Opinion
# 2017-041-502 Claim No. 116203
03-27-2017
ROBERT LIERE D/B/A LIERE FARMS v. THE STATE OF NEW YORK
LAW OFFICES OF ROBERT J. CAVA P.C. By: Robert J. Cava, Esq. HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Thomas Monjeau, Esq. Assistant Attorney General
Synopsis
Malicious prosecution claim based, in part, upon CPLR Article 78 annulment of New York State Department of Environmental Conservation (DEC) administrative determination finding claimant in violation of DEC regulations is dismissed after trial where claimant fails to prove by a preponderance of the evidence that civil administrative proceeding initiated by DEC lacked probable cause and further failed to prove that DEC acted with malice in commencing and continuing the proceeding.
Case information
| UID: | 2017-041-502 |
| Claimant(s): | ROBERT LIERE D/B/A LIERE FARMS |
| Claimant short name: | LIERE |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 116203 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | FRANK P. MILANO |
| Claimant's attorney: | LAW OFFICES OF ROBERT J. CAVA P.C. By: Robert J. Cava, Esq. |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Thomas Monjeau, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | March 27, 2017 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Robert Liere (claimant) and his family have owned property in Yaphank, New York, Town of Brookhaven, Suffolk County, since 1953. The property, originally 125 acres in size, was reduced to approximately 110 acres in size by the taking of property to construct the Long Island Expressway (LIE) in 1969. The construction of the LIE bisected the Liere property, dividing it into a parcel north (north parcel) of the LIE and a parcel south (south parcel) of the LIE.
The family had, for years, farmed the property, raising a variety of crops, including escarole, chicory, romaine lettuce, cabbage and peppers. Starting in 1995, the defendant, through the Department of Environmental Conservation (DEC), began to take an interest in new uses of the land to which the Liere property was being put, described generally by claimant as "horticultural specialties." These specialties included the making of topsoil from the acceptance of grass, leaves and dirt to the property and the making of mulch from wood.
The nature of DEC's interest involved the assessment of whether these new Liere property activities implicated and/or required compliance with 6 NYCRR Part 360 (Part 360), the codes, rules and regulations governing DEC's oversight and regulation, if applicable, of Solid Waste Management Facilities (SWMF).
It was made clear through a series of discussions and an exchange of correspondence between claimant and DEC from 1995 to 1999, that DEC never determined, prior to 1999, that claimant had engaged in activities at the Liere property that required claimant to obtain a permit or permits from DEC to lawfully conduct his activities. Prior to 1999, claimant's activities had been adjudged by DEC to be exempt from Part 360 regulation. That judgment changed with the issuance of nine (Exhibits 1-9) Environmental Conservation Appearance Tickets in June, July, August and October of 1999, charging claimant with one violation of the Environmental Conservation Law (ECL) and with eight violations of various provisions of the Part 360 regulations.
Under Article 71 of the Environmental Conservation Law, entitled "Enforcement," each of the nine charges filed against claimant was a "violation" criminally punishable by fines and/or imprisonment of not more than fifteen days. On December 19, 2000, Judge Sandra L. Sgroi, Judge of the District Court, Suffolk County 1st District, dismissed the DEC tickets ("accusatory instruments"), finding, in part, that:
"[D]efendant was not engaged in conduct regulated by the provisions under which he is charged. There is no evidence that the defendant accepted solid waste as same is defined in 6 NYCRR § 360-1.2 (a)(1). 'Refuse' or 'other discarded materials', although included as types of solid waste by definition, require that the material in question be 'discarded', which term is also statutorily-defined in 6 NYCRR § 360-1.2 (a)(2) and (a)(3). This Court finds that the People have failed to set forth any factual basis for bringing the materials in question within such definition" (see Exhibit 10).
Left unexplained by the trial record and by Judge Sgroi's decision is why although DEC issued a total of nine tickets to claimant in 1999, Judge Sgroi's decision lists only six court docket numbers addressed by her decision, and why those docket numbers do not correspond to the Environmental Conservation ticket numbers on the nine tickets issued to claimant. In any event, the parties made clear at trial, both directly and indirectly, that none of the nine DEC tickets issued to claimant in 1999 were proven and that Judge Sgroi's decision effectively dismissed all of those charges, for the reasons she stated in her decision.
