justify this demand and no answer was served to the amended complaint. Therefore, the motion is granted with respect to the demand for payroll records of the employees present at the search of the Respondent's property.

The demand also asks for records of the hours worked and any overtime payment records. Again, I see no relevance and grant the motion with respect to paragraph 1 of the Motion to Produce.

Paragraph 2 of the Motion to Produce seeks "payroll records for the preceding year, prior to June, 2000, of all DEC employees participating in the search mission at" the Respondent's property. Again, I see no relevance to the enforcement action. Respondent justified the demand by stating that he is attempting to establish if a Friday night search is the "modus operandi" of the DEC. Clearly, the Respondent does not agree with the time chosen by Staff to enter his property to inspect it. However, whether this was the first such nighttime inspection or not, the issues being adjudicated involve whether there was compressed chlorine gas on the property and did a release occur and, whether quarantined property was removed by the Respondent. The motion is granted with respect to paragraph 2 of the Motion to Produce.

Paragraph 3 of the Motion to Produce seeks "all records, telephone call memos, correspondence, coordinating the DEC Friday night search action and the site inspection...". Staff has responded to this demand by stating that no such documents exist. Respondent questions this and asks that Staff "be demanded to produce" such records or coordinating records with the Town of Brookhaven. If Staff has denied the existence of such records and Respondent has no proof refuting this, how can Staff's statement that no records exist be challenged. I can not order the production of records that do not exist.

Paragraph 4 seeks "memos, correspondence, telephone messages, notices, reports, or any information whatsoever bearing on the referenced file with the Setauket Fire Department. Staff has agreed to produce all responsive documents that are not protected by attorney-client privilege or as attorney work product.

Paragraph 5 seeks "Memos, correspondence, telephone messages, notices, reports or any information whatsoever bearing on the referenced file with all property owners contiguous with the" Respondent's property or within 100 feet. Staff agrees to produce the records with the identities of the complainants redacted. Staff argues that releasing names is likely to produce a chilling effect upon the community and the future willingness of the community to report perceived transgressions.

Respondent admits that 3 of his neighbors have commenced legal proceedings against him with regards to this incident. He claims that releasing the names of the neighbors involved "will serve to show the contemptible manner in which DEC has pursued this matter and forfeited its right to claim pursuit of the noble intention of their Department creating legislation".

The parties have exchanged witness lists for the adjudicatory hearing. Staff has not identified any complainants as witnesses for the hearing scheduled herein. The information received from members of the community, if any, may possibly have been the basis for the initial investigation by the Department. However, no reports by neighbors are not identified in the complaint as the foundation for allegations in the complaint nor the amended complaint. Staff's investigation, not the initial reports from neighbors, are identified in the complaint as the basis for the allegations. If Staff were relying on the neighbors complaints to support its case at hearing, then Respondent would certainly have the right to know and question his accusers.

Also, it bears repeating that Respondent has not served an answer to the amended complaint. Accordingly, the amended complaint is deemed admitted. If the Respondent is going to deny the presence of the compressed chlorine gas on his property, that defense can be established without knowing the original complainants. Had Respondent raised a defense that challenged the investigation ever being commenced, or the propriety of the inspection warrant or even the DEC's knowledge of the presence of the alleged gas, then perhaps the release of the names of the complaining parties would be relevant and necessary to the defense. However, none of that is true in this case.

Based upon the above, Staffs motion should be granted with respect to identifying the names of the complaining parties herein. Any documents that are reports received from complaining parties should be produced, with information that identified the complaining party redacted.

Request for Adjournment of the Hearing

The Respondent has indicated that he may request an adjournment of the adjudicatory hearing scheduled for November 8 & 9, 2001. Although no formal request for an adjournment has been made, I will address that request. This hearing was scheduled on September 13, 2001 during a pre-hearing conference. The date was agreed after the Respondent asked for a delay until November as he had travel plans. That request was honored and the hearing was scheduled for two months later. A letter confirming the hearing date was sent out the same day as the conference. In the letter, the parties were advised that an adjournment of the hearing would only be granted under extreme circumstances. The Respondent has intimated that he may have difficulty meeting with witnesses and/or securing their appearances at the hearing. However, no specific problem has been identified as having been encountered by the Respondent.

I see no basis to delay the hearing in this matter when neither party has identified a conflict or problem that prevents them from proceeding as scheduled.

Conclusion

The motion for a protective order is granted as detailed above. The adjudicatory hearing will commence on November 8, 2001, as scheduled.

For the New York State Department
of Environmental Conservation

_____________/s/_____________
By: Molly T. McBride
Administrative Law Judge

Dated: October 29, 2001
Albany, New York

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