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Part 622 Annotations

PART 622 ANNOTATIONS

Admission of Liability: Defaulting respondent deemed only to admit liability; appropriate penalty and any remedial measures sought to be imposed must still be proven. Proof may be provided on a motion for default judgment by Department staff's attorney affirmation with supporting documentation. Matter of 134-15 Rock Management Corp., Order of the Commissioner, December 10, 2008, at 3.

Affidavits: Affidavits may be examined to confirm the factual allegations of the complaint or to otherwise assure the reviewer that the Department has a meritorious claim against the respondent. Matter of Alvin Hunt d/b/a Our Cleaners, Decision and Order of the Commissioner, July 25, 2006, at 7.

Amending Pleadings: Discussion of procedure to amend pleadings. See L-S Aero Marine Inc., Ruling of Chief Administrative Law Judge, December 17, 2009, at 2.

Affirmative Defense (Failure to State a Claim): Not to be pleaded as affirmative defense, but ground for motion to dismiss. Matter of Town of Virgil, ALJ Ruling, June 25, 2008, at 25; Matter of Gramercy Wrecking and Environmental Contractors, Inc., ALJ Ruling, January 14, 2008, at 4.

Attorney's Fees/Sanctions in Part 622 Proceeding: No authority exists for such awards. Matter of Exxonmobil Corporation, Rulings of the Administrative Law Judge, September 27, 2002.

Briefing and Withdrawal of Charge: Unless ALJ instructs parties to limit their briefing, if staff counsel does not brief an issue because counsel deems the charge to not have been proven or to be weak, staff counsel should withdraw the charge. Matter of RGLL, Inc. and GRJH, Inc., Decision and Order of the Commissioner, December 29, 2009, at 17 n11.

Caption - Amendment of Caption: Allegations of complaint control over any error in the caption. Matter of Brewster Cleaners, Inc., Ruling of the Administrative Law Judge, March 14, 2008, at 6.

Causes of Action (Numbering): Causes of action in a complaint are to be numbered. Matter of RGLL, Inc. and GRJH, Inc., Decision and Order of the Commissioner, December 29, 2009, at 5 n4.

Civil Penalty Policy: Department staff, in enforcement actions, to provide an explanation of any deviations from Department's Civil Penalty Policy. Matter of Huntington and Kildare, Inc., Order of the Commissioner, December 22, 2009, at 3.

Conforming Complaint to the Proof: See Matter of Costa, Decision and Order of the Commissioner, February 19, 2009, at 3 fn4; Matter of Wilder, Hearing Report, at 3-4, adopted by Supplemental Order of the Commissioner, September 27, 2005.

Contribution/Indemnification Claims: Not properly raised in the administrative forum. See Matter of Huntington and Kildare, Inc., Ruling of the Chief ALJ on Motion to Allow Third-Party Claim, Nov. 15, 2006, at 3.

Constitutional Issues: Discussion of whether reviewable in administrative proceeding (see Matter of Bartell, ALJ Ruling, June 11, 2009, at 13-14 [specifically addressing equal protection claim]; Matter of McCulley, Ruling of the Chief ALJ on Motion for Order Without Hearing, Sept. 7, 2007, at 5-7).

Continuing Violations: Completion of construction does not serve to terminate the continuing nature of a tidal wetlands violation. Matter of Valiotis and Malba Associates, Order of the Commissioner, March 25, 2010, at 3-4.

Counterclaims: Part 622 makes no provision for counterclaims in the administrative forum. Matter of Franco, Ruling of the Administrative Law Judge on Pre-Hearing Motions, June 18, 2008, at 3.

CPLR - Use of in Enforcement Proceedings: Where DEC enforcement hearing regulations silent on a particular issue, CPLR may be consulted. Matter of Makhan Singh, Decision and Order of the Commissioner, March 19, 2004, at 2. Matter of Gramercy Wrecking and Environmental Contractors, Inc., Ruling of the Administrative Law Judge, January 14, 2008, at 8. Administrative enforcement proceedings not actions governed by the CPLR (see Matter of Skyline Point Homeowners Association, Inc., Rulings of the ALJ, June 15, 2009, at 4), but note that specific provisions of Part 622 incorporate by reference various provisions of CPLR.

