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Kushner Companies, Inc. - Ruling, September 6, 2001

Ruling, September 6, 2001


In the matter of

the alleged violation(s) of the New York State Environmental Conservation Law (ECL)
Article 17 and Parts 751 and 703, et seq., of Title 6 of
the Official Compilation of Codes, Rules, and Regulations of the State of New York (NYCRR)

- by -

26 Columbia Turnpike
Florham Park, New Jersey 07932

26 Columbia Turnpike
Florham Park, New Jersey 07932



Case No: CO-3-20001127-3401

September 6, 2001


Pursuant to the provisions of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("NYCRR") Sections 622.6(c) and 622.4(f), the New York State Department of Environmental Conservation (the "Department") has moved for clarification of the affirmative defenses set forth in the Answer of Respondents, Kushner Companies, Inc. and Westminster Communities, Inc. ("Respondents"). The Department's complaint alleges that Respondents own and operate a construction site for luxury, single-family houses in the Town of Carmel, Putnam County (the "Site"). The Department alleges further that the Site is subject to a State Pollutant Discharge Elimination System ("SPDES") General Permit for Stormwater Discharges from Construction Activities. According to the complaint, Respondents have not properly implemented a Stormwater Pollution Prevention Plan at the Site, and as a result of Respondents' activities, stormwater has been discharged into the Middle Branch River, causing or contributing to a contravention of water quality standards.

The Department served a Notice of Hearing and Complaint on Respondents on or about July 9, 2001. Respondents submitted a Verified Answer (the "Answer") to the Complaint dated July 20, 2001, with an affidavit of service stating that the Answer was served by overnight delivery, express mail, on July 24, 2001.

On August 10, 2001, the Department moved to clarify Respondents' affirmative defenses by serving Respondents with a Notice of Motion and Affirmation of Christopher J. Ritaccio, Esq. in support of the motion. The Department filed the motion papers with the Department's Office of Hearings and Mediation Services on August 10, 2001. Respondents have opposed the motion by the Affirmation of Robert C. Lusardi, Esq., dated August 15, 2001 ("Lusardi Affirmation").

Motion Procedures

6 NYCRR Section 622.4(f) provides that

The department staff may move for clarification of affirmative defenses within 10 days of completion of service of the answer on the grounds that the affirmative defenses pled in the answer are vague or ambiguous and that staff is not thereby placed on notice of the facts or legal theory upon which respondent's defense is based.

In its motion, the Department alleges that Respondents' affirmative defenses are vague and ambiguous, and that the Department is not placed on notice of the facts or legal theories underlying those defenses. Respondents' opposition papers point out that the Department did not serve its motion until after ten days had passed from completion of service of the Answer, and that the motion should, therefore, be denied. Respondents' opposition does not address the substance of the affirmative defenses pled in the Answer.

Respondents state that they served the Answer on the Department by overnight mail on July 24, 2001. Lusardi Affirmation, at ¶ 5. According to Respondents, the Answer was sent to counsel for the Department at 625 Broadway, Albany, New York, and a duplicate copy was filed with the Department's Region 3 office at 21 South Putt Corners Road in New Paltz, New York. Lusardi Affirmation, at ¶ 6. The Affirmation includes copies of the original Affidavit of Service, as well as copies of the receipts for express mail service.

Exhibit B to the Department's motion is the original Answer, with a transmittal letter from Respondents' counsel. The transmittal letter bears a July 25, 2001 date stamp from the Region 3 office of Legal Affairs. The letter is also date-stamped "August 06 2001 ­ Environmental Enforcement" and bears a third stamped notation stating "SCANNED ­ August 07 2001 ­ DOCS # 38278" (the final number is handwritten).

The Department's motion to clarify the affirmative defenses in the Answer is dated August 10, 2001. Counsel for the Department filed the motion with the Office of Hearings, indicating in a cover letter that the motion papers were sent to the Respondents by certified mail on the same date.

The sequence of events set forth above indicates that the Department's motion was not made within the time frame set forth under Section 622.4(f). Despite this, a review of the affirmative defenses in Respondents' Answer compels the conclusion that clarification is necessary, because Respondents' pleading is not specific enough to place the Department on notice of the facts and legal theory that underlie those defenses.

