IN RE: Gail MURTAUGH (2007)

By a summary abatement order (SAO), the New York State Department of Environmental Conservation (DEC), a respondent in proceeding No. 1 and a plaintiff-petitioner in proceeding No. 2, halted allegedly environment-polluting operations at a vehicle scrap yard, known as the Crosby Hill site, owned and operated by the petitioners in proceeding No. 1 and certain of the defendants-respondents in proceeding No. 2 (hereafter, petitioners).   Following an administrative hearing, the Administrative Law Judge (ALJ) recommended that the SAO be continued, and DEC's then Acting Commissioner (Commissioner), who is a respondent in proceeding No. 1 and a plaintiff-petitioner in proceeding No. 2, adopted that recommendation and continued the SAO. Petitioners then commenced proceeding No. 1 pursuant to CPLR article 78 seeking, inter alia, to “overturn” the Commissioner's determination continuing the SAO. In answeringthe petition in proceeding No. 1, respondents asserted various counterclaims based on allegations that petitioners were continuing to contaminate the Crosby Hill site and an adjacent property, known as the Flood Drive site, in violation of the SAO and various provisions of the Environmental Conservation Law and Navigation Law.

By its judgment in appeal No. 1, Supreme Court, inter alia, granted those parts of respondents' motion to dismiss the first through third causes of action of the petition seeking, respectively, to compel the DEC to comply with the request of petitioners pursuant to the Freedom of Information Law and for attorneys' fees (see generally Public Officers Law § 89[4][c] ), to enjoin the DEC's allegedly illegal operation of the old City of Fulton Hazardous Waste Site and the County of Oswego Emergency Vehicle Operations Center, and to annul the ALJ's determination reducing from 15% to 10% the “markup” on a certain environmental consultant's fee.   The court transferred to this Court the fourth cause of action (see generally CPLR 7804[g] ), pursuant to which petitioners seek to annul the quasi-judicial determination of the Commissioner continuing the SAO.

 We conclude that the court properly granted those parts of respondents' motion with respect to the first through third causes of action, and we further conclude with respect to the fourth cause of action that substantial evidence supports the determination that petitioners had “violated the New York State Navigation Law by discharging petroleum and petroleum products at the site, by failing to make the required notifications, and by failing to immediately contain such discharges, and ha[d] violated articles 17, 27 and 37 of the Environmental Conservation Law and the regulations promulgated thereto in releasing and discharging hazardous substances and other pollutants and contaminants at the site and in disposing of solid waste on the site,” including in a federally protected wetland (see generally Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 N.Y.2d 222, 230-231, 356 N.Y.S.2d 833, 313 N.E.2d 321).   Under the substantial evidence standard, “[i]t is the responsibility of the administrative agency to weigh the evidence and choose [from] among competing inferences therefrom and, so long as the inference drawn and the ultimate determination made are supported by substantial evidence, it is not for the court to substitute its judgment for that of the administrative agency” (Matter of Shorts Bar of Rochester Inc. v. New York State Liq. Auth., 17 A.D.3d 1101, 1102, 794 N.Y.S.2d 266).   Issues of witness credibility are likewise for the administrative agency to resolve in the exercise of its exclusive fact-finding authority (see Matter of Correia v. City of Rochester, 299 A.D.2d 854, 854-855, 749 N.Y.S.2d 449;  Matter of Wiley v. Hiller, 277 A.D.2d 1024, 1025, 716 N.Y.S.2d 226, appeal dismissed 96 N.Y.2d 852, 729 N.Y.S.2d 667, 754 N.E.2d 769;  see also Matter of Berenhaus v. Ward, 70 N.Y.2d 436, 443-444, 522 N.Y.S.2d 478, 517 N.E.2d 193).   We further conclude in appeal No. 1 that petitioners failed to exhaust their administrative remedies with respect to their challenge to the constitutionality of ECL 71-0301 and 6 NYCRR part 620 insofar as they place an evidentiary burden upon the subject of an SAO (see generally People ex rel. Bratton v. Mellas, 28 A.D.3d 1207, 812 N.Y.S.2d 923, lv. denied 7 N.Y.3d 705, 819 N.Y.S.2d 873, 853 N.E.2d 244;  Matter of Nelson v. Coughlin, 188 A.D.2d 1071, 591 N.Y.S.2d 670, appeal dismissed 81 N.Y.2d 834, 595 N.Y.S.2d 396, 611 N.E.2d 297).   In addition, petitioners failed to preserve that challenge for our review by failing to include it in the petition (see generally Gregory v. Town of Cambria, 69 N.Y.2d 655, 656-657, 511 N.Y.S.2d 829, 503 N.E.2d 1366;  Matter of Koschuk v. Kleinfelder, 270 A.D.2d 963, 705 N.Y.S.2d 547;  Matter of Kemp v. Erie County Dept. of Social Servs., 266 A.D.2d 905, 697 N.Y.S.2d 797;  Matter of Kavakos v. McCall, 251 A.D.2d 857, 858-859, 674 N.Y.S.2d 482, lv. denied 92 N.Y.2d 812, 680 N.Y.S.2d 905, 703 N.E.2d 763).   We have considered petitioners' remaining contentions with respect to appeal No. 1 and conclude that they are without merit.   We therefore affirm the judgment in appeal No. 1, confirm the determination and dismiss the petition in its entirety.