From the issuance of Judge Sgroi's decision in December 2000 to the middle of 2003, although ongoing communications and interactions between claimant and DEC continued, matters between claimant and DEC remained relatively calm. Indeed, as Exhibit 40 (Exhibit 40 is composed of two letters, one authored by DEC's Regional Solid and Hazardous Materials Engineer Anthony Cava and one authored by DEC's Regional Director Ray Cowen) demonstrates, DEC, in response to ongoing neighbor and civic group complaints about activities at the Liere property, had concluded, through at least 2001 (and perhaps later, as suggested by Mr. Cava's undated letter), that the activities at the Liere property were exempt from Part 360 regulation.
Starting in mid 2003, based upon continuing neighbor complaints and upon field observations of DEC personnel regarding objectionable odors emanating from the Liere property, DEC sought permission from claimant on two occasions to inspect his property. The claimant twice rejected DEC's requests to inspect his property. The complaints of neighbors and observations of DEC personnel which contributed to the DEC's requests to inspect defendant's property are memorialized in Exhibits 57, 70, 73, 74, 75, 76, and 77 (some of which contain duplicative information), covering the time period of July 31, 2003 to September 4, 2003. Having been twice refused permission to inspect claimant's property, DEC applied for and received an administrative inspection warrant signed on October 9, 2003 by Suffolk County District Court Judge Stephen Behar (Exhibit 43), authorizing DEC to enter upon and inspect claimant's property, to take photographs, measurements, and samples of materials buried there and to inspect and make copies of records kept that related to operations and activities at the property.
The administrative inspection warrant was signed by Judge Behar based upon affidavits in the warrant application sworn to by DEC Assistant Regional Attorney Vernon Rail, DEC Environmental Engineer Merlange Genece and Town of Brookhaven Investigator Brian Tohill. The affidavits detailed citizen complaints regarding the Liere property, including the presence of foul odors, noted observations by Mr. Tohill of construction and demolition (C&D) debris at the property, noted DEC observations of foul odors coming from the property on several different dates, and made assertions that the Liere property housed non-exempt activities requiring the claimant to obtain regulatory permission, through permitting under Part 360, to own and operate a solid waste management facility. Pursuant to Judge Behar's inspection warrant, DEC conducted a several-hour inspection of claimant's north parcel on October 16, 2003, the results of which, in part, were memorialized in written inspection reports authored by Ms. Genece (Exhibit 55) and by John Conover (Exhibit 71), a DEC engineer and the Regional Enforcement Coordinator. The two inspection reports noted a number of physical conditions of and on the Liere property assessed by DEC to be in violation of Part 360, including the presence of C&D debris, the presence of strong odors, puddles of water ("ponding"), a large pile of grass, wood, wood chips, plants and sawdust (750 feet long, 10 feet high, 150 feet wide at its west end and 10 feet wide at its east end, calculated to be 20,800 cubic yards), and a smoking wood chip pile. Additionally, in Exhibit 186, an affidavit subsequently authored by Ms. Genece, Ms. Genece, at paragraphs 10 and 11, identifies those conditions, including composting, ponding, odors and improper land application operations, that she observed at the Liere property on October 16, 2003 which caused her to conclude "constituted violations of State solid waste laws."
As a consequence of the October 16, 2003 inspection and a number of other DEC road-side inspections, DEC issued a Notice of Violation (NOV) to claimant on October 29, 2003 (Exhibit 12), identifying seventeen (17) violations of the ECL and of Part 360 found on the Liere property, and ordering claimant to comply with Part 360 and to apply for and obtain "all necessary permits." The NOV was followed by the issuance to claimant of a Verified Complaint (Exhibit 13) signed by Assistant Regional Attorney Vernon Rail on December 29, 2003, setting forth thirteen (13) causes of action alleging that claimant had violated various provisions of Part 360 (in unlawfully operating a SWMF) and seeking an order finding claimant in violation of the ECL and of Part 360, enjoining claimant from any further action in violation of law and regulation, ordering claimant to remove C&D debris, and imposing a civil penalty of not less than $157,500. This Verified Complaint initiated DEC's administrative enforcement action against Mr. Liere.
