Opinion
115/2007.
Decided May 18, 2011.
Eric Schneiderman, Attorney General of the State of New York, by, Yueh-ru Chu, Isaac Cheng, and Norman Spiegel, Esqs., New York, NY, for the Plaintiff.
Udo M. Drescher, Esq., Long Island City, New York, for the New York State Department of Environmental Conservation.
Sive, Paget Riesel, P.C., by Daniel Riesel, Elizabeth Knauer, and Victoria Shiah, Esqs., New York, NY, for the Defendants Ruth and William Winkle.
Clifford L. Davis, Esq., White Plains, New York, for Alan and Mary Risi.
Mallilo Grossman, by Matthew Porges, Esq., Flushing, New York, for Kathleen Sellars.
The following papers numbered 1 to 39 read on these separate motions by plaintiffs the State of New York (State), the New York State Department of Environmental Conservation, and Denise Sheehan, as the Commissioner of Environmental Conservation (DEC): (1) pursuant to CPLR 602(a) to consolidate State of New York et al. v Ruth Winkle et al., Index No. 115/07 (Sup. Ct. Queens County) ("Winkle action") with Risi v State of New York et al., Index No. 4529/05
(Sup. Ct. Queens County) ("Risi action") and State of New York et al. v Kathleen Sellars, Index No. 9859/09 (Sup. Ct. Queens County) ("Sellars action"); (2) pursuant to CPLR 3212 for summary judgment against the defendants in the Winkle action on all claims, specifically on plaintiffs' first cause of action enjoining defendants Ruth Winkle and William Winkle (the "Winkles") to comply with a January 10, 2005 Consent Order between the Winkles and DEC, on plaintiffs' second cause of action granting judgment against the Winkles in the amount of $95,000.00, the amount of suspended penalties outstanding under a January 10, 2005 Consent Order the Winkles and DEC entered into, and on plaintiffs' third and fourth causes of action, granting judgment against the Winkles in the amount of $85,000.00 for violations of the Tidal Wetlands Law and of the Water Resources Law collectively; (3) pursuant to CPLR 3212 for summary judgment in the Sellars action against defendant Kathleen Sellars (Sellars), specifically to enjoin Sellars to remove the revetment, all unpermitted fill and structures in the tidal wetland and tidal wetland adjacent areas on the site at issue; to enjoin Sellars to provide access through her site to the Winkle and Risi sites for the purpose of facilitating the Winkles' compliance with the January 10, 2005 Consent Order between Winkles and the DEC, and the compliance of the defendants in the Risi action (the "Risis") with the May 16, 2008 Order of the Court (Brathwaite Nelson, J.) and to grant judgment against Sellars in the amount of $25,000.00 for violations of the Tidal Wetlands Law and the Water Resources Law; and 4) upon the granting of summary judgment against the Winkles and Sellars, to order the Winkles, Risis and Sellars to coordinate remediation of their respective sites in a manner that is not in conflict with or inconsistent with each other, including adhering to the same schedule for the restoration of their sites: (a) within sixty (60) days of this court's order, defendants must submit to DEC a proposed engineering plan or plans for the restoration of the three sites. Defendants may submit a joint proposal for the remediation and restoration of all three sites and may utilize the same consultants and/or contractors; (b) within thirty (30) days, modifying and submitting the engineering plan(s) to incorporate any changes reasonably requested by the DEC; and (c) within sixty (60) days of receiving approval of final engineering plans from DEC, completing all remediation work and restoration work, and pursuant to CPLR 6513, to extend for an additional three-year period, that is, until January 17, 2014, the notice of pendency dated January 17, 2007, and extended for one year until January 17, 2011, by order of this court dated January 27, 2010, regarding the property designated as Tax Block 4542, Lot 20, in Queens County, and further known as 154-45 Riverside Drive, Beechurst, New York ("the Site").
