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Water & Edge Dock Owners Association - Ruling, March 16, 1998

Ruling, March 16, 1998

STATE OF NEW YORK:DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of the Application of
Water's Edge Dock Owners Association
for Tidal Wetlands and Protection of
Waters Permits and a Water Quality
Certification, pursuant to Environmental
Conservation Law Articles 15 and 25, and
Title 6 of the Official Compilation of
Codes Rules and Regulations of the State
of New York Parts 608 and 661

ORDER
Case No.1-4722-00272/00001

Proceedings

This Application went to hearing on June 2, 3 and 4, and July 21 and 22, 1997. Closing arguments were made July 22, 1997. The record has been held open since July 22, 1997, to receive the stenographic transcripts.

Between the June and July hearing sessions, the ALJ requested by facsimile on July 8, 1997, that the Applicant supply the ALJ with the original transcript as soon as possible, and that the Applicant have the two copies sent directly to Staff. On July 15, 1997, Staff advised that they had not received a copy of the transcript. On July 17, 1997, the ALJ received the original transcript for the June 2, 1997, hearing session only.

On September 18, 1997, Staff advised that they had not yet received a copy of the transcript for the hearing sessions held June 3 and 4, and July 21 and 22, and requested that the ALJ deem the application withdrawn if the transcripts were not supplied within two weeks. On September 22, 1997, the ALJ requested via facsimile that the Applicant's counsel, at her earliest convenience, advise when the transcripts would be received. The ALJ also noted that the first transcript contained a number of errors, and that the record would not close until all the transcripts were received and the errors were cured. On November 13, 1997, the ALJ received a letter from Applicant's counsel indicating that she had been informed by her client that the transcripts had been paid for and that they should have been forwarded. On November 13, 1997, by mail and facsimile the ALJ advised the parties that he had not received the transcripts. On November 14, 1997, Staff advised that they had not received the transcripts.

On February 10, 1998, the ALJ noted his understanding that Staff had received transcripts for June 3 and 4, 1997, noted that he, however, had not yet received these particular transcripts, and noted that apparently no one had received transcripts of the July sessions. The ALJ requested that the status of the transcripts be checked into. On February 23, 1998, Staff acknowledged receipt of the transcripts of the June 3 and 4, 1997, sessions, but noted that they had not received transcripts for either of the July sessions. Staff pointed out that the hearing regulations require that the stenographer be paid within 30 days of the last day of testimony. Staff again requested that if the transcripts are not provided within two weeks, that the application be deemed withdrawn. Applicant did not respond to Staff's request of the ALJ. On and after March 2, 1998, the ALJ attempted to schedule a conference call with the parties' counsel, however the Applicant's counsel did not respond.

On March 16, 1998, the ALJ telephonically inquired of the Best Court Reporting Service on the status of the transcripts. In reply he received a facsimile transmission indicating that the transcripts for the July 21 and 22, 1997 sessions had not been paid for, and that the transcripts would not be mailed until payment is made.

Discussion

At this point in time, almost 8 months following closing arguments, the record is still open awaiting the original transcripts for the June 3 and 4, and July 21 and 22 hearing sessions. This incompleteness is due at least in part to the court reporter not having been paid.

Section 624.12 requires that all proceedings at a hearing be stenographically reported, that an original and two copies of the transcript be delivered to the ALJ at the expense of the applicant, and that the transcript is part of the record. Section 624.11, paragraph (a) provides that within thirty days of the last day at which testimony is taken, the applicant must pay for any necessary stenographic transcriptions. Paragraph (c) provides that the final decision will not be issued until the applicant has paid this cost.

A final decision on the merits cannot be made without the record. In this case, owing to obvious defects in the transcript for the June 2, 1997 hearing session, the ALJ and the parties will have to review the transcripts, compare same with their recollections, and make any necessary corrections to the transcripts before the record may close. Recollections fade with time. Action must be taken now to preserve the record.

Section 624.8(b)(1)(xv) authorizes that ALJ to take any measures necessary for maintaining order and the efficient conduct of the hearing. Section 304 of the State Administrative Procedures Act, paragraph 4 gives the ALJ the authority regulate the course of the hearings, including fixing the time for filing of documents. In consideration of the above discussion and authority the following order is made.

Order

The Applicant is directed to file the original transcripts with the ALJ, to be received no later than March 24, 1998. In the event the transcripts are not received, the application shall be deemed withdrawn.

March 16, 1998
Albany, NY

________________
Frank Montecalvo
Administrative Law Judge

TO: Joan B. Scherb, Esq., via mail and fax
Jeanne A. Compitello, Esq., via mail and fax

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