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Viewpoint Realty Corporation - Ruling, December 16, 2002

Ruling, December 16, 2002


In the Matter of
Alleged Violations of Article 17 of the Environmental Conservation Law of
the State of New York and Title 6 of the New York Compilation
of Codes, Rules, and Regulations, by


Case No. 3-200110615-72



Department of Environmental Conservation (DEC or Department) staff issued a notice of hearing and complaint to the respondents, Viewpoint Realty Corporation, Kevin Kaye, and Dr. N. Khosrowshahi, dated October 29, 2002. In these pleadings, staff alleges that the respondents violated §§ 17-0501 and 17-0803 of the Environmental Conservation Law (ECL), §§ 703.2 and 751.1 of Title 6 of the New York Compilation of Codes, Rules, and Regulations (6 NYCRR) and state pollutant discharge elimination system (SPDES) general permit # GP-93-06 by discharging turbid water from their development into Kirk Lake in the Town of Carmel, Putnam County. By their pleading dated November 12, 2002, the respondents answered the complaint. Pursuant to 6 NYCRR § 622.4(c), in motion papers dated November 20, 2002, staff moved for clarification of ¶¶ 3, 4, 5, 6, 7, 8 and 10 of affirmative defenses 1 and 2, arguing that they are vague and ambiguous.

Staff's affidavit of service indicates that this motion was served upon the respondents' counsel on November 20, 2002 by first class mail. Pursuant to 6 NYCRR §§ 622.6(b)(i) and (c)(3) and (4), the respondents' reply was due on December 2, 2002 and "[t]he ALJ should rule on a motion within five days after a response is served or the time to serve a response has expired." Accordingly, as of December 16, 2002, despite the lack of a response by the respondents, I am making this ruling.

Joyce E. Jiudice, Assistant Regional Attorney represents the Department staff in this matter. Richard T. Blancato, Esq. represents the respondents.

Pending before me on this matter are staff's notice of motion for clarification of affirmative defenses dated November 20, 2002 and Assistant Regional Attorney Jiudice's affirmation in support dated November 20, 2002 including the notice of hearing and complaint dated October 29, 2002 and the answer dated November 12, 2002.

Affirmative Defenses

Staff has moved to obtain clarification of paragraphs 3-8 and 10 within the answer's two affirmative defenses.

An affirmative defense is a matter that is the respondent's burden to plead and prove and includes such defenses as collateral estoppel, statute of limitations, and release. See, CPLR 3018(b). As explained by Professor Siegel, an affirmative defense raises a matter that is not plain from the face of the complaint. See, New York Practice, 2d Ed., Siegel (1991) at 393-394. CPLR 3211(b) allows a party to move to dismiss a defense if it "is not stated or has no merit." The obvious reason is to avoid addressing matters at trial that have no relevancy to the claims. In ruling on a motion to dismiss a defense, the courts apply the standards used to evaluate a motion to dismiss a complaint for failure to state a cause of action. The truth of the factual allegations of the defense is assumed but whether there are grounds for the defense is the question. CPLR 3211(a)(7).

Section 622.4(c) reiterates the CPLR's requirements in stating that "[t]he respondent's answer must explicitly assert any affirmative defenses together with a statement of the facts which constitute the grounds of each affirmative defense asserted."

In ¶ 3 of its first affirmative defense, the respondents explain that the New York City Department of Environmental Protection (DEP) mandated extra-large retention basins for the Lakeview at Hill Farm construction project, thus requiring the stripping of the steep-sloped area. The respondents add that the area was seeded, mulched and stabilized with hay bales and other approved sediment and erosion control measures.

Staff has not specifically identified what is unclear about this language or the other paragraphs it has identified as vague and ambiguous, and I do not find what needs clarification in this statement of the respondents. To the extent that staff seeks further information about the affirmative defense which essentially states that the respondents took steps to preclude erosion, it may use the discovery process.

In the fourth paragraph of its first affirmative defense, the respondents provide that prior to germination "... a significant storm occurred followed by days of rain resulting in erosion of the slope." Again, this statement appears self-explanatory although staff may not agree with it. The respondents are alleging that natural events outside of their control resulted in the erosion. Should staff seek further information, discovery would appear to be the proper forum.

In the fifth paragraph of the first affirmative defense, the respondents allege that "[t]he slope was regraded, reseeded and remulched after the erosion." Here too, the respondents allege facts to demonstrate the steps they took to avoid further damage to the area. The statement is clear and to the extent that staff seeks further information, it may do so via discovery.

In the sixth paragraph of its first affirmative defense, the respondents claim that "[t]herewas no sediment going from the first flush basin 4A into detention basin 4B, and no discharge from basin 4B through the outlet structure to the lake." This statement appears to answer in part the staff's allegations in ¶ 4 of the complaint with respect to the condition of water quality basins 4B and 3B. Staff may disagree with this statement but it is not ambiguous or vague. Accordingly, as stated above, to the extent that there is a need for additional information, 6 NYCRR § 622.7 guides discovery in these proceedings.

Paragraph 7 provides a summary of the above mentioned paragraphs that comprise one affirmative defense - that the respondents have done everything possible to comply with the permits. However, if there are other mitigating measures not described, this sentence is ambiguous and should be elaborated upon.

In ¶¶ 8 and 10 of their second affirmative defense, the respondents allege that to the extent that there was a discharge to the lake in 2002, this resulted from construction of a home on Lot 20 by that owner and was not related to the drainage infrastructure of respondents' subdivision. Moreover, the respondents state that because they do not own this property, they had no authority to enter upon it to address erosion control.

As with most of the other paragraphs of the answer identified by staff as requiring clarification, I do not find this statement ambiguous. Respondents have stated simply that they are not responsible for the erosion control problems at this location due to the ownership by a third party which they have identified. Again, to the extent more information is sought, discovery is the proper avenue.


I deny staff's motion to clarify ¶¶ 1-6, 8 and 10 of respondents' first and second affirmative defenses. I grant staff's motion to clarify with respect to paragraph 7. The respondents are to submit this clarification to staff by January 3, 2003.

Helene G. Goldberger
Administrative Law Judge

Dated: Albany, New York
December 16, 2002

TO: Joyce E. Jiudice,
Assistant Regional Attorney
NYSDEC - Region 3
21 South Putt Corners Road
New Paltz, New York 12561-1696

Richard T. Blancato, Esq.
303 South Broadway - Suite 310
Tarrytown, New York 10591

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