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Bradley Corporate Park - Ruling, December 1, 2000

Ruling, December 1, 2000


In the Matter of

Alleged Violations of Article 24 of the Environmental Conservation Law and Part 663 of
Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York

- by -

individually and as general partners of



DEC File No.3-2000-0424-43

December 1, 2000


This matter involves an allegation by the Staff of the New York State Department of Environmental Conservation ("DEC Staff") that Bradley Corporate Park, John F. Magee and Patrick Magee ("Respondents") have unlawfully undertaken construction activity in a regulated freshwater wetland and adjacent area without a permit. The action was commenced by DEC Staff by service of a Notice of Hearing and Complaint, dated May 11, 2000. Respondents denied the allegations in their Answer, dated May 15, 2000. The Answer also contained 13 affirmative defenses and a counterclaim. Since that time, discovery demands and responses have been provided by both parties in preparation for an expedited fact finding hearing pursuant to section 622.13 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York (6 NYCRR). The hearing is scheduled to begin on December 11, 2000. The subject of this hearing was decided in a ruling by Administrative Law Judge ("ALJ") Susan J. DuBois on August 15, 2000. The threshold issue is whether the Respondents unlawfully conducted an activity without the required permit.

A dispute has arisen regarding the ongoing discovery process. This ruling is made in response to Respondents' Motion dated November 22, 2000 and DEC Staff's Affirmation in Opposition, dated November 27, 2000. Respondents' Motion sought a ruling on four issues. Below, each is discussed.

ISSUE #1: Should DEC Staff's subpoena dated November 15, 2000 be modified?

On or about November 15, 2000, DEC Staff served a Subpoena Duces Tecum on Robert Torgersen demanding production of "any and all documents reflecting and or concerning the Respondents' proposed development." The subpoena also required Mr. Torgersen's presence at the hearing so he would be available to testify. Mr. Torgersen is an environmental consultant who has been employed by the Respondents and has submitted an affidavit in this matter. In addition to being called by DEC Staff as a fact witness, Respondents plan to call Mr. Torgersen as an expert witness at the hearing.

Upon receipt of the subpoena, Mr. Torgersen contacted the Respondents' counsel, who then initiated a conference call with the ALJ and DEC Staff. On this call, ALJ DuBois stayed the subpoena until the parties provided arguments sufficient to make a ruling.

Respondents request that DEC Staff's subpoena be modified, pursuant to CPLR §2304. In their Motion of Motion (sic), Respondents request that the subpoena be modified to delete the requirement that Mr. Torgersen produce documents and the requirement that he appear to testify at the hearing (paragraph A). In the attached Affirmation, Respondents seek to limit the subpoena so that it only requires the testimony of Mr. Torgersen at the hearing and limits the production of documents to the date of the hearing (paragraph 18).

In response, DEC Staff states that it intends to call Mr. Torgersen at the hearing as a fact witness and that it requires the production of documents from Mr. Torgersen's files prior to the hearing to prepare (Affirmation in Opposition, paragraphs 25-27). DEC Staff notes that it never intended to seek material produced for litigation or other privileged material and is willing to limit its demand for documents to those in existence prior to the date of service of the complaint. Further, DEC Staff states that while the Respondents may have provided all documents in their possession, there "appears to be the significant likelihood that many material and necessary documents in the possession of Mr. Torgerson (sic) may not have been disclosed." DEC Staff bases this assertion on the fact that in response to a request for documents from the Army Corps of Engineers, a letter from Mr. Torgersen was produced that was not produced by Respondents in response to a discovery demand. Consequently, DEC Staff believes Mr. Torgersen may have other relevant documents in his possession and requests that the subpoena not be modified to preclude discovery of these documents.

Discovery in an expedited fact finding hearing is governed by 6 NYCRR 622.7(a) which states "the scope of discovery must be as broad as that provided under article 31 of the CPLR." The CPLR provides that "there shall be full disclosure of all evidence material and necessary to the prosecution or defense of an action" by any person who is not a party to an action "upon notice stating the circumstances or reasons why such disclosure is sought" (CPLR §3101).

