Matter of Longwood Assoc., LLC v New York State Dept. of Envtl. Conservation

Matter of Longwood Assoc., LLC v New York State Dept. of Envtl. Conservation 2010 NY Slip Op 02070 [71 AD3d 534] March 18, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, April 28, 2010

In the Matter of Longwood Associates, LLC, Respondent,
v
New York State Department of Environmental Conservation, Appellant.

—[*1] Andrew M. Cuomo, Attorney General, New York (Janice A. Dean of counsel), for appellant.

Rothkrug Rothkrug & Spector, LLP, Great Neck (Simon H. Rothkrug of counsel), for respondent.

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.

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.