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Lasdon, William S. (Estate of) - Letter Ruling 4, March 15, 1993

Letter Ruling 4, March 15, 1993

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

Thomas C. Jorling
Commissioner
50 Wolf Road, Albany, New York 12233-1550
[room 409, telephone: 518 457-3468]

Joel H. Sachs, Esq.
March 15, 1993
Plunkett and Jaffe, P.C.
1 North Broadway
White Plains, New York 10601

David Rubinton and Alice McCarthy, Esq.
NYSDEC Division of Environmental
Enforcement
220 White Plains Road - Fifth Floor
Tarrytown, New York 10591

RE: DEC v. Estate of Lasdon: Ruling on Request for Subpoena Duces Tecum and Deposition of Mr. Kundin.

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

This letter ruling addresses the matter referenced above. The procedural history is set forth below for ease of reference.

On January 26, 1993, a subpoena was issued to Mr. Kundin by the Estate's attorney, Mr. Sachs. On February 26, 1993, it was quashed by order of Acting Justice Joseph G. Owen, Orange County Supreme Court. On March 4, 1993, the Estate moved before me for issuance of a subpoena that was to support a notice of deposition. The Department Staff filed papers in opposition to the request on March 10, 1993. The Estate responded by letter on March 11, 1993. Department Staff filed another response by letter dated March 12, 1993. The parties' arguments will not be repeated here due to their length.

Justice Owen's decision focused on whether a subpoena was the appropriate device to be used in a pre-trial phase of a 6 NYCRR Part 375 proceeding. The Court concluded that it was not and quashed the subpoena. My concern is not on the format of the discovery device but rather on the larger questions of whether, when, and to what extent, disclosure against third parties is permitted in proceedings governed by Part 375.

Due process requires the Respondent Estate to have an opportunity to request legitimately needed third party disclosure as part of its answer. To find otherwise could result in the preclusion of issues upon which Respondent has the potential to prevail. Therefore, the issue becomes when and under what circumstances third party disclosure will be permitted.

Although Part 375 is silent on the issue of discovery against third parties, it does show an intent to require joinder of issues on an expedited basis. All discovery demands on the Department must be made within 30 days of service of the complaint, discovery against the Department is limited to a demand for the production of documents, [375-2.1(b)(3)], and once discovery against the Department is complete, an answer must be filed within 30 days [375-2.1(b)(4)].

Additional insight into the nature of the Part 375 proceeding can be gained by analogy to the procedures that apply to handling motions for summary judgment under the CPLR [see CPLR 3212]. The Respondent has drawn this analogy and I concur that it is a valid one.

In civil practice, when a motion for summary judgment is made, all pending discovery is suspended unless otherwise ordered by the court [CPLR 3214(b)]. If the party opposing the motion for summary judgment can show in its answering affidavits that facts essential to justify opposition may exist but cannot be stated, the court may, among other actions, order disclosure to occur [CPLR 3212(f)]. Using a comparable procedure in this instance satisfied both the intent of Part 375 to join the issues at the earliest possible time while also allowing the Respondent to show any legitimate need it may have for disclosure.

Therefore, I will not authorize Respondent to conduct third party disclosure at this time. In addition to all available proof, the Respondent's answer will need to include affidavits which demonstrate to the Commissioner's satisfaction that additional facts essential to its answer may exist but cannot be stated due to a lack of third party disclosure opportunities. If such a demonstration is made, the Commissioner may then direct such discovery as is needed.

Very truly yours,

/s/
Daniel E. Louis
Chief Administrative
Law Judge

cc: John Vaneria, Esq.

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