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Santaro Industries, Inc. - Ruling, September 27, 2000

Ruling, September 27, 2000

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter
-of-
the Alleged Violation of Articles 11 and 17 of the Environmental Conservation Law ("ECL") of the State of New York and Title 6 of the Official Compilation of Codes, Rules and Regulations ("6 NYCRR") of the State of New York, Parts 703 & 751

- by -

Santaro Industries, Inc.
Boulder Heights Associates
Creekside Developments, Inc.
Verbeck Estates, Ltd
Respondents

Ruling on Motion For More Definite Statement

Case No. R7-19991018-53

PROCEEDINGS

Pursuant to Rules 405 & 3024 of the Civil Practice Law and Rules of the State of New York (CPLR), Respondent Santaro Industries, Inc.. ("Respondent") has moved for a more definite statement with regards to the complaint served herein. Respondent alleges that the Department of Environmental Conservation Staff ("Staff") served a complaint that is so vague and ambiguous that a responsive pleading can not be served without more particularization.

Staff served a Notice of Hearing and Complaint on Respondent on or about August 1, 2000. Pursuant to §622.4(e), Respondent moved for a More Definite Statement on August 11, 2000 by serving Staff with the Notice of Motion and Affirmation of John F. Klucsik, Esq. in support of said motion. Respondent also filed the motion papers with the Department's Office of Hearings and Mediation Services on or about August 21, 2000.

DEC has opposed the Motion by affirmation of Jennifer L. Powell, Esq. dated August 17, 2000.

A. MOTION PROCEDURES:

6 NYCRR section 622.4(e) allows for a party to move for a more definite statement of the complaint within 10 days of service of the complaint upon the grounds that the complaint is "...so vague or ambiguous that Respondent cannot reasonable be required to frame an answer. ".

1. TIMELINESS

Before addressing the merits of the motion, an objection has been made by Staff as to the motion's timeliness. 6 NYCRR §622.6(a) directs that Rule 2103 of the CPLR will govern service of papers. Staff takes the position that 6 NYCRR §622.6(c)(1) requires the service of the motion on this office within the 10 day time period prescribed under section 622.4(e). However, a careful reading of section 622.6(c)(1) indicates that it does not require the service of the pleadings on the Office of Hearings, but merely a filing. Service of pleadings is governed by CPLR Rule 2103 which directs that motions papers are to be served upon the party's attorney. Neither the CPLR nor 6 NYCRR Part 622 requires that motion papers be served upon the Office of Hearings and Mediation Services. The purpose of "serving" a pleading is to put the other party on notice, service and filing are not synonymous. So, the objection as to timeliness is overruled..

2. MERITS OF THE MOTION

The Respondent alleges that it can not frame an answer to the complaint served herein due to the vagueness and/or ambiguity of the complaint. The affirmation of John F. Klucsik, attorney for the Respondent, states "Santaro can not even be sure of what activity it is alleged to have undertaken that petitioner-plaintiff DEC complains of." The Klucsik Affirmation identifies the alleged objectionable paragraphs and further details the Respondent's objections to the language.

CPLR Rules 405 & 3024 allow for a more definite statement when the complaint, as written, is "...so vague or ambiguous that a party can not reasonably be required to frame a response." The complaint alleges that the Respondent Santaro was present at the work site where the violations allegedly occurred during the time of the violations. Santaro has not denied this statement. The complaint details the alleged violations by identifying dates of the alleged violations and what specifics sections of the ECL and 6 NYCRR were alleged to have been violated.

A motion under Rules 405 & 3024 is to be granted in circumstances where "the allegations have to rise to a level of vagueness or ambiguity sufficient to convince the court that they require clarification before being responded to. If the objecting party cannot show at least that, the motion will not lie. The motion is not designed to give the objecting party detail." (Siegel, Practice Commentaries, 1991) In the instance case, the Respondent is alleged to have been at the site since January, 1999. Presumably, the Respondent is familiar with the site. The dates and violations have been specifically addressed. No further clarification is necessary to answer the complaint herein.

CONCLUSION

The motion for more definite statement is denied. This Summary Report can be referred to the Commissioner for final determination.

_____________/s/_____________
Molly T. McBride
Administrative Law Judge
Albany, New York

Dated: September 27, 2000

To:

Jennifer L. Powell, Esq.
NYS Department of Environmental Conservation

John F. Klucsik, Esq.
Devorsetz Stinziano Gilberti Heintz & Smith
Attorneys for Respondent Santaro Industries, Inc.

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