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Popolizio, Frank and Pasquale Ragozzino - Ruling, February 6, 1998

Ruling, February 6, 1998

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter
of
Alleged Violations of Environmental Conservation Law
Article 17 and Navigation Law Article 12 by

RULING ON DISCLOSURE

FRANK POPOLIZIO
and
PASQUALE RAGOZZINO,

File No.
R4-1861-96-01

Respondents

February 6, 1998

The Department Staff has alleged that the Respondents violated Environmental Conservation Law Article 17 and Navigation Law Article 12 at a site in Schenectady at which the Respondents removed underground petroleum storage tanks. I have been assigned as the Administrative Law Judge for the hearing on this matter.

On January 6, 1998, the Department Staff, by Ann Lapinski, Esq., Assistant Regional Attorney, moved to compel disclosure and requested that the Respondents be compelled to respond to the Department Staff's notice of discovery dated August 25, 1997. The motion was accompanied by Ms. Lapinski's affirmation which stated that the notice of discovery was served upon Frank Putorti, counsel for the Respondents, on August 26, 1997 and that the Department Staff had not received a response to the discovery request nor a motion for a protective order. The affirmation also stated that Ms. Lapinski had written to Mr. Putorti on October 21, 1997 requesting a response to the notice of discovery.

The January 6, 1998 motion to compel discovery was received by the Office of Hearings and Mediation Services on January 8, 1998, by mail. The transmittal letter which accompanied the motion indicated that a copy was also sent by mail to counsel for the Respondents. As of today (February 6, 1998), the Office of Hearings and Mediation Services has not received any response to the motion from the Respondents.

Part 622 of Title 6 of the Official Compilation of Codes, Rules and Regulations (6 NYCRR Part 622) governs the procedures for this hearing. 6 NYCRR 622.6(c)(3) provides that parties have five days after a motion is served to serve a response. Although the date on which the motion was served upon the Respondents is not in the record, there is little doubt that the time within which the Respondent could reply to the motion has passed.

6 NYCRR 622.7(c)(2) provides that, "If a party fails to comply with a discovery demand without having made a timely objection, the proponent of the discovery demand may apply to the ALJ to compel disclosure."

6 NYCRR 622.7(c)(3) provides that, "The ALJ may direct that any party failing to comply with discovery after being directed to do so by the ALJ suffer preclusion from the hearing of the material demanded. Further, a failure to comply with the ALJ's direction will allow the ALJ or the commissioner to draw the inference that the material demanded is unfavorable to the noncomplying party's position."

Ruling: The Respondents are directed to comply with the Department Staff's August 25, 1997 notice of discovery.

____________/s/____________
Susan J. DuBois
Administrative Law Judge

Albany, New York
February 6, 1998

TO: Ann Lapinski, Esq.
Frank M. Putorti, Jr., Esq.

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