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Winkler, William and Ruth - Ruling, September 3, 1999

Ruling, September 3, 1999

STATE OF NEW YORK DEPARTMENT OF ENVIRONMENTAL CONSERVATION:

In the Matter of the Alleged Violations of Articles 15 and 25
of the New York State Environmental Conservation Law and
Parts 608 and 661 of Title 6 of the Official Compilation of
Codes, Rules and Regulations of the State of New York

-by-

RUTH WINKLE and WILLIAM WINKLE,
Respondents.

Administrative Law
Judge's Ruling on
Staff's Motion to : Amend Complaint

DEC File No.
R2-0086-98-08

Proceedings

The Department staff commenced this enforcement proceeding against Ruth Winkle and William Winkle (respondents or Winkle) by service of a notice of hearing and complaint dated May 18, 1999 upon respondents on May 19, 1999 by certified mail. Staff alleges that respondents have violated the Tidal Wetlands Act (Article 25) and the Protection of Waters Act (Article 15) of the Environmental Conservation Law (ECL) and these laws' implementing regulations by construction of certain structures and placement of fill at their property in Beechhurst, New York. By answer dated June 4, 1998 [sic], respondents generally denied staff's allegations and affirmatively stated that their actions were in response to emergency conditions and were previously approved by staff. Staff moved for clarification of respondents' affirmative defenses in papers dated June 15, 1999 and after requesting and receiving permission from the Office of Hearings and Mediation Services (OHMS) for additional time to respond, respondents replied in papers dated July 6, 1999. By notice of motion dated August 19, 1999, staff requests an order granting leave to amend the complaint based upon a site inspection of July 29, 1999 when staff observed alleged additional violations of Articles 15 and 25 by the respondents at the same location. To date, the OHMS has not received a response to staff's motion. This office is also in receipt of staff's notice to produce dated August 30, 1999.

Discussion

Section 622.5 of Title 6 of the New York Compilation of Codes, Rules and Regulations (6 NYCRR) provides that consistent with the CPLR, by permission of the ALJ, a party may amend its pleading any time prior to the commissioner's final decision and absent prejudice to any other party to respond. As noted by staff, the incidents upon which it bases its amendment did not take place until after the complaint was served. Yet, these allegations are clearly related to the charges that staff sets forth in the complaint and therefore, it makes sense to hear them together with those noted in the original complaint. The respondents are not prejudiced by this amendment particularly because the matter is in the beginning stages of the hearing process.

And, respondents have not objected to the amendment by way of any response to staff's motion although twelve days have passed since this office received a copy of staff's motion papers that are dated August 19. Section 622.6(c) of 6 NYCRR requires that parties have five days after a motion is served to serve a response. Although no affidavit of service was appended to staff's papers (nor is one mandated by the regulations), I am assuming that staff mailed the motion papers to the respondents at the same time they were mailed here on or about August 19. Accordingly, the regulations require a response be served by no later than August 23. Adding a few more days for the vagaries of the postal service between New York City and Albany and the uncertainty of the exact date of service, I should have received respondents' reply by no later than August 27 and today is September 3.

Accordingly, staff's motion for leave to amend the complaint is appropriate.

Conclusion

I grant the staff's motion and direct the respondents to serve their answer to staff's amended complaint within 20 days of receipt of this ruling. Upon receipt of the answer, I direct staff to coordinate a conference call with Mr. Sullivan and me to ascertain the status of discovery, settlement discussions, and to set a date and location for a hearing.

/s/
Helene G. Goldberger
Administrative Law Judge

Dated: Albany, New York
September 3, 1999

TO: Peter R. Sullivan, Esq.
Sullivan & Chester, LLP
230 Park Avenue
New York, New York 10169

Udo M. Drescher, Esq.
NYSDEC - Region 1
One Hunters Point Plaza
47-40 21st Street
Long Island City, New York 11101

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