Appendix — Salvador v. Lake George Park Commission
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Supreme Court, U
PILED
10-978 JAN24 7011
OFFICE OF THE CLERK
IN THE
Supreme Court of the United States
—
JOHN SALVADOR, JR. and
KATHLEEN A. SALVADOR,
Petitioners,
v.
THE LAKE GEORGE PARK COMMISSION; e aL,
Respondents.
and another action
JOHN SALVADOR, JR. and
KATHLEEN A. SALVADOR,
Petitioners,
vz.
THE LAKE GEORGE PARK COMMISSION; et aL,
Respondents.
PETITION FOR A WRIT OF CERTIORARI TO THE
NEW YORK STATE COURT OF APPEALS
APPENDIX
MADELINE SHEILA GALVIN
Counsel of Record
c/o Galvin and Morgan
217 Delaware Avenue
Delmar, New York 12054
(518) 439-7734
Attorneys for Petitioners
ee I RS ne
a
APPENDIX
Decisions in These Cases
Index #37573
Appellate Case # 506034
New York State Court of Appeals
Uetooer 26. DOT kok soc neck en cebancs
State of New York Supreme Court
Appellate Division, Third Department
Decision and Order on Motion
Decided and Entered: June 28, 2010.......
State of New York Supreme Court
Appellate Division, Third Department
Notice of Entry April 9, 2010.......
State of New York Supreme Court
Appellate Division, Third Department
Memorandum and Order
Decided and Entered: April 8, 2010.....
State of New York Supreme Court
Appellate Division, Third Department
Notice of Entry February 18, 2009....
State of New York Supreme Court
Appellate Division, Third Department
Decision and Order on Motion
Decided and Entered: February 17, 2009..
State of New York Supreme Court
County of Warren Index # 37573
Notice of Entry December 15, 2008. ..
State of New York Supreme Court
County of Warren Index # 37573
Judgment Entered December 4, 2008 .
State of New York Supreme Court
-—~
——
18
-—
County of Warren Index # 37573
Decision and Order October 10, 2008.......... 22
State of New York Supreme Court
Warren County Index # 37573
Decision July 19, 2004 ........... Rata ee ee
Warren County Index #45591
Appellate Case # 507817
New York State Court of Appeals
RSOUOUE EO ik sp he os ee ees ene ee
State of New York Supreme Court
Appellate Division, Third Department
Decision and Order on Motion
Decided and Entered: June 28, 2010...... Ol
State of New York Supreme Court
Appellate Division, Third Department
Notice of Entry April 9, 2010.................83
State of New York Supreme Court
Appellate Division, Third Department
Memorandum and Order
Decided and Entered: April 8, 2010........... 3
State of New York Supreme Court
Appellate Division, Third Department
Notice of Entry February 18, 2009............14
State of New York Supreme Court
Appellate Division, Third Department
Decision and Order on Motion
Decided and Entered: February 17, 2009.......46
State of New York Supreme Court
County of Warren Index # 37573
Notice of Entry December 15, 2008...........47
State of New York Supreme Court
a
County of Warren Index # 37573
a 7, ee ae cate A
Judgement munteread Vecember 4, ZU
State of New York Supreme Court
rf % py
County of Warren Index # 37573
iT)
Decision and Order October 10, 2008
Excerpts from Records Below
RECORD-APPENDIX
Record #37573, Michael White Testin
at 4709-4711, Exhibit-39
37573, 4690-4693, Exhibit 39
Record #37573, 4697-4701, Exhibit-39
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voor adil all a ms r\< pos i oy Or
oivtsd, 4/02-4; )4. Exhibit- Py, {
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IN ro/o/d, vOnN pbalvador JT
Current Official Compilation of Codes,
Rules, and Regulations of the State of
New York Title 6: Department of
Environmental Conservation . .
Subpart 646.
Substantive Regulations
Subpart 646.1
Docks, Wharfs, Moorin
Subpart 646.12
Docks, Wharfs, Moor
Subpart 646-1.4
Docks, Wharfs, Mo
Subpart 646-1.5
Docks, Wharfs, Moo
Subpart 646-1.6
Docks, Wharfs, Moorin
Subpart 646-1,7
Docks, Wharfs, Moorings and Mari
New York State Law
Environmental Conservation Law
Amendment 5
14th Amendment
Federal Statutes
Oaths of Justices and Judges
28 U.S.C. § 1257.
State ocadaes Certiorari.
Resolution No. 98-69.
Marina Permit
Marina Permit DEC
Permit #50-81-0071 MA
Commission Reports and Contracts
June 24, 1988, Commission Official Doc!
“ee port Contract
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TQ JUGAL LIE VU d
LAKE GEORGE PARK COMMISSION
Re IST po ynde nt.
