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Juda Construction, Ltd - Ruling 2, August 23, 2001

Ruling 2, August 23, 2001


In the matter of

the alleged violation(s) of the New York State Environmental Conservation Law (ECL)
Article 27 and Part 360 of Title 6 of the Official Compilation of Codes, Rules, and Regulations
of the State of New York (NYCRR)

- by -

636 Saw Mill River Road
Yonkers, New York,



Case No: 3-20010208

August 23, 2001


Pursuant to the provisions of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("NYCRR") Section 622.6(c), the New York State Department of Environmental Conservation ("the Department") has moved for leave to amend its complaint against Respondent, Juda Construction Ltd. ("Respondent"). The proposed amended complaint would add two additional parties, Fullerton Avenue Land Development, Ltd. ("Fullerton")(1) and Joseph Attonito.

The Department's complaint alleges that Respondent operated a solid waste management facility (the "Facility"), processing non-exempt construction and demolition debris without a registration or permit. The Department alleges further that Respondent refused consent for authorized Department Staff to enter upon and inspect Respondent's premises.

The Department served a Notice of Hearing and Complaint on Respondent on or about February 15, 2001. Respondent submitted an Answer to the Complaint dated March 1, 2001. On March 9, 2001, the Department moved to clarify Respondent's affirmative defenses by serving Respondent with a Notice of Motion and Affirmation of Carol Backman Krebs, Esq. in support of the motion. The Department filed the motion papers with the Department's Office of Hearings and Mediation Services on or about March 20, 2001. Respondent opposed the motion. On April 23, 2001, a ruling issued, granting the Department's motion in part, and denying it in part.

Respondent has opposed the motion for leave to amend the complaint by the Affidavit in Opposition of Michele Marianna Bonsignore, Esq. dated May 24, 2001 ("Bonsignore Affidavit"). A conference call was held on June 28, 2001, to discuss the motion and clarify the position of the parties.

Motion Procedures

The Department seeks to amend its complaint pursuant to 6 NYCRR Section 622.5(b), which provides that

Consistent with the CPLR a party may amend its pleading at any time prior to the final decision of the commissioner by permission of the ALJ or the commissioner and absent prejudice to the ability of any other party to respond.

By its motion, the Department seeks to add two additional respondents: Fullerton Avenue Land Development, Inc. ("Fullerton") and Joseph Attonito.

Merits of the Motion

In support of its motion, the Department states that while the original Respondent, Juda Construction, Ltd. was properly named in the complaint because of its status as the operator of the Facility, Fullerton, the owner of the Facility, was also responsible for the violations alleged and should have been included in the original complaint. According to the Affirmation of Jennifer David Hesse in Support of the Department's Motion to Amend ("Hesse Affirmation"), the Department received a registration application listing Fullerton as the owner of the site that is the subject of the complaint in this matter. Hesse Affirmation at ¶ 3. Moreover, the Department issued a Notice of Violation to Fullerton on July 14, 2000, as a result of the same activities set forth in the original complaint. Id.

The Department further alleges that Mr. Attonito is an officer of Fullerton, and should be joined as a respondent "based upon his direct personal involvement in the alleged violations and based on his control of the corporate entities named, or proposed to be named, as respondents." Hesse Affirmation, at ¶ 4. The Department contends that Mr. Attonito's involvement as an owner and operator of the Facility "is evidenced by, inter alia, statements he recently made to The Journal News," a Westchester County newspaper. Hesse Affirmation, at ¶ 5. The newspaper article is attached as Exhibit A to the Hesse Affirmation.

According to the Department, the proposed amendment would not change the theory of the case, and the only changes that would be made to the complaint would be the addition of Fullerton and Mr. Attonito as respondents. Hesse Affirmation at ¶¶ 6-7, 14. The Department also points out that if the motion were denied, the Department has the prosecutorial discretion to commence a separate enforcement action against the two additional respondents. The Department contends that there will be no prejudice to the existing, or proposed, respondents as a result of the amendment. Hesse Affirmation at ¶¶ 11, 13-15, 17.

