FRJE Holding Corp. v. Jorling

• Decision Date: 20 May 1993
• Citation: 193 A.D.2d 1013,598 N.Y.S.2d 100
• Parties: FRJE HOLDING CORPORATION, Plaintiff, v. Thomas C. JORLING, as Commissioner of the New York State Department of Environmental Conservation, et al., Defendants and Third-Party Plaintiffs-Respondents; Angioli Corporation, Third-Party Defendant-Appellant, et al., Third-Party Defendants. (And a Fourth-Party Action.)
• Court: New York Supreme Court — Appellate Division

Page 100

598 N.Y.S.2d 100

193 A.D.2d 1013

FRJE HOLDING CORPORATION, Plaintiff, v. Thomas C. JORLING, as Commissioner of the New York State Department of Environmental Conservation, et al Defendants and Third-Party Plaintiffs-Respondents Angioli Corporation, Third-Party Defendant-Appellant, et al., Third-Party Defendants (And a Fourth-Party Action.)

Supreme Court, Appellate Division Third Department.

May 20, 1993.

Gilberg & Gilberg (David C. Gilberg, of counsel), Mt. Vernon, for third-party defendant-appellant.

Robert Abrams, Atty. Gen. (Helene G. Goldberger, of counsel), Albany, for defendants and third-party plaintiffs-respondents.

Before WEISS, P.J., and LEVINE, MERCURE, MAHONEY and CASEY, JJ.

MERCURE, Justice.

Appeal (transferred to this court by order of the Appellate Division, Second Department) from a judgment of the Supreme Court (Economou, J.H.O.), entered August 16, 1991 in Putnam County, upon a decision of the court in favor of defendants and third-party plaintiffs.

In this consolidated action, third-party defendant Angioli Corporation appeals a decision following a nonjury trial in favor of defendants and third-party plaintiffs Commissioner of the Department of Environmental Conservation (hereinafter DEC) and the State of New York (hereinafter collectively referred to as the State) determining, as relevant to this appeal, that Angioli knowingly permitted illegal dumping on its property (hereinafter the site) near Ludingtonville Road in the Town of Kent, Putnam County, on February 19, 1988 and awarding a monetary judgment in favor of the State. The contentions advanced by Angioli lack merit and we accordingly affirm.

The evidence adduced at trial established that Angioli applied to DEC in 1985 for a freshwater wetlands permit in order to develop the site. The environmental assessment form that Angioli submitted in support of its application stated, among other things, that the project would not involve the disposal of solid waste and indicated, by failure to check an appropriate space, that the project did not involve construction of a sanitary landfill. On March 5, 1986, DEC issued Angioli a permit to "[f]ill approximately one acre of a freshwater wetland to construct two single family homes" on the site. Among the general and specific conditions described on the permit were provisions subjecting the work to DEC inspection, stating that the permittee is responsible for obtaining any other permits and approvals which may be required, and mandating that "[a]ll necessary precautions shall be taken to prevent contamination of the waters of the wetland and the streams by silt, sediment, fuels, solvents, lubricants, epoxy coatings, concrete leachate, or any other pollutant associated with construction and construction procedures". In February 1988, plaintiff contracted with Angioli's principals to fill the site with construction and demolition material; the contract was assigned to Angioli on February 10, 1988. On February 19, 1988, DEC personnel observed garbage as well as construction and demolition debris being dumped at the site, prompting the enforcement measures giving rise to the consolidated actions.

Initially, we reject Angioli's attacks on the sufficiency of the evidence adduced at trial. The State presented the testimony of four DEC employees and eight exhibits which demonstrated that Angioli had allowed the unpermitted disposal of solid waste on the site. Environmental Conservation Officers Terrance Revella and Charles Nash testified that they had observed construction and demolition debris and other solid waste, including plastic items, household trash, clothing, carpets and newspapers, in February 1988. According to Nash, solid waste material was still on the site as late as March 18, 1988. The fact that plaintiff, and not Angioli, actually deposited the solid waste on the site is of no significance....