 Insofar as relevant herein, by its order in appeal No. 2 the court denied petitioners' motion seeking, inter alia, to prohibit the DEC from investigating and remediating known and suspected discharges, spills and releases of hazardous substances and hazardous waste at the Crosby Hill site and granted respondents' cross motion for an order permitting entry.   The court thereby directed petitioners to cease “all car processing activities at the Crosby Hill site” and enjoined them from interfering with the actions of the DEC and its contractors in investigating and remediating the Crosby Hill and Flood Drive sites.   Contrary to the contention of petitioners, the court properly concluded that the DEC's authority under Navigation Law § 176(2)(a) and § 178 to enter, inspect and remediate contaminated property without first obtaining a warrant or other court order does not conflict with petitioners' federal and state constitutional rights against unreasonable searches and seizures.

 Legislative enactments are afforded a strong “presumption of constitutionality, imposing a heavy burden on [the] party trying to overcome” that presumption by proof beyond a reasonable doubt (Matter of Carpenter Tech. Corp. v. Commissioner of Taxation & Fin., 295 A.D.2d 830, 834, 745 N.Y.S.2d 86, lv. denied 99 N.Y.2d 501, 752 N.Y.S.2d 588, 782 N.E.2d 566;  see State of New York v. Dennin, 17 A.D.3d 744, 747, 792 N.Y.S.2d 682, lv. dismissed 5 N.Y.3d 824, 804 N.Y.S.2d 38, 837 N.E.2d 737;  Chilberg v. Chilberg, 13 A.D.3d 1089, 1092, 788 N.Y.S.2d 533;  see generally Maresca v. Cuomo, 64 N.Y.2d 242, 250, 485 N.Y.S.2d 724, 475 N.E.2d 95, appeal dismissed 474 U.S. 802, 106 S.Ct. 34, 88 L.Ed.2d 28).   Although constitutional protections against unreasonable searches and seizures apply to administrative inspections of private commercial property, those engaged in business in industries subject to a complex and pervasive pattern of regular and close supervision and inspection have a substantially diminished expectation of privacy in such business affairs, and that diminished “privacy interest may, in certain circumstances, be adequately protected by regulatory schemes authorizing warrantless inspections” (Donovan v. Dewey, 452 U.S. 594, 599, 101 S.Ct. 2534, 69 L.Ed.2d 262;  see generally Marshall v. Barlow's, Inc., 436 U.S. 307, 313, 98 S.Ct. 1816, 56 L.Ed.2d 305;  People v. Quackenbush, 88 N.Y.2d 534, 541-542, 647 N.Y.S.2d 150, 670 N.E.2d 434).   The dismantling of vehicles is a pervasively regulated industry (see People v. Cusumano, 108 A.D.2d 752, 753, 484 N.Y.S.2d 909).   Under the statutory scheme, respondents' entry is in furtherance of the substantial governmental interest in environmental protection and remediation, rather than in furtherance of criminal investigation and prosecution (cf. People v. Scott, 79 N.Y.2d 474, 498-499, 583 N.Y.S.2d 920, 593 N.E.2d 1328;  People v. Burger, 67 N.Y.2d 338, 344, 502 N.Y.S.2d 702, 493 N.E.2d 926).   Moreover, the statute furnishes “ ‘a constitutionally adequate substitute for a warrant’ ” by informing the property owner of the prospect of the inspection and limiting the discretion of the inspecting officers (Quackenbush, 88 N.Y.2d at 542, 647 N.Y.S.2d 150, 670 N.E.2d 434).   Thus, the owner is informed in advance that the inspections to which he or she is subject do not constitute discretionary acts by a government official but are conducted pursuant to statute.   The owner further is informed in advance that the entry will be made only by DEC officials, agents, and contractors, that the entry will be made only in the event of actual or suspected discharges of petroleum or petroleum byproducts onto the lands or into the waters of the State, and that the intrusion will last only until any contamination is remediated.   We thus conclude that the Navigation Law provisions do not violate the proscription against unreasonable searches and seizures contained in the Fourth Amendment of the United States Constitution or article I, § 12 of the New York State Constitution (see Matter of Crandall v. Town of Mentz, 295 A.D.2d 907, 908, 745 N.Y.S.2d 347).   We therefore affirm the order in appeal No. 2.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed without costs, the determination is confirmed and the petition is dismissed in its entirety.

MEMORANDUM: