State v. Winkle

179 A.D.3d 1121

119 N.Y.S.3d 185

STATE of New York, et al., Respondents,

v.Ruth WINKLE, et al., Appellants, et al., Defendant.

2016–04395

Index No. 115/07

Supreme Court, Appellate Division, Second Department, New York.

Argued - September 6, 2019

January 29, 2020

Profeta & Eisenstein, New York, N.Y. (Fred R. Profeta, Jr., of counsel), for appellants Ruth Winkle and William Winkle.

Brian S. Nache, Garden City, NY, for appellant Alan Risi.

Letitia James, Attorney General, New York, N.Y. (Anisha S. Dasgupta and Judith N. Vale of counsel), for respondents.

WILLIAM F. MASTRO, J.P., SHERI S. ROMAN, FRANCESCA E. CONNOLLY, ANGELA G. IANNACCI, JJ.

DECISION & ORDER

In a consolidated action, inter alia, for judicial enforcement of an administrative order on consent of the Commissioner of the New York State Department of Environmental Conservation dated January 10, 2005, and to recover civil penalties pursuant to Environmental Conservation Law §§ 71–1107, 71–1127, and 71–2503, the defendants Ruth Winkle and William Winkle appeal, and the defendant Alan Risi separately appeals, from a judgment of the Supreme Court, Queens County (Rudolph E. Greco, Jr., J.), entered February 26, 2016. The judgment, upon an order of the same court dated October 20, 2015, confirming a Referee's report dated April 8, 2015, made after a hearing, is in favor of the plaintiffs and against the defendants William Winkle and Alan Risi.

ORDERED that the appeal by the defendant Ruth Winkle is dismissed, as that defendant is not aggrieved by the judgment (see CPLR 5511 ); and it is further,

ORDERED that the judgment is modified, on the facts and in the exercise of discretion, by (1) reducing the amount of the civil penalty imposed upon the defendant William Winkle from the principal sum of $500,000 to the principal sum of $95,000, and (2) deleting the provision thereof directing William Winkle "to restore 154–45 Riverside Drive to its pre-violation condition by" undertaking certain actions; as so modified, the judgment is affirmed on the appeals by the defendants William Winkle and Alan Risi, and the matter is remitted to the Supreme Court, Queens County, for a new determination of the remediation actions necessary for William Winkle to perform consistent with current regulations; and it is further,

ORDERED that one bill of costs is awarded to the plaintiffs payable by the defendant Alan Risi.

The defendants are neighbors who live along a stretch of the East River waterfront that is regulated by the plaintiff New York State Department of Environmental Conservation (hereinafter the DEC). Sometime between 1996 and 1998, the defendant Alan Risi dumped fill and installed a revetment to reinforce and extend his back yard 60 feet farther than his DEC-issued permit allowed. The DEC commenced an administrative enforcement proceeding against Risi and his wife, alleging that the work disturbed regulated tidal wetlands and tidal wetland adjacent areas as well as regulated navigable waters. The DEC ultimately determined that the work violated the Tidal Wetlands Act ( ECL 25–0101 et seq. ) and the Water Resources Law ( ECL 15–0101 et seq. ), imposed a civil penalty, and ordered that Risi and his wife remediate their shoreline. Risi and his wife thereafter commenced a proceeding pursuant to CPLR article 78 in the Supreme Court, Queens County (hereinafter the Risi proceeding), challenging that administrative determination. The court dismissed the petition and awarded the DEC summary judgment on its counterclaim to enforce the administrative order.

This consolidated action addresses violations of the Tidal Wetlands Act and the Water Resources Law that Risi's work caused on his neighbors' parcels to his west and to his east. As to the parcel to the west of Risi's parcel, Risi admitted during the administrative enforcement proceeding against him that he also dumped fill and constructed a revetment along the curved shoreline located on real property owned at the time by the defendant Kathleen Sellars (hereinafter Sellars) without a DEC permit. The DEC, its Commissioner, and the State of New York (hereinafter the plaintiffs) commenced an action in the Supreme Court, Queens County, against Sellars (hereinafter the Sellars action), and after conducting some discovery, joined Risi as a defendant. The operative pleading in the Sellars action sought, among other things, to impose a civil penalty upon Risi and Sellars for violations of the Tidal Wetlands Act and Water Resources Law.

