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Schuss/Bayview Dock Builders - Ruling, April 7, 1998

Ruling, April 7, 1998

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter
-of-
Alleged Violations of Articles 25 and 71 of the New York State Environmental Conservation Law and Part 661 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York

- by -

MARLEEN SCHUSS and BAYVIEW DOCK BUILDERS,
Respondents.
(Nassau County)
RULING ON MOTION FOR DEPOSITIONS
(4/7/98)
NYSDEC Case No. R1-6034-98-01

Proceedings

This tidal wetlands enforcement action was commenced by service of a Notice of Hearing and Complaint dated March 5, 1998. The relief sought by Department Staff is removal of a piling allegedly installed in a tidal wetland in Massapequa, New York, without a wetlands permit and assessment of a monetary penalty of $2,000.00 against each Respondent.

Respondent Marleen Schuss has appeared by The Halperin Law Firm, LLP, Kyle M. Halperin, Esq., of counsel. Respondent Bayview Dock Builders has appeared by Marc S. Bresky, Esq. The Respondents have each filed an Answer and a Request for Production of Documents.

The Request for Depositions

By letter dated March 24, 1998, pursuant to 6 NYCRR 622.7(b)(2), Respondent Schuss requested leave to depose Department Staff and others in connection with this proceeding (and possibly to file interrogatories at a later date). Respondent Schuss seeks to depose six individuals. Department Staff filed an Affirmation of Craig L. Elgut, Esq., in Opposition (dated April 6, 1998).

Section 622.7(b)(2) provides that depositions (and interrogatories) will only be allowed with permission of the ALJ upon a finding that they are ". . . likely to expedite the proceeding. Respondent Schuss states that granting depositions will expedite the fact finding and discovery in this matter; however, the Respondent has failed to provide any explanation of how deposing six individuals will expedite the proceedings. To the contrary, as Staff asserts, in this case scheduling depositions (or interrogatories) will result in delay of the discovery phase and consequently in delay of the hearing process. In my view, Staff's response to the Respondents' Request for Production of Documents should provide the factual information necessary to formulation of a defense.

Ruling

Respondent Marleen Schuss' request for leave to depose six individuals, is denied.

_____________/s/_____________
Kevin J. Casutto
Administrative Law Judge
Albany, New York

Dated: April 7, 1998

To:

Schuss/Bayview Service List

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