Default - Role of ALJ: Once an ALJ concludes that the requirements for a default judgment set forth at 6 NYCRR 622.15 have been met, ALJ must determine whether complaint states a claim upon which relief may be granted, and must consider whether the requested civil penalty and any remediation are warranted and sufficiently supported. Matter of White, Order of the Commissioner, December 9, 2009, at 4; Matter of Alvin Hunt d/b/a Our Cleaners, Decision and Order of the Commissioner, July 25, 2006, at 4-5.

Default - Amount of Penalty: General principle that a default judgment cannot exceed the amount demanded in complaint, absent notice to respondent that a greater penalty would be sought. Matter of 134-15 Rock Management Corp., et al., Order of the Commissioner, December 10, 2008, at 4. See also CPLR 3215(b); Michalowski v. Ey, 7 NY2d 71 (1959); County of Jefferson v. City of Watertown, 39 Misc.2d 534 (Sup. Ct. 1963).

Default - Applicability of CPLR to Part 622 Procedures: Provisions of CPLR applicable to motions for default judgments should be consulted for governing procedures. Matter of Makhan Singh, Decision and Order of the Commissioner, March 19, 2004, at 2.

Default - Appropriateness of Relief: By defaulting, respondent is only deemed to have admitted the factual allegations in the complaint and Department must still establish that relief sought is appropriate. Matter of Alvin Hunt d/b/a Our Cleaners, Decision and Order of the Commissioner, July 25, 2006, at 4-5.

Default -- Grounds -- Failure to Appear at Pre-Hearing Conference: Failure to appear at a section 622.8 pre-hearing conference when scheduled during the 20-day period for answering a complaint is not a basis for a default judgment. See Matter of Kuldeep Singh, Decision and Order of the Commissioner, Dec. 17, 2003, at 8.

Default - Notice of an Application for a Default Judgment: Motion to be served upon a respondent and its representative (if known). Matter of Dudley, Decision and Order of the Commissioner, July 24, 2009, at 1-2 (Commissioner directive to Department staff that, commencing on or after August 24, 2009, staff is to serve motions for default judgment upon respondents and their representatives [if known] even where such service is not required under CPLR 3215[g][1]). Supercedes Matter of Makhan Singh, Decision and Order of the Commissioner, March 19, 2004, at 2-3 (notice where the defending party has appeared or where more than one year has elapsed between the date of the default and the motion).

Default - Statement of a Claim: Where respondent deemed to have admitted the factual allegations of the complaint, ALJ and ultimately Commissioner must evaluate the complaint to determine whether the factual allegations of the complaint state a claim. Matter of Alvin Hunt d/b/a Our Cleaners, Decision and Order of the Commissioner, July 25, 2006, at 4-5.

Default Motions - Factual Assertions: Although Department staff is not required on default judgment motions to support the factual assertions in its complaints, it still has obligation to assure that Commissioner orders imposing liability, civil penalties and remedial obligations are based upon actual facts and not solely unconfirmed allegations. Matter of 2526 Valentine LLC, Ruling of the Chief ALJ on Motion for Default Judgment, January 6, 2009, at 9.

Defense of Failure to State a Claim: In an answer, such a defense seen as surplusage, and a motion to strike should be denied as unnecessary. See Matter of Truisi, Ruling of the Chief ALJ on Motion to Strike or Clarify Affirmative Defenses, April 1, 2010, at 12; Matter of Town of Virgil, ALJ Ruling, June 25, 2008, at 25 (The ALJ observed that the rule in the Second Department is to the contrary. Note that the Second Department has recently reversed that rule, and now denies as unnecessary motions to strike the defense [see Butler v Catinella, 58 AD3d 145, 149 (2008)]) .

Delay (Cortlandt Factors): See Matter of Giambrone (Marcon Erectors, Inc.), Decision and Order of the Commissioner, March 17, 2010, at 11-12; Matter of Town of Virgil, ALJ Ruling, June 25, 2008, at 7-19 (nature of private interest allegedly compromised by the delay; consideration of actual prejudice; consideration of the causal connection between the conduct of the parties and the delay; and underlying public policy advanced by governmental regulation); Matter of Manor Maintenance Corp., Order of the Commissioner, Feb. 12, 1996.

Discovery: Scope of discovery in administrative enforcement proceeding is as broad as that provided under article 31 of the CPLR (see 6 NYCRR 622.7[a]). Matter of Berger, ALJ Ruling on Disclosure, February 10, 2010, at 3.

