| Lake George Park Commn. v Salvador |
| 2010 NY Slip Op 02896 [72 AD3d 1245] |
| April 8, 2010 |
| Appellate Division, Third Department |
| Lake George Park Commission, Respondent, v John Salvador, Jr.,et al., Individually and Doing Business as Dunham's Bay Boat and Beach Club and as Dunham'sBay Lodge, et al., Appellants. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Lawrence A. Rappoport of counsel), forrespondent.
Lahtinen, J. Appeals (1) from an order of the Supreme Court (Aulisi, J.), entered November25, 2008 in Warren County, which assessed civil penalties against defendants upon a prior orderof said court, and (2) from the judgment entered thereon.
Defendants John Salvador, Jr. and Kathleen Salvador own real property on the shore of LakeGeorge that they lease to their wholly owned corporation (defendant Dunham's ResortCorporation), which operates a marina (Dunham's Bay Boat and Beach Club). In the summer of2003, defendants constructed a floating structure (approximately 76 feet by 8 feet) that theyaffixed to their permanent docks and used as boat berths for members of the marina. Thefollowing spring, defendants added another such structure. Plaintiff notified defendants in earlyJune 2004 that it considered the structures to be docks, that a permit was required before addingdocks on the lake, and that they must remove the floating docks. Defendants responded bycontending that the structures were not docks, but were boats or vessels and they refused toremove them.[*2]
Plaintiff commenced this action in June 2004 seekinginjunctive relief and civil penalties. By order dated April 15, 2005 (and entered May 9, 2005),Supreme Court granted plaintiff's motion for summary judgment determining that the structureswere docks. The court ordered defendants "to remove immediately their floating docks fromLake George." Defendants did not remove the two docks from the lake and its navigabletributaries (see 6 NYCRR 645-2.1 [cd]) and, in fact, added a third floating dock in lateMay 2005. Following a hearing on the issue of civil penalties as directed in the order entered inMay 2005, Supreme Court did not impose any penalty for the period prior to the April 15, 2005date of its decision or 10 days thereafter to afford ample time for defendants to have receivednotice of the decision. However, it imposed a penalty of $500 for each of the three violations andthe maximum daily penalty of $500 per day for the period April 25, 2005 to October 14, 2005for each of the two existing docks and May 31, 2005 to October 14, 2005 for the added thirddock, resulting in total civil penalties of $241,500. Defendants appeal.[FN*]
Initially, we find that, contrary to plaintiff's contention, defendants' appeal from the finaljudgment brings up for review issues implicated in Supreme Court's order entered in May 2005.That order, among other things, expressly contemplated further nonministerial proceedings todetermine civil penalties. It was thus nonfinal and reviewable in the appeal from the subsequentfinal judgment (see CPLR 5501 [a] [1]; Burke v Crosson, 85 NY2d 10, 15[1995]; Rybicki v Beltrone Constr. Co./McManus, Longe, Brockwehl, 199 AD2d 706,707 [1993]).
We are unpersuaded, however, that Supreme Court erred in determining that the disputedstructures were docks and not boats or vessels. The ECL and plaintiff's regulations prohibit theconstruction of a dock or wharf without a permit (see ECL 43-0117 [4]; 6 NYCRR646-1.1 [a] [1]). A wharf is defined as "any structure or device built or used as a berthing placefor vessels" (6 NYCRR 645-2.1 [cf]) and docks are defined as "a wharf or portion of a wharfextending from or along the lakefront" (6 NYCRR 645-2.1 [p]). Plaintiff submitted affidavitsestablishing, and photographs clearly depicting, that the disputed structures were docks beingused to berth boats. Plaintiff's position regarding the structures was consistent with theregulatory language as well as common understanding of what constitutes a dock. No substantialfactual issues requiring a trial were set forth by defendants and thus summary judgment wasproperly granted.
Defendants contend that the penalties should have been limited to the corporate defendantand not extended to the individual defendants. This argument was not raised before SupremeCourt and, accordingly, was not properly preserved for our review (see State of New York v Williamson, 8AD3d 925, 929 [2004]). In any event, the individual defendants, among other things, werethe sole owners and officers of the corporation, they were personally involved in the constructionand installation of the floating docks, and they had commenced several proceedings in theirindividual names challenging plaintiff's various actions as to the marina. [*3]This record supports assessing penalties against all defendants(see ECL 71-3303 [1]; see generally Matter of Colella v New York State Dept. ofEnvtl. Conservation, 196 AD2d 162, 169 [1994]; Matter of Jackson's Marina vJorling, 193 AD2d 863, 866 [1993]).
Next, we find unavailing defendants' argument that reversal is required because plaintiff didnot comply with conditions set forth in ECL 71-3305 (3) when seeking a penalty in excess of$5,000. Under ECL 71-3303 (1), a civil penalty can be assessed by either "[plaintiff] after anopportunity to be heard, or by the court in any action or proceeding initiated by the [A]ttorney[G]eneral in the name of [plaintiff]." Where plaintiff seeks to assess a penalty in anadministrative proceeding, the procedures of ECL 71-3305 (3) and, concomitantly, ECL 71-1709apply. However, where, as here, an action is commenced by the Attorney General in SupremeCourt, the procedures of ECL 71-3305 (3) do not apply. Nor is there any statutory requirementthat plaintiff pursue an administrative proceeding before an action may be commenced in court.
Turning to the issue of the amount of the civil penalty imposed, "a court has broad discretionin choosing the amount of such a penalty so long as the court explains its choice and it is notdisproportionate to the offense" (Tatta vState of New York, 20 AD3d 825, 826 [2005], lv denied 5 NY3d 716 [2005];see Matter of People v Applied CardSys., Inc., 41 AD3d 4, 10 [2007], affd 11 NY3d 105 [2008], cert denied subnom. Cross Country Bank, Inc. v New York, 555 US —, 129 S Ct 999 [2009]).Although Supreme Court noted its skepticism regarding the sincerity and reasonableness ofdefendants' position that the floating docks were vessels not subject to plaintiff's regulation, itnevertheless assessed no penalty for the lengthy period of time prior to its April 2005 ruling onthat issue, during which defendants made use of two of the floating docks. The court alsoassessed no penalty during the 10 days after its ruling to ensure adequate notice and opportunityto act in compliance therewith. However, thereafter defendants not only continued to keep thetwo floating docks in the lake and its navigable tributaries, but also added a third floating dock.While the amount of the penalty imposed was significant, it was considerably less thanauthorized by statute (see ECL 71-3303 [1]) and, under the circumstances, fell withinSupreme Court's discretion.
We have considered the remaining issues asserted by defendants and find them unavailing.
Cardona, P.J., Malone Jr., Stein and Garry, JJ., concur. Ordered that the order and judgmentare affirmed, without costs.
Footnote *: We have, as requested bydefendants, taken judicial notice of and considered the record in Lake George Park Commn.v Salvador (72 AD3d 1219 [2010] [decided herewith]), which involves the same parties andanother enforcement action (seegenerally Oakes v Muka, 56 AD3d 1057, 1059 [2008]; Edgewater Constr. Co., Inc. v 81 & 3 ofWatertown, Inc., 24 AD3d 1229, 1231 [2005]).