DECISION :
ORDER ON
MOTION
JOHN SALVADOR JR. et al., Individually and as
i aan Ss. Officers and Manage rs of DU NHAM’S
RESORT CORPORATION, doing Business as
DU NHAM’S BAY LODGE, INC. and/or
DU NH: AM’S BAY BOAT and BEACH CLUB, INC
+
=
N n oO
A a | y f ~ —_ > 7) 1 + + TIT * | y
Motion for relief from judgment or orde
} ’ T > - Ir i
under CPLR 5015 or, in the alternative, for
hin ome . ae 7
permission to appeal to the Court of Appeals
| ntyn yane filed in CwuNNoTT oF} rn
Uy rs fi
we }
n n and the papers filed in opposition theret
ORDERED that the motion 1s denied
.
Tee nee
Wwitnout costs
CARDONA, P.J., LAHTINEN, MALONE JR
STEIN and GARRY, Jd
ncur
HN RR
bud
SUPREME COURT OF THE STATE OF NEW
YORK
APPELLATE DIVISION: THIRD DEPARTMENT
LAKE GEORGE PARK COMMISSION,
NOTICE OF ENTRY
Case No. 506034
Warren County
-against- Index No. 37572
JOHN SALVADOR, JR., et al., Individually and as
the Owners, Officers and Managers of DUNHAM’S
RESORT CORPORATION.,doing business as
DUNHAM’S BAY LODGE, INC., and/or
DUNHAM’S BAY BOAT and BEACH CLUB, INC
et al..
|
ties
haul A
PLEASE TAKE NOTICE that the Memoran
and Order of the State of New York Supreme
Court, Appellate Division, Third Judicial
Department in the above captioned appeal, a copy
of which is attached hereto, was entered on April 8
2010
Dated: April 9, 2010
To: Madeline Sheila Galvin
Galvin and Morgan
217 Delaware Avenue
Delmar. New York 12054
Attorney General of th
a
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C4 4 ¢ va N — Yi ™ 5
State of the New York
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a | \y’Y + Os ; Ds ad ry | T\s nr
\ torney ior the Le Sh Lj
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y Law Te ( 1. LLAP if
“ bl
State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered:
April 8, 2010
LAKE GEORGE
» PARK COMMISSION,
206034
MEMORANDUM
AND ORDER
JOHN SALVADOR, JR., et al., Individually and as
the Owners, Officers and Managers of DUNHAM’S
RESORT CORPORATION, doing Business as
DUNHAM’S BAY LODGE, INC. and/or
DUNHAM'’S BAY BOAT and BEACH CLUB, INC.,
et al.,
es | ee
Ay VPeuants
Calendar Date:
February 18, 2010
Before: Cardona. PJ..Lahtinen, Malone Jr.. Stein
and Garry, JJ.
Galvin and Morgan, Delmar
(Madeline Sheila Galvin of Counsel), for
Appellants
Andrew M. Cuomo, Attorney General, Albany
(Lawrence A. Rappoport of Counse]), for
Respondent.
Lahtinen, J.
Appeals (1) from an order of the Supreme
Court (Aulisi, J.) entered November 26, 2008 in
Warren County, which assessed civil penalties
against defendants upon a prior order of said court,
and (2) from the judgment entered thereon.
Defendants have owned and operated a
marina on Lake George in the Town of Queensbury,
Warren County for many years.! The marina had
been operated under a 1982 permit issued by the
Department of Environmental] Conservation
(hereinafter DEC). When governmental oversight of
marinas on Lake George was transferred from DEC
to plaintiff in the late 1980's, a series of
disagreements between defendants and plaintiffs
ensued. In earlier appeals, we upheld plaintiffs
eeneral regulatory authority (Matter of Salvador v.
State of New York, 205 AD2d 194 {1994], appeal
dismissed 85 NY2d 857 [1995], lv denied 85 NY2d
[1995] ), as well as specific regulations and fees as
applied to defendants’ marina including, as
currently relevant, that a permit was required
before extending their docks by six feet (Lake
George Park Commn. v. Salvador, 245 AD2d 605
Defendant Wiliam Robinson, individually and doing
business as Lakeside Boat Rentals, is not an owner of the
marina and the claims against him were severed by the
Supreme Court in February 2007.
CO
[1997], lv dismissed and denied 91 NY2d 939
[1998]).
Although plaintiff had obtained regulatory
oversight by 1988, it did not require defendants to
apply for a new marina permit until 1996.