Discovery Exemptions: Exemptions to the New York Freedom of Information Law do not limit or abridge any otherwise available right of access of any party to records in an enforcement proceeding. See Matter of Berger, ALJ Ruling on Disclosure, February 10, 2010, at 6.

Dissolution of Business Entity: Where allegations refer to events that occurred prior to dissolution of a business, subsequent dissolution of that business has no bearing on the proceedings (Matter of Skyline Point Homeowners Association, Inc., Rulings of the ALJ, June 15, 2009, at 11).

Equal Protection: A violation of equal protection arises where a person (compared with others similarly situated) is selectively treated and such treatment is based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person. See Matter of Jaral Properties, Inc., Decision of the Assistant Commissioner, December 31, 2009, at 2 (Note: this was a Part 624 [permit application] proceeding); see also Matter of Bartell, ALJ Ruling, June 11, 2009, at 13-14 (addressing equal protection issue in the context of an enforcement proceeding).

Estoppel: Governmental entity may not be estopped from the proper discharge of its statutory duties (Matter of Bartell, ALJ Ruling, June 11, 2009, at 12).

Hearsay: Admissible in administrative adjudicatory proceedings where sufficiently reliable, relevant and probative to provide a basis for agency's determination. See Matter of Tractor Supply Company, Order of the Commissioner, August 8, 2008, at 2. Hearsay may constitute sufficient evidence to support prima facie case on summary judgment. See id. at 3-4.

Identification of Regulatory or Statutory Section: In an enforcement proceeding, staff needs to clearly identify the regulatory or statutory section at issue. Matter of Pfennig, Order of the Commissioner, May 27, 2020, at 1, n1.

Joinder (Enforcement Action): Whether Department staff may be required to join a potentially liable party to an ongoing enforcement action is open question. Matter of Huntington and Kildare, Inc., Chief ALJ Ruling, November 15, 2006. See Matter of Town of Virgil, ALJ Ruling, June 25, 2008, at 22-23 (joinder is not mandatory in enforcement proceeding); Matter of Berger and Cook, ALJ Ruling, May 28, 2010, at 7-8 (addressing whether Department staff can be compelled to join a non-party).

Motion to Clarify or Strike Affirmative Defenses: Standards governing motion to clarify (sufficiency of notice; not opportunity to obtain bill of particulars) (Matter of Truisi, Ruling of the Chief Administrative Law Judge, April 1, 2010, at 3-7). Standards governing motion to strike (same as motion to dismiss pursuant to CPLR 3211[b]) (id. at 10-11). Where the defense is actually a denial pleaded as a defense, a motion to clarify or strike does not lie (see id. at 5, 11).

Motion for Order without Hearing (uncontested) - Granting of Motion and Determination of Liability: In circumstances where Department staff's motion for an order without hearing is unopposed by respondent, staff's motion may be granted and respondent's liability determined as a matter of law when staff supports each element of the claims alleged in the motion with evidence in admissible form. Matter of Alvin Hunt d/b/a Our Cleaners, Decision and Order of the Commissioner, July 25, 2006, at 7 fn 2.

Motion for Order without Hearing (contested) - Granting of Motion and Determination of Liability: Where a motion for order without hearing is contested, it will be granted if, upon all the papers and proof filed, the cause of action or defense is established sufficiently to warrant granting summary judgment under the CPLR in favor of any party. On a motion for summary judgment under the CPLR, a "movant must establish its defense or cause of action sufficiently to warrant a court's directing judgment in its favor as a matter of law .... The party opposing the motion ... must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which the opposing claim rests .... '[M]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient' for this purpose." Gilbert Frank Corp. v Federal Ins. Co., 70 NY2d 966, 967 (1988) (citations omitted) (quoting Zuckerman v City of New York, 49 NY2d 557, 562 [1980]); see also Mustang Bulk Carriers, Inc., Order of the Commissioner, November 10, 2010, at 2.

