IN RE: DOUGLAS J. GIAMBRONE AND MARCON ERECTORS

Reset A A Font size: Print

Supreme Court, Appellate Division, Fourth Department, New York.

IN RE: DOUGLAS J. GIAMBRONE AND MARCON ERECTORS, INC., PETITIONERS, v. ALEXANDER B. GRANNIS, COMMISSIONER, NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, AND NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, RESPONDENTS.

TP 11–00377

Decided: October 07, 2011

PRESENT:  SMITH, J.P., FAHEY, PERADOTTO, LINDLEY, AND SCONIERS, JJ. JONATHAN D. ESTOFF, BUFFALO, MAGAVERN MAGAVERN GRIMM LLP, FOR PETITIONERS. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (ADAM J. DOBSON OF COUNSEL), FOR RESPONDENTS.

MEMORANDUM AND ORDER

Proceeding pursuant to CPLR article 78 (transferred to the Appellate Division of the Supreme Court in the Fourth Judicial Department by order of the Supreme Court, Erie County [Kevin M. Dillon, J.], entered February 7, 2011) to review a determination of respondents.   The determination imposed a civil penalty on petitioners.

It is hereby ORDERED that the determination is unanimously modified on the law and in the exercise of discretion and the petition is granted in part by reducing the penalty to $25,000, and as modified the determination is confirmed without costs.

Despite the inordinate delays that occurred in the administrative proceedings, we reject petitioners' contention that the proceedings should have been dismissed and the penalty vacated based on the failure to hold a hearing either “immediately” as provided in 6 NYCRR 622.12(f) or “within a reasonable time” as provided in State Administrative Procedure Act § 301(1).   Moreover, we reject petitioners' further contention that dismissal of the proceedings is required due to the failure of the Commissioner to issue the decision and order within 60 days “after the close of the record” pursuant to 6 NYCRR 622.18(b)(1).   Time limitations imposed upon administrative agencies by their own regulations are not mandatory (see Matter of Dickinson v. Daines, 15 NY3d 571, 575, affg 68 AD3d 1646), and petitioners failed to establish that they suffered substantial prejudice resulting from the delays (see id. at 577;  Matter of Cortlandt Nursing Home v Axelrod, 66 N.Y.2d 169, 178–179, rearg. denied 66 N.Y.2d 1035, cert denied 476 U.S. 1115;  see also Matter of Corning Glass Works v Ovsanik, 84 N.Y.2d 619, 625–626).   Additionally, we note that, “[w]here ․ legislation providing for an administrative determination explicitly prescribes the time frame for making a determination and provides that the agency is required to act within the specified time frame, there is ‘an unmistakable limitation on the [agency's] authority to act’ beyond that time frame” (Dickinson, 68 AD3d at 1647;  see Matter of City of New York v Novello, 65 AD3d 112, 116, lv denied 14 NY3d 702;  see generally Cortlandt Nursing Home, 66 N.Y.2d at 177–182).   Here, the Legislature provided no such time frame.

We agree with petitioners, however, that the civil penalty imposed “ ‘is so disproportionate to the offense as to be shocking to one's sense of fairness' “ (Matter of Waldren v. Town of Islip, 6 NY3d 735, 736, quoting 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, 237).   The record establishes that the remediation contractor retained by petitioners to perform cleanup work at the site was approved by the DEC, and the contractor mishandled materials and was partially responsible for the site conditions but was subjected to a substantially lower DEC penalty.   We conclude that the maximum civil penalty warranted against petitioners in this case is $25,000, and in the exercise of our discretion we therefore modify the determination by reducing the penalty accordingly (see generally Matter of Murray v Ilion Water Commn., 9 AD3d 903;  Matter of Vito v. Jorling, 197 A.D.2d 822, 824–825).   We have considered petitioners' remaining contentions and conclude that they are without merit.

Patricia L. Morgan

Clerk of the Court