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QP Service Station Corporation - Ruling 3, August 8, 2003

Ruling 3, August 8, 2003

STATE OF NEW YORK: DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of the Alleged violations of Article 17 of the Environmental
Conservation Law of the State of New York (ECL), and Title 6 of the Official
Compilation of Codes, Rules and Regulations of the State of New York
(6 NYCRR) Parts 612 and 613 by

QP SERVICE STATION CORPORATION,
ANTICO REALTY CORPORATION, and
GREGORY IOVINE,
Respondents.

Ruling on Respondent's Motion to Reargue

DEC Case No. R2-20021001-319

August 8, 2003

SUMMARY

By notice of motion dated July 16, 2003, Respondents move to reargue Staff's April 11, 2003 motion for order without hearing. Respondents' motion papers consist of a notice of motion dated July 16, 2003, an affirmation by their attorney, Marvin E. Kramer, Esq., also dated July 16, 2003, and an affidavit of service. Respondents also request that the July 8, 2003 ruling be rescinded, and that the matter be adjourned without date. Staff filed an affirmation in opposition dated July 31, 2003 by David S. Rubinton, Esq., Assistant Regional Attorney. Upon review of the parties' papers, Respondents' motion to reargue is denied.

PROCEEDINGS

To commence the captioned enforcement action, Staff duly served a notice of hearing and complaint dated October 23, 2002 upon Respondents. Respondents filed a joint answer dated November 27, 2002. Subsequently, Staff filed a notice of motion for order without hearing and supporting papers dated April 11, 2003. In a letter dated April 23, 2003, Respondents' counsel stated that the parties mutually agreed to set June 3, 2003 as the return date for Respondents' reply to Staff's motion for order without hearing.

By notice of motion dated May 19, 2003, Respondents requested leave to file interrogatories and to depose Staff's witnesses, and leave to file an amended answer. With a cover letter dated May 27, 2003, Staff filed an affirmation opposing Respondents' motion. In a ruling dated May 30, 2003, the ALJ denied Respondents' motion to file interrogatories and to depose Staff's witnesses. In a subsequent ruling dated June 6, 2003, the ALJ granted Respondents' motion to amend their answer.

As of June 6, 2003, however, Respondents had not filed their reply to Staff's motion, which by agreement of the parties was due on June 3, 2003. Respondents had not requested an extension. The June 6, 2003 ruling, however, provided Respondents until noon on June 9, 2003 to file their reply. A faxed copy of Respondents' reply was timely received on June 9, 2003. Hard copy was received the following day via overnight mail.

On July 8, 2003, the ALJ ruled on Staff's motion for order without hearing. Briefly, as to the issue of liability on the first and third causes of action alleged in the October 23, 2002 complaint, the ALJ granted Staff's motion with respect to Respondents QP Service and Antico. Based on the papers submitted by the parties, the ALJ concluded that a material issue of fact existed about whether Mr. Iovine owns the Facility with Respondents QP Service and Antico. Accordingly, the ALJ denied Staff's motion concerning the first and third causes of action with respect to Respondent Gregory Iovine. Finally, the ALJ concluded that a material issue of fact existed about whether Respondents QP Service, Antico and Gregory Iovine knew, or should have known, about the petroleum spill on the site. Therefore, the ALJ denied Staff's motion with respect to the second cause of action.

DISCUSSION

The first question is whether the ALJ may consider Respondents' July 16, 2003 motion to reargue. Part 622 is silent about whether motions to reargue may be considered, although motions, in general, are authorized pursuant to 6 NYCRR 622.6(c). Since regulations provide general authority to consider motions, Respondents' motion to reargue will be considered here.

The next step is to identify the appropriate standard of review. No standard is identified in Part 622. Furthermore, Respondents and Staff did not identify, in their respective papers, any standard that could be used as a guide to consider Respondents' motion to reargue. The New York Civil Practice Law and Rules (CPLR) Rule 2221(d), however, authorizes motions to reargue, and outlines the standards applicable to their review. Motions to reargue must be based upon matters of fact or law allegedly overlooked or misapprehended by the court in deciding the prior motion. Any matter of fact not offered on the prior motion cannot be presented in the motion to reargue (see CPLR 2221[d][2]). The standard of review outlined in CPLR 2221(d)(2) will be applied here as guidance in considering Respondents' motion to reargue.

The bases for Respondents' motion are:

  1. The ALJ should have granted Respondents' discovery request dated May 19, 2003 [Paragraphs 2, 3, and 12 of Respondents' motion to reargue];
  2. The ALJ should have extended the return date for Respondents' reply to Staff's motion for order without hearing [Paragraphs 4, 5, 8, 9, 10, and 11]; and
  3. The ALJ failed to apply the standards for summary judgement [Paragraphs 6, 7, 13, 14, and 15].