Papers Numbered
Notice of Motion — Affidavits — Exhibits ........................................1-10 Order to Show Cause — Affidavits — Exhibits .....................................11-13 Answering Affidavits — Exhibits .................................................14-26 Reply Affidavits ................................................................27-36 Other ...........................................................................37-39Upon the foregoing papers, it is ordered that the motions are consolidated and determined as follows:
The Winkles, Risis, and Sellars are neighboring owners of three properties that all abut the East River, a navigable water of the State, in Beechurst, Queens County, New York. Defendant Ruth Winkle was and her son defendant William Winkle is the owner of 154-45 Riverside Drive. Petitioners Alan and Mary Risi are the owners of 154-43 Riverside Drive, the parcel of land immediately to the West of the Winkle site. Defendant Kathleen Sellars is the owner of the parcel of land immediately to the West of the Risi site on Riverside Drive. There is no residence on that site, but defendant Sellars resides at 154-35 Riverside Drive, the parcel of land directly abutting the Sellars site to the South, and the Sellars site is visible from the rear of defendant Sellars' residence.
On February 26, 2008, Ruth Winkle transferred ownership of 154-45 Riverside Drive to her son William Winkle.
The relevant portion of each property is subject to regulation by the DEC as either a tidal wetland or a tidal wetland adjacent area. All of the owners have committed, or are alleged to have committed, environmental violations on their sites, the most serious of which involve the placement of thousands of cubic feet of fill in the East River, regulated tidal wetlands and wetland adjacent areas, as well as the construction of a rip-rap revetment (a structure designed to reduce shoreline erosion) that begins on the Sellars property and then continues across the Risi and Winkle properties.
The effect of these violations has been the destruction of the shallow water area and a beach that served as a marine habitat at the shoreline of these properties, types of tidal wetland that are unusual for the typically heavily developed East River, and the lengthening of the Winkles' and Risis' backyards by approximately 60 additional feet.
The Winkles
In 1998, the DEC brought an administrative enforcement proceeding against the Winkles, alleging that they had placed fill in the East River and constructed a revetment, pier, ramp, and other floating structures on their property without the necessary permits from DEC. In January of 2005, the Winkles entered into a Consent Order with the DEC instead of proceeding with a hearing. Under this Order, Ruth Winkle admitted to violating articles 15 and 25 of the Environmental Conservation Law by conducting regulated activities in a tidal wetland area and/or adjacent area without a permit from the DEC and for placing fill in a navigable water of the State without a permit. Although William Winkle alleged that he personally was not involved in these activities, he nevertheless accepted the settlement to avoid the expense of further litigation.
The Consent Order required the Winkles to restore their property by removing the illegal fill and relocating the revetment to the original shoreline and made them liable for penalties if they failed to do so. The Consent Order also required the Winkles to submit a site restoration plan within 60 days of the date of that order. The plan was to include two alternatives: (1) restoration coordinated with the Risi restoration and (2) restoration independent of the Risi restoration. The Consent Order further held the Winkles jointly and severally liable for a civil penalty in the amount of $110,000.00. Of that amount, the Winkles were required to pay $15,000.00 within 30 days, which they did. The remaining $95,0000 was suspended upon condition that the Winkles timely and strictly complied with the requirements of the Consent Order.
Since the Winkle Consent Order was executed within 180 days of the October 24, 2004 Commissioner's Order in an enforcement action against the Risis for the same type of violations and seeking the same type of remediation, the Risis were required to coordinate their restoration work with the Winkles.
It is undisputed that the Winkles failed to submit a proposed restoration plan to the DEC within 60 days as required by the Consent Order. Thereafter, on August 15, 2005, Udo Drescher, counsel for the DEC, sent the Winkles a notice of noncompliance directing them to submit a plan and to remit the $95,000.00 suspended penalty within 30 days of the notice. The Winkles failed to do so. On September 29, 2005, however, counsel for the Winkles did send Udo Drescher a two-page report of Aaron Cheung, an engineer, dated February 1, 2005, stating that restoration of the site is not feasible.
