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RGLL, Inc. - Ruling 2, November 7, 2003

Ruling 2, November 7, 2003

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of the Alleged Violation of Article 17
of the Environmental Conservation Law and Part 612 of
Title 6 of the Official Compilation of Codes, Rules and
Regulations of the State of New York by

RGLL, INC.
Respondent

RULING ON MOTION
TO PRECLUDE

R4-1975-9705M2

Procedural Background

The New York State Department of Environmental Conservation (DEC Staff, Department) commenced this action pursuant to Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York (6 NYCRR) Part 622 by service of a Notice of Hearing and Complaint on RGLL, INC. (Respondent). An Answer was timely served by Respondent. DEC Staff is represented by Ann Lapinski, Esq. assistant regional attorney and the Respondent is represented by Richard Feirstein, Esq.

DEC Staff served a motion to compel disclosure on Respondent on or about May 3, 2003 and the motion was granted by Administrative Law Judge ("ALJ") Molly T. McBride by Ruling dated August 21, 2003. The Ruling directed Respondent to respond to the DEC Staff's discovery requests previously served within 20 days of the Ruling. The Ruling also directed that pursuant to 6 NYCRR 622.7(c)(3), in the event that Respondent failed to comply with the Ruling, the Respondent would be precluded from introducing any of the requested documents at any hearing in this matter and the failure would allow the ALJ or the Commissioner to draw inference that the material demanded is deemed unfavorable to the Respondent's position.

DEC Staff now serves a motion to preclude the Respondent from the use of the material ordered to be produced in the August 21, 2003 Ruling. The motion to preclude is dated October 3, 2003 and was served on Respondent's counsel on that date by regular mail. Pursuant to 6 NYCRR 622.6(c)(3) the Respondent had five days to respond to the motion. No response has been received and the time to respond has expired.

Ruling

DEC Staff's motion to preclude is granted.

_____________/s/______________
Molly T. McBride
Administrative Law Judge

Albany, New York
November 7, 2003

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