Photo Medic Equipment, Inc. v. Suffolk County Dept. of Health Services
| Decision Date | 15 August 1986 |
| Citation | 122 A.D.2d 882,505 N.Y.S.2d 927 |
| Parties | In the Matter of PHOTO MEDIC EQUIPMENT, INC., Petitioner, v. SUFFOLK COUNTY DEPARTMENT OF HEALTH SERVICES, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Jack Korshin, Manhasset, for petitioner.
Martin Bradley Ashare, Co. Atty., Hauppauge (Derrick J. Robinson, of counsel), for respondent.
Before BRACKEN, J.P., and RUBIN, LAWRENCE and EIBER, JJ.
MEMORANDUM BY THE COURT.
Proceeding pursuant to CPLR article 78 to review a determination of the respondent Suffolk County Department of Health Services, dated August 15, 1984, which, after a hearing, found that the petitioner had caused or permitted an industrial discharge of toxic or hazardous materials and used or caused to be used an air contaminant source, in violation of Suffolk County Sanitary Code §§ 1205 and 1006, and imposed a penalty of $1,750.
Determination confirmed and proceeding dismissed on the merits, with costs.
The petitioner owns and operates an industrial facility in Bay Shore, Suffolk County. On May 3, 1984, the petitioner received a "Notice of Formal Hearing" directing it to appear on May 17, 1984, before a hearing officer appointed by the respondent, to answer charges that it had violated certain provisions of the Suffolk County Sanitary Code on seven specified dates between November 23, 1980 and March 21, 1984. The notice stated, inter alia, that each alleged day of violation subjected the petitioner to a civil penalty not to exceed $500, and that, should petitioner fail to appear, the hearing would be held in its absence.
The hearing was adjourned, at the request of the petitioner's environmental coordinator, to the mutually agreeable date of May 30, 1984. On May 23, 1984, the petitioner received an amended "Notice of Formal Hearing", identical in all respects to the original notice, with the exception of two corrected dates on which the alleged violations had occurred.
Over a period of several years, with its permission, the petitioner's premises had been inspected. Samples of suspected pollutants were collected on all seven dates specified in the amended "Notice of Formal Hearing". Following these inspections, the respondent's inspectors discussed any observed violations of the Suffolk County Sanitary Code with an employee of the petitioner. Additionally, reports of the inspections and the results of laboratory analyses of the sampled substances were forwarded to the petitioner.
The petitioner, represented by its attorney, chief executive officer, environmental coordinator, and a consulting engineer hired to assist the petitioner in its defense, appeared at the hearing on the rescheduled date of May 30, 1984. The petitioner's attorney informed the hearing officer that it was not prepared to respond to the charges and requested a further adjournment. He argued that when the original "Notice of Formal Hearing" was received, the petitioner's chief executive officer was out of town and that in his absence, he was unable to begin to prepare a defense. Upon the chief executive officer's return on May 16, 1984, the petitioner engaged its consulting engineer, who reported that he would require at least six weeks to investigate the complaint. Additionally, the petitioner's attorney claimed that the notice was defective because it did not specify the toxic wastes and materials alleged to have been discharged on the specified dates, that the two date changes noted in the amended notice impaired the petitioner's ability to respond to the charges, and that it had been the attorney's intention to request a more particular statement. He noted that an earlier request for a further adjournment had been denied.
The adjournment was opposed by the respondent's attorney, who argued that the petitioner had had adequate time in...
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...must be considered more than adequate notice of the nature of the proceeding (see, Matter of Photo Medic Equip., Inc. v. Suffolk County Dept. of Health Servs., 122 A.D.2d 882, 505 N.Y.S.2d 927 [2d Dept.1986]. Therefore, petitioners were adequately apprised of the issues presented in this ad......
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...review is limited to matters which were the subject of contest at the hearing" ( Photo Medic Equipment, Inc. v. Suffolk County Dept. of Health Servs., 122 A.D.2d 882, 884–885, 505 N.Y.S.2d 927 ; see Matter of Patino v. Scully, 135 A.D.2d 637, 522 N.Y.S.2d 467 ), we do not reach the parties'......
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