In 2007, the Attorney General, pursuant to authority under Environmental Conservation Law Articles 15 and 71, brought this action against the Winkles to enforce the terms of the Consent Order. In the complaint, it is alleged that, to date, the Winkles have failed to submit a remediation plan, and that suspended and additional penalties are now due and owing. The Winkles served a verified answer and document requests. The State and DEC neither have responded to those requests nor have served any discovery demands of their own. In their answer, the Winkles allege the following:
The Risis placed the fill and that the Winkles consented to same upon Mr. Risi's representation that he had obtained the necessary permits for this work. The Winkles attempted to comply with the Consent Order by retaining Aaron Cheung, P.E. of Graceland Design-Build Associates, a licensed professional engineer, to develop a restoration plan. Cheung opined that to remove the fill (in the form of a stone revetment) would cause movement and erosion of the existing fill on which the Winkles and other neighboring homes are constructed. Counsel for the Winkles reported this information to the DEC in a letter to its counsel, Udo Drescher, requesting that DEC staff visit the site to make an assessment of what could be done without imperiling the homes. Udo Drescher never responded to this letter. The adjacent river is of an insufficient depth to allow a vessel large enough to carry excavation equipment to get close enough to the revetment to remove it and there is no place such equipment can gain access to the shoreline by land given the close proximity of the neighboring residences to the Winkle site. The Risis placed a rip-rap revetment adjacent to their property at the same time as the rip-rap revetment on the Winkle site. The Risis have not removed the revetment from the Risi site so it would need to be shored up simultaneously with the removal of the revetment from the Winkle site at a significant cost to the Winkles. The failure of the Winkles to submit a restoration plan to the DEC and to remove the fill placed by the Risis resulted from the infeasibility of undertaking such work.The Risis
The only space big enough for the necessary equipment to access the shoreline for the restoration work by land is through the Sellars site, the same route used when the subject revetment was constructed.
In October 1996, a permit was issued to petitioner Mary Risi pursuant to Articles 15 (Water Resources) and 25 (Tidal Wetlands) of the Environmental Conservation Law, and Parts 608 (Use and Protection of Waters) and 661 (Tidal Wetlands) of the NYCRR. The permit allowed the Risis to construct 20 feet of revetment on their property. It is alleged that the Risis placed 4,800 square feet of fill in the East River, tidal wetland, and tidal wetland adjacent area, which extended their backyard from 20 feet to 80 feet away from their home, and constructed a revetment at the water's edge of the illegal fill in contravention of the terms of the permit. In 1999, the DEC brought an administrative enforcement action against them. While that action was pending, the Risis allegedly committed additional violations by constructing a deck, a wall and utility line, without the requisite permit.
A formal adjudicatory hearing was held and the Administrative Law Judge (ALJ) issued a hearing report dated June 3, 2004, in which she found that Mary and Alan Risi had violated the terms of the permit and had subsequently built a wall, deck, and utility line without the requisite permit. She recommended that the Commissioner direct the Risis to perform restoration work, and a penalty of $170,000.00. The Commissioner issued an order dated October 29, 2004, in which she adopted the findings and recommendations of the ALJ, with the exception that the penalty was reduced to $150,000.00, with $120,000.00 suspended pending the timely completion of the restoration work, which was to include the removal of all unpermitted fill and structures, restoration of the shoreline to its pre-fill size and modification and relocation of the revetment so that it complies with the terms of the 1996 permit. The Commissioner also adopted the ALJ's recommendation that the Risis' restoration work be coordinated with any work that might be ordered in the then pending enforcement action against the Winkles.
On February 25, 2005, petitioners, the Risis, filed a request for reconsideration with the DEC, which was denied by the agency on April 5, 2005. The Risis commenced an Article 78 proceeding on February 28, 2005, in which they challenged the October 29, 2004 Order. Respondents answered the petition and asserted a counterclaim which sought to enter judgment in the amount of $150,000.00, and an injunction enjoining the petitioners to comply with the terms of the aforementioned order. The Risis answered the counterclaim denying all allegations. Thereafter, the respondents moved to dismiss the Article 78 proceeding as time-barred under ECL 15-0905(2) and 25-0404 or, in the alternative, transferring this matter to the Appellate Division on the ground that the petition raises a question of substantial evidence under CPLR 7804(g).