Thus, Department staff bears the initial burden of making a prima facie showing of entitlement to summary judgment as a matter of law with respect to each element of the violations alleged (see Cheeseman v Inserra Supermarkets, Inc., 174 AD2d 956, 957-958 [3d Dept 1991]). Once Department staff has done so, "it is imperative that a [party] opposing a ... motion for summary judgment assemble, lay bare and reveal his proofs" in admissible form (id. at 958 [quoting Du Pont v Town of Horseheads, 163 AD2d 643, 645 [3d Dept 1990]). Facts appearing in the movant's papers that the opposing party fails to controvert are deemed to be admitted (see Kuehne & Nagel, Inc. v Baiden, 36 NY2d 539, 544 [1975]). See Matter of James Burke, Order of the Commissioner, March 16, 2009, at 1 ("[w]here a motion for order without hearing is contested, it will be granted if, upon all the papers and proof filed, the causes of action are established sufficiently to warrant granting summary judgment under the [CPLR]"); Matter of Linden Latimer Holdings, LLC, Order of the Commissioner, July 15, 2008, at 3-4; see also Matter of Loccisano and Paradise Mountain Mobile Home Park, Inc., Order of the Commissioner, August 12, 2008, at 2 (staff must carry its burden of making a prima facie showing of entitlement to summary judgment as a matter of law with respect to each violation alleged and respondents must have failed to raise a triable issue of fact requiring a hearing); Matter of Rocco Manniello, ALJ Ruling on Motion to Dismiss and Motion to Compel, July 3, 2009, at 9 (discussing motion for "partial summary judgment" where made by respondents).

Motion for Order without Hearing - Equivalency: Administrative equivalent of summary judgment. See Matter of Locaparra, Decision and Order of the Commissioner, June 16, 2003, at 3-4.

Motion to Reconsider Final Commissioner Decision or Order: See Matter of Charles Pierce, Sr., Commissioner Ruling, June 9, 1995, at 1; Matter of LaRuffa, Jr., Commissioner Ruling, January 13, 2010, at 3.

Motion to Dismiss Complaint (respondent) - Standard: Documentary evidence submitted must conclusively establish defenses to the allegations in the complaint as a matter of law. See Matter of Town of Virgil, ALJ Ruling, June 25, 2008, at 4.

Navigation Law and DEC Proceedings: Scope of the Department's authority under the Navigation Law. Matter of Gasco-Merrick Road Gas Corp., Decision and Order of the Commissioner, June 2, 2008, at 3-11.

PBS Enforcement Proceedings: All Department enforcement proceedings (commenced on or after January 4, 2010) that involve alleged violations of the PBS regulations, Department staff to include, with staff's complaint or motion for order without hearing (in lieu of complaint), at a minimum the following documents: a copy of the facility's PBS registration (if one has been issued), the PBS facility information report (if any), and any notice of violation that is a basis for Department staff's allegations in the charging instrument. Matter of Farmer, Order of the Commissioner, October 22, 2009, at 3.

Penalty, Determination on Motion for Default Judgment: Role of the ALJ: Matter of Alvin Hunt d/b/a Our Cleaners, Decision and Order of the Commissioner, July 25, 2006, at 8-10. On a motion for default judgment, ALJ reviews the proof offered in support of the penalty and remedial measures sought by Department staff, and makes a recommendation to Commissioner. Matter of 134-15 Rock Management Corp., Order of the Commissioner, December 10, 2008, at 3.

Personal Service Requirements Pursuant to CPLR 308(1) and 308(2): Discussed in Matter of Abaire, ALJ Ruling on Motion for Default Judgment and Order, August 28, 2009, at 2-3.

Pleadings, Amendment of (Conform to Proof): Authority to amend pleadings and requirement of answer or reply to amended pleading. Matter of Hanaburgh, Ruling of the Chief Administrative Law Judge, October 29, 2007, at 2-3; see also Matter of Satur Farms, LLC, Ruling of the Administrative Law Judge, June 10, 2008, at 8 [discussing liberal construction given to applications for leave to amend in the administrative forum]).

Pleadings, Amendment of: May be amended to conform to proof where respondent would not be prejudiced. See Matter of Tractor Supply Company, August 8, 2008, at 4; see also Matter of Wilder, ALJ Hearing Report, at 3-4, adopted by Supplemental Order of the Acting Commissioner, September 27, 2005.

Prior Consent Order Obligations: Comment note: recitation that prior consent order obligations are not relieved by Commissioner order may be appropriate. See Matter of Catania Enterprises, Inc. d/b/a Sandy Pond Marina & Campground, Order of the Commissioner, July 23, 2009, at 3 (Par. IV).

Reasonable Inference of Violation: Based on logical inferences from record. See Matter of White, d/b/a Leora White Scrap Iron and Metal, Order of the Commissioner, August 13, 2008, at 6.

