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Tougher, John and John Thomas - Ruling, March 3, 2003

Ruling, March 3, 2003


In the Matter of Alleged Violations of Article 23 of the Environmental
Conservation Law and Title 6 of the New York Compilation of Codes,
Rules, and Regulations, by


Respondent's Motion to Dismiss

Case No. R5-20010313-151


Department of Environmental Conservation (DEC or Department) staff issued a notice of hearing and complaint to the respondents, John Tougher and John Thomas, dated January 2, 2003. In this pleading, staff alleges that between June 24, 1998 and July 19, 1998, the respondents violated Article 23 of the Environmental Conservation Law (ECL) and Title 6 of the New York Compilation of Codes, Rules, and Regulations (6 NYCRR) by mining at a location on North Street in the Village of Granville without a permit. By answer dated January 6, 2003, respondent Tougher submitted his response to the Department. On February 5, 2003, the Office of Hearings and Mediation Services (OHMS) received respondent Tougher's motion to dismiss the complaint. On March 3, 2003, the OHMS received staff's response to Mr. Tougher's motion. Administrative Law Judge Helene G. Goldberger has been assigned to this matter.

Christopher A. Lacombe, Esq. represents the Department staff in this matter. John R. Winn, Esq. represents respondent John Tougher.

Pending before me on this matter are:

  1. Staff's notice of hearing and complaint dated January 3, 2003.
  2. Respondent's answer and affirmative defenses dated January 6, 2003.
  3. Respondent's motion dated February 4, 2003 for dismissal of staff's complaint with attachments including attorney Winn's affidavit in support of the motion dated February 4, 2003; the complaint; the answer; letter dated August 21, 2001 from John Tanner, Highway Superintendent to John R. Winn; invoice dated 8/6/98; check dated 8/18/98 for $5,652.00 from the Town of Granville to John G. Thomas Excavating; simplified information dated 3/06/00.
  4. Staff's response to the motion to dismiss dated February 26, 2003 with enclosures including Regional Attorney Christopher A. Lacombe's undated affirmation in opposition; letter dated June 23, 2000 from Washington County District Attorney Robert M. Winn to Chris Lacombe, Esq.; letter dated August 15, 2000 from John R. Winn to Christopher A. Lacombe; letter dated August 28, 2000 from Regional Attorney Lacombe to Judge Forando; letter dated February 26, 2001 from John R. Winn to Chris Lacombe; letter dated March 2, 2001 from John R. Winn to Christopher A. Lacombe, Esq; memorandum from Chris Lacombe to Charles Sullivan dated March 13, 2001; case initiation data sheet; letter dated March 22, 2001 from Christopher A. Lacombe to Mr. Tougher; e-mail dated 3/21/01 from Barb Forrester to Stanley Koenig; letter dated April 11, 2001 from John R. Winn to Christopher A. Lacombe, Esq.; letter dated August 1, 2001 from John R. Winn to Mr. Lacombe; letter dated August 6, 2001 from Christopher A. Lacombe to John R. Winn; letter dated August 8, 2001 from John R. Winn to Regional Attorney Lacombe; Cortlandt Nursing Home v. Axelrod, 66 NY2d 169 (1985); Fiedelman v. NYS Department of Health, 58 NY 2d 83 (1983).

Respondent's Position

Respondent Tougher has moved to dismiss staff's complaint on the basis that the acts complained of took place on or before August 18, 1998 and therefore staff's proceeding is barred by Section 214(2) of the Civil Practice Law and Rules (CPLR) which provides for a three-year statute of limitations. Respondent's counsel points to the simplified information dated March 6, 2000 supporting Tougher's claim that the Department staff has had knowledge of the facts underlying this enforcement proceeding for approximately three years. In his second and sixth affirmative defenses, respondent makes the claims that the proceeding is barred by the statute of limitations and by laches, respectively.

Staff's Position

In his affirmation in opposition, Regional Attorney Lacombe argues that the statute of limitations contained in CPLR Section 214(2) does not apply to administrative proceedings. Staff maintains that a "reasonable time" standard governs the timeliness of administrative proceedings and not merely the passage of time. Moreover, Mr. Lacombe provides correspondence between himself and counsel for the respondent to demonstrate that the respondent has been aware of these allegations for several years and therefore, should not be surprised by this proceeding.


The respondent is claiming that the Department's proceeding is barred by the applicable statute of limitations and should therefore be dismissed. As noted by staff, CPLR 214(2) applies to "actions" and administrative proceedings are not defined as actions. CPLR Section 105(d); Fiedelman v. NYSDOH, 58 NY2d 83 (1983). Rather, the Court of Appeals has set forth criteria to determine what constitutes a reasonable period for provision of a hearing in each administrative case. Cortlandt Nursing Home v. Axelrod, 66 NY2d 169 (1985). While unlike the facts in Cortlandt in which the petitioners requested a hearing, the reasonableness of any delay can still be assessed based upon the period that transpired from the date staff discovered the alleged violations until its action to enforce the law. See, Manor Maintenance Corp., et al, Rulings of the ALJ (March 25, 1992). Cortlandt provides that claims of delay may be assessed by determining (1) the nature of the private interest allegedly compromised by the delay; (2) the actual prejudice to the party; (3) the causal connection between the conduct of the parties and the delay; and (4) the underlying public policy advanced by government regulation. 66 NY2d at 178.

In its motion, the respondent has not set forth any information that relates to these factors sufficiently to support this claim. In its sixth affirmative defense alleging laches, respondent provides that he has sold off the property involved in staff's allegation. However, that assertion alone does not provide any basis to find that staff has delayed the commencement of these proceedings unreasonably pursuant to the Cortlandt factors. Thus, I am denying respondent's motion and directing that he clarify his sixth affirmative defense.


I deny respondent's motion to dismiss and direct that he clarify his sixth affirmative defense.

Helene G. Goldberger
Administrative Law Judge

Dated: Albany, New York
March 3, 2003

TO: John R. Winn, Esq.
13 North Street
Granville, New York 12832

Christopher A. Lacombe,
Regional Attorney
NYSDEC - Region 5
P.O. Box 296, Route 86
Raybrook, New York 12977-0296

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