By Short Form Order of this Court dated February 21, 2006, the motion to dismiss the petition as untimely was granted. Petitioners' appeal of said order was dismissed by the Appellate Division, Second Judicial Department, for the failure to perfect the appeal. As a result of the Court's February 21, 2006 order, this proceeding was disposed of without addressing the merits of the counterclaim. Respondents thereafter moved to reactivate this action and, upon reactivation, for an order granting summary judgment in their favor on the counterclaim.
The Court held that the dismissal of the Risis' petition as untimely did not prevent the Court from addressing respondents' counterclaim seeking enforcement of the challenged decision. Upon a showing of the Risis' continued failure to comply with the administrative order, the Court granted summary judgment on the counterclaim and held that respondents could enter judgment against the Risis in the amount of $150,000 with interest of 9% from June 24, 2005. The Court further ordered the Risis within twenty days of being served with the Order with Notice of Entry to comply with the DEC Order dated October 29, 2004, which directed them to submit a restoration plan to DEC within 20 days and to commence restoration work within 20 days of approval of the restoration plan. The DEC Order also directed the Risis to coordinate their remediation with the Winkles, provided that the then-pending DEC enforcement action against the Winkles was resolved within 180 days, which it was. It is undisputed that, to date, the Risis neither have satisfied the judgment, nor have submitted a restoration plan to DEC.
Sellars
In September of 2008, the DEC issued a Notice of Violation to defendant Sellars for unpermitted fill and revetment on her property related to the Risi and Winkle violations, and the construction of other illegal structures in regulated areas of her property. According to the DEC, the multi-property revetment, the common subject of these actions, begins on the Sellars property.
In 2009, the DEC brought an action against defendant Sellars alleging that she, like the Risis and Winkles, had placed or allowed to be placed, fill in a navigable water of the State and had constructed or allowed to be constructed, a revetment in tidal wetlands without first obtaining a permit. The amended complaint in the action also alleges that defendant Sellars facilitated the Risis' and Winkles' violations by allowing access through her property to their sites to construct the multi-property revetment. It is also alleged that defendant Sellars constructed or allowed to be constructed, a shed and an above-ground pool in areas that are regulated under the tidal wetlands laws without first obtaining a permit. The complaint asks that defendant Sellars remove the illegal fill and revetment and other unpermitted structures, and requests civil penalties of up to $10,000.00 per violation per day.
Defendant Sellars, who initially was unrepresented, answered the original complaint, by letter acknowledging that she constructed the shed and pool, but noting that she removed the pool after receiving the complaint, and alleging that she did not place any fill or cause any fill to be placed on her property and that the revetment and fill were put on her property by defendant Alan Risi. Defendant Sellars retained counsel after the amended complaint was filed and submitted an answer denying all material allegations. According to plaintiffs State and DEC, settlement negotiations with defendant Sellars have been unsuccessful.
Winkles, Risis, and Sellars
According to plaintiffs State and DEC, after the commencement of the enforcement action against the Winkle defendants, the parties began settlement negotiations, which were protracted by the need to include the Risis and defendant Sellars. As noted, the Orders of the Commissioner and the Court in the Risi proceedings provided that the restoration work at the Risi and Winkle sites should be coordinated if the Winkle enforcement action was resolved within a certain time; it was so resolved; and the Risis were made part of the DEC's settlement negotiations with the Winkles.
In August of 2007, the Winkles submitted a report prepared by engineer, Nicholas Mann of Quay Consulting, LLC, who opined that removal of the revetment at the Winkle site is technically unfeasible as a result of the direct lack of access for heavy equipment from both the landside and waterfront; that removal of the revetment will cause structural stability issues for the adjacent properties; and that such removal will require creation of side slopes that would preclude the reestablishment of the tidal wetlands because the slopes would stretch across most of the width of the subject property's shoreline.