1. Respondents' May 19, 2003 Discovery Request

Respondents' claim that the ALJ should have granted Respondents' motion dated May 19, 2003 to depose Staff's witnesses and to file interrogatories is not a basis to grant Respondents' motion to reargue. Respondents' argument is not new, and they do not show that the ALJ overlooked or misapprehended any matters of fact or law in deciding the motion for order without hearing.

In their initial discovery motion dated May 16, 2003, Respondents argued that the purpose of their request for leave to dispose Staff's witnesses and to file interrogatories was to clarify the statements made in Staff's affidavits. For example, Respondents' characterized Mr. Nabone's affidavit as "particularly confusing." Also, the reason Respondents wanted to depose Mr. Sigona was to determine "what knowledge he truly has...." In their reply to Staff's motion dated June 9, 2003, Respondents reiterated their criticisms of Staff's affidavits, and their need to examine the bases of the witnesses' statements. Referring to Staff's affidavits, Paragraph 9 of Respondents' June 9, 2003 reply states in part that, "these Affidavits in no manner are evidentiary. They are conclusory without any demonstration of the basis upon which the conclusion is made."

In the July 8, 2003 ruling on Staff's motion for order without hearing, the ALJ held that the arguments presented in Respondents' June 9, 2003 reply (Paragraphs 1, 2, 3, 5, 7, 8, and 9) were an attempt to challenge the credibility and reliability of the statements presented in the affidavits by the Staff's witnesses. Citing State v. Arthur L. Moon, Inc. (228 AD2d 826, 828 [3rd Dept. ], lv denied 89 NY2d 861 [1996]), the ALJ concluded that credibility issues are outside the scope of a motion for summary relief (July 8, 2003 Ruling at 6). In their motion to reargue, Respondents do not contend that the ALJ misapprehended either the purpose of Respondents' discovery request, or the principle outlined in Arthur L. Moon, Inc.

2. Return Date for Respondents' Reply

Respondents' argument that the ALJ should have extended the return date for Respondents' reply to Staff's motion for order without hearing is not a basis to grant Respondents' motion to reargue. At no time in this proceeding did Respondents request an extension of the June 3, 2003 return date for their reply. Only after Respondents defaulted did the ALJ extend Respondents' return date to June 9, 2003. Respondents did not offer this argument on the prior motion. They are precluded from raising it for the first time now, and it cannot serve as a basis to grant Respondents' motion to reargue.

3. Standards for Summary Judgment

To support their claim that the ALJ failed to apply the standards for summary judgment, Respondents cited the "rules of the administrative court," which includes references to state case law, and federal case law (see Gallo v. Prudential, 22 F3d 1219, 1223). The state cases cited by Respondents include Friends of Animals, Inc. v. Associated Fur Manufacturers, Inc., (46 NY2d 1065) and Alvarez v. City of New York , (68 NY2d 320), and the ALJ relied upon them in the July 8, 2003 ruling. Respondents failed to show how the ALJ overlooked or misapprehended any matter of fact or law in deciding the motion for order without hearing.

Furthermore, Respondents' citation to federal case law is not persuasive. Respondents did not offer this argument on the prior motion. They are precluded from raising it for the first time now, and it cannot serve as a basis to grant Respondents' motion to reargue. In addition, the procedural regulations applicable to this administrative enforcement proceeding are 6 NYCRR Part 622. Section 622.12 of 6 NYCRR incorporates the standard outlined in the CPLR. Therefore, determinations on motions for order without hearing brought pursuant to 6 NYCRR 622.12 must be consistent with state law.

For the reasons set forth above, Respondents motion to reargue is denied.

FURTHER PROCEEDINGS

I will schedule the adjudicatory hearing after I receive a statement of readiness consistent with the requirements outlined in 6 NYCRR 622.9. The statement of readiness must also include a list of hearing dates that are mutually agreeable to the parties' counsel and their respective witnesses.

______________________________
Daniel P. O'Connell
NYS Department of Environmental Conservation
Office of Hearings and Mediation Services
625 Broadway, First Floor
Albany, New York 12233-1550

Dated: Albany, New York
August 8, 2003

To: Marvin E. Kramer, Esq.
Marvin E. Kramer and Associates, PC
1325 Franklin Avenue
Garden City, New York 11530

David S. Rubinton, Esq.
Assistant Regional Attorney
NYSDEC Region 2
47-40 21st Street
Long Island City, New York 11101-5407

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