The administrative enforcement prosecution of claimant was conducted by means of an administrative hearing conducted for three days in May 2004 and for two days in October 2004 before Administrative Law Judge (ALJ) Daniel O'Connell, at which four DEC witnesses and Mr. Liere testified. The administrative enforcement prosecution, in addition to the conduct of the administrative hearing, included the exchange of party pleadings, motion practice and motion decisions, a pre-hearing conference, post-hearing exchanges of party briefs, post-hearing motion practice and decisions, post-hearing exchanges of correspondence and a post-hearing conference.
ALJ O'Connell thereafter issued a thirty-seven page hearing report (Exhibit D) with attachments, recommending that the DEC Commissioner, among other actions, find claimant in violation of eleven of the thirteen causes of actions alleged in the Verified Complaint and assess claimant a total civil penalty of $142,500.
On April 17, 2006, DEC Commissioner Denise Sheehan issued a Decision and Order (determination), Exhibit 14, adopting ALJ O'Connell's hearing report, finding claimant in violation of numerous provisions of Part 360, assessing a civil penalty of $142,500 against claimant, prohibiting claimant from accepting certain materials and ordering either the removal of certain materials from the Liere property or that claimant submit an application to DEC for a permit to operate a SWMF.
Claimant brought an Article 78 proceeding against Commissioner Sheehan, and on September 16, 2008 the Appellate Division, Second Judicial Department, issued Matter of Liere v Sheehan (54 AD3d 862 [2d Dept 2008]), Exhibit 18, annulling the Commissioner's determination and dismissing the charges against claimant, finding "it cannot be said that the Commissioner's determination is supported by substantial evidence."
Trial Exhibit 18, the Appellate Division Decision and Judgment annulling Commissioner Sheehan's determination, is missing a page. The Court takes judicial notice of the Appellate Division Decision and Judgment, officially reported at 54 AD3d 862 [2d Dept 2008]. --------
Throughout his interactions with DEC and throughout his administrative and legal proceedings, claimant has steadfastly maintained that the activities being conducted upon his property were exempt from Part 360 regulation, that those activities required no permit from or registration with DEC, and that his property was not being operated as a SWMF.
Claimant filed a claim against defendant in the Court of Claims on December 15, 2008, alleging a variety of causes of action. As a result of pre-trial motion practice, there remained one cause of action, for malicious prosecution, attributable to DEC's initiation of administrative enforcement prosecution against claimant in 2003, which culminated in Commissioner Sheehan's Decision and Order of April 17, 2006, subsequently annulled by the Appellate Division. Trial of that remaining malicious prosecution cause of action was conducted April 11, 2016 through April 15, 2016.
"To support a malicious prosecution cause of action based on prior civil litigation, the [claimant] must show that the defendant initiated an action or proceeding that terminated in the [claimant's] favor, there was no probable cause for the action or proceeding, the defendant acted with malice and the [claimant] suffered a special injury" (Black v Green Harbour Homeowners' Assn., Inc, 37 AD3d 1013, 1014 [3d Dept 2007]; see Fink v Shawangunk Conservancy, Inc., 15 AD3d 754, 754 [3d Dept 2005]; Williams v Barber, 3 AD3d 695, 696-697 [3d Dept 2004]).
