Call-A-Head Portable Toilets, Inc. v. N.Y.S. Dep't of Envtl. Conservation

• Docket Number: 2019-10579,Index No. 707956/19
• Decision Date: 15 February 2023
• Citation: 213 A.D.3d 842,184 N.Y.S.3d 776
• Parties: In the Matter of CALL-A-HEAD PORTABLE TOILETS, INC., et al., petitioners/appellants, v. NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, et al., respondents/respondents.
• Court: New York Supreme Court — Appellate Division

213 A.D.3d 842

184 N.Y.S.3d 776

In the Matter of CALL-A-HEAD PORTABLE TOILETS, INC., et al., petitioners/appellants,

v.NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, et al., respondents/respondents.

2019-10579

Index No. 707956/19

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

Argued—October 6, 2022

February 15, 2023

The Scher Law Firm, LLP, Carle Place, NY (Austin Graff of counsel), for petitioners/appellants.

Letitia James, Attorney General, New York, NY (Judith N. Vale, Ari J. Savitzky, and Sarah E. Coco of counsel), for respondents/respondents.

COLLEEN D. DUFFY, J.P., REINALDO E. RIVERA, DEBORAH A. DOWLING, JANICE A. TAYLOR, JJ.

DECISION, ORDER & JUDGMENT

Proceeding pursuant to CPLR article 78 to review so much of a determination of the New York State Department of Environmental Conservation dated March 4, 2019, as adopted the recommendation of an administrative law judge dated February 14, 2018, made after a hearing, sustaining 10 causes of action alleging that the petitioners violated ECL 17–0803 and 25–0401, and related regulations, and imposed a civil penalty in the sum of $300,000, jointly and severally payable by the petitioners, $100,000 of which would be suspended if the petitioners/appellants complied with the terms and conditions of the determination, including complying with a restoration plan, and assessed an additional civil penalty against the petitioner Charles W. Howard in the sum of $7,500, which proceeding was transferred to this Court by order of the Supreme Court, Queens County (Pam Jackman Brown, J.), dated August 12, 2019, and appeal by the petitioners from the same order.

ORDERED that the appeal is dismissed (see CPLR 5701[b] ; 7804[g]); and it is further,

ADJUDGED that the determination is confirmed insofar as reviewed, the petition is denied, and the proceeding is dismissed on the merits; and it is further,

ORDERED that one bill of costs is awarded to the respondents.

In 2004, the respondent/respondent New York State Department of Environmental Conservation (hereinafter the DEC) commenced an administrative enforcement proceeding against the petitioners, alleging that their activities at three sites in Broad Channel (hereinafter Site 1, Site 2, and Site 3) violated the Environmental Conservation Law and related DEC regulations. The DEC filed an amended complaint in 2012, and an administrative hearing was commenced before an administrative law judge (hereinafter the ALJ) on June 13, 2016. The violations at issue here involved, inter alia, the petitioners' alleged expanding of commercial structures without a permit, and discharging of the residual content of portable toilets into Jamaica Bay, also without a permit. Site 1 was previously the subject of a consent order issued in 1994, based, inter alia, upon a prior inspection in 1992. The consent order gave the petitioner Call–A–Head Corp. temporary authority to operate on Site 1 for 120 days from the effective date of the consent order, noted that the temporary authorization would expire unless renewed by the DEC, and stated that the DEC would not renew the temporary authorization unless Call–A–Head Corp. applied for the permit necessary to operate the site. At the administrative hearing, an employee of the DEC testified that an application for the necessary permit was received by the DEC in 2004, approximately 10 years later, and consideration of that application was suspended due to pending violations.

In February 2017, after the DEC had rested its case, the petitioners discharged their attorney, and the ALJ granted them an extended adjournment so that they could engage new counsel. In May 2017, the petitioners purportedly engaged new counsel, but that attorney subsequently declined to represent them. The ALJ declined to grant a further adjournment, and the administrative hearing was closed without the petitioners having put on a case. Each side was permitted to submit posthearing briefs, through which the DEC withdrew the causes of action pertaining to Site 2.

During the administrative hearing, the DEC presented surveys, photographs, maps, inspection reports, the previously issued summonses, and the testimony of multiple DEC employees who testified as to their observations with respect to the charged violations. Largely crediting the DEC's evidence, the ALJ sustained 10 causes of action against the petitioners, and recommended a civil penalty in the sum of $300,000 for the violations at Site 1, jointly and severally assessed against the petitioners, and an additional civil penalty in the sum of $7,500 for the violation at Site 3, assessed against the petitioner Charles W. Howard. On March 4, 2019, the DEC issued a determination which largely adopted the ALJ's findings and recommendations, but, additionally, suspended $100,000 of the $300,000 civil penalty imposed for the Site 1 violations, contingent upon the petitioners' compliance with the terms and conditions of the determination, including complying with a restoration plan. The petitioners commenced this proceeding pursuant to CPLR article 78 to review the determination, and the Supreme Court transferred the proceeding to this Court (see CPLR 7804[g] ).

"Judicial review of an administrative determination made after a hearing required by law, and at which evidence was taken, is limited to whether that determination is supported by substantial evidence" ( Matter of Clan Fitz, Inc. v. New York State Liq. Auth., 144 A.D.3d 1024, 1025, 42 N.Y.S.3d 241 [internal quotation marks omitted]; see CPLR 7803[4] ). Substantial evidence "means such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact" ( 300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 N.Y.2d 176, 180, 408 N.Y.S.2d 54, 379 N.E.2d 1183 ). While substantial evidence is " ‘more than seeming or imaginary, it is less than a preponderance of the evidence, overwhelming evidence or evidence beyond a reasonable doubt’ " ( Matter of S & S Pub, Inc. v. New York State Liq. Auth., 109 A.D.3d 933, 934, 971 N.Y.S.2d 464, quoting 300 Gramatan Ave. Assoc., 45 N.Y.2d at 180–181, 408 N.Y.S.2d 54, 379 N.E.2d 1183 ). "The standard demands only that a given inference is reasonable and plausible, not necessarily the most probable" ( Matter of Ridge Rd. Fire Dist. v. Schiano, 16 N.Y.3d 494, 499, 922 N.Y.S.2d 249, 947 N.E.2d 140 [internal quotation marks omitted]).

After the close of the administrative hearing, the petitioners contended that the DEC lacked subject matter jurisdiction over Site 1 and Site 3, because those sites were not adjacent to tidal wetlands as defined in the applicable regulations, i.e., 6 NYCRR 661.4(b)(l), in that railroad tracks and roads ran parallel to, and separated the petitioners' property from, the boundaries of the tidal wetlands. Although an objection on the ground of subject matter jurisdiction "may be raised at any time and may not be waived" ( Lacks v. Lacks, 41 N.Y.2d 71, 74–75, 390 N.Y.S.2d 875, 359 N.E.2d 384 ), the ALJ properly rejected the petitioners' argument. "Subject matter jurisdiction ‘refers to objections that are fundamental to the power of adjudication of a court.’ ‘Lack of jurisdiction’ should not be used to mean merely ‘that elements of a cause of action are absent,’ but that the matter before the court was not the kind of matter on which the court had power to rule" ( Garcia v. Government Empls. Ins. Co., 130 A.D.3d 870, 871, 14 N.Y.S.3d 116, quoting Manhattan Telecom. Corp. v. H & A Locksmith, Inc., 21 N.Y.3d 200, 203, 969 N.Y.S.2d 424, 991 N.E.2d 198 ). Here, the petitioners have not actually raised an objection on...