Discussions regarding the marina permit were
ongoing for well over a year, with defendants
seeking to include the six-foot extensions they had
made to their docks without a permit and add
rentals of personal watercraft (commonly known as
a jet ski). When plaintiff did not agree to these
uses, defendants withdrew their permit application
in September 1998 and took the position that they
would simply continue to operate their marina
under the 1982 DEC permit. Defendants refused to
remove the extended docks, entered into an
agreement allowing defendant William Robinson to
run a personal watercraft rental business at the
marina, and began construction of a boat ramp
without obtaining a permit from plaintiff despite
being repeatedly notified by plaintiff of the
necessity of a permit.
Plaintiff commenced this action in December
1998 and, after subsequent amendment, sought to
compel defendants to apply for a permit to operate
the marina, direct defendants to remove the six-
foot dock extensions, prevent defendants from
allowing personal watercraft rentals without a
permit, enjoin construction of the boat ramp, assess
civil penalties and require defendants to pay
various regulatory fees. There were delays 1n the
action caused by a federal action commenced by
Defendants against plaintiff. However, in a
decision dated July 21, 2004, Supreme Court
denied defendants’ motion to dismiss and granted
plaintiff summary judgment. The Court, among
other things, reinstated defendants’ application for
a marina permit, directed that the six-foot dock
extensions be removed, enjoined rental of personal
watercraft at the marina, enjoined construction of
the boat ramp and stated that a civil penalty
hearing would be conducted.
The penalty hearing was eventually
conducted and, by decision and order entered in
November 2008, Supreme Court assessed various
penalties as follows: $297, 000 for operating a
marina without a permit from July 26, 2004 (five
days after the court’s decision granting plaintiff
summary judgment) until April 7, 2007; $37, 200
for failing to remove the six-foot dock extensions
until May 30, 2008; $250 civil contempt for
disobeying the court’s order regarding the dock
extensions; $5,000 for allowing personal watercraft
rentals during two boating seasons; $8, 500 for
construction and use of the boat ramp without a
permit; and $2,027 for failure to pay regulatory fees
in 1999 and 2000. Although these assessments
totaled $349,477, the judgment entered on the
Order was for $349, 477 reflecting a mathematical
error.”
2 In modifying the judgment herein, we will correct
the mathematical error (see CPLR 5019 [a}).
Defendant appeals.
Initially, we find that Supreme Court
properly granted plaintiffs motion for summary
judgment regarding the various violations by
defendants. With regard to the dock extensions, we
had upheld an earlier ruling that ordered the
removal of those structures (Lake George Park
Commission v Salvador, 245 AD2d at 608), and
defendants nevertheless failed to take such action.
Defendants’ effort to revisit the merits of that issue
is precluded by res judicata and collateral estoppel.
Plaintiff met its threshold burden on the remaining
causes of action with various proof, including
affidavits and documents, establishing that it had
informed defendants that construction of a boat
ramp required a permit and they nevertheless
proceeded without one, defendants failed to pay
regulatory fees in a proper fashion, defendants
operated the marina without a permit issued by
plaintiff, and defendants commenced and continued
allowing personal watercraft rentals at their
premises despite plaintiffs repeated warnings that
a permit was required for such activities.
Defendants failed to raise triable issues regarding
3 We note that, as in the other case involving these
parties currently before us (Lake George Park Commn |
Salvador, _ AD3d _ [decided herewith] [appeal No. 507817])
we will, as requested by defendants, take judicial notice of the
record from the other appeal when considering the arguments
in this appeal (see generally Oakes v Muka, 56 AD3d 1057,
1059 [2008]; Edgewater Constr Co, Inc. v 8) & 3 of
Watertown Inc., 24 Ad3d 1229, 1231 [2005)).
Pow
—"
such conduct and the legal arguments they
advanced were without merit.
We turn to Defendants’ challenges to the
civil penalties assessed by the Supreme Court. The
amount of a civil penalty for a violation rests
within the broad discretion of the court so long as
the reasons for the penalty are explained and the
amount is not disproportionate to the offense (see
Tatta v State of New York, 20 AD3d 825, 826
[2005] lv denied 5 NY3d 716 [2005]). The
maximum penalty permitted for violating statutes
or regulations enforced by plaintiff 1s $500 for each
violation and $500 for each day the violation
continues (see ECL 71-3308 [1]). Supreme Court
explained its reasons for each penalty and, while
the total penalty was significant, 1t was well below
the maximum available under the statute.
Moreover, as noted by Supreme Court, during the
time that defendants operated the marina in
viojation of the pertinent statutes and regulations,
they were receiving gross income from the marina
far exceeding the total penalties imposed. We do,
however, find some errors in the calculation of the
penalties that require modification.
Supreme Court explained that the $297,000
penalty for assessing a $500 daily penalty for each
day of operation during a boating season from July
26, 2004 (1.e., five days after the Court’s decision
sranting plaintiff summary judgment) until April 7,
2007 (when defendants began operating under a
permit issued by plaintiff).
