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525 West 45th Street Associates - Ruling, September 16, 2003


In the Matter of the Alleged Violations of Article 17
of the New York State Environmental Conservation
Law, Article 12 of the New York State Navigation Law
and Parts 612 and 613 of Title 6 of the Official Compilation
of the Codes, Rules and Regulations of the State of New York

- by-

525 West 45 Street Associates,


DEC File No. R2-20020708-209


On January 10, 2003, Department Staff, represented by Assistant Region 2 Attorney David Rubinton, served a notice of hearing and complaint in this matter. The Respondent, by its attorney Stuart A. Klein, answered the complaint on January 29, 2003. On August 20, 2003, Department Staff made a written motion to amend the complaint consistent with Section 622.5 of Title 6 of the New York Codes, Rules and Regulations (6 NYCRR 622.5). In accordance with the parties' stipulations extending the time to answer the motion, counsel for the Respondent submitted an affirmation, dated September 8, 2003, opposing the motion and requesting that it be denied.

The original complaint charged the Respondent with discharging petroleum to the state's waters without a permit, and failing to take immediate steps to contain, clean up and remove the discharge. According to the complaint, on or about September 24, 2002, the Department was notified of the discharge, which allegedly occurred in proximity to the Respondent's petroleum bulk storage facility at apartments the Respondent owned at 525 West 45th Street in Manhattan.

Department Staff now proposes various amendments to the complaint. These include reference to an additional petroleum spill which is alleged to have occurred on February 27, 2003. Again, the Respondent is charged with not notifying the Department of the spill and not taking appropriate steps to contain it.

Applicable Law

According to the Department's uniform enforcement hearing procedures, consistent with the Civil Practice Law and Rules (CPLR) a party may amend its pleading at any time prior to the final decision of the Commissioner by permission of the administrative law judge (ALJ) or the Commissioner and absent prejudice to the ability of any other party to respond.

Position of Department Staff

According to Department Staff, the information about the February 27 spill required modification of the complaint it had previously served. Staff claim that the Respondent will have an opportunity to answer the amended complaint and, accordingly, will not be prejudiced if the motion is granted.

Position of the Respondent

According to the Respondent, its ability to respond to the charges and mount a defense will be significantly and irreparably handicapped if Department Staff is allowed to amend its complaint.

The Respondent claims that on July 29, 2003, it sold its interest in the subject property, retaining no control over it and no legal right of entry. The Respondent says the inability to access the site will severely prejudice its ability to investigate the new allegations, conduct tests, and raise appropriate defenses. According to the Respondent, the issues at hand are time-sensitive and require factual discovery that cannot now be performed due to the disappearance of evidence, the unavailability of witnesses, and the failure of memories after what the Respondent considers to be an unreasonably long gap between the date of the alleged spill (February 27, 2003) and the date Department Staff sought the complaint's amendment (August 20, 2003).


As noted above, the Department's enforcement hearing regulations allow for amendment of a complaint even after an answer has been filed "consistent with the CPLR" and "absent prejudice to the ability" of the other party to respond. CPLR 3025 provides that leave to amend a complaint by setting forth additional or subsequent occurrences shall be "freely given" upon such terms as may be just. The showing of prejudice that will defeat an amendment must be traced back to the omission from the original pleading of whatever it is that the amended pleading wants to add.

In this case, the original complaint could not have addressed the alleged spill of February 27, 2003, since the spill postdates the complaint's development and service. In fact, Department Staff could have raised the February 27 incident in a new complaint rather than seek to amend the existing complaint. Such an approach would have spared Staff the motion to amend, though the combination in one action of the two alleged spills makes sense as a matter of administrative efficiency.

The Respondent claims that Department Staff's delay in bringing charges with regard to a spill on February 27 has prejudiced its ability to defend itself, such that these charges should be dismissed, citing the New York State Court of Appeals decision in Cortlandt Nursing Home v. Axelrod, 66 NY2d 169 (1985). This assertion can be raised as an affirmative defense to the new charges. The Respondent claims that in accordance with Cortlandt, where administrative delay has significantly and irreparably handicapped a private party in mounting a defense in an adversary administrative proceeding, the agency, or a court reviewing a final administrative order, is authorized to dismiss the proceeding. That is correct. In fact, in another matter of mine, I recommended such a dismissal on the ground that Respondents had not been afforded a hearing within a reasonable time, as required by State Administrative Procedure Act Section 301(1), and the Commissioner adopted my recommendation, dismissing all charges with prejudice. [See Matter of Manor Maintenance Corporation and Richard Schultheis, Order of the Commissioner, February 12, 1996, and attached hearing report.]

In the absence of a hearing, one cannot determine whether the Respondent has been prejudiced to the extent claimed. For that reason, there is no basis for disallowing the complaint's amendment. Instead, the complaint should be amended to add the new material alleged by Department Staff, and the Respondent should be afforded the opportunity to amend its answer to raise a claim under SAPA 301(1). Pursuant to 6 NYCRR 622.4(c), such a claim must be accompanied by a statement of facts which constitute the grounds of the defense, to eliminate surprise at the hearing. At the hearing, after Department Staff has presented its case on all charges, the Respondent shall be afforded the opportunity to present whatever evidence it has in rebuttal of the charges, and whatever evidence it has to substantiate any asserted claim of prejudice with regard to its ability to defend.


Department Staff's motion to amend the complaint is granted. Department Staff shall furnish a new complaint incorporating its proposed amendments to counsel for the Respondent. Ordinary mail will be an acceptable manner of service. Consistent with 6 NYCRR 622.4(a), within 20 days of receiving the new complaint, counsel for the Respondent shall serve an amended answer on Department Staff.

Edward Buhrmaster
Administrative Law Judge

Albany, New York
September 16, 2003

TO: David Rubinton, Esq.
NYS Department of Environmental Conservation
Division of Legal Affairs, Region 2
One Hunter's Point Plaza
47-40 21st Street
Long Island City, New York 11101

Stuart A. Klein, Esq.
11 Penn Plaza, 20th Floor
New York, New York 10001
ATTN: Richard Budd

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