Respondent, in its opposition, takes issue with the Department's factual basis for the motion, and asserts that the Department has not made a legally sufficient showing to allow amendment of the complaint. Respondent also contends that the Department's application to join additional parties is retaliatory and a response to a lawsuit filed by the two proposed respondents. Bonsignore Affidavit, at ¶ 32. Respondent argues that the interests of Fullerton have already been substantially prejudiced, and that the motion is made in bad faith, and with unclean hands. Bonsignore Affidavit at ¶ 34.

In order to add new respondents at this point, the Department must seek leave pursuant to 6 NYCRR Section 622.5(b). Amendment of the pleadings is permitted, "consistent with the CPLR," if allowed by the Administrative Law Judge, and "absent prejudice to the ability of any other party to respond." The CPLR provides that, if a party seeks to add additional defendants, that party must seek leave pursuant to CPLR 3025(b) and CPLR 1003. Halliday v. Town of Halfmoon, 235 A.D.2d 709, 711, 652 N.Y.S.2d 158, 159 (3rd Dept. 1997). Section 3025(b) states that permission to amend a pleading should be "freely given," unless prejudice or surprise to the opposing party will result directly from the delay, or the proposed amendment is patently without merit. CPLR 3025(b); McCaskey, Davies & Assoc., Inc. v. New York City Health & Hosps. Corp., 59 N.Y.2d 755, 757 (1983); Walter v. Bauer, 88 A.D.2d 787, 787-88 (1982). A party opposing a motion to amend a pleading "must overcome a presumption of validity in favor of the moving party, and demonstrate that the facts alleged and relied upon in the moving papers are obviously not reliable or are insufficient." Peretich v. City of New York, 263 A.D.2d 410, 411 (1st Dept. 1999), citing Daniels v. Empire-Orr, Inc., 151 A.D.2d 370, 371 (1989) (facts advanced by moving party need not be proven at this stage).

Here, the Department's affirmation is sufficient to support the proposed amendment. Although it would be desirable to provide more documentation than a newspaper article, it cannot be said that the facts alleged in the Department's motion papers are obviously unreliable or insufficient. Moreover, Respondent's submission in opposition does not support a finding of bad faith by the Department in seeking to add the proposed respondents.

Finally, in order to defeat a motion to amend, prejudice to the existing Respondent must be shown. "With respect to the amendment of a Complaint, the question of prejudice relates to notice." In the Matter of E.I.L. Petroleum, Inc. and Bath Petroleum Storage, Inc., Ruling on Department's Motion to Amend the Complaint, August 31, 1998. To date, the parties have engaged in only limited motion practice, and no discovery has taken place. Therefore, allowing the proposed amendment would not prejudice the ability of the existing Respondent to prepare its case. In addition, the factual issues raised by Respondent are more properly considered in the context of a hearing. At this stage, the existing and proposed respondents will have opportunities to clarify issues, engage in discovery, and explore the possibility of settlement without a hearing. Respondent has not demonstrated any prejudice sufficient to warrant denial of the motion.


The motion for leave to amend the complaint is granted. The Department is directed to serve an amended complaint consistent with this ruling on September 14, 2001.

Consistent with 6 NYCRR Section 622.4(a), Respondents Fullerton Avenue Land Development, Ltd. and Joseph Attonito will have twenty days from the date of service to answer or otherwise respond to the amended complaint. Respondent Juda Construction Ltd. is directed to serve its second amended answer on or before October 12, 2001.

Maria E. Villa
Administrative Law Judge

Dated: August 23, 2001
Albany, New York

TO: Jennifer David Hesse, Esq.
NYS Department of Environmental Conservation

Michele Marianna Bonsignore, Esq.
Attorney for Respondent, JUDA CONSTRUCTION LTD.
636 Saw Mill River Road
Yonkers, New York 10710

1 The amended complaint, submitted as Exhibit B to the Department's motion, names Fullerton Land Development, Ltd., as a respondent. During a conference call held on June 28, 2001 among the Administrative Law Judge and the parties, counsel for Respondent Juda Construction, Ltd. clarified that the correct name is Fullerton Avenue Land Development, Ltd.

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