The Court used the 200 days from (and including)
April 15 to October 31 as the length of a boating
season.’ Defendants contend that the boating
season used for the penalty should be shortened to
May 15 to October 15. However, there is, as urged
by plaintiff, support in the record for running the
daily penalty for an even longer period than used
by the Supreme Court’s discretion to frame the
parameters of the season as it did. Accepting the
court's methodology on this issue as reasonable and
within its discretion, it nevertheless is apparent
that a mathematical error was made. Defendants
were in violation for 498 days, which, at $500 per
day, calculates to $249,000. The amount assessed
for operating without a permit will this be reduced
from $297,000 to $249 000.
With regard to the six-foot extensions,
Supreme Court assessed a penalty of 10% of the
maximum daily penalty for each day those
extensions remained in place during a boating
season from July 26, 2004 to May 30, 2008.
Supreme Court acted within its discretion and
arguably showed considerable leniency in light of
the fact that we had upheld in 1997 an earlier
order directing removal of the six-foot extensions
(Lake George Park Commun. v. Salvador, 245 AD2d
at 608). Nevertheless, since the order entered on
* It ments noting that plaintiff had urged running the
penalty from September 23, 1998 (when defendants withdrew
their permit application), and assessing the penalty year-
round rather than during the boating season as used by the
Supreme Court. If accepted, this could have resulted in a
penalty far exceeding a millon dollars
Supreme Court’s July 19, 2004 decision specifically
granted defendants until November 1, 2004 to
remove the extensions, the commencement of the
daily penalty should have been from November 1,
2004 rather than July 26, 2004. Thisisa — of
646 days assessed at $50 per day for a total of
$32,300. Supreme Court’s assessment of $37,
will be reduced accordingly. We find defendants’
remaining argument regarding the penalties
unavailing.
Defendants assertions that the penalties
should have been imposed on only the corporate
defendant and that plaintiff did not comply with
statutory conditions when seeking a penalty in
excess of $5000 are unavailing for the reasons set
forth mm our decision in defendants’ companion
appeal (Lake George Park Commn. v Salvador
AD3d_ [decided herewith] [appeal No. 507817)).
The remai ning issues asserted by defendants have
been considered and found unpersuasive.
Cardona, P.J, Malone Jr., Stein and Garry,
Jd.. concur
ORDERED, that the order and judgment are
modified, on the facts, without costs, by reducing
the total penalties assessed against defendants to
$297,077, and as so modified, affirmed.
ENTER:
{S/
Michael J. Novack
lerk of the Court
SUPREME COURT OF THE
STATE OF NEW Laer
APPELLATE DIVISION: THIRD DEPARTMENT
LAKE GEORGE PARK COMMISSION,
Plaintiff-Respondent,
NOTICE OF ENTRY
-against- AD Case No. 506034
Warren County
Index No. 37573
(Appeal No. 1)
JOHN SALVADOR, JR., and KATHLEEN A.
SALVADOR, individually and as the owners,
officers and managers of the DUNHAM’S RESORT
CORP., d/b/a DUNHAM’S BAY LODGE, INC-::;
and/or DUNHAM’S BAY BOAT and BEACH
CLUB, INC., and WILLLAM ROBINSON,
individually and d/b/a LAKESIDE BOAT
RENTALS,
Defendants-Appellants
WILLIAM ROBINSON, individually and d/b/a
LAKESIDE BOAT RENTALS.
Defendant.
SUPREME COURT OF THE STATE OF NEW
YORK
APPELLATE DIVISION: THIRD DEPARTMENT
LAKE GEORGE PARK COMMISSION,
Plaintiff-Respondent, AD Case No.
-against- Essex County
Index No. 45591
(Appeal No. 2)
JOHN SALVADOR. JR., and
KATHLEEN SALVADOR, individually, d/b/a
DUNHAM’S BAY BOAT AND BEAC HC LU B.
d/b/a DUNHAM’S BAY LODGE, and DI ‘NHAM S
RESORT CORP.,
7h
PLEASE TAKE NOTICE that tl i
Order on Motion of the po pellate Division
Department, denying the motion for a sta
enforcement pending appeals in the abovs
natters, a copy of which is etieil ed her
filed and entered in the Thi dy Der yartme
Clerk’s Office on Febr
Andrew M. Cuom
rap *
}
Attorney General of th
State of New York
By: /s/
Lawrence A. Rappx
Associate Attorney
Attorney for the Lake
“ :
YMC)
Ci mmissl
To: Galvin and Morgan
217 Delaware Ave
Delmar, New York 12054
4
Ne ’
Oupreme Court
Appellate Division
7
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hird yAIcCIA! Donartmon}
i cif © JUALCLAl LSC P/U . ie
Decided and Entered
February 17, 2009 _ Case # 506
LAKE GEORGE
PARK COMMISSION
Respondent
DECISION AND
ORDER ON
MOTION
JOHN SALVADOR, JR., et al., doing Business
DUNHAM'’S BAY BOAT AND BEACH CLUB
INC., and doing Business as DUNHAM’S BAY
LODGE, et al., Appellants
Upon the papers filed in support of the motio:
}
in opposition thereto, it :
ORDERED that the motion 1s denied. with
— wn
COSLS.
