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NEW YORK STATE

COURT OF APPEALS


BATH PETROLEUM STORAGE INC. and E.I.L. PETROLEUM, INC.,

Petitioners - Appellants,

-against-

THE NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, and JOHN P. CAHILL, COMMISSIONER OF THE NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION,

Respondents - Respondents.


POST-SUBMISSION MEMORANDUM TO CORRECT THE RECORD BEFORE THE COURT OF APPEALS

John J. Privitera
McNamee, Lochner, Titus & Williams P.C. 75 State Street - P.O. Box 459
Albany, New York 12201-0459
(518) 447-3200
Jerry William Boykin
Womble, Carlyle, Sandridge & Rice
6862 Elm Street, Suite 800
McLean, Virginia 22101
(703) 790-3310


PRELIMINARY STATEMENT

Petitioners-Appellants' recognize and respect the bar against filing reply papers set forth in this Court's rules at 22 N.Y.C.R.R. § 500.11. However, Respondents' opposition brief contains several blatant misrepresentations that, if relied upon by this Court, may improperly prejudice its determination regarding the instant request for leave to appeal. Under these egregious circumstances, BPSI respectfully submits the following, point-by-point correction of the offending portions of Respondents' brief in opposition.

ARGUMENT

1. At page 3 of their brief in opposition, the DEC alleges that BPSI "failed to submit a completed Environmental Assessment Form ('EAF') and an engineering report." However, Livingston County Supreme Court expressly found that BPSI's engineering report "was actually submitted [to the DEC] on August 11, 1999." See Livingston County Supreme Court's Decision, p. 7-8, Ex. 2 to Petitioners-Appellants' Motion for Leave to Appeal with Memorandum in Support. Moreover, Livingston County Supreme Court found that "BPSI had submitted an Environmental Assessment Form (EAF) as part of their supplemental material . . ." See id., p.8. Both the engineering report, and the EAF are in the record supplied to this Court in support of the instant motion
2. At page 4 of Respondents' brief in opposition, the DEC alleges that "[A]dministrative review within the agency, and subsequent judicial review of that determination for rationality under CPLR Article 78, is of course available, as was the case here." As a matter of law, however, there is no "administrative review within the agency" other than the adjudicatory processes that BPSI requested and the DEC denied - the very processes at issue in this litigation. See 6 N.Y.C.R.R. § 622, et seq. Moreover, New York State's has maintained unequivocally throughout this proceeding that no hearing is available to BPSI. See Respondents' Brief in Support of Appeal, p. 34, Ex. 5 to Petitioners-Appellants' Motion for Leave to Appeal with Memorandum in Support
3. At footnote one of their opposition brief; the DEC ironically implies that BPSI made false representations to the trial court regarding its plans to expand their facility operations. This statement is disingenuous and ignores the parties' agreement, made before an Administrative Law Judge, to stay the Article 23 permit appeal pending a decision by the United States District Court on BPSI's claim that the DEC had violated its constitutional rights by the failure to process the Article 23 application. Once the District Court chose to abstain from deciding this issue, BPSI reactivated its administrative appeal.
22 N.Y.C.R.R. § 130-1.1 provides, in pertinent part, that "by signing a paper, an attorney certifies that, to the best of that person's knowledge, information and belief, formed after an inquiry reasonable under the circumstances, the presentation of the paper or the contention therein are not frivolous." In the instant matter, the State of New York has recklessly provided this Court with material misstatements of fact and law, in violation of Rule 130-1.1.
Date: November 19, 2002
Albany, New York


Respectfully submitted,

MCNAMEE, LOCHNER, TITUS & WILLIAMS, P.C.

By: ________________________
John J. Privitera, Esq.
William A. Hurst, Esq.
Attorneys for Petitioners-Appellants
E.I.L. Petroleum, Inc. and
Bath Petroleum Storage Inc.
75 State Street - P.O. Box 459
Albany, New York 12201-0459
(518) 447-3200

 

WOMBLE CARLYLE SANDRIDGE & RICE
A Professional Limited Liability Company

By: _________________________
Jerry William Boykin, Esq.
W. Michael Holm, Esq.
Attorneys for Petitioners-Appellants
E.I.L. Petroleum, Inc. and
Bath Petroleum Storage Inc.
6862 Elm Street, Suite 800
McLean, VA 22101
703-790-3310

CERTIFICATE OF SERVICE

Three true and correct copies of the foregoing Memorandum in Reply to Opposition of Respondents' Motion for Leave to Appeal were sent by first class mail on November 19, 2002, to:

Joseph Koczaja
Assistant Attorney General
New York State Department of Law
The Capitol
Albany, New York 12224

 

 

_______________________
John J. Privitera

 

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