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Elbridge, Village of - Commissioner Ruling, September 26, 1995

Commissioner Ruling , September 26, 1995

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
50 Wolf Road
Albany, New York 12233-1010

In the Matter of

the Application of

THE VILLAGE OF ELBRIDGE

for the Fixation of Water Rates Water Supply Application No. 9039

RULING ON MOTION FOR RECONSIDERATION

September 26, 1995

Ruling on Motion for Reconsideration

This ruling resolves a letter motion of June 27, 1995 by the Village of Elbridge ("Elbridge") for reconsideration of certain cost allocations determined in the Commissioner's Supplemental Decision dated February 8, 1995. The Village of Jordan ("Jordan"), by letter dated July 5, 1995, opposed the motion on the ground of untimeliness. The Elbridge application seeks to adjust findings of fact made after adjudication and adopted by the Commissioner. Although not expressly stated in the motion papers, it is appropriate to treat the request for modification as a motion for reconsideration.

This is the second request for reconsideration made in these proceedings. The first request resulted in the Supplemental Decision which corrected minor arithmetic errors to the initial Decision dated November 21, 1994 and rejected other issues raised as not warranting reconsideration.

This request requires that I determine whether the Supplemental Decision should be further adjusted through the consideration of additional information developed after the close of the hearing record and close of the record on the first motion for reconsideration. Elbridge's motion for reconsideration is denied on the grounds that Elbridge's request seeks to revise an issue previously determined and is untimely.

While the Department has the power to modify an administrative decision to correct an error, (Greene v. Diamond, 75 Misc.2d 724 [Sp.Term Albany County, 1973]), or to clarify its underlying decision, reconsideration may not be used as an opportunity to reargue points that were already considered and rejected (see, In the Matter of the Applications of Pete Drown, Inc., supra) or to bring up arguments which could have been made in the first instance but were not.

Reconsideration is appropriate only where the decisionmaker overlooked or misapprehended the facts or law, or for some other reason mistakenly arrived at a decision (Mayer v. National Arts Club, 192 A.D.2d 863 [3d.Dept. 1993]).

Previous motions for reconsideration were limited to clarifying the meaning of the prior ruling or its rationale. (See, In the Matter of the Application of Hyland Facilities Associates, Ruling on Motion for Reconsideration dated May 11, 1994; In the Matter of Bitses, Decision on Motion to Reargue dated March 27, 1992; In the Matter of the Application of Foster Wheeler - Broome County, Inc., Supplemental Decision dated July 16, 1992; In the Matter of the Applications of Pete Drown, Inc., Second Interim Decision April 18, 1994; Matter of Charles Pierce, Sr., Ruling on Motion for Reconsideration, dated June 9, 1995.)

The matter Elbridge raises is not one of a simple mistake, arithmetic error or of clarifying issues but is one that could have been presented in the adjudicatory hearing. In essence, Elbridge seeks to re-open the hearing to dispute findings already made. For the reasons discussed above, those grounds alone warrant denial of the motion. Also, Elbridge's request comes more than four months after the Commissioner's Supplemental Decision and is thus considered untimely as well.

_____________/s/_____________
Michael D. Zagata, Commissioner

Dated: Albany, New York
September 26, 1995

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