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Florida, Village of, Chester, Town of, Orange County - Ruling on Motion to Discontinue, September 22, 2011

Ruling - September 22, 2011

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
________________________________________
In the Matter of the Alleged Violations of Article 15
of the Environmental Conservation Law (ECL)
and Part 673 of Title 6 of the Official Compilation
of Codes, Rules and Regulations of the State of
New York (6 NYCRR),

- by -

VILLAGE OF FLORIDA, TOWN OF CHESTER,
and COUNTY OF ORANGE,


Respondents.

RULING ON MOTION TO DISCONTINUE


DEC Case No. CO3-20070201-2

September 22, 2011
________________________________________

Appearances of Counsel:

-- Steven C. Russo, Deputy Commissioner and General Counsel (Robyn M. Adair of counsel), for staff of the Department of Environmental Conservation

-- Alyse D. Terhune, Town Attorney, for respondent Town of Warwick

-- Bernard I. Kunert, Village Attorney, for respondent Village of Florida (no submissions)

-- J. Scott Bonacic, Town Attorney, for respondent Town of Chester (no submissions)

-- David L. Darwin, County Attorney (Joseph F. Mahoney of counsel), for respondent County of Orange (no submissions)

Proceedings

In this administrative enforcement proceeding, staff of the Department of Environmental Conservation (Department) alleges that several respondents are failing to operate and maintain a structure known as the Glenmare Lake Dam (State Dam ID No. 179-0460) in a safe condition in violation of Environmental Conservation Law (ECL) § 15-0507. Department staff also alleges that respondents conducted repairs on the dam without a permit in violation ECL 15-0503(1) and 6 NYCRR 608.9.

By ruling dated September 26, 2007, I granted Department staff's motion to add the Town of Warwick as an additional party ( see Ruling on Motion to Amend Pleadings, Sept. 26, 2007). By letter motion dated August 15, 2011, Department staff now seeks to discontinue the matter against respondent Town of Warwick with prejudice. Staff asserts that upon further investigation, they are unable to prove that the Town of Warwick is a part owner of the dam.

By letter dated August 25, 2011, the Town of Warwick supports Department staff's motion and requests that the motion be granted. No other submissions were filed on Department staff's request.

Ruling

In support of its request, Department staff references the standards and procedures provided for voluntary discontinuances under CPLR 3217(b). I conclude that staff has satisfied those standards. No party raised any objection to Department staff's request, and no prejudice to any party is apparent. Accordingly, Department staff's motion is granted. The October 18, 2007, amended complaint is dismissed as against respondent Town of Warwick with prejudice.

/s/
__________________________________
James T. McClymonds
Chief Administrative Law Judge

Dated: September 22, 2011
Albany, New York

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