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Juda Construction, Ltd - Ruling, April 23, 2001

Ruling, April 23, 2001

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the matter of

the alleged violation(s) of the New York State Environmental Conservation Law (ECL)
Article 27 and Part 360 of Title 6 of the Official Compilation of
Codes, Rules, and Regulations of the State of New York (NYCRR)

- by -

JUDA CONSTRUCTION, LTD.,
636 Saw Mill River Road
Yonkers, New York,

Respondent.

RULING OF THE ADMINISTRATIVE LAW JUDGE
ON MOTION TO CLARIFY AFFIRMATIVE DEFENSES

Case No: 3-20010208

Proceedings

Pursuant to the provisions of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("NYCRR") Section 622.6(c), Staff of the New York State Department of Environmental Conservation ("Staff") has moved for clarification of affirmative defenses set forth in the Answer of Respondent, Juda Construction Ltd. ("Respondent"). Staff's complaint alleges that Respondent operated a solid waste management facility, processing non-exempt construction and demolition debris without a registration or permit. Staff alleges further that Respondent refused consent for authorized department staff to enter upon and inspect Respondent's premises. In its motion, Staff argues that Respondent's affirmative defenses to the allegations in the complaint are vague and ambiguous, and that the Department is not placed on notice of any of the facts supporting the legal theories underlying those defenses.

Staff served a Notice of Hearing and Complaint on Respondent on or about February 15, 2001. Respondent submitted an Answer to the Complaint dated March 1, 2001. On March 9, 2001, Staff moved to clarify Respondent's affirmative defenses by serving Respondent with a Notice of Motion and Affirmation of Carol Backman Krebs, Esq. in support of the motion. Staff filed the motion papers with the Department's Office of Hearings and Mediation Services on or about March 20, 2001.

Respondent has opposed the motion by the Affidavit in Opposition of Michele Marianna Bonsignore dated March 16, 2001.

Motion Procedures

6 NYCRR Section 622.4(f) provides that

The department staff may move for clarification of affirmative defenses within 10 days of completion of service of the answer on the grounds that the affirmative defenses pled in the answer are vague or ambiguous and that staff is not thereby placed on notice of the facts or legal theory upon which respondent's defense is based.

In its motion, Staff alleges that Respondent's affirmative defenses are vague and ambiguous, and that the Department is not placed on notice of any of the facts supporting the legal theories underlying those defenses. Respondent argues in opposition that the defenses are sufficiently pled and that Respondent's Answer "is a reply to the scant facts set forth in petitioners' Complaint." Affidavit in Opposition, at ¶ 5.

Merits of the Motion

First Affirmative Defense

The first affirmative defense to the first and second causes of action states that "the complaint fails to state a cause of action for the relief requested." Respondent's Answer, at ¶¶ 18 and 21. Section 622.3(a)(1) of the NYCRR requires DEC Staff to include in its complaint a statement of the legal authority and jurisdiction under which the proceeding is to be held. Section 3013 of the CPLR is comparable to the regulations, and provides that

Statements in a pleading shall be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense.

The complaint in this matter satisfies these requirements. Staff has articulated the applicable statutory and regulatory provisions, and provided detail as to the time and nature of the violations alleged. Respondent is, therefore, on notice as to the facts and legal authority surrounding the alleged violations. See In the Matter of Bradley Corp. Park, et al., Ruling on Motions for Order Without Hearing and To Strike Affirmative Defenses, 2001 WL 195350, *4 (Jan. 18, 2001).

Moreover, Respondent's "affirmative defenses," which are really an application to dismiss the complaint as a matter of law under the New York Civil Practice Law and Rules ("CPLR") Section 3211(7), are more properly the subject of a motion to dismiss. See Platt v. Portnoy, 220 A.D.2d 652, 652, 632 N.Y.S.2d 659 (2nd Dept. 1995) (affirming dismissal of affirmative defense that complaint failed to state a cause of action; affirmative defense should be stricken as such a defense must be raised by an appropriate motion); Homestead Development Corp. v. Ayres, 244 A.D.2d 928, 928, 665 N.Y.S.2d 240 (4th Dept. 1997) (contention that complaint fails to state a cause of action not properly asserted as an affirmative defense; dismissal affirmed). Accordingly, these defenses are stricken.

Second Affirmative Defense

The second affirmative defense to the first and second causes of action states that "the cause of action is barred in whole or in part by the doctrine of equitable estoppel and latches [sic]. The Petitioner unreasonably and without cause delayed the commencement of these charges upon the respondent." Respondent's Answer, at ¶¶ 19 and 22. The common law rule is that laches cannot be imputed to a sovereignty, and that the equitable doctrine of laches may not be interposed as a defense against a state when acting in a governmental capacity to enforce a public right or protect a public interest. Cortlandt Nursing Home v. Axelrod, 66 N.Y. 2d 169, 177, 499 N.Y.S.2d 1030, 489 N.E.2d 1304 (1985), cert. denied, 476 U.S. 1115; In the Matter of Douglas Giambrone and Marcon Erectors, Inc., Commissioner's Order, 2000 WL 33157803, *18, (December 31, 2000).

Moreover, laches requires a showing of delay with prejudice. Respondent has not demonstrated in its affirmative defenses how it was prejudiced, or provided any particularity with respect to the delay alleged.

With respect to estoppel, Respondent has stated only that Staff "unreasonably delayed" the commencement of this action. Respondent has not provided any specifics as to estoppel's applicability to this case, or the action or inaction that would support Respondent's estoppel claim.

Staff's motion with respect to these affirmative defenses is granted.

Third Affirmative Defense

The third affirmative defense to the first and second causes of action states that "Respondent JUDA CONSTRUCTION LTD., did not engage in any activity that required a permit or registration pursuant to 6 NYCRR 360-16.1(c)." Respondent's Answer, at ¶¶ 20 and 23.

Section 622.4(c) of 6 NYCRR provides, in relevant part, that "[w]henever the complaint alleges that respondent conducted an activity without a required permit, a defense based upon the inapplicability of the permit requirement to the activity shall constitute an affirmative defense." Respondent's affirmative defense is consistent with the regulations, but fails to provide the requisite facts or legal theory required under CPLR Section 3013. Accordingly, Staff's motion with respect to these affirmative defenses is granted.

Fourth Affirmative Defense

The fourth affirmative defense to the first and second causes of action gives notice that Respondent "intends to rely upon such other and further defenses as may become available during discovery proceedings in this matter, and hereby reserves its right to amend its Answer and assert such defenses." Respondent's Answer, at ¶ 24. This "affirmative defense" requires no clarification. Nevertheless, Respondent is directed to the provisions of 6 NYCRR Section 622.5, which governs amendment of pleadings, and allows amendment only by permission of the Administrative Law Judge or the commissioner, and absent prejudice to the ability of any other party to respond.

Conclusion

The motion to clarify affirmative defenses is granted in part, and denied in part. Respondent is directed to serve an amended answer consistent with this ruling on May 18, 2001.

_____________/s/_____________
Maria E. Villa
Administrative Law Judge

Dated: April 23, 2001
Albany, New York

TO: Carol Backman Krebs, Esq. NYS Department of Environmental Conservation

Michele Marianna Bonsignore, Esq.
Attorney for Respondent, JUDA CONSTRUCTION LTD.
636 Saw Mill River Road
Yonkers, New York 10710

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