PETERS, J.P.. LAHTINEN, KANE, MALONE JR
AND STEIN, JJ., concur
STATE OF NEW YORK
SUPREME COURT
COUNTY OF WARREN
LAKE GEORGE PARK COMMISSION
Plaintiff,
NOTICE OF ENTRY
Index No.37573
RJI No. 56-1-2000-0302
-against-
JOHN SALVADOR, JR. and
KATHLEEN A. SALVADOR, individually and as
the owners, officers and managers of the
DUNHAM’S RESORT CORP., d/b/a DUNHAM’S
BAY LODGE, INC.; and/or DUNHAM’S BAY
BOAT and BEACH CLUB,INC.; DUNHAM’S
RESORT CORP., d/b/a DUNHAM’S BAY LODGE
INC.; and/or DUNHAM’S BAY BOAT and BEACH
CLUB,INC.; and WILLIAM ROBINSON,
individually and d/b/a LAKESIDE BOAT
RENTALS,
Defendants.
PLEASE TAKE NOTICE that the Decision
and Order in the above-entitled matter, signed by
the Hon. Richard T. Aulisi on October 10, 2008, a
copy of which is attached hereto, awarding plaintiff
Lake George Park Commission a total sum of $
349, 277.00 in civil penalties against defendants
John Salvador, Jr., Kathleen A. Salvador, And
Dunham’s Resort Corp. (The “Salvador
defendants’) and further determining the Salvador
defendants to be in contempt of court an *? warding
eee 4 >» « . " ~F NOD ao ituar PKs }
» Commission an additional penalty of $250.00,
was filed and entered in the Warren County Clerk’s
Office on November 26,
)
OnNNO 7} or "
2008 and docketed as
are ae : ee ee RP £99909 an a
judgment pursuant to C.P.L.R § on Deceml|
1, 2008.
AA ~
Andrew M. Cuomo
Attorney General of the State of New York
By:/s
] ‘ TYOT ‘> A R para YT TY’?
Lawrence > Vd ppOopt h 4
Associate Attorney
array for the Lake Geor
The Capitol
Albany, New York 12224
To: Galvin and Morgan, Es
217 Delaware Avenue
Delmar, New York 121
William J. Robinson. pri
PO Box 372
Lake George. NY 12845
STATE OF NEW YORK
SUPREME COURT COUNTY OF WARREN
LAKE GEORGE PARK COMMISSION,
75 Fort George Road
PO Box 749
Lake George, New York 12845
JUDGMENT
Plaintiff.
Index No. 37573
-against- RJT: 56-1-2000-0302
JOHN SALVADOR, JR. and KATHLEEN A.
SALVADOR, individually and as the owners,
officers and managers of the DUNHAM’S RESORY
CORP., d/b/a DUNHAM’S BAY LODGE, INC.
and/or DUNHAM’S BAY BOAT and BEACH
CLUB, INC.,
37 Alexy Lane
Lake George, New York 12845
And
DUNHAM’S RESORT CORP., d/b/a DUNHAM’S
BAY LODGE, INC. and/or DUNHAM’S BAY BOAT
AND BEACH CLUB, INC,
3000 State Route 9L
Lake George, New York 12845
Defendants.
The causes of action of plaintiff Lake George
Park Commission for civil penalties against
defendants in the above-entitled action having
come on for trial before the Honorable Richard T.
Aulisi on July 5, 23, and 27, 2007 and on March,
2008, and the Court having signed a Decision and
Order on October 10, 2008, a copy of which is
annexed hereto, which was entered in the Warren
County Clerk’s Office on November 26, 2008,
NOW, on the motion of Andrew M. Cuomo,
Attorney General of the State of New York,
-
ec
Lawrence A. Rappoport, Associate Attorney, of
counsel. 1t is,
ADJUDGED AND DECREED that plaintiff
Lake George Park Commission shall recover from
Defendants John Salvador, Jr., Kathleen A.
Salvador, and Dunham’s Resort Corp., the amount
of $349, 277.00 in civil penalties and an additional
amount of $250.00 upon the Court's determination
of defendants’ contempt of court, for a total sum of
$349, 477, and that plaintiff Lake George Park
Commission shall have execution therefore.
Judgment signed this 44 day of December, 2008.