Trial evidence established the following actions, observations, steps, processes, decisions and discretion that the defendant employed before commencing administrative enforcement prosecution of claimant in December 2003:
1. Assigned Assistant Regional Attorney Vernon Rail described the internal review process for DEC to consider administrative enforcement based upon referrals made by "technical program" (in this instance, the Division of Solid Waste Materials) - - "It goes for a review through the program supervisor, then it's reviewed by the regional enforcement coordinator, then it's reviewed by the regional director and then it's reviewed by the regional attorney, who then assigns the case" (Trial Transcript [hereafter 'TT'], p 51);
2. After Stanley Farkas, Regional Solid Waste Engineer, issued the NOV (Exhibit 12) on October 29, 2003, attorney Rail reviewed the allegations for legal sufficiency, exercised "prosecutorial discretion," eliminated four allegations, and thereafter issued the Verified Complaint (Exhibit 13), setting forth thirteen causes of action (see TT, pp 102-103);
3. John Conover, Regional Enforcement Coordinator, present for the October 16, 2003 administrative inspection of the Liere property and author of an inspection report (Exhibit 71), explained in deposition testimony the process by which a referral by program staff would be considered for enforcement action -
"Well, the referral is usually written by an inspector, and then it's usually reviewed by his supervisor, who would be - - or would be - - usually be the solid waste engineer, or the solid waste inspector. So what is attached to the documents would be first made by the inspector that wrote the referral, and then the supervisor can say, oh, you left out - - something out, put that in. And then they send it to the regional director, and then to me. And I might say, oh, you left something out, and leave something in . . . [i]t would be the original inspector that writes the referral, his supervisor, the regional director and me." (TT, pp 184-185);
4. Mr. Conover, in his inspection report, noted piles of C&D debris, composting odors, puddles of water ("ponding"), and a large pile of grass, wood, wood chips, plants and sawdust, measuring 20,800 cubic yards, at the Liere property. In his deposition testimony, Mr. Conover related, "On the next page for Pile E, composting odors were detected. Oh, here's the ponding. Puddles of water near this pile were brown. I saw the ponding there and then odors" (TT, p 974).
5. Merlange Genece was the DEC environmental engineer most familiar with the activities on both the south parcel and north parcel of the Liere property, and she had had extensive dealings with the claimant since 1995. DEC had issued a Notice of Violation against claimant in September 1999 (Exhibit 68) alleging violations of the ECL and Part 360 which were eventually resolved informally, but which also resulted in DEC withdrawing claimant's then registration to process unadulterated wood on the north parcel (Exhibit 69). From that point of withdrawing claimant's registration, October 1999, until the events in 2003, DEC considered claimant to be engaged exclusively in activities that were exempt from Part 360 regulation, and as a result of that assessment, Ms. Genece made no inspections of the Liere property from October 1999 to June 2003 (see TT, pp 369-371);
6. Ms. Genece participated in the October 16, 2003 administrative inspection of claimant's property and reported observations (Exhibit 55) which were considered in the DEC's deliberative process and which resulted in the issuance of the 2003 NOV and 2003 Verified Complaint. During the course of later legal proceedings, Ms. Genece indicated in an affidavit (Exhibit 186, paragraphs 10 and 11), which of these observations caused her to conclude that claimant was operating his property in violation of Part 360;
7. Ms. Genece, in her inspection report (Exhibit 55), noted piles of C&D debris and decomposing yard waste mixed with sawdust, land clearing debris and soil emitting a strong odor;
8. Ms. Genece, prior to the administrative inspection of claimant's property on October 16, 2003, while on "odor patrol," documented (Exhibit 70) smells emanating from the Liere property that she concluded were the product of composting activity, a Part 360 regulated activity, smells with which she was familiar, and her observations corresponded with a spike in citizen complaints regarding odors coming from the claimant's property (see TT, pp 484-494);
9. Ms. Genece's observations of October 16, 2003 caused her to conclude that claimant was conducting activities upon his north parcel that required DEC registration and/or permitting (see TT, pp 523-528). These observations, among other observations, included noting the presence of C&D debris, odors, materials decomposing "going through the composting process," land application activities requiring regulation under two different provisions of Part 360, and claimant's failure to keep operational records of activities that Ms. Genece believed required permitting under Part 360; and,
10. Peter Scully, Regional Director, and the DEC individual who ultimately approved administrative enforcement prosecution of claimant, relied upon the opinions and expertise of program technical staff, including engineers and legal staff, in deciding to authorize that DEC administratively prosecute claimant, and relied upon solid waste technical staff to determine required Part 360 compliance (TT, pp 913-915).
The requirements of proof in a malicious prosecution case are substantial and often difficult to meet. Direct evidence to prove one of its required elements, malice, is infrequently uncovered. A litigant must, in such a case, assemble strong circumstantial proof to establish that a defendant's actions taken against the plaintiff/claimant were for illegitimate and unsupported, if not unsupportable, reasons, to the exclusion of any reasonable basis in law, fact or regulation.