As to the parcel to the east of Risi's parcel, the DEC commenced an administrative proceeding against the defendants Ruth Winkle and William Winkle for violations of the Tidal Wetlands Act and Water Resources Law arising from the presence of unpermitted fill and a revetment along their shoreline. William Winkle, in his testimony at the hearing in this matter, denied personal involvement in the illegal construction, explaining that his elderly mother, Ruth Winkle, permitted Risi to perform the work after Risi falsely claimed that his permit allowed it. William Winkle entered into an administrative order on consent with the DEC dated January 10, 2005, in which he "allege[d] that he was not personally involved," but "accept[ed] responsibility for the placement of fill" and "construction of [the] revetment," among other things. William Winkle agreed to pay a $110,000 civil penalty, with $95,000 suspended on condition that he comply with the consent order. He also agreed to "restore" the property "by removing all fill and structures from the tidal wetland area" in conformance with an attached map. Critically, the consent order required William Winkle to submit a proposed engineering plan depicting the remediation within 60 days, which the DEC would then revise or approve at its discretion. The consent order further provided that, in the event the DEC were to conclude that William Winkle violated the consent order, the DEC reserved the right to "initiate action based upon the violation(s) ... and also to seek penalties for such additional violation(s), including continued violations, that occur after the date" of the consent order. Instead of submitting the engineering plan described in the consent order, William Winkle sent a letter from an engineer opining that removal of the fill and revetment would endanger the dwelling and other structures on the property. The plaintiffs commenced an action against William Winkle and Ruth Winkle (hereinafter the Winkle action) by summons and complaint dated January 2, 2007, alleging that they violated the consent order and were therefore liable under the Tidal Wetlands Act and Water Resources Law for payment of the suspended portion of the administrative penalty and additional civil penalties for the continued presence of the illegal improvements on their property. The plaintiffs also sought equitable relief in the form of an order directing compliance with the consent order along substantially the same procedure described therein.

By notice of motion dated June 7, 2010, the plaintiffs moved to consolidate the Winkle action, the Sellars action, and the Risi proceeding for the purposes of conducting a hearing, and for summary judgment in the Winkle action and the Sellars action. In an order dated May 18, 2011, the Supreme Court granted that branch of the motion which sought consolidation, but denied those branches of the motion which were for summary judgment. By notice of motion dated February 1, 2013, the plaintiffs moved to consolidate the Winkle action, the Sellars action, and the Risi proceeding for all purposes, renewed their motion for summary judgment on the issue of William Winkle's liability, and moved for summary judgment on the issue of Risi's liability in the Sellars action. In an order dated July 1, 2013, the court denied consolidation with respect to the Risi proceeding and instead severed it, explaining that the Risi proceeding had by then come to a final judgment in the plaintiffs' favor. The court then consolidated the Winkle action and the Sellars action for all purposes and denied the plaintiffs' renewed motion for summary judgment on the issue of William Winkle's liability. The court, however, granted summary judgment on the issue of Risi's liability. Sellars thereafter settled with the plaintiffs, and the remaining parties stipulated to the severance of Ruth Winkle from the consolidated action.

The Supreme Court referred this matter to a Referee to hear and report pursuant to CPLR 4320 on the outstanding issues of fact. After that hearing, the Referee issued a report in which she found that William Winkle violated the consent order, in effect, recommended imposing a $500,000 civil penalty upon him in addition to the sum still due under the consent order, and, in effect, recommended imposing a $650,000 civil penalty upon Risi. The Referee also, in effect, recommended that William Winkle be directed to restore his property "back to its pre-violation condition forthwith." By order dated October 20, 2015, the court confirmed the Referee's report. The court subsequently issued a judgment entered February 26, 2016. William Winkle, Ruth Winkle, and Risi appeal.

Risi's contention that the Supreme Court lacked the authority to impose a civil penalty upon him in this consolidated action is without merit. "Any person" who violates the Tidal Wetlands Act "shall be liable ... for a civil penalty" ( ECL 71–2503[1][a] ). The Water Resources Law likewise provides that "[a]ny person" who violates its provisions "shall be liable for a civil penalty" ( ECL 71–1127[1] ; see ECL 71–1107[1] ). Here, during the administrative enforcement proceeding against Risi and his wife, Risi testified that he placed fill and constructed the...