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Sauvageau, Rene and Anne - Ruling and Amended Order of Continuance, May 12, 1999

Ruling and Amended Order of Continuance, May 12, 1999

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter
- of -
the Alleged Violation of Article 34 of the New York State Environmental Conservation Law, and 6 NYCRR Part 505.7(b)

- by -

René and Anne Sauvageau
Respondents

RULING (Motion to Dismiss)
and
AMENDED ORDER OF CONTINUANCE

Case No. R9-4191-94-10

PROCEEDINGS

Pursuant to a Notice of Motion and Motion dated February 3, 1999, the New York State Department of Environmental Conservation (the "Department" or "DEC") Region 9 Staff ("Staff") moved for an Order Without Hearing pursuant to Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") Section 622.12 against René and Anne Sauvageau, Respondents. Staff alleged that Respondents violated 6 NYCRR §505.7(b) by having constructed a non-movable deck and stairs within a structural hazard area established pursuant to ECL Article 34. Staff requested a penalty of $93,500. Following an exchange of correspondence between the parties, I issued an Order of Continuance on March 19, 1999, to permit Staff to renew its motion upon the submission, by April 23, 1999, of additional information on both the deck's movability and the requested penalty. Responsive pleadings were due 30 days thereafter.

On April 23, 1999, Staff submitted an Amended Motion for Order Without Hearing with supporting affidavits, plus an affidavit explaining its penalty request. Staff also sent the respondent a copy of the Commissioner's Civil Penalty Policy.

On April 26, 1999, counsel for Respondents, Peter Burke, Esq., requested that the charges be dismissed because Staff had chosen a new theory upon which to base its motion.

On April 28, 1999, counsel for Staff, Maureen Brady, Esq., explained that upon Respondents' submittal of information that the deck was movable, Staff determined that it was appropriate to allege an alternative cause of action under 6 NYCRR §505.7(a). Staff noted that pursuant to 6 NYCRR §622.5 a party may amend its pleadings once without permission at any time before the period for responding expires. Staff argued that the amendment does not change the crux of the case which remains that Respondents built a structure in a prohibited area. Staff claimed that Respondents were notified of that at a meeting which took place on April 5, 1999.

On May 4, 1999, Respondents denied that they were informed that Staff planned to amend its complaint although they discussed the new theory with Staff. Respondents claimed that Staff needed to redraft its motion papers because they still included the previous theory. Respondents again asked for the complaint to be dismissed.

On May 5, 1999, Staff indicated that the motion papers are similar to the ones originally submitted because the factual basis for the case was largely unchanged. Staff pointed out the portions of the papers where changes were made.

DISCUSSION RULING and AMENDED ORDER OF CONTINUANCE

A party may amend its pleading once without permission at any time before the period for responding expires (6 NYCRR §622.5(a)). Furthermore, I find no prejudice to Respondents by Staff's amendment since the causes of action are very similar. Thus, had Staff asked for permission to amend under §622.5(b), it would have been given.

Respondents' Motion to Dismiss is denied.

The previous Order of Continuance issued March 19, 1999, is hereby amended as follows:

This matter is continued until June 11, 1999. Respondents are to file with me and serve upon Staff their responsive affidavits (including affidavits and argument addressing Staff's penalty recommendation and request that Respondents be directed to reduce the size of the deck) no later than June 4, 1999 (date of receipt). Since Staff has the burden of proof, Staff will be permitted to file papers that specifically respond to Respondents' affidavits no later than June 11, 1999. No further submittals will be entertained without my prior permission and/or direction.

If material facts are disputed, I will schedule a hearing to resolve them. If this is not the case, I will dispose of this matter by submitting my findings, conclusions and recommendations in a report to the commissioner. Please note that if a violation is established and no material facts are disputed, I intend to also dispose of the matter of appropriate relief on the papers submitted. With respect to Staff's request for an order directing a reduction in the size of the deck, if Respondents have another way of bringing their structures clearly into compliance with the regulations and law, I will consider those as well if included in Respondents' submittal.

While the continuation is being made for the exchange described above, the parties may wish to reconsider their positions in light of what has been said, and use the time to try to settle the case. The Office of Hearings and Mediation Services reiterates its earlier offer to supply a mediator to assist the parties in reaching a settlement if both parties agree they would like to pursue this route. If this be the case, Department Staff should contact the Chief Administrative Law Judge for arrangements.

_____________/s/_____________
Frank Montecalvo
Administrative Law Judge
Albany, NY

Dated: May 12, 1999

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