Recusal of ALJ: 6 NYCRR 622.10(b)(2) and 622.10(d): See Matter of Frederick Neroni, Order of the Commissioner, June 10, 2009, at 3-4; Matter of McCulley, Ruling of the Chief ALJ on Motion for Recusal, Dec. 4, 2006.

Recusal of Commissioner: See Matter of Crossroads Ventures, LLC, Ruling of the Commissioner on Motion To Recuse the Commissioner, April 29, 2009 (Note: this was a Part 624 [permit application] proceeding).

Reopening a Default in Answering: Motion requires a showing of good cause for the default and that a meritorious defense is likely to exist, as demonstrated in an affidavit of merit. See Matter of Einhorn Enterprises, LLC, Ruling of the Chief Administrative Law Judge, December 27, 2006, at 2.

Right to Counsel: Aside from certain narrow exceptions, does not extend to administrative proceedings. See Matter of Bartell, ALJ Ruling, June 11, 2009, at 16.

Rules of Evidence: Rules of evidence observed by civil courts not strictly applied in administrative proceedings before the Department. See SAPA section 306(1); Matter of Tractor Supply Co., Decision and Order of the Commissioner, August 8, 2008, at 2; Matter of Berger and Cook, Ruling of the ALJ, October 6, 2010, at 3.

Service in Enforcement Proceedings by First Class Mail (interpretation of 6 NYCRR 622.3[a][3] requirements): Where service cannot be made by personal service or by certified mail, Department staff required to make application to ALJ in order to utilize service by first class mail. See Matter of Kellner, Administrative Law Judge Ruling on Motion for Default Judgment, January 24, 2008, at 8-12.

Service of Complaint, Proof of Mailing: Discussion of requirements, see Matter of Murray, Ruling of the Chief ALJ, May 5, 2004.

Service of Interlocutory Papers in a Pending Action: If party is represented by an attorney, service to be made on the attorney for the party, and not upon the party. See Matter of Diatect International Corp., ALJ Ruling, September 6, 2007, at 7.

Service on a Corporation:

- Service pursuant to Business Corporation Law § 306(b), see Matter of Polanaya Corp., Order of the Commissioner, April 12, 2005, at 1.

- Additional service requirements of CPLR 3215(g)(4) (on motion for default judgment, mailing of additional copy of the notice of hearing and complaint to respondent's last known address). Matter of Milu Inc., Order of the Commissioner, May 25, 2007.

Service by Mail (Papers Other Than the Complaint): Complete upon proper posting, without regard to receipt. See Matter of Mike's Dry Cleaners, ALJ Default Summary Report, March 13, 2007, at 6; Matter of Diatect International Corp., Ruling of Administrative Law Judge, September 6, 2007, at 7; Matter of Segreto, Ruling of Administrative Law Judge, October 12, 2007, at 9.

Settlement Proposals: Settlement proposals may be considered in permit application proceedings under Part 624. See Matter of Haley, Interim Decision of the Commissioner, June 22, 2009, at 7 (Note: this was a Part 624 [permit application] proceeding).

Signing Papers: Department attorneys are to sign and date their complaints. Matter of Donald Sutherland, Order of the Commissioner, June 23, 2010, at 2.

Submissions of Pro Se Respondent - Liberal Construction: Liberal construction generally afforded to papers submitted by pro se parties in administrative proceedings. See Matter of Segreto, Ruling of Administrative Law Judge, October 12, 2007, at 11.

Summary Judgment, Evidentiary Standard: On summary judgment, the issue is whether the movant supported its prima facie case with "sufficient evidence"; weight of evidence is not considered. See Matter of Tractor Supply Co., Decision and Order of the Commissioner, Aug. 8, 2008, at 3 (discussing test for sufficiency of evidence).

Summary Judgment Motion: To be decided on the evidence presented by the parties; conclusory statements and denials are insufficient to carry the party's burden on the motion. See Matter of Locaparra, Decision and Order of the Commissioner, June 16, 2003, at 4.

Violations of ECL 17-0501 (Water Quality Standard): Complaint must identify the State water quality standard allegedly violated by the discharge. Matter of Amabile, Order of the Commissioner, July 12, 2006, at 3; Matter of Gladiator Realty Corp., Order of the Commissioner, January 14, 2010, at 3 (complaint which fails to identify the specific water quality standard and the classification of the receiving body of water fails to state a claim).

Weight of Evidence: Not considered at summary judgment stage. See Matter of Tractor Supply Company, Decision and Order of the Commissioner, August 8, 2008, at 3.


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