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Danny Fortune & Co., Inc. - Ruling 3, December 29, 1999

Ruling 3, December 29, 1999

STATE OF NEW YORK DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of Alleged Violation of Article 23 of
the New York Environmental Conservation Law and Part 421 of Title 6 of
the Official Compilation of Codes, Rules and Regulations of the State of New York

by

DANNY FORTUNE & CO., INC.,
PALUMBO BLOCK COMPANY, INC.,
FORTUNATO PALUMBO and ANTHONY PALUMBO

Respondents.

RULING ON
MOTION TO DISMISS
AND
CROSS MOTION FOR DEFAULT AND ADJOURNMENT

NYSDEC Case No.

R3-1999-0909-52

12/29/99

Introduction

This enforcement action was commenced by Notice of Hearing and Complaint dated September 13, 1999 alleging that the Respondents Danny Fortune & Co., Inc., Palumbo Block Company, Inc., Fortunato Palumbo and Anthony Palumbo (the "Respondents") are unlawfully mining without a permit (NYSDEC Case No. R3-19990909-52; the "Dover enforcement action") at the Dover Industrial Park site, Dover, New York. the Respondents excavated an area of the site pursuant to Town of Dover Planning Board approval in 1993 to construct a building referred to as "Building II". However, Staff assert that excavation of a two-acre area exceeded the Town approval, and further, the Respondents have not commenced building construction on the site. The Respondents own various mining interests in New York including sites in Dutchess County and Columbia County and are the owners and developers of the Dover Industrial Park. (A lengthier procedural history of this case is set forth in previous rulings in this action, dated November 12, 1999 and November 23, 1999.)

On December 3, 1999 at the request of the Respondents, an expedited adjudicatory hearing was scheduled in this matter pursuant to 6 NYCRR Section 622.13, since the complaint alleges mining without a permit (under two theories of liability.)

Pursuant to a schedule agreed upon by the parties, by letter dated December 21, 1999, the Respondents filed a response to Staff's discovery demand consisting of a document index. By letter dated December 22, 1999, the Respondents filed amended answers in response to Staff's amended complaint.

By letter dated December 23, 1999, the Respondents filed a motion to dismiss or for sanctions against Staff, due to Staff's failure to provide a discovery response to the Respondents' demand.

During a telephone conference on December 28, 1999, Staff attorney Cordisco explained that he had not yet prepared a discovery response or motion response, due to his responsibilities in several unrelated matters. He requested until December 30, 1999 to file a response to the Respondents' motion to dismiss. Respondents' counsel, Ms. Zeisel stated she would prefer the discovery materials rather than pursuing the motion practice.

I directed that Mr. Cordisco provide a document index to Ms. Zeisel by December 30, 1999 in response to the Respondents' discovery demand. Mr. Cordisco said he would provide the actual documents, rather than an index. Also, I granted Mr. Cordisco's request for an extension of time to December 30, 1999 to respond to the Respondents' motion to dismiss. Ms. Zeisel agreed that if Staff's discovery response is delivered to her by December 30, 1999, then she will file a letter withdrawing the motion to dismiss.

Lastly, Mr. Cordisco confirmed that Staff is preparing an updated site survey. I directed Staff to provide the Respondents with the updated survey by January 7, 2000.

Following the telephone conference, in early afternoon, Mr. Cordisco filed a letter explaining that he was rescinding any agreements he had previously made with opposing counsel regarding discovery, and that he demands actual and complete discovery response from opposing counsel by December 31, 1999.

At the end of the day on December 28, 1999, Mr. Cordisco filed a cross-motion seeking adjournment of the adjudicatory hearing scheduled to commence on January 13, 2000, rescission of the requirement that Staff provide an updated survey to the Respondents by January 7, 2000 and entry of a default judgment against the Respondents on the amended complaint's second cause of action, because the Respondents' amended answers were purportedly filed late.

Staff's cross motions are denied. Although Mr. Cordisco now represents Staff in this matter, previous Staff counsel initiated this proceeding. Nonetheless, Mr. Cordisco is now responsible for going forward with this enforcement action. Notwithstanding his affidavit to the contrary, Mr. Cordisco is responsible for marshaling Staff resources necessary to prosecute this action.

Mr. Cordisco argues for adjournment of the hearing. He asserts that because the Respondents have not identified any substantiation for their request for expedited hearing, an adjournment at Staff's request is appropriate. However, this does not comport with 6 NYCRR Section 622.13. Department Staff initiates the enforcement proceeding by service of the complaint; Staff retains the prerogative to withdraw the complaint without prejudice to refile, if they are not prepared to go forward with their case.

In sum, the Respondents have been granted an expedited hearing consistent with 6 NYCRR Section 622.13. That hearing is scheduled to commence on January 13, 2000. I find no reason to adjourn the hearing on the facts before me.

____________________/s/____________________
Administrative Law Judge

Albany, New York
December 29, 1999

To: Laura Zeisel, Esq. [By Fax]
169 Main Street
P.O. Box 9
New Paltz, New York 12561

Dominic R. Cordisco [By Fax]
Assistant Counsel
NYSDEC - OGC/DEE
50 Wolf Road [Rm 627]
Albany, New York 12233-5500

cc: Palumbo/Ancram Permit Action Distribution List
Danny Fortune & Co., Inc./Dover Permit Action
Distribution List

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