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Tartan Textiles - Ruling, March 7, 2001

Ruling, March 7, 2001

STATE OF NEW YORK DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of the Alleged Violation of
Articles 15, 17, 19 and 71 of the Environmental
Conservation Law of the State of New York, the
New York State Navigation Law and Parts 201,
232 and 613 of Title 6 of NYCRR of the State
of New York
BY
TARTAN TEXTILES SERVICES, INC.
TO AMEND COMPLAINT
RULING ON MOTION
DEC File No.

Respondent.

R1-20000612-54

Proceedings

By Notice of Motion dated January 11, 2001, the Staff of the Department of Environmental Conservation (DEC or Department) moved for an Order pursuant to Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") sections 622.5 and 622.6 and Civil Procedure Law and Rules of the State of New York ("CPLR") Rule 3025 to amend a complaint dated August 10, 2000, previously served herein. In support of the motion, DEC submitted the affirmation of Louise M. Decandia, Esq., assistant regional attorney for the DEC and the proposed amended complaint. The motion was assigned to Administrative Law Judge Susan DuBois ("ALJ").

Tartan Textiles, the ("Respondent") was served with the Motion and supporting papers via certified mail on or about January 11, 2001. The motion was returnable on January 22, 2001. By electronic mail dated February 2, 2001 (Exhibit A) Staff advised the ALJ that the Respondent's attorney indicated that Respondent would not be opposing the motion, nor submitting papers in response to the motion. Due the schedule of ALJ DuBois, this matter was reassigned to ALJ Molly T. McBride.

Motion Procedures:

6 NYCRR 622.5, "Amendment of Pleadings", provides, in pertinent part, that a party may amend its pleadings... at any time prior to the final decision of the Commissioner by permission of the ALJ or the commissioner and absent special prejudice to the ability of any party to respond." (1)

The motion seeks to add additional claims against the named Respondent, Tartan Textiles. The motion also seeks to amend the complaint to add a new party, R & D Holding, Inc. ("R & D") For clarity purposes, I will first address the additional claims against Respondent and then address the request to amend to add the new party.

Findings:

1) Additional Claims Against Respondent:

The complaint served in August, 2000 charges the Respondent with violations of the Environmental Conservation Law of the State of New York ("ECL"), Navigation Law of the State of New York and 6 NYCRR parts 201, 320 and 613 related to it's dry cleaning operation in Hempstead, New York. The motion seeks to amend the complaint to add additional claims against the Respondent as follows: (i) additional allegations of violations of 6 NYCRR Parts 595-599; (ii) additional allegations of violations of the Environmental Conservation Law ("ECL") Article 17; (iii) additional allegations of violations of the New York State Navigation Law. The amended complaint also identifies violations that allegedly occurred at a second dry cleaning operation operated by the Respondent.

Respondent was served with the motion seeking leave to serve the amended pleading. Respondent has not objected to this motion. As a general rule, motions brought under CPLR Rule 3025 (b) are liberally granted. "This section is to be liberally construed to permit pleadings to be amended" and it is state policy to allow the amendment in the absence of laches, undue prejudice and unfair advantage. Siegel, CPLR Practice Commentaries, 2000 edition, citing Leutloff v. Leutloff, 47 Misc. 2d 458 (1965).

Here, the Respondent has not opposed the motion, nor alleged any prejudice, laches, or unfair advantage. The proposed amendments are additional claims that supplement prior, similar claims that are contained in the complaint previously served. Since the Respondent has not objected and I can see no prejudice to the Respondent in allowing the amendment, the motion should be granted.

2) Amendment to Add a New Party:

The Department has sought to amend the complaint to add a new party, R & D. The motion papers state that R & D is the owner of the property where the Hempstead dry cleaning business(2) is housed.

The papers submitted to this office indicate that Tartan Textiles has been served with the motion but R & D has not. R & D has not been afforded an opportunity to voice objection to the proposed amendment to the complaint. As I indicated earlier, motions to amend pleadings are liberally granted. However, one of the basis for denying such a motion is prejudice to a party. See Practice Commentaries to CPLR Rule 3025(b), 1991 Main Volume, David D. Siegel.

Here, R & D has not been given the opportunity to raise the issue of prejudice, or any other objection.

While CPLR Rule 3025 has been liberally applied, the courts of New York have denied requests to amend when it has been shown that one party will be harmed unfairly. By not serving the motion papers on R & D and providing them with an opportunity to be heard, we can not apply Rule 3025 as it should be applied. It would be improper for me to attempt to name possible objections that R & D could have to the amended complaint. R & D should be given the opportunity to be heard.

The motion should be served on R & D before a ruling is made on the request to amend the complaint to add the additional party.

Ruling:

The motion is granted with respect to the request to add additional causes of action against Tartan Textiles. The motion is denied without prejudice with respect to the request to amend the complaint to add R & D Holding, Inc.

/s/
Molly T. McBride
Administrative Law Judge

Dated: March 8, 2001
Albany, New York

To: Louise M. DeCandia, Esq.
NYS Department of Environmental Conservation
Region One
Building #40 SUNY Stony Brook
Stony Brook, New York 11790-2356

Guy Barbieri, Esq.
Lopresto & Barbieri, P.C.
22-07 Steinway Street
Astoria, New York 11105

1 6 NYCRR 622.5(b)

2 The Department has alleged violations by Respondent at two facilities it allegedly operates, one identified as the "Hempstead facility" and one identified as the "Freeport facility".

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