Petitioner Alan Risi avers in an affidavit that he helped pay for this expert and that he has been cooperating with the Winkles and State to resolve these matters and to remediate these sites.
Settlement negotiations continued and, after the action against defendant Sellars was commenced in 2009, she also became party to the settlement negotiations. According to plaintiffs State and DEC, at their last settlement meeting with the Winkles, Risis, Sellars, their attorneys and engineers, which was held in June of 2009, the Winkles and Risis agreed to draft and submit a remediation plan, but failed to do so.
In February of 2010, Assistant Attorney General Yueh-Ru Chu wrote to counsel for the Winkles and Risis stating: "Given the issues your clients have raised about the feasibility of remediation on their properties, we would like our engineers to take a look at their sites." The site visit proposed by the State took place on March 23, 2010, and was attended by 10 State attorneys and staff members, including Yueh-Ru Chu, Udo Drescher, DEC engineer, Thomas Lincoln, and two engineers from the State Department of Transportation. No representative of defendant Sellars attended. At the end of the visit, the State indicated it would get back to counsel for the Winkles and Risis with an opinion from the engineers regarding the feasibility of a coordinated remediation and how it could be achieved. No such communication was ever received, and, instead, the instant motions were filed to consolidate these actions, to extend a notice of pendency and for summary judgment.
It is undisputed that, prior to the return date of these motions, the Winkles submitted two remediation plans which they proposed to undertake under certain conditions, including their feasibility. As requested by the State, the first plan was prepared with the concurrence of the Risis. However, it reflected a substantial amount of fill remaining in front of the Risi site because Alan Risi would not agree to a plan that diminished his backyard to the extent required by the court order against him.
After this plan was rejected by the State, the Winkles submitted a new plan which proposed remediation only on the Winkle site conditioned upon, among other things, obtaining access through the Sellars and Risi sites. This plan was also rejected. According to the Winkles, the State indicated it was not interested in just settling with the Winkles. In their papers, plaintiffs State and DEC do indicate that they seek a coordinated remediation on the properties by the Winkles, Risis, and Sellars since the properties adjoin each other, the revetment at issue is one continuous physical structure on all three sites and land-based access to same is possible only through the Sellars site. Although the Winkles contend that defendant Sellars still will not permit access through her property, plaintiffs State and DEC, in their reply papers, indicate that they are working on a settlement with defendant Sellars which allows for such access.
Consolidation
A motion to consolidate actions for joint trial pursuant to CPLR 602(a) rests in the sound discretion of the trial court. Absent a showing of prejudice to a substantial right by a party opposing the motion, consolidation should be granted where common questions of law or fact exist ( see, Nationwide Assoc., Inc. v Targee Street Internal Medical Group, P.C., 286 AD2d 717 [2nd Dept. 2001]; see also, Gadelov v Shure, 274 AD2d 375 [2nd Dept. 2000]; Mattia v Food Emporium, Inc., 259 AD2d 527 [2nd Dept. 1999].)
In this case, it is clear that the instant action, the Risi action and the Sellars action raise common questions of law and fact. In addition, no prejudice to a substantial right would result from consolidation. Thus, the actions should be tried jointly.
Accordingly, the branch of plaintiffs' motion to consolidate is granted without opposition, and the aforementioned actions shall be tried jointly in this Court and separate Index Numbers, Requests for Judicial Intervention (RJI), and Notes of Issue shall be filed for each.
The title of the actions combined for joint trial shall be:
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS
Action No. 1 THE STATE OF NEW YORK, THE NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION and ALEXANDER B. GRANNIS, as the COMMISSIONER OF ENVIRONMENTAL CONSERVATION, Plaintiffs, — against — RUTH WINKLE AND WILLIAM WINKLE, Defendants.
In the Matter of th Application of MARY RISI and ALAN RISI, Action No. 2 Petitioners, — against — THE NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION and the NEW YORK STATE COMMISSIONER OF ENVIRONMENTAL CONSERVATION, Respondents.
