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Lasdon, William S. (Estate of) - Letter Ruling, January 6, 1993

Letter Ruling, January 6, 1993

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

January 6, 1993

Joel H Sachs, Esq.
Plunkett and Jaffe, P.C.
1 North Broadway
White Plains, New York 10601

Alice McCarthy and David Rubinton, Esqs.
NYSDEC, Division of Environmental
Enforcement
202 Mamaroneck Ave - Room 304
White Plains, New York 10601-5381

RE: DEC v. Estate of Lasdon: Ruling on Request for Deposition

Dear Mr. Sachs, Ms. McCarthy and Mr. Rubinton:

This acknowledges receipt of the Estate's facsimile letter of December 30, 1992, the Department Staff's facsimile letter of January 5, 1993 and an Estate's facsimile letter response of January 6, 1993.

The Estate seeks to depose its own witness to preserve the testimony of Stanley Lasdon via video tape, and in the presence of the Department Staff and an ALJ. The urgency expressed by the Estate is attributed to the deponent being seriously ill, the deponent undergoing cancer surgery on January 11, 1993, the family members being concerned about deponent's heart, and the deponent taking issue with the Staff's charges filed in its complaints, affidavits and depositions.

In response, the Department Staff assert that proposed deponent has been previously deposed a number of times and at least once by Mr. Sachs, that a lengthy opportunity for posing Staff's questions to deponent will not be had due to deponent's unavailability, and that Respondents will not be prejudiced by denying the request since an affidavit can be filed in accordance with Part 375 regulations.

A sur-response filed by the Estate claims that the deposition is necessary since the Department Staff's December 1992 supplement to its initial complaint previously filed in October 1992, raises new issues that are 'both scandalous and irrelevant to the issues of William Lasdon's liability'.

For the reasons stated below, the Estate's request above is denied.

Granting permission to depose one's own witness would be freely given provided it is not abusive. Deponent is a member of the Lasdon family who reportedly knows of facts specific to the subject site. The Department's Complaint filed under the Part 375 regulations, contains allegations which were known to the Estate in earlier years when the Staff filed its initial action against Respondent. The Estate does not claim that the Staff's allegations are materially different from those offered previously. The Estate says only that the supplement filed to the Department's initial complaint is 'scandalous and irrelevant to the issue of William Lasdon's liability'. Standing alone, this does not warrant my authorizing yet another deposition. The Respondent Estate can raise its objections in its Answer and the issue of relevance will be addressed in the Commissioner's Order.

There a several other reasons why the deposition, as requested by Respondent, should not be allowed.

The Estate seeks the deposition in the presence of an ALJ. Such request exceeds the bounds of normal practice. It creates a setting where the ALJ would assess the demeanor of a witness prior to any note of issue being filed. In short, it places the litigants in a hearing before the Respondent's Answer is filed and prior to the Commissioner certifying any issue for adjudication.

The Estate claims urgency in scheduling the deposition and wishes to preserve the deposition by videotaping. However, the Estate failed to provide any evidence to reasonably demonstrate deponent may not survive the operation or is otherwise infirm or terminally ill and not expected to live for any substantial length of time. Instead, we have only the concern by a family member about Mr. Lasdon's heart and nothing from the attending physician or even if his condition is life threatening. Under these circumstances, the need or urgency for the deposition and the necessity of videotaping to preserve the testimony was not shown.

I am also concerned that videotaping could lead to redoing previous depositions, which would be wasteful and unreasonably burdensome, especially at this stage of the proceeding.

Albany, New York
January 6, 1993

/s/
Daniel E. Louis
Chief Administrative Law Judge

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