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Tomaino, Santino - Commissioner Ruling, August 31, 1998

Commissioner Ruling, August 31, 1998

50 Wolf Road
Albany, NY 12233-1010

In the Matter

- of -

the alleged violations of the New York
State Environmental Conservation Law
(ECL) Articles 25 and 71 and Title 6 of
the Official Compilation of Codes,
Rules and Regulations of the State of
New York (6 NYCRR) Part 661, by


File Nos. 1-5877-96-09
and 1-5909-97-02


August 31, 1998

Ruling on Expedited Appeal

Staff has appealed with the permission of Administrative Law Judge Daniel P. O'Connell from a ruling that he made initially on August 3, 1998 (tr. 119) and then restated on the record the next day (tr. 17). The disputed ruling as made initially was that the "ALJ would allow the Respondent to raise an affirmative defense of selective enforcement" (Staff Appeal, p. 2). The ALJ then modified his ruling to say, that "he would consider whether the staff acted fairly and appropriately in their actions in these matters." (Id. at p. 3). Staff requests "that the Commissioner reverse the ruling of the ALJ that has allowed for consideration whether staff acted fairly and appropriately in these matters." (Id. at p. 9).

In support of its motion, Staff argues:

  1. Neither selective enforcement nor Staff's fairness are appropriate subjects in this hearing, which is to determine whether Respondent violated the Tidal Wetlands law, and appropriate relief with respect to any proven violations.
  2. Respondent's counsel seeks to intimidate and attack Staff members.
  3. Grievances against Staff should not be pursued in this enforcement hearing.


To place this appeal into focus, it appears that Respondent Tomaino owns two residential properties in Flanders, Suffolk County, some portions of which are within mapped tidal wetlands and/or adjacent areas. Staff alleges (inter alia) that Respondent has unlawfully cleared tidal wetland vegetation, applied herbicide, and rebuilt a seawall at one property; and that Respondent has unlawfully filled, cleared vegetation, disposed of solid waste, and installed a sanitary system at the other. Staff further alleges that Respondent's unlawful activities have taken place over or continuum since at least August 21, 1994, and that Respondent had been put on notice of the prohibition against unpermitted activity in tidal wetlands at least as of October, 1994. However, Staff contends that Respondent has ignored and continued to violate the tidal wetland rules with knowledge that his activities were unlawful. Staff seeks civil penalties and remedial action to restore the wetlands.

Moreover, these enforcement claims have been prolonged by failed settlement discussions, substitutions of counsel, motions, a petition for review, and ironically enough, by this appeal. Mr. Tomaino discharged his attorney shortly before a scheduled October, 1997 hearing, and asked for an additional continuance. However, the ALJ (reasonably in my judgment) on October 28 and 29, 1997 received the Staff's direct case on the record subject to Respondent being allowed to cross-examine through a new attorney (or pro-se) at a future date, then set to be on or before December 1, 1997. Respondent then retained new counsel, who made various motions, which were denied February 5, 1998. Respondent then petitioned for judicial review, under Article 78 of the CPLR. The petition was subsequently dismissed as premature, and Respondent again discharged his attorney. Thereupon another attorney was retained and the hearing resumed August 3, 4, and 5, 1998.

The August 1998 hearings were marked by considerable wrangling among counsel for both Respondent and Staff. Also, there was additional direct examination of one witness by Staff Counsel, followed by cross-examination of that witness by Respondent's counsel. The hearing recessed without date on August 5, 1998. This expedited appeal followed.

At this stage, it appears that Staff's direct case has yet to be completed, that there is further cross-examination to be done of all Staff witnesses by Respondent, and that Respondent has the opportunity to present witnesses on his behalf.

Staff's Appeal

The premise underlying Staff Counsel's pending expedited appeal(1) appears to be that neither selective enforcement nor unfairness by Staff can excuse the Respondent's conduct, and that these matters are inappropriate affirmative defenses. Therefore, Staff urges that the ALJ's ruling that he would receive evidence as to whether Staff acted fairly and appropriately is incorrect and should be reversed. I agree that these matters are not appropriate affirmative defenses. However, evidence as to Staff's conduct will not be excluded to the extent that such evidence is relevant to the allegations of the complaint and relief sought.

Presumably, Staff does not seek a ruling that would sanction unfair or inappropriate Staff conduct. Rather Staff asks for a determination that neither selective enforcement nor claimed unfairness by Staff excuse the Respondent's alleged unlawful actions, in the sense that a true affirmative defense, such as release or statute of limitations, if applicable, would bar pursuit of a claim.

An affirmative defense consists of new matter in avoidance which, even if the facts alleged in the complaint are true, tends to defeat the complainant's right to relief, but such new matter cannot be proved under a denial. (See N.Y. Jur, Pleadings, 145). I agree with Staff that purported selective enforcement and/or unfair conduct by Staff in no way justify or excuse Respondent's alleged violations of the Tidal Wetlands Law, and accordingly selective enforcement and/or unfairness are not affirmative defenses in this case(2). Staff's appeal is granted to the extent that those two affirmative defenses are stricken.

While I am granting Staff's appeal, this ruling is not intended to curtail or restrict the manner in which Respondent chooses to develop the record or present his case (within applicable rules).

Review of the transcript of this case indicates that on August 4, Respondent's new attorney conducted a vigorous and determined cross-examination of a Staff witness. Interspersed with the cross-examination are frequent objections and (sometimes lengthy and argumentative) responses. A reading of Staff's appeal suggests that some remarks of Respondent's attorney may have been interpreted by some members of the Staff as intimidating. But remarks of counsel are not evidence, are largely irrelevant, and can also be interpreted as a matter of style and tactics. Respondent's counsel's cross-examination itself does not appear to be beyond appropriate bounds. Staff counsel's motion seems to request that the scope of cross-examination be restricted. However, doing so in the context of this appeal could infringe on Respondent's right to cross-examine. In conducting his examination, Respondent's attorney is allowed to probe fully into each witness's veracity and ability to observe, recollect and relate the facts. He may seek to elicit new facts which tend to avoid or mitigate the relief that Staff seeks. This ruling does not limit the scope or style of cross-examination. However, the ALJ is fully empowered to regulate the course of the hearing under 6 NYCRR §622.10. The transcript shows that he has ably done so thus far.


Staff's appeal is granted to the extent that the affirmative defenses of selective enforcement and staff fairness are stricken. The ALJ is directed to reconvene the hearing and to proceed expeditiously, so that this matter can soon be brought to a conclusion. To achieve that end, counsel for both sides are urged to eschew lengthy on-the-record debate and argument, and to focus on the merits of this case.

By: John P. Cahill, Commissioner

Albany, New York
August 31, 1998

1 Pursuant to 6 NYCRR §622.10. Expedited appeals are an extraordinary remedy, and should not be filed unless good cause exists.

2 Accord: TNT Communications, Inc. v. Management Television Systems, Inc., 32 AD2d 55, 299 NYS2d 692 (1st Dept. 1969).

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