The claimant spent a great deal of effort at trial seeking to establish that defendant made factual findings about activities upon his property or about conditions existing at his property that were incorrect, and that defendant incorrectly interpreted its own regulations to wrongfully conclude that claimant was illegally operating a SWMF upon his property. Even if proven, those contentions, standing alone, do not establish that defendant lacked probable cause to investigate and administratively prosecute claimant, or that the defendant's prosecution of claimant was maliciously undertaken.
Although the evidentiary canvas painted by claimant at trial was exceedingly broad, the Court's legal considerations in assessing the merits and persuasiveness of the claim are rather narrow. Did the defendant have probable cause to initiate its administrative enforcement proceeding against claimant in December 2003? Based upon the trial record, the clear answer is yes. Although rendered academic by the answer to that question, next, did claimant prove that defendant's actions were, in initiating its administrative prosecution of claimant, the product of malice against Robert Liere d/b/a Liere Farms? Claimant produced no persuasive or preponderant proof that defendant's actions were the product of malice.
In order to prove malicious prosecution, claimant was obligated, in part, to prove by a preponderance of the credible evidence that defendant lacked probable cause to initiate administrative prosecution against him in December 2003, and further, that the prosecution by defendant was maliciously undertaken. Claimant has failed to prove either of those two required elements of malicious prosecution.
"The gravamen of a civil malicious prosecution cause of action is the wrongful initiation, procurement or continuation of a legal proceeding" (Campion Funeral Home v State of New York, 166 AD2d 32, 36 [3d Dept 1991], lv denied 78 NY2d 859 [1991]). Claimant must show that the defendant initiated a proceeding that terminated in claimant's favor, acted with malice and caused claimant special injury (Green Harbour, 37 AD3d at 1014), together with proving "an entire lack of probable cause in the prior proceeding" (Engel v CBS, Inc., 93 NY2d 195, 204 [1999]).
Probable cause has been defined as "such facts and circumstances as would lead a reasonably prudent person in like circumstances to believe [claimant] guilty" (Colon v City of New York, 60 NY2d 78, 82 [1983]). Further, "when the underlying action is civil in nature the want of probable cause must be patent" (Butler v Ratner, 210 AD2d 691, 693 [3d Dept 1994], lv dismissed 85 NY2d 924 [1995]; see Perryman v Village of Saranac Lake, 41 AD3d 1080, 1081 [3d Dept 2007]).
Claimant is required to prove defendant's "actual malice" in pursuing claimant's prosecution (Broughton v State of New York, 37 NY2d 451, 457 [1975], cert denied sub nom. Schanbarger v Kellogg, 423 US 929 [1975]; Martin v City of Albany, 42 NY2d 13, 16 [1977]). Proof of the "actual malice" element of a malicious prosecution claim requires that the defendant be shown to have commenced the prior proceeding "due to a wrong or improper motive, something other than a desire to see the ends of justice served" (Nardelli v Stamberg, 44 NY2d 500, 502-503 [1978]).
Defendant's decision to inspect claimant's property on October 16, 2003 was, unarguably, supported by probable cause. The search was preceded by a host of documented neighbor complaints and also by observations made by DEC, and the search was the product of an administrative warrant application, supported by affidavits of Vernon Rail and Merlange Genece (see Exhibit 43), which was reviewed by District Court Judge Stephen Behar, who, resultingly, issued an administrative inspection warrant (also Exhibit 43).
The inspection of October 16, 2003, conducted over approximately five hours of time (from 10:25 a.m. to after 3:00 p.m.) by seven DEC employees resulted in two written reports (Exhibits 55 and 71), including eleven color photographs, that substantially documented the physical conditions found on claimant's property.
A case referral report (Exhibit 203) from Stanley Farkas, Regional Solid Waste Engineer, to Peter Scully, Regional Director, comprehensively summarized the DEC's findings of activity at the Liere property, and contained the following language,
"11. Case Synopsis:
The facility is engaged in a number of solid waste management activities that were supposedly exempt from regulation under 6 NYCRR Part 360. The New York State Department of Environmental Conservation (Department, DEC) received odor complaints via the offices of elected officials who were contacted by their constituents. On June 30, 2003 and July 9, 2003, Ms. Genece tried to inspect the facility to verify the complaints and ascertain whether the activities still qualified for the exemptions. Both times, Mr. Robert Liere, the facility owner and operator, denied her access and stated that she needed a court order to inspect the facility.
