Risi, Mary and Alan - Amended Ruling, December 31, 2002
Amended Ruling, December 31, 2002
STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
In the Matter
- of -
the Alleged Violations of Articles 15 and 25 of the Environmental Conservation Law and Parts 608 and 661 of Title 6 of the New York Compilation of Codes, Rules and Regulations
- by -
Mary Risi and Alan Risi,
Respondents.
RULING OF THE ADMINISTRATIVE LAW JUDGE:
Staff's Motion to Amend Complaint
Background
By notice of hearing and complaint dated June 4, 1999, New York State Department of Environmental Conservation (DEC or Department) staff commenced this enforcement proceeding against respondents Mary Risi and Alan Risi. The staff charges the respondents with having violated a permit issued to them in 1996. The staff alleged that the DEC permit allowed the respondents to construct approximately 80 linear feet of rip-rap revetment at the site located at 154-43 Riverside Drive, Beechhurst, New York (Queens County Tax Block 4542 Lot 19). But in its complaint staff alleged that the respondents exceeded the scope of the permit and allowed unconsolidated sediment to erode into the East River and a tidal wetland.
After a period of unsuccessful exchanges with respondent and their current counsel, Edmond J. Pryor, Esq., staff moved to compel discovery - access to the site to ascertain the current status. In response, the Risis, by their counsel, moved for a protective order by motion dated October 11, 2002. I issued a ruling dated October 29, 2002 in which I granted staff's motion and denied the respondents'.
On December 13, 2002, this office received staff's motion for leave to amend the complaint dated December 9, 2002. Staff alleges in these papers that the respondents failed to provide access to their property in accordance with the October 29, 2002 ruling but staff was able to view the site from an adjacent property. Based upon this November 20, 2002 site visit, staff seeks to amend the complaint according to its observations of additional violations. As of December 31, 2002, this office had not received any response to staff's motion.
Staff's Position
In the December 9, 2002 affidavit of Marine Resources Biologist Stephen Zahn submitted in support of the motion, Mr. Zahn alleges that he viewed a deck which had been built in the area staff contends the respondents had illegally filled. In addition, Mr. Zahn reports that the respondents had also constructed supporting structures, two walls, and utility lines on the walls within the regulated wetland area. Staff maintains that the respondents did not obtain permits for any of this work.
Based upon these observations, staff seeks to amend the complaint. Assistant Regional Attorney Drescher argues that these amendments should be allowed because the proceeding is only in the discovery phase and there is no undue prejudice to the respondents by allowing them.
Discussion
Section 622.5(b) of 6 NYCRR allows for the amendment of pleadings, consistent with the CPLR, "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." As noted by staff, CPLR § 3025(b) provides that permission to amend should be "freely given" unless there is resulting prejudice or surprise to the opposing party. McCaskey, Davies & Assoc., Inc. v. New York City Health & Hosps. Corp., 59 NY 2d 755, 757 (1983). As these proceedings are still in the discovery stage, I can find no prejudice resulting from a delay. And, as staff points out, considering that respondents likely knew about the alleged construction on their property that forms the bases of staff's proposed amendments, there is no surprise.
Accordingly, I grant staff's petition to amend its complaint.
Conclusion
Staff's motion to amend the complaint is granted. Staff is to serve its amended complaint by January 24, 2003.
_____________/s/_____________
Helene G. Goldberger
Administrative Law Judge
Albany, New York
Dated: December 31, 2002
TO: Udo M. Drescher, Assistant Regional Attorney
NYSDEC - Region 2
One Hunters Point Plaza
47-40 21st Street
Long Island City, NY 11101
Edmond J. Pryor, Esq.
1925 Williamsbridge Road
Bronx, NY 10461-1604