Respondents are correct that the Department did not comply with the deadline set forth in Section 622.4(f). Nevertheless, the regulations also provide, at Section 622.6(f), that "[t]o avoid prejudice to any of the parties, all rules of practice involving time periods may be modified by direction of the ALJ." Given the affirmative defenses raised in Respondents' Answer, this provision should be invoked in this case. Clarification of the affirmative defenses will allow the parties to prepare more effectively for the hearing in this matter. In addition, it appears from the date-stamping on the papers that counsel for the Department did not receive the Answer for over a week after it was actually served upon the Department. While this internal delay should not operate to Respondents' detriment, counsel for the Department made this motion as quickly as possible (within four days of receiving the complaint). Moreover, it is difficult to discern any prejudice to Respondents that could result from granting the motion, particularly in light of the advantages that would result from clarification of the Respondents' affirmative defenses. Accordingly, the merits of the motion should be considered.

Merits of the Motion

First Affirmative Defense

The first affirmative defense states that "[t]he Complaint herein is barred by the applicable statute of limitations." Answer, at ¶ 16. As set forth above, an affirmative defense must sufficiently apprise the opposing party of the nature of the defense, thus providing the opposing party with adequate notice of the relevant elements of the defense. This affirmative defense fails to meet this standard. The Department's motion to clarify this affirmative defense is granted.

Second Affirmative Defense

The second affirmative defense asserts that "[t]he Complaint herein is barred by accord and satisfaction." Answer, at ¶17. Without additional detail, this affirmative defense fails to provide sufficient information to place the Department on notice of the elements of the defense asserted by Respondents. This affirmative defense should be amplified to provide further facts to support Respondents' legal theory. The Department's motion to clarify this affirmative defense is granted.

Third and Fourth Affirmative Defenses

Respondents' third and fourth affirmative defenses state that the Department lacks subject matter jurisdiction, as well as personal jurisdiction over "the person of the Respondents." Answer, at ¶¶ 18 and 19. Again, Respondents' pleading lacks the requisite specificity. The Department's motion to clarify these affirmative defenses is granted.

Fifth Affirmative Defense

The fifth affirmative defense states that the Department "has failed to comply with necessary condition precedent [sic] to the filing and service of the Complaint herein." Answer, at ¶ 20. No other detail is provided as to the nature of the necessary condition precedent; consequently, the Department is not placed on notice as to the facts the facts or legal theory upon which Respondents' defense is based. The Department's motion to clarify this to this affirmative defense is granted.

Sixth Affirmative Defense

The sixth affirmative defense states that "the Complaint fails to provide adequate notice of the particular offense/offenses alleged and fails to state a cause of action." Respondents' Answer, at ¶ 21. Section 622.3(a)(1) of the NYCRR requires the Department to include in its complaint a statement of the legal authority and jurisdiction under which the proceeding is to be held. Section 3013 of the CPLR is comparable to the regulations, and provides that Statements in a pleading shall be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense.

The complaint in this matter satisfies these requirements. The Department has articulated the applicable statutory and regulatory provisions, and provided detail as to the time and nature of the violations alleged. Respondents are, therefore, on notice as to the facts and legal authority surrounding the alleged violations. See In the Matter of Bradley Corp. Park, et al., Ruling on Motions for Order Without Hearing and To Strike Affirmative Defenses, 2001 WL 195350, *4 (Jan. 18, 2001). The Department's motion with respect to this affirmative defense is granted.


The motion to clarify affirmative defenses is granted. Respondents are directed to serve an amended Answer consistent with this ruling on September 28, 2001.

Maria E. Villa
Administrative Law Judge

Dated: September 6, 2001
Albany, New York

TO: Christopher J. Ritaccio, Esq.
NYS Department of Environmental Conservation
Division of Environmental Enforcement
Bureau of Enforcement and Compliance Assurance, 14th Floor
625 Broadway
Albany, New York 12233-5500

Robert C. Lusardi, Esq.
Attorney for Respondents, KUSHNER COMPANIES, INC. and WESTMINSTER
Daniels and Porco, LLP
Barrister Hall
102 Gleneida Avenue
Carmel, New York 10512

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