State v. Rock
| Decision Date | 02 May 1990 |
| Citation | 555 N.Y.S.2d 584,147 Misc.2d 231 |
| Parties | STATE of New York and Thomas C. Jorling, Commissioner of the New York State Department of Environmental Conservation, Plaintiffs, v. John ROCK and Ross C. Rock, (Milton) Defendants. STATE of New York and Thomas C. Jorling, Commissioner of the New York State Department of Environmental Conservation, Plaintiffs, v. John ROCK and Clean Fill, Inc., (Corinth) Defendants. |
| Court | New York Supreme Court |
Robert Abrams, Atty. Gen. (Helene G. Goldberger, Asst. Atty. Gen., of counsel), for plaintiffs.
Zarrillo and Zappacosta (Jack J. Zappacosta, of counsel), for defendant John Rock.
William V. Canale, for defendant Ross C. Rock.
The plaintiffs have moved for an order punishing the defendants for civil and criminal contempt of court, permitting the state and its agents to enter dump sites at issue without notice, and at any reasonable time for the purpose of allowing the state to fulfill its responsibilities under state law and granting it related relief. Defendant John Rock opposes the motion for a contempt order. Defendant Ross Rock opposes the motion for contempt, and cross-moves for an order permitting "reconsideration" of the Court's order, signed on June 27, 1989, and entered on July 5, 1989, finding Ross Rock liable.
On November 11, 1988, local news media carried reports of a fire burning at a dump site in the town of Milton, county of Saratoga. The burning dump, and a similar dump located in the town of Corinth have been and continue to be the sources of litigation. The Corinth dump is owned by John Rock. The Milton dump is owned by defendant Ross Rock. According to Ross Rock, his son, John Rock, owed him a substantial sum of money. As payment, John conveyed the Milton land to his father, but retained a lease interest in the land without a right of re-entry on the premises by Ross Rock. According to the elder Rock, his son thereafter commenced his "activities" on the land without his knowledge. The activity performed on the Milton and Corinth dumps was the business of the receipt of commercial waste products in exchange for monetary consideration. Apparently after receiving complaints by Milton neighbors, H. Gerry Beres of the state's Department of Environmental Conservation sent Ross Rock a letter, dated February 6, 1985, stating that an inspection of the dump revealed certain violations of 6 NYCRR Part 360 had occurred on the Milton property. The letter explained the need to apply for a permit for a waste disposal site which is to be operated for a period in excess of one year. In February of 1985, Beres sent Ross Rock an application for approval of a solid waste management facility. On June 9, 1987, Beres sent Ross Rock a letter stating that the facility, which had not been the subject of an application for approval, must be closed. Landlord Rock claims to have had no knowledge of the activities as described in the letters, apparently turning them over to his son without reading them. In October of 1988, the plaintiffs commenced this action against the defendants, alleging violations of the Environmental Conservation Law by the unlicensed operation of the Milton and Corinth waste facilities. A single attorney was retained to defend the action by all defendants. According to Ross Rock, the attorney was retained by his son, who took the only active part in defense of the action. Following a successful motion by the plaintiffs, this Court found that a public nuisance had been created at both dumps. A copy of the resulting judgment was served on the defendants' attorney. Ross Rock, because of his peripheral participation in the defense of the action, denies receipt of a copy of the judgment or an explanation as to what exactly was required of him pursuant to the judgment. The plaintiffs now move for a contempt order, and other forms of relief, against all defendants. Defendant Ross Rock, on a variety of grounds, moves for reconsideration of the judgment as it affects him.
Initially, the Court observes that, though characterized as a motion to reconsider, because new facts are alleged, not purported errors of law, it may more accurately be described as a motion to renew. (Estrow v. Wilson, 30 A.D.2d 646, 291 N.Y.S.2d 46). Because it is a motion to renew, it is timely, though approximately nine months elapsed between entry of the judgment and this motion. (Prude v. Erie County, 47 A.D.2d 111, 364 N.Y.S.2d 643).
In support of his motion to renew, Ross Rock contends that, as a mere lessor of land without a right of re-entry, and without knowledge of his son's use of the land, he had no responsibility for any illegal activities. As an additional ground, Ross Rock contends that he was prejudiced by his attorney's conflict of interest in representing all defendants. Neither ground posited is of sufficient merit to support a renewal and annulment of its previous judgment as it affects Ross Rock.
Addressing his purported lack of responsibility for the actions of his son, the elder Rock contends that neither 6 NYCRR Part 360, nor case law cited by the plaintiffs establishes a landlord's liability for the unknown acts of a lessee. However, the linchpin of this position, a lack of knowledge of the lessee's activities, is not credible. Letters were sent to Ross Rock which informed him that a waste facility had been created on his land, that a permit was needed, that violations of state regulations had been committed, that no permit had been obtained, and that the facility had to be closed. Taken together, the letters sufficiently apprised Ross Rock of the unpermitted activities being conducted on his land. A mere denial by Ross Rock that he read the letters addressed to him is not...
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