Vincent v. N.Y. State Dep't of Envtl. Conservation, 3792/10

• Decision Date: 13 January 2011
• Docket Number: 3792/10
• Citation: 2011 NY Slip Op 52568 (U)
• Parties: Janet Vincent, Petitioner, v. New York State Department of Environmental Conservation, Respondent.
• Court: New York Supreme Court

2011 NY Slip Op 52568(U)

Janet Vincent, Petitioner,
v.
New York State Department
of Environmental Conservation, Respondent.

3792/10

Supreme Court, Suffolk County

Decided on January 13, 2011

PLTF'S/PET'S ATTY:

DONIGER & ENGSTRAND, LLP

By: D. Daniel Engstrand, Jr. Esq.

12 Bayview Avenue

Northport, New York 11768

DEFT'S RESP'S ATTY:

N.Y.S. DEPARTMENT OF ENVIRONMENTAL CONSERVATION

Division of Fish , Wildlife & Marine Resources

Bureau of Marine Resources

205 North Belle Mead Road/ Suite 1

East Setauket, New York 11733

Office of the Attorney General of the State of New York

300 Motor Parkway/Suite 205

Hauppauge, New York 11788

Arthur G. Pitts, J.

Upon the following papers numbered 1 to 29 read on this motionarticle 78

Notice of Motion and supporting papers1-15; Notice of Cross-Motion and supporting papers___________ _________

Affirmation/affidavit in opposition and supporting papers 16-19; Affirmation/affidavit in reply and supporting papers 20-23 24-26/27-28; Other29; (and after hearing counsel in support of and opposed to the motion) it is,

ORDERED that the petitioner Janet Vincent's motion, pursuant to CPLR Article 78, for a judgment vacating, reversing and annulling the decision of respondent New York State Department of Environmental Conservation dated November 30, 2009 which denied her application allowing for the transfer and re-issuance of Raoul Vincent's commercial summer flounder permit to her, on the grounds that said determination was arbitrary, capricious, an abuse of discretion and made by error of law, is denied under the circumstances presented herein.

Raoul Vincent was the holder of a summer flounder commercial harvesters permit as well as a commercial lobster permit, both of which were issued by the respondent New York State Department of Environmental Conservation. ( "DEC") Vincent died on August 31, 2008. Prior thereto, on August 23, 2007 Vincent executed a written statement requesting that upon his death, his lobster permit be transferred to his daughter Monique Palino. However, in said statement no reference was made regarding a transfer of his commercial summer flounder permit. Upon his death the respondent transferred the commercial lobster permit to Monique Palino but refused to grant the transfer of the commercial summer flounder permit.

Letters of Testamentary were issued to petitioner Janet Vincent as to the Estate of Raoul Vincent on December 17, 2008. By letter to the respondent dated October 7, 2009 the petitioner, as executrix of the estate, sought the transfer of the commercial summer flounder permit to her, referring to the residuary clause of the decedent's Last Will and Testament which provided as follows:

All the rest, residue and remainder of my property and estate, both real and personal, of every kind and description, in whatsoever, and wheresoever the same be or be situate, in this State and County, or in any other, and whether in possession or expectancy, thatI may die seized or possessed of, or in any way entitled to at the time of my death, I give, devise and bequeath unto my beloved wife, JANET LOIS VINCENT, absolutely and forever.

By letter dated November 30, 2009 the petitioner's request was denied. In denying

Page 2

the request the respondent cited Environmental Conservation Law section 13-0328 which specifically restricts the issuance of non-transferable commercial fishing licenses to individuals only, said permits expire on December 31st of the year of issuance or upon the death of the individual license holder....