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Risi, Mary and Alan - Ruling, October 29, 2002

Ruling, October 29, 2002

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter
-of-
the Alleged Violations of Articles 15 and 25 of the Environmental Conservation Law and Parts 608 and 661 of Title 6 of the New York Compilation of Codes, Rules and Regulations

- by -

Mary Risi and Alan Risi,
Respondents.

RULINGS OF THE ADMINISTRATIVE

LAW JUDGE: Staff's Motion to ompel;
Respondent's Motion for Protective Order

Background

By notice of hearing and complaint dated June 4, 1999, staff commenced this enforcement proceeding against respondents Mary Risi and Alan Risi. The staff charges the respondents with having violated a 1996 permit issued to them by staff. The staff alleges that the permit allowed the respondents to construct approximately 80 linear feet of rip-rap revetment at the site located at 154-43 Riverside Drive, Beechhurst, New York (Queens County Tax Block 4542 Lot 19) but the respondents exceeded the scope of the permit and allowed unconsolidated sediment to erode into the East River and a tidal wetland.

After a period of document exchange and negotiations, on or about July 16, 2002, staff requested access to the site. During this period, staff learned that the respondents had changed representation and their current counsel, Edmond J. Pryor, Esq., requested additional time to obtain and review the file prior to granting staff's request. Staff agreed to an extension to September 12; however, by letter of September 9, 2002, attorney Pryor continued to deny access. By letter dated September 19, 2002, Assistant Regional Attorney Udo Drescher proposed six alternative dates and explained the inspection would take place between 11:00 a.m. and 1:30 p.m. and would last approximately one hour. Because the respondents did not reply to this communication, staff moved to compel discovery by motion dated October 1, 2002. The respondents cross-moved for a protective order by motion and submitted an attorney's affirmation in support of the cross-motion and in opposition to staff's motion both dated October 11, 2002. Staff submitted its response to the respondent's motion dated October 17, 2002. Without obtaining permission from the ALJ, the respondent served a reply to staff's motion dated October 25, 2002.

Respondents' Position

The respondents contend that staff inspected their property in June 1998 and again in November 1998 (claiming that the latter inspection was a trespass). Accordingly, the respondents maintain that there is no reason to allow the Department staff further access to the site. Moreover, respondents argue that the case has been dormant for three years and that staff can't "simply wake up at any given time and send a letter requesting access to the property." Pryor Aff., ¶ 7. In their reply dated October 25, 2002, respondents argue that staff cannot sustain its argument that Risi's motion for a protective order is too late because the July 16, 2002 letter from Mr. Drescher was not a proper demand and respondents' counsel did not yet have the file.

Staff's Position

Initially, staff maintains that respondents' motion for a protective order was filed too late because the initial discovery demand was made on July 16, 2002. Section 622.7(c) of Title 6 of the New York Compilation of Codes, Rules, and Regulations (6 NYCRR) provides that a motion for a protective order "must be filed within ten days of the discovery demand . . ." Staff's second procedural argument is that the respondent failed to make a good faith effort to resolve the dispute. Pursuant to 6 NYCRR § 622.7(c), motions for a protective order or to compel discovery must be accompanied by an affidavit by counsel identifying good faith efforts to resolve the dispute prior to invoking motion practice. With respect to the merits, staff argues that the respondents have not raised facts suggesting any type of prejudice that would meet the requirements for 6 NYCRR § 622.7(c)'s protection. Staff further claims that because the unauthorized placement of fill into a protected tidal wetlands is the issue in question in this matter, the condition of the real property is key to this case, and therefore, the inspection is warranted and necessary. Additionally, staff maintains that in order to ensure that presentations at the hearing and requests for relief correspond with current conditions, the inspection is critical. Staff's Response, ¶ 18.

Discussion

Section 622.7(a) of 6 NYCRR provides that "[t]he scope of discovery must be as broad as that provided under Article 31 of the CPLR." Section 622.7(b) allows the use of any disclosure device with the exception of bills of particular. Depositions and written interrogatories are permitted only with permission of the administrative law judge (ALJ).

I agree with staff that the respondents' motion for a protective order is late. While the respondents claim that this matter has idled for some time, it appears that they have played a role in any delay. Specifically, with respect to this discovery request, staff made its request in mid-July. The respondents answered that they needed more time to review the file due to change of counsel. However, while staff appears to have made efforts to provide such courtesies and to offer alternative dates for this inspection, the respondents waited until now to assert that there is no reason to allow the inspection at all. The arguments made by the respondents in their reply are also unavailing.(1) It is hard to characterize staff's July 16 letter seeking site access as something other than a discovery request. And, the fact that respondents' counsel did not yet have the file is no basis to extend the time to move for a protective order. Section 622.7 of 6 NYCRR states that motions for protective orders must be made within 10 days of the discovery demand. Moreover, while Assistant Regional Attorney Drescher documented efforts to resolve this dispute via the correspondence annexed to his affirmation in support of staff's motion, respondents' counsel has not shown any such efforts. For these two reasons alone, staff's motion should be granted.

With respect to the merits of this motion - site access - the respondents have not presented any valid argument as to why it should be denied. Section 622.7(c) provides that a protective order should be granted in order to "prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice." Apart from stating that the staff had access in 1998, the respondents do not present any facts that demonstrate that they will suffer any prejudice from another site inspection. And as stated in the case cited by staff in its reply, Iskowitz v. Forkosh Const. Co, Inc., 269 AD2d 131, 132 (1st Dep't 2000), pursuant to Rule 3120(a)(1)(ii) of New York's Civil Law Practice & Rules, when the premises are the principal matter at issue, access should be allowed. In contrast however to Iskowitz, such access in this matter does not entail inspection of the respondents' house where privacy and annoyance factors are more of concern.

As the courts have recognized, wetlands are dynamic entities that can change in size and nature. See, e.g., Thomas Thompson v. DEC, 132 AD2d 665, app den, 71 NY2d 803 (1988); Jack Coletta, Inc. v. DEC, 128 AD2d 755, app den, 70 NY2d 602 (1987) (citing to Environmental Conservation Law § 25-0201[6], the Second Department found on-site inspections permitted to assess the changing boundaries of wetlands). Thus, it is possible that changes have occurred at the site that may even inure to the respondents' favor. In any case, Department staff are entitled to make an inspection at a reasonable time particularly in light of the respondents' permit that is conditioned upon the Department's right to such access. See, Permit, General Condition 1, Attachment 1 to staff's response. The Second Department has affirmed DEC's right to make such inspections. See, FRJE Holding Corp. v. Jorling, 193 AD2d 1013 (3d Dep't 1993).

Conclusion

Staff's motion to compel discovery is granted and respondents' cross-motion for a protective order is denied. The respondents are directed to allow staff access to the property within 30 days of receipt of this ruling.

_____________/s/_____________
Helene G. Goldberger
Administrative Law Judge
Albany, New York

Dated: October 29, 2002

TO: Udo M. Drescher Assistant Regional Attorney
NYSDEC - Region 2
One Hunters Point Plaza
47-40 21st Street
Long Island City, NY 11101

Edmond J. Pryor, Esq.
1925 Williamsbridge Road
Bronx, NY 10461-1604

1 Section 622.6(c)(3) of 6 NYCRR provides that a response may be served to a motion but that further responsive pleadings require permission of the ALJ.

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