Entered: December 4, 2908
/s/
Warren County
Clerk
79
dae Lew
STATE OF NEW YORK
SUPREME COURT
COUNTY OF WARREN
LAKE GEORGE PARK COMMISSION
Plaintiff,
DECISION AND
ORDER
-against-
Index #37573
RJI No. 56-1-2000-0302
JOHN SALVADOR, JR. and
KATHLEEN A. SALVADOR, individually and as
the owners, officers and managers of the
DUNHAM’S RESORT CORP., d/b/a DUNHAM’S
BAY LODGE, INC.; d/b/a DUNHAM’S BAY BOAT
and BEACH CLUB,INC.; DUNHAM’S RESORT
CORP., d/b/a DUNHAM’S BAY LODGE INC.::
and/or DUNHAM’S BAY BOAT and BEACH
CLUB,INC.; and WILLIAM ROBINSON,
individually and d/b/a LAKESIDE BOAT
RENTALS,
Defendants.
The parties in the above entitled matter
have been participants in numerous lawsuits
involving the defendant’s property and/or business
which are situate on the shores of Lake George in
Warren County, New York. A portion of the
litigation has proceeded through the Federal Court
system and other portions of the litigation have
proceeded through the State Court System.
By prior Decision in this matter dated July
19, 2004, this Court found that defendants’ marina
property is subject to pertinent provisions of Article
43 of the New York State Environmental
Conservation Law and the regulations promulgated
thereunder. Accordingly, the Court granted
plaintiffs cross-motion for civil penalties against
the defendants for continued operation of
defendants’ marina without a Class “A” marina
permit. Likewise, this Court granted plaintiff
summary judgment on its fourth cause of action for
civil penalties against the defendant for allowing
rentals of personal water craft from the marina
without a permit. In addition, the Court granted
plaintiff summary judgment on its sixth cause of
action seeking civil penalties for defendants’
maintenance of unpermitted six foot extensions to
25 finger docks as well as summary judgment on
plaintiffs eight cause of action for civil penalties
relating to defendants construction of a boat ramp
at their marina without a _ permit. Finally,
summary judgment was also granted to the
plaintiff for civil penalties due to defendants’
failure to pay plaintiff the appropriate regulatory
fees in a proper and timely manner. On all such
matters, the Court advised that a hearing would be
scheduled to determine the amount of civil
penalties to be assessed against the defendants.
With regard to the amount of the penalties,
99
Environmental Conservation Law § 71-3303
provides as follows:
1. Any person who violates any provision
of, or fails to perform any duty
imposed by article forty-three of this
chapter or any rule or regulation
promulgated pursuant thereto, or any
term or condition of any certificate or
permit issued pursuant thereto, or any
final determination or order of the
Lake George Park Commission made
pursuant to article forty-three of this
chapter shall be liable for a civil
penalty not to exceed five hundred
dollars for each such violation and an
additional penalty of five hundred
dollars for each day during which such
violation-continues, to be assessed by
the Lake George Park Commission
after an opportunity to be heard, or by
the Court in any action or proceeding
initiated by the attorney general in
the mame of the Lake George Park
Commission. In Addition thereto,
such person, may, by similar process,
be enjoined from continuing such
violation, and any permit or certificate
issued to such person may be revoked
or suspended, or a pending renewal
application denied based upon sucl
violation.
a
Following several days of hearings, and
having given the parties the opportunity
to make written submissions, the Court
finds as follows:
1) With regard to the issue of operating a
Class “A” marina without a permit, the
Court finds that as of July 26, 2004!, at
the latest, defendants were or should
have been aware that their actions were
improper. It appears that defendants
continued operation of their marina
without a permit until one was ultimately
issued by the Commission on Apnil 7,
2007.2 Upon review of the circumstances,
including the potential income generated
from the marina during such time period
the Court finds the maximum penalty to
be appropriate. Pursuant to New York
State Environmental Conservation Law §
71-3303, the Court finds that the
maximum potential penalty that could be
assessed against the defendants is
$492,500.00. However, although the
specific dates of operation of the marina
were not established for the period in
[his Court’s prior Decision dated July 19, 2004
to the parties on July 21, 2004.
‘ Defendants withdrew their application for a Commission
Class A marina permit on September 23, 1998, and did not
rders Ato Ec oO UV ti Lourt
resubmit an application untu
on December 23, 2006.
From the defendants’ income summaries submitted, 1t
appears that the gross income from the marina during th:
1998-2—6 years exceeded $1,500,000.00
question, it is apparent to the Court that
the business of the defendants was
seasonal in nature.
