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Mudd's Vineyard Ltd. - Ruling, November 18, 1997

Ruling, November 18, 1997

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of Alleged Violations of Articles 33 and 71 of the Environmental Conservation Law and Parts 325 and 326 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York,

by

MUDD'S VINEYARD, Ltd.,
DAVID MUDD, and
STEPHEN MUDD
Respondents.

(Case No. D1-0001-9710)

RULING OF THE ADMINISTRATIVE LAW JUDGE

Background

Department Staff issued a complaint dated October 20, 1997, to the Respondents Mudd's Vineyard, Ltd., David Mudd, and Stephen Mudd. By papers dated October 30, 1997, Eric J. Bressler, Esq., counsel for the Respondents, moved for a more definite statement of the complaint. Victor J. Gallo, Department Staff counsel, submitted a letter dated November 13, 1997, requesting that the motion be denied.

Discussion and Ruling

According to the Department's enforcement hearing regulations, a complaint must contain (1) a statement of the legal authority and jurisdiction under which the proceeding is held; (2) a reference to the particular sections of the statutes, rules and regulations involved; and (3) a concise statement of the matters asserted [6 NYCRR 622.3(a)(1)(iii)]. The regulations also allow a respondent to move for a more definite statement on the grounds that the complaint is "so vague and ambiguous that respondent cannot reasonably be required to frame an answer" [6 NYCRR 622.4(e)].

Here the complaint states that the Respondents, on or about two particular dates, "allowed the use of" certain named pesticides which were not registered with the Department, in violation of Environmental Conservation Law ("ECL") Sections 33-0701 and 33-1301(1)(a). Mudd's Vineyard is alleged to be a corporation in Southold, Suffolk County. David and Stephen Mudd are alleged to be officers of the corporation who oversee its day-to-day operations. The complaint asserts that the Respondents are jointly and severally liable for the conduct alleged therein.

As a basis for relief, the Respondents assert that it is impossible to answer the complaint since it contains no allegations as to acts which are claimed to have been committed by any specific respondent. They also assert that the complaint sets forth no factual allegations or legal basis for a finding of joint and several liability.

Department Staff responds that the complaint meets the legal requirements of Section 622.3(a)(1) and provides the Respondents with notice of the allegations sufficient to respond. Staff also contends that the type of information requested by the Respondents is solely within their control and that the Department will attempt to gather it by discovery prior to the hearing.

I find that the complaint is not so vague or ambiguous that the Respondents cannot reasonably be required to frame an answer, and therefore deny their motion for a more definite statement. While the alleged violations could certainly be described in more detail, the Department's regulations require only a "concise" (meaning "terse" or "succinct") statement of the matters asserted. Elaboration is not required, only notice sufficient to respond, which in this case has been provided.

To get a more definite statement, the Respondents would have to show that the complaint is not sufficiently clear. While the Respondents may contest the charges, the complaint is clear enough about what the charges are and why each of the Respondents has been named.

Finally, in a prior case involving these same Respondents, the Department held the Mudds derivatively liable for corporate violations of the pesticide laws because it was shown that, in their capacity as corporate officers, they had the authority and responsibility to prevent the violations [In the Matter of Mudd's Vineyard, Ltd., David Mudd, and Stephen Mudd, Decision and Order of the Commissioner, August 8, 1994, p.5]. That same basis for liability is repeated in this complaint, since it asserts that the Mudds "allowed" the use of unregistered pesticides as officers "overseeing" corporate operations.

While I would expect the Department's proof at hearing to be more elaborate and, as to each of the Mudds, more specific about their respective roles and duties, the complaint gives adequate notice of the facts and theory under which DEC Staff is operating.

In summary, then, a more definite statement is not required, and the Respondents' motion is denied.

Order of Disposition

Consistent with 6 NYCRR 624.4(e)(1), the Respondents must answer within 10 days of their counsel's receipt of this ruling. To expedite the case, I am FAXing this ruling today to Mr. Bressler and Mr. Gallo. Since I am already assigned to the hearing in this matter, Mr. Bressler shall ensure that I am sent a copy of the answer at the same time it is served on Mr. Gallo.

____________/s/____________
Edward Buhrmaster
Administrative Law Judge

Albany, New York
November 18, 1997

TO:
Eric J. Bressler, Esq.
Wickham, Wickham & Bressler, P.C.
10315 Main Road
Mattituck, New York 11952

Victor J. Gallo, Esq.
NYS Department of Environmental Conservation
50 Wolf Road, Room 627
Albany, New York 12233-5500

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