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Longwood Associates, LLC v. New York State Dep't of Environmental Conservation

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


March 18, 2010

IN RE LONGWOOD ASSOCIATES, LLC, PETITIONER-RESPONDENT,
v.
NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, RESPONDENT-APPELLANT.

Order, Supreme Court, Bronx County (Mary Ann Brigantti- Hughes, J.), entered October 10, 2007, which, insofar as appealed from, in this CPLR article 78 proceeding, reduced the administrative penalty of $250,000, imposed on petitioner for violation of provisions of the Environmental Conservation Law and the Navigation Law arising out of the presence of an unregistered 2,000 gallon petroleum bulk storage tank in the basement of its building, to $100,000, unanimously reversed, on the law, without costs, and the penalty of $250,000 reinstated.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Mazzarelli, J.P., Saxe, Nardelli, Abdus-Salaam, RomÁn, JJ.

6073/07

Supreme Court lacked the authority to modify the administrative penalty since it dismissed the petition as time-barred (see Matter of Van Cortlandt Park Dodge v Commissioner of Dept. of Consumer Affairs of City of N.Y., 178 AD2d 234, 235 [1991]). The reduction of the penalty was also improper because the original penalty did not shock the conscience (see e.g. Matter of Kelly v Safir, 96 NY2d 32, 38 [2001]), particularly where Supreme Court had concluded that it was "very reasonable." Furthermore, although during settlement discussions respondent had offered to reduce the penalty to $100,000, this is not a basis on which to reduce the penalty.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20100318

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