Staff from the Division of Solid and Hazardous Materials (DSHM) conducted limited roadside investigations to assess whether the community surrounding the facility was impacted by odors. A foul odor, distinctive of decomposing organic matter, was detected in the neighborhood on July 31; August 6, 11, 18, 22, 25, 29; September 3, and 4, 2003.
The Department sought and obtained an administrative inspection warrant from the State of New York District Court, County of Suffolk. On October 16, 2003, the following DEC employees participated in the inspection: Merlange Genece and Anit Patel from DSHM, John Conover, Enforcement Coordinator, Steve Kirwin and Scott Straub from Operations, ECO Dallas Bengal and ECO Jeff Hovey from the Division of Law Enforcement.
The inspection revealed several violations including but not limited to a location where construction and demolition debris was illegally disposed of in a pile, tens of thousands of cubic yards of yard waste being composted without a permit, land application of yard waste in a manner that did not satisfy the exemption requirements of the regulations.
12. Recommendations:
The DSHM recommends that respondent stop accepting waste at the site, pay the recommended penalty, and remove all waste materials to authorized processing or disposal facilities. No solid waste management activities should be allowed at that location unless and until the operator obtains the required permits from the Department."
The inspection of October 16, 2003, the field inspection reports of Genece and Conover, and the comprehensive case referral report, augmented by discussions and consultations among DEC personnel, including engineers and attorneys, as detailed in the trial evidence provided by Ms. Genece and Mr. Conover, resulted in the issuance of the NOV to claimant (Exhibit 12), identifying seventeen different violations of the ECL and Part 360.
The administrative prosecution of claimant thereafter initiated by defendant was commenced by Verified Complaint dated December 29, 2003, alleging thirteen causes of action charging claimant with Part 360 violations.
The Court finds that defendant had ample probable cause to initiate administrative prosecution of claimant on December 29, 2003. Based upon credible trial testimony and further based upon admitted trial exhibits which detailed the observations of DEC, contemporaneously kept records by DEC and memorialized conclusions of DEC representatives, the Court concludes that the defendant had probable cause to initiate administrative prosecution of claimant under, at a minimum, the first, fourth, fifth, sixth, seventh, eighth, and twelfth causes of action set forth in the Verified Complaint. Further, as the Appellate Division, Third Department recently reminded:
"Notably, [p]robable cause does not require proof sufficient to warrant a conviction beyond a reasonable doubt but merely information sufficient to support a reasonable belief that an offense has been or is being committed by the suspected individual" (internal quotation marks and citation omitted), Mahoney v State of New York, 147 AD3d 1289 [3d Dept 2017]).
Additionally, "an action for malicious prosecution will not lie if at least some of the causes of actions or charges had potential merit" (14 New York Practice, New York Law of Torts § 1:81, citing Green Harbour, 37 AD3d at 1014 [3d Dept 2007]).
Claimant's arguments that the Decision of Judge Sgroi in 2000, and the Decision and Judgment of the Appellate Division, Second Judicial Department, in 2008, are proof that DEC lacked probable cause and/or was motivated by malice to initiate administrative enforcement against claimant in 2003, are unpersuasive.
Any suggestion by claimant that Judge Sgroi's dismissal of the tickets DEC had issued him in 1999 precluded DEC from exercising ongoing regulatory oversight of his property's operations and/or established that DEC lacked probable cause to act against him in 2003 is unavailing. To conclude otherwise would mean, absurdly, that as long as Mr. Liere maintained that his property's operations previously determined by DEC to be exempt from Part 360 regulation remained unchanged, Judge Sgroi's decision forever immunized the Liere property from any further DEC regulatory investigation or from any further administrative or criminal proceedings DEC sought to initiate.
