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Longwood Associates, LLC v. New York State Department of Environmental Conservation

71 A.D.3d 534 Court N.Y. App. Div. Decision date 2010-03-18 English

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p. 534
In the Matter of Longwood Associates, LLC, Respondent, v New York State Department of Environmental Conservation, Appellant.
[897 NYS2d 72]

Order, Supreme Court, Bronx County (Mary Ann Brigantti

p. 535
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.

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. Concur — Mazzarelli, J.P., Saxe, Nardelli, Abdus-Salaam and Román, JJ.

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