In the instant case, Mr. Torgersen has been a consultant and licensed landscape architect for the Respondents regarding proposed development at this site since 1984 (Torgersen Affidavit, paragraph 1). His involvement with the property at issue has been continuous and includes the preparation of maps in 1984, site plans in 1989 and a permit application in 1996 (Torgersen Affidavit, paragraphs 8, 10, and 21). It is in the capacity as a fact witness that DEC Staff seeks Mr. Torgersen's testimony at the hearing, based upon his extensive knowledge of the site, not as an expert regarding where the boundary line of the wetland lies on the property. DEC Staff contends that during his years of work on the site on behalf of the Respondents that Mr. Torgersen has accumulated material and necessary evidence that may not be in the possession of the Respondents themselves, and thus has not been disclosed during discovery to date.

Respondents argue that they intend to call Mr. Torgersen as an expert witness and the provisions of CPLR §3101(d) regarding expert witnesses should control. Further, they argue that the failure of DEC Staff to make a demand for expert witnesses now precludes the discovery of Mr. Torgersen's materials absent a showing of substantial need on behalf of DEC Staff and the inability to obtain such materials without undue hardship.

RULING #1: Mr. Torgersen has had prolonged involvement regarding the development of the site. Given that, DEC Staff's assertion that there is a significant likelihood that material and necessary documents relevant to this matter may be in the possession of Mr. Torgersen is persuasive. Respondents' reliance on statutory provisions regarding expert witnesses is misplaced.

Mr. Torgersen must provide to DEC Staff on or before December 4, 2000, at 4 p.m., any and all documents in existence prior to May 11, 2000, that are not otherwise privileged, reflecting or concerning the respondents' development and proposed development of Tax Map Section 88, Block A, Lot 11 on the tax maps maintained by the Town of Clarkstown, Rockland County, New York in the development known as "Bradley Corporate Park" since January 1, 1996, including, without limitation, any federal and state wetland delineation performed in connection therewith. "Failure to comply with the ALJ's direction will allow the ALJ or the commissioner to draw the inference that the material demanded is unfavorable to the noncomplying party's position" (6 NYCRR 622.7(c)(3)).

In addition, pursuant to the Subpoena, Mr. Torgersen is commanded to appear before the Department of Environmental Conservation on Monday, December 11, 2000 at 10:00 a.m. at the Regional Office located as 21 South Putt Corners Road, New Paltz, New York, and at any recessed or adjourned date to give testimony in this proceeding on the part of the Department of Environmental Conservation. The timing of Mr. Torgersen's testimony may be adjusted by agreement of the parties.

ISSUE #2: Should DEC Staff be compelled to provide all documents that it intends to introduce as exhibits at the hearing?

The second discovery dispute involves whether certain materials which may be entered into the hearing record as exhibits must be provided by DEC Staff to the Respondent prior to the hearing. Respondents assert they cannot adequately prepare for the hearing without these materials. DEC Staff asserts that these potential exhibits, which include photographs, surveys and drawings, have been prepared for litigation and thus are exempt from disclosure pursuant to CPLR §3101(d)(2).

The exemption from disclosure of materials cited by DEC Staff contains an exception which states that materials prepared for litigation may be obtained upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means.

In this case, the materials sought are the exhibits that DEC Staff plans to use at the hearing. These exhibits go to the heart of the dispute because they may be used at the hearing by DEC Staff to prove the boundary of the wetland in question. The boundary of the wetland is critical to proving that construction activity occurred in an area where a permit was required. Thus, the Respondents are correct to assert that they have a substantial need for any materials that may be entered as exhibits at the hearing. In addition, Respondents have no other source to obtain DEC Staff's opinion as to where the boundary lies.

The purpose of the disclosure "is to advance the function of a trial to ascertain truth and to accelerate the disposition of suits." (Rios v. Donovan, 21 A.D.2d 409, 411 (1st Dep't 1964). In this case, an important subject to be developed in the record is the location of the wetland boundary. If DEC Staff is allowed to withhold exhibits, and then introduce them at the hearing, the Respondents would be within their rights to ask for an adjournment to allow their experts time for review. This would not accelerate the disposition of the case, but rather slow it. Thus, to allow DEC Staff to withhold potential exhibits is contrary to the purpose of discovery.