Therefore, the Court is basing the fine
calculation on an annual seasonal period
commencing April 15tt, and termination October
31st. Accordingly, the Court finds the appropriate
penalty to assessed against the defendants 1s
$297,000.00
2) With regard to defendants’ failure to
remove six foot extensions on their 25 finger docks,
I it appears that such extensions remained in place
from September 23, 1998, until at least May 30,
2008. While certainly, each six foot extension
remained in place, plaintiff requests imposition of a
single daily penalty for each day that all such
extensions remained in place. As was the case with
defendants’ operation of a marina without a permit,
by July 26, 2004, at the latest, defendants were or
should have been aware that their actions relating
to the six foot dock extensions were improper.
Using the seasonal hmits established by the Court
above, from July 26, 2004, until May 30, 2008, 744
days elapsed. Pursuant to New York State
Environmental Law § 71-3303, the maximum potential
penalty assessable against the defendants is $372,000.00 to
be appropriate for defendants’ conduct up to and including
May 30, 2008.* In so finding, the Court notes that the
* The Court makes no present finding or determination regarding
plaintiff's request for prospective civil penalties for each day after may
potential income generated from such dock extensions
would have exceeded such penalty.
3) With regard to the unpermitted operation of personal
water craft from the marina in 1997 and 1998, defendant,
John Salvador, acknowledged that Mr. Robinson rented jet-
skis to the public from three boat slips at the marina. Such
acuvity apparently took place from August 15, 1997, until
approximately October 15, 1997, as well as from May 15,
1998, until approximately October 15, 1998, for an
approximate total of 216 days. Pursuant to New York State
Environmental Conservation Law § 71-3303, the maximum
potential penalty assessable against the defendants is
$108,000. Although the plainuff's calculated number of
days of violation differs from that of the Court. Plaintiff
requested a penalty of ten percent of the maximum, which
in this case would be a penalty of $10,800.00. Keeping in
mind, however, that rental of the three berthing slips to Mr.,
Robinson in 1998 generated approximately $3000.00 1n
income, the Court will assess a penalty of $5000.00 for the
unpermitted rentals of jetOskis by Mr. Robinson from
defendants’ marina in 1997 and 1998.
4) With regard to civil penalties arising out of defendants’
construction of a boat ramp on or about May 8, 2000, it
warrants noting that defendants were previously advised in
1999 that a Commission permit was required for such
activity. In addition, on May 6, 2000, a temporary
restraining order was issued prohibiting any further
construction or use of the ramp. Nevertheless, it appears
that defendants thereafter improved the ramp to some
degree, which is now capable of launching boats, although
defendants thereafter improved the ramp to some degree,
30, 2008, that such dock extensions, including their outermost pilings
and crossbeams, purportedly remain in place
which 1s now capable of launching boats, although
defendants contend it has only been used “very
sporadically.” While plaintiff requests a civil penalty for
each day during the approximate eight year time period that
the boat ramp has been in existence, imposition of such a
penalty docs not appear to be warranted given the lack of
proof as to the extent of use of such ramp and as it appears
that defendants derived minimal economic benefit directly
attributable to same. Accordingly, the Court will assess a
penalty of $500.00 for construction of the boat ramp
without a permit and, assuming the ramp was used at least
twice a year during the past eight years, the Court will
further assess a civil penalty in the amount of $8,000.00 for
the continued maintenance and use of such ramp without a
permit.
5) With regard to the Defendants’ failure to pay
their regulatory fees to the Commission, it
warrants noting their 1999 and 2000 fees remained
unpaid until May 19, 2000. Defendants were
previously notified that. checks should properly be
made payable to the Lake George Park
Commission, yet defendants delayed in doing so.
Accordingly, the Court will assess a civil penalty of
$500.00 against the defendants for failure to timely
and properly tender payment of the 2000
regulatory fees to the plaintiff. The Court further
finds that, pursuant to 6 NYCRR § 645-7.4, the
plaintiff is also entitled to $1027.00 in late payment
penalties for failure to timely and properly tender
payment of the 1999 and 2000 regulatory fees to
the plaintiff.
6) Finally, with regard to the plaintiff's application
to find defendants in contempt for their violation of
29
this Court's Order requiring removal of the six-foot
extensions of their finger docks, the Court finds
that defendants clearly had notice of this Court's
prior Order, which was clear and explicit, and that
plaintiff has adequately established defendants’
disobeyance of such Order, to the detriment of the
plaintiff and its regulatory authority. See,e.g.
Aison_v. Hudson River Black River Regulating
District, 54 A.D. 3d 457, 862 N.Y.S. 2d 642 (3d
Dept., 2008). Accordingly, the plaintiffs motion for
civil contempt against the defendants is granted
and, pursuant to Judiciary Law § 773, a penalty of
$250.00 is assessed against the defendant.