THE STATE OF NEW YORK, THE NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, and ALEXANDER B. GRANNIS, Action No. 3 as the COMMISSIONER OF ENVIRONMENTAL CONSERVATION, Plaintiffs, — against — KATHLEEN SELLARS, Defendant.
The parties are directed to contact the Preliminary Conference Part to address any outstanding discovery.
A copy of this order with notice of entry shall be served on all parties to the actions combined, the Clerk of Queens County and, at the time of the filing of a Note of Issue, on the Clerk of the Trial Term Office.
Summary Judgment
It is well settled that the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, offering sufficient evidence to demonstrate the absence of any material issues of fact ( see, Alvarez v Prospect Hosp., 68 NY2d 320; see also, Winegrad v New York Univ. Med. Ctr., 64 NY2d 851; Zuckerman v City of New York, 49 NY2d 557). Failure to make such a showing requires denial of the motion regardless of the sufficiency of the opposing papers ( see, Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 , supra).
Furthermore, the Court's function on a motion for summary judgment is issue finding, not issue determination ( see, Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395), or credibility assessment ( see, Ferrante v American Lung Association, 90 NY2d 623). Once this showing has been made, however, the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of a triable issue of fact ( see, Alvarez v Prospect Hosp., 68 NY2d 320 , supra).
In this case, plaintiffs State and DEC have failed to meet this initial burden of demonstrating their entitlement to summary judgment on their action against the Winkles to enforce the Consent Order. It is clear from their moving papers that plaintiffs State and DEC, themselves, recognize the need and have expressed a preference for a coordinated effort by the parties. Moreover, triable issues of fact exist concerning whether the Winkles failed to comply with the Consent Order in light of the evidence herein that they have been in negotiations with plaintiffs State and DEC regarding the best way to perform the restoration of the Winkle Site along with that of the Risi and Sellars sites, and that their experts have been assessing same.
Triable issues also exist concerning any continuing violations and penalties/fines related thereto in light of this evidence of the awareness of plaintiffs State and DEC of the need and preference for joint remediation and the ongoing negotiations regarding same. Furthermore, if such fines/penalties are to be imposed, issues of fact exist concerning the amount of such fines/penalties.
Accordingly, the branch of the motion of plaintiffs State and DEC for summary judgment in their favor and against defendants Ruth Winkle and William Winkle is denied.
The branch of the motion of plaintiffs State and DEC for summary judgment in their favor and against defendant Sellars is denied without prejudice to renew upon completion of discovery and in accordance with the CPLR and Court Rules. This branch of the motion is premature since it is undisputed that only limited disclosure has taken place in the Sellars case ( see, CPLR 3212[f]; see also, Elliot v County of Nassau , 53 AD3d 561 [2nd Dept. 2008]; Fazio v Brandywine Realty Trust ,29 AD3d 939 [2nd Dept. 2006]; Juseinoski v New York Hospital Medical Center of Queens, 29 AD3d 636 [2nd Dept. 2006]).
In light of the foregoing denial of summary judgment, the branch of the motion of plaintiffs State and DEC to direct the Winkles, Risis, and Sellars to cooperate in and coordinate the remediation of their respective sites upon the granting of summary judgment is denied as academic. Nevertheless, it is noted that the Winkles, Risis and Sellars have indicated in their papers their willingness to do same, if possible.
Notice Of Pendency
Finally, the branch of plaintiffs' motion to extend the notice of pendency dated January 17, 2007, filed regarding the Winkle property located at 154-45 Riverside Drive, Beechurst, New York, Tax Block 4542, Lot 20, located in Queens County, New York, which previously was extended to January 17, 2011 by order of the Hon. Lee A. Mayersohn, dated January 27, 2010, and further extended by so-ordered stipulation of the parties' until the decision on this branch of the motion, is granted. The notice of pendency is extended until January 17, 2014, pursuant to CPLR 6513.
Copies of this decision and order are being mailed to the attorneys of the parties in all three actions on this date.
The foregoing constitutes the decision, order, and opinion of the Court.