RULING #2: DEC Staff shall provide the Respondents with copies of all exhibits it intends to introduce as part of its direct case by on or before December 4, 2000, at 4 p.m. In the alternative, if DEC Staff seeks to invoke a privilege for certain exhibits, it may request that the ALJ perform an in camera inspection.

ISSUE #3: Should DEC Staff be precluded from introducing documents at the hearing not produced during discovery?

In keeping with the above, should DEC Staff seek to introduce exhibits in its case at the hearing that were within the materials requested in the Respondents' discover demands and not disclosed to the Respondents prior to the commencement of the hearing, DEC Staff may "suffer preclusion from the hearing of the material demanded" (6 NYCRR 622.7(c)(3)). However, there may be exhibits that are relevant to the questions at issue in the hearing but that were not within the scope of the Respondents' discovery demands.

ISSUE #4: Should Respondents be granted a default judgment?

Respondents argue that they should be granted a default judgment because DEC Staff failed to provide a response to the counterclaim contained within their Answer. The Respondents' counterclaim asserts: that DEC Staff intentionally and wilfully delayed the wetland permitting process by filing criminal charges and thereafter abandoning them; that a DEC permit was not required for the work performed by Bradley Corporate Park because the construction was undertaken pursuant to a valid local building permit; that no work occurred within a wetland; and, that any work that occurred within an adjacent area to a wetland did not impinge or otherwise substantially effect the wetlands. The relief sought in the counterclaim is essentially a ruling that the construction activity at the site did not require a DEC Freshwater Wetlands permit.

DEC Staff opposes this motion, citing a lack of subject matter jurisdiction to adjudicate a counterclaim under 6 NYCRR Part 622. Further, DEC Staff notes that there is no requirement for a response to any counterclaim in Part 622. DEC Staff requests that the counterclaim be stricken or treated as an affirmative defense.

Many assertions made by the Respondents in their counterclaim are essentially denials of or defenses to the allegations raised by DEC Staff in its Complaint. There is no requirement that Staff submit an additional pleading to respond to these denials and defenses. They were already at issue as a result of the Complaint and the Answer, and they are components of the issue that the August 15, 2000 ruling identified for adjudication in the expedited hearing. The remaining assertions are beyond the scope of the instant hearing and will be preserved for any future possible proceeding in the appropriate venue. After the hearing, the ALJ and the Commissioner will decide the fact issue of whether construction activity occurred in an area where a permit was required.

RULING #4: The Respondents motion for a default judgment is denied.

Additional questions raised by the November 28, 2000 correspondence.

Finally, two other issues have arisen since the submission of the Motion and DEC Staff's Affirmation in Opposition. First, Respondents have submitted additional arguments in a letter dated November 28, 2000. A letter the same day from DEC Staff requests these additional arguments not be accepted since there is no authority for the Respondents to submit such additional arguments, absent permission from the ALJ.

RULING #5: Upon review, Respondents' additional arguments provide nothing new and since permission to submit them was never asked for nor granted, Respondents' November 28, 2000 letter is rejected.

The last issue regards the Respondents' request to delay the hearing due to a lack of time to review materials requested from DEC Staff. This ruling commands the production of certain materials on or before Monday, December 4, 2000. This is one week prior to the scheduled commencement of the hearing.

RULING #6: Respondents' request for an adjournment of the start of the hearing is denied, without prejudice. One week should be sufficient time for each party to review these materials with their respective experts. If, after the exchange of the materials on December 4, 2000, either party wishes to request an adjournment, they may do so.

By: Susan J. DuBois
Administrative Law Judge

P. Nicholas Garlick
Administrative Law Judge

Dated: Albany, New York
December 1, 2000

TO: Steven Goverman, Esq.
Burton I. Dorfman, Esq.

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