State v. Ferro

CourtNew York Supreme Court Appellate Division
Writing for the CourtCASEY
Citation189 A.D.2d 1018,592 N.Y.S.2d 516
Decision Date21 January 1993
PartiesSTATE of New York, et al., Respondents, v. Nicholas S. FERRO, et al., Appellants, et al., Defendant.

Page 516

592 N.Y.S.2d 516
189 A.D.2d 1018
STATE of New York, et al., Respondents,
v.
Nicholas S. FERRO, et al., Appellants, et al., Defendant.
Supreme Court, Appellate Division,
Third Department.
Jan. 21, 1993.

Raymond A. Kelly, Jr., Albany, for appellants.

Robert Abrams, Atty. Gen. (Maria Semidei-Otero, of counsel), Albany, for respondents.

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

CASEY, Justice.

Appeal from an order of the Supreme Court (Connor, J.), entered October 25, 1991 in Greene County, which, inter alia, partially granted plaintiffs' motion for summary judgment.

Plaintiffs commenced this action in July 1989 alleging three causes of action: (1) that defendants operated a solid waste management facility in violation of the facility operating requirements contained in 6 NYCRR 360-7.1 and 360-7.10; (2) that defendants violated the closure and postclosure requirements of 6 NYCRR 360-1.14(w) and 360-7.11; and (3) that defendants created a public nuisance. Plaintiffs sought, inter alia, injunctive relief, restitution, damages and civil penalties pursuant to ECL article 71. Defendants' answer contains three affirmative defenses: (1) that the facility was constructed, maintained, operated and closed pursuant to the regulations then in effect and, therefore, is not subject to the new regulations relied upon by plaintiffs; (2) that plaintiffs are estopped from maintaining the action as a

Page 517

result of the conduct of the Department of Environmental Conservation (hereinafter DEC) in approving and overseeing defendants' operation of the facility; and (3) that plaintiffs have engaged in selective and discriminatory enforcement.

This action was commenced after DEC's investigation of complaints of odors revealed high concentrations of hydrogen sulfide emissions from the facility which were causing a variety of health problems. The parties attempted to settle the action by implementing an odor abatement plan pursuant to which defendants constructed a charcoal filter system. The odor problems persisted, however, due to defendants' failure to maintain the system. Plaintiffs ultimately elected to resume prosecution of this action and moved for summary judgment.

[189 A.D.2d 1019] In support of their motion, plaintiffs submitted evidence that defendants were responsible for the emission of untreated hydrogen sulfide gases into the air, which caused upper respiratory ailments and nose and eye irritation in area residents. An affidavit of a DEC senior sanitary engineer also alleges that defendants refused to repair cracks in the clay cap covering the site, refused to provide information regarding their efforts to maintain the charcoal filter system, did not treat or remove leachate found at the site and did not submit the necessary information to obtain DEC approval of a final closure plan. As a result of these and other deficiencies, defendants were alleged to have violated a number of regulations contained in 6 NYCRR 360-1.1 et seq., effective December 31, 1988, which replaced 6 NYCRR former 360.1 et seq.

In opposition to plaintiff's motion, defendants did not deny the substantive allegations regarding the emission of hydrogen sulfide gases, the existence of leachate at the site and other deficiencies. Instead, defendants presented evidence that in April 1988 they contacted Mark Mateunas, a DEC region 4 senior sanitary engineer, regarding the requirements for opening, operating, maintaining and closing a construction and demolition debris landfill (hereinafter referred to as a C & D landfill). According to defendants, Mateunas advised them that a C & D landfill could be operated for a one-year exemption period under the...

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6 practice notes
  • Lee v. Coughlin, No. 93 CIV. 8417(SS).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • October 26, 1998
    ...the requirements of due process were adequately satisfied and DOCS' decision to administratively segregate inmate Blake was upheld. See 189 A.D.2d at 1018, 592 N.Y.S.2d 519. Mr. Selsky's memory regarding Mr. Blake's segregation status points out the interchangeable use of Page 628 confineme......
  • Davies v. S.A. Dunn & Co., 530994, 531613
    • United States
    • New York Supreme Court Appellate Division
    • October 21, 2021
    ...a highly regulated activity as operating a landfill (see ECL 27–0703[2][a][iv] ; 6 NYCRR part 360; see also State of New York v. Ferro, 189 A.D.2d 1018, 1021, 592 N.Y.S.2d 516 [1993] ). "A public nuisance is actionable by a private person only if it is shown that the person suffered sp......
  • Davies v. S.A. Dunn & Co., 2021-05751
    • United States
    • United States State Supreme Court (New York)
    • October 21, 2021
    ...a highly regulated activity as operating a landfill (see ECL 27-0703 [2] [iv]; 6 NYCRR part 360; see also State of New York v Ferro, 189 A.D.2d 1018, 1021 [1993]). "A public nuisance is actionable by a private person only if it is shown that the person suffered special injury beyond th......
  • Jackson's Marina, Inc. v. Jorling, No. 1
    • United States
    • New York Supreme Court — Appellate Division
    • May 6, 1993
    ...(Matter of E.F.S. Ventures Corp. v. Foster, 71 N.Y.2d 359, 369, 526 N.Y.S.2d 56, 520 N.E.2d 1345; see, State of New York v. Ferro, 189 A.D.2d 1018, 1020, 592 N.Y.S.2d 516). Petitioners have also failed to show how they were compromised or prejudiced by an alleged delay in commencement of th......
  • Request a trial to view additional results
6 cases
  • Lee v. Coughlin, No. 93 CIV. 8417(SS).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • October 26, 1998
    ...the requirements of due process were adequately satisfied and DOCS' decision to administratively segregate inmate Blake was upheld. See 189 A.D.2d at 1018, 592 N.Y.S.2d 519. Mr. Selsky's memory regarding Mr. Blake's segregation status points out the interchangeable use of Page 628 confineme......
  • Davies v. S.A. Dunn & Co., 530994, 531613
    • United States
    • New York Supreme Court Appellate Division
    • October 21, 2021
    ...a highly regulated activity as operating a landfill (see ECL 27–0703[2][a][iv] ; 6 NYCRR part 360; see also State of New York v. Ferro, 189 A.D.2d 1018, 1021, 592 N.Y.S.2d 516 [1993] ). "A public nuisance is actionable by a private person only if it is shown that the person suffered sp......
  • Davies v. S.A. Dunn & Co., 2021-05751
    • United States
    • United States State Supreme Court (New York)
    • October 21, 2021
    ...a highly regulated activity as operating a landfill (see ECL 27-0703 [2] [iv]; 6 NYCRR part 360; see also State of New York v Ferro, 189 A.D.2d 1018, 1021 [1993]). "A public nuisance is actionable by a private person only if it is shown that the person suffered special injury beyond th......
  • Jackson's Marina, Inc. v. Jorling, No. 1
    • United States
    • New York Supreme Court — Appellate Division
    • May 6, 1993
    ...(Matter of E.F.S. Ventures Corp. v. Foster, 71 N.Y.2d 359, 369, 526 N.Y.S.2d 56, 520 N.E.2d 1345; see, State of New York v. Ferro, 189 A.D.2d 1018, 1020, 592 N.Y.S.2d 516). Petitioners have also failed to show how they were compromised or prejudiced by an alleged delay in commencement of th......
  • Request a trial to view additional results

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