Such a posture is simply not defensible, and further, ignores the following:
1. Judge Sgroi's cases involved the initiation of criminal charges against Mr. Liere, requiring the prosecuting authority to shoulder the highest burden of proof known in our law in order to sustain the charges, and their dismissal has no legal bearing on whether the 2003 administrative actions taken by DEC were initiated with or without probable cause (which, additionally and self-evidently, has a far less rigorous standard of proof than for conviction of a crime or even for proof DEC would be required to provide to establish violations of Part 360 in an administrative proceeding);
2. Four years had elapsed since Mr. Liere had been issued tickets in 1999, and approximately three years had elapsed since Judge Sgroi's decision dismissing those tickets;
3. The activities being conducted at the Liere property in mid to later 2003 would have had to have been identical to those previously determined to be exempt from Part 360 regulation, first by DEC and subsequently by Judge Sgroi, and/or any different property activities being conducted would have had to have been exempt from regulation for the same or other reasons that had been considered in assessing the pre-1999 activities at the property; and,
4. The 1999 tickets were issued at a time when claimant was operating his north parcel with a DEC issued registration as a SWMF, authorized to accept unadulterated wood. In 2003, Mr. Liere was operating without a DEC issued permit or registration of any kind.
Next, the Appellate Division's decision annulling Commissioner Sheehan's determination does not vitiate defendant's probable cause to inspect claimant's property and to thereafter prefer administrative charges against claimant.
Initially, the Appellate Division decision did not find defendant's decision to administratively prosecute claimant to be without probable cause or to be without basis in law, fact or regulation. It simply found that "it cannot be said that the Commissioner's determination is supported by substantial evidence."
Second, the Appellate Division decision only substantively addressed the interplay between the definitions of "land clearing debris" and "yard waste," and only addressed a limited number of causes of action that were set forth in the Verified Complaint and which were eventually sustained in the Commissioner's determination. In concluding that claimant's acceptance of land clearing debris was exempt from Part 360 regulation, the Appellate Division did not otherwise discuss or address several other unrelated findings of violation reported by the ALJ and adopted by the Commissioner.
Finally, the decision of the Appellate Division makes no mention of (nor provides any proof to establish), defendant, in taking action against claimant, being motivated by malice toward claimant or motivated by anything other than its obligation to enforce the provisions of Part 360 as it had determined those provisions applied to activities on and conditions of claimant's subject property.
Beyond failing to prove that the defendant lacked probable cause to initiate administrative enforcement proceedings against him, claimant additionally failed to prove that defendant had undertaken its actions with malice. The Court finds:
1. For all of the reasons set forth by the Court in concluding that claimant failed to prove defendant acted without probable cause, the Court finds that claimant failed to prove defendant acted with malice in administratively prosecuting him;
2. Assistant Regional Attorney Vernon Rail reduced seventeen noted violations in the NOV to thirteen causes of action in the Verified Complaint;
3. Claimant was afforded extensive due process before, during and after the trial-like, five day administrative hearing conducted by the ALJ;
4. The ALJ produced an exhaustive thirty-seven page hearing report recommending that eleven of thirteen causes of action be sustained and recommending that claimant be civilly fined $142,500, $15,000 less than sought in the Verified Complaint, and $60,000 less than had been suggested in the case referral report (Exhibit 203);
5. The Commissioner, with further analysis and comment, adopted the report of the ALJ;
6. Claimant's efforts to prove malice by suggesting that Peter Scully, Regional Director of DEC Region 1, and the individual ultimately authorized to approve the administrative prosecution of claimant in late 2003, authorized DEC enforcement action solely or primarily in response to political pressure, is abjectly speculative, unproven by any evidence. That suggestion also ignores the fact that Mr. Scully was new to DEC and had only become Regional Director on June 18, 2003, well into what had been several years of interactions, and some disagreements, between DEC and claimant that had started in 1995, a circumstance which additionally undercuts any possible conclusion that Mr. Scully harbored long-standing ill will or untoward motive toward claimant.
For all of the foregoing reasons, the Court finds that claimant has failed to prove his claim by a preponderance of the credible evidence.
The claim is dismissed.
All motions not previously decided are hereby denied.
Let judgment be entered accordingly.
March 27, 2017
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims