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Mudd's Vineyard Ltd. - Ruling 3, April 22, 1998

Ruling 3, April 22, 1998

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 September 12, 1997 naming as respondents Mudd's Vineyard, Ltd., David Mudd, and Stephen Mudd. This matter was originally assigned to Administrative Law Judge Buhrmaster and was transferred to ALJ Helene G. Goldberger in April 1998. The parties have engaged in extensive motion practice related to respondents' motions to dismiss and for a more definite statement, discovery demands and requests for protective orders, as well as the pending motion by staff of March 27, 1998 to dismiss the respondents' affirmative defenses. ALJ Buhrmaster has issued rulings dated November 18, 1997, January 22, 1998, February 27, 1998 and, March 20, 1998, denying respondents' motion for a more definite statement and limiting the discovery demands of the respondents and of the staff, respectively. Respondents' motion to dismiss based upon a lack of personal jurisdiction was resolved by the staff withdrawing the complaint and recommencing the proceeding by serving a notice of hearing and complaint dated October 20, 1997 on the respondents. A date for a hearing has not yet been set pending the determination of staff's most recent motion.

Discussion

In response to staff's motion, respondents served an affirmation in opposition as well as an amended verified answer dated April 8, 1998. In this response, respondents state that staff's motion is procedurally defective because it does not conform with the requirements of 622.4(f) of Title 6 of the New York Compilation of Codes, Rules, and Regulations (6 NYCRR) which requires that if the staff seeks clarification of affirmative defenses it must do so within 10 days of service of the answer. However, this regulation is not applicable to staff's motion that seeks to dismiss rather than clarify affirmative defenses. As there is no specified timeframe for this type of motion set forth in Part 622, the motion is not untimely.

Respondents have also served an amended verified answer with their motion. Although they did not seek permission for service of this pleading as set forth in 6 NYCRR 622.5, because there is no prejudice to staff incurred by this amendment I will allow it.

Staff has moved to dismiss the respondents' first, fourth, fifth and sixth affirmative defenses. An affirmative defense is a matter that is the defendant's burden to plead and prove and includes such defenses as collateral estoppel, statute of limitations and release. See, CPLR 3018(b). As explained by Professor Siegel, an affirmative defense raises a matter that is not plain from the face of the complaint. See, New York Practice, 2d Ed., Siegel (1991) at 393-394. CPLR 3211(b) allows a party to move to dismiss a defense if it "is not stated or has no merit." The obvious reason is to preclude the need to delve into matters at trial that have no bearing on the claims put forward. In ruling on a motion to dismiss a defense, the courts apply the standards used to evaluate a motion to dismiss a complaint for failure to state a cause of action. The truth of the factual allegations of the defense is assumed but whether there are grounds for the defense is the query. CPLR 3211(a)(7).

Respondents' First Affirmative Defense

In their first affirmative defense, respondents allege that the stipulation entered into by Mudd's Vineyard, Ltd., David Mudd, and Stephen Mudd (collectively, Mudd herein) and the Department dated February 21, 1996 bars "[a]ny claim for violation of any statute or regulation by any Respondent other then as set forth in two notices of violation dated January 24, 1996 and January 26, 1996 . . ." In this stipulation, that resolved an Article 78 petition by Mudd, the parties settled all claims which had or could have been asserted by DEC against Mudd's to the date of the stipulation except with respect to two notices of violation (NOV's) dated January 24 and January 26, 1996 that alleged violations of Environmental Conservation Law (ECL) 33-1301(1)(a). Respondents state that to the extent staff's complaint goes beyond the limitations in this stipulation by naming different parties or citing different violations, it is barred.

The January 24, 1996 NOV alleges that Steve Mudd violated ECL 33-1303(1)(a) by allowing the use of unregistered pesticide: Captan 4 Flowable (EPA Reg. No. 476-1839-51036). The January 26, 1996 NOV states that Stanley Luberski violated ECL 33-1301(1)(a) by allowing the use of unregistered pesticide Microflo Captan (EPA Reg. No. 476-1819-51036). The stipulation provides for a bar against "all claims which have or could have been asserted by DEC against Mudd's . . . except with respect to two notices of violated dated January 24 and January 26, 1996 which allege violations of ECL Section 33-1301(1)(a)" (emphasis added). Thus, while the NOV's identify specific individuals at Mudd's, the stipulation reserves claims against Mudd's with respect to the alleged violations noted in the two NOV's without specificity as to parties. Thus, I conclude that it is appropriate to dismiss this affirmative defense insofar as it claims that staff have exceeded the allowable claims set forth in the stipulation by naming parties other than the individuals mentioned in the NOV's. However, as noted by respondents, the NOV's indicate violations of only ECL 33-1301(1)(a) which is specifically referenced in the stipulation and therefore, staff's allegations with respect to ECL 33-0701 are barred.

Respondents' Fourth Affirmative Defense

In their fourth affirmative defense, the respondents allege that the Department has selectively enforced provisions of ECL 33-1301(1)(a) against them and therefore, the proceeding was instituted and maintained by DEC with malice and in bad faith. In a ruling dated January 22, 1998 concerning staff's motion for a protective order, ALJ Buhrmaster determined in this proceeding that "an administrative enforcement hearing is not the proper forum to decide the constitutional issue of discriminatory or selective enforcement." In addition, ALJ Buhrmaster found that respondents' claims with respect to malicious prosecution were not sufficiently particularized and are not ripe unless and until the Department's charges are dismissed. Judge Buhrmaster's ruling is law of the case and I will not revisit that determination here. Therefore, respondents' fourth affirmative defense is dismissed.

Respondents' Fifth Affirmative Defense

In their fifth affirmative defense respondents allege that ECL 33-1301(1)(a) is unconstitutional because it sets forth a violation even where there may not be intent on the part of the respondent. Clearly, an administrative agency does not review the acts of the legislature in an administrative proceeding but rather is charged with carrying out the statutory obligations set forth in the relevant law. See, Johnson v. Robison, 415 U.S. 361, 368 (1974). In addition, because this is strictly a legal issue, there would be no record to develop in this adjudication with respect to this claim. Accordingly, I dismiss respondents' fifth affirmative defense.

Respondent's Sixth Affirmative Defense

In their sixth affirmative defense, respondents rely upon a memorandum of agreement between the Department and Cornell University Cooperative Extension Programs that sets forth Cornell's role to provide information to farmers and other landowners concerning the use of pesticides. Respondents claim that because they adhered to the directives of Cornell in the purchase and application of pesticides and Cornell has an agreement with the Department to provide such information, respondents cannot be held liable for any alleged violations.

This argument is in the nature of estoppel -- the respondents claim that they relied to their detriment upon information provided to them and should not now be held responsible if this information was erroneous. However, the State is rarely estopped from carrying out its statutory responsibilities. See, Wedinger v. Goldberger, 71 NY 2d 428, 441 (1988). This is so even in situations, as in Wedinger, where an office of the very agency that had regulatory authority over the particular action may have provided incomplete information to a landowner. Certainly, where an entity like Cornell, acting as an auxiliary resource to DEC, provides incorrect guidance, that cannot serve as a basis to exonerate an individual from violations of the pesticide laws. See, Commissioner's Decision, In the Matter of Mudd's Vineyard, et al (August 8, 1994) at pp. 4-5. However, proof of such guidance and reliance would potentially mitigate penalties. Thus, respondents' sixth cause of action is dismissed however, I will allow evidence of such claim into the hearing as it bears on relief requested by staff. Id.

CONCLUSIONS

Staff's motion to dismiss respondents' fourth, fifth and sixth affirmative defenses is granted. The first affirmative defense is dismissed with respect to the claims that the first and second causes of action are barred because they assert claims against individuals other than those specifically identified in the February 21, 1996 stipulation. The first affirmative defense remains with respect to its claim that the complaint alleges violations of statutes other than ECL 33-1301(1)(a) and staff's allegations of violations of ECL 33-0701 are thereby dismissed. Although the sixth affirmative defense is dismissed, the respondents may present evidence of their interactions with the Cornell Cooperative Extension to the extent that it relates to mitigation of relief sought by staff.

This office will contact the parties shortly to arrange for a conference call during the week of April 27 at which time a hearing date will be set in this matter. Parties should also be ready at such time to present a list of witnesses they expect to call at the hearing.

/s/
Helene G. Goldberger
Administrative Law Judge

Albany, New York
April 22, 1998

TO: Eric J. Bressler, Esq.
Wickham, Wickham & Bressler, P.C.
275 Broad Hollow Road
Suite 111
Melville, New York 11747

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

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