The foregoing constitutes the Decision and
Order of this Court. All other relief requested by
the parties is denied
Signed this 10!» day of October, 2008 at Johnstown,
New York.
/s/
Hon. Richard T. Aulssi
Justice of the Supreme Court
STATE OF NEW YORK
Court of Appeals
At a session of the
Court, held at Court of
Appeals Hall in the
City of Albany on the
twenty-sixth day of
October, 2010
Present, HON. JONATHAN LIPPMAN,
Chief Judge, presiding.
Mo. No. 2010-9991
Lake George Park Commission,
Respondent,
Vv.
John Salvador, Jr., et al..
Appellants
(And Another Action.)
A motion for leave to appeal to the Court of
Appeals in the above causes having heretofore been
made upon the part of the appellants herein,
papers having been submitted thereon and due
deliberation having been thereupon had, it is
ORDERED, that the said motion be and the
same hereby is denied with one hundred dollars
costs and necessary reproduction disbursements.
fol
Stuart M. Cohen
Clerk of the Court
STATE OF NEW YORK
SUPREME COURT, APPELLATE DIVISION
THIRD JUDICIAL DEPARTMENT
Decided and Entered: June 28, 2010
Case # 507817
LAKE GEORGE PARK
COMMISSION, Respondent, DECISION
AND
Vv. ORDER
ON
MOTION
JOHN SALVADOR JR, et al.,
Individually and Doing Business as
DUNHAM’S BAY BOAT and BEACH
CLUB and as DUNHAM’S BAY
LODGE, et al.,
Appellants.
Motion for relief from judgment or order
under CPLR 5015 or, in the alternative, for
permission to appeal to the Court of Appeals.
Upon the papers filed in support of the
moiton and the papers filed in opposition thereto, it
is
ORDERED that the motion is denied,
without costs.
CARDONA, P.J., LAHTINEN, MALONE, JR.,
STEIN and GARRY, JJ., concur.
oP
Mm
ENTER:
[S/
Michael J. Novack
Clerk of the Court
ai
‘2
SUPREME COURT OF THE STATE OF NEW
YORK APPELLATE DIVISON: THIRD
DEPARTMENT
LAKE GEORGE PARK COMMISSION,
Respondent, Case No. 507817
-against-
Warren County
JOHN SALVADOR, JR., et al., Index No. 45591
Individually and Doing
Business as DUNHAM’S BAY NOTICE OF
BOAT and BEACH ENTRY
CLUB And as DUNHAM’S
BAY LODGE, INC., et al.
Appellants.
PLEASE TAKE NOTICE that the
Memorandum and Order of the State of New York
Supreme Court, Appellate Division, Third Judicial
Department in the above-captioned appeal, a copy
of which is attached hereto, was entered on April 8,
2010.
Dated: April 9, 2010
ANDREW CUOMO
To: Madeline Sheila Attorney General of the
Galvin, Esq. State of New York
Galvin and Morgan Attorney for Respondents
217 Delaware Avenue
Delmar, NY 12504 — by: Lawrence A.
Rappoport
4
>
+
\ssociate Attorney
New York State
Department of Law
The Capitol
Albany, New York 12224
(918) 474-119]
—
dD
STATE OF NEW YORK
SUPREME COURT, APPELLATE DIVISION
THIRD JUDICIAL DEPARTMENT
rn oa
Decided and Entered: April 8, 2010 507817
LAKE GEORGE PARK COMMISSION,
Respondent,
JOHN SALVADOR, JR. et al.,
Individually and Doing MEMORANDUM
Business as DUNHAM’S AND ORDER
BAY BOAT AND BEACH
CLUB as DUNHAM’S BAY
LODGE, et al.,
Appellants.
Calendar Date: February 18, 2010
‘
Before: Cardona, P.J., Lahtinen, Malone Jr., Stein
and Garry, Jd.
Galvin & Morgan, Delmar (Madeline Sheila
Galvin of counsel), for appellants.
Andrew M. Cuomo, Attorney General,
Albany (Lawrence A. Rappoport of counse]), for
respondent
Lahtinen, J.
Appeals (1) from an order of the Supreme
Court (Aulisi, J.), entered November 25, 2008 in
Warren County, which assessed civil penalties
against defendants upon a prior order of said court,
and (2) from the judgment entered thereon.
Defendants John Salvador Jr. and Kathleen
Salvador own real property on the shore of Lake
George that they lease to their wholly owned
corporation (defendant Dunham's Resort
Corporation), which operates a marina (Dunham’s
Bay Boat and Beach Club). In the summer of 2008,
defendants constructed a floating structure
(approximately 76 feet by 8 feet) that they affixed
to their permanent docks and used as boat berths
for members of the marina. The following spring,
defendants added another such it considered the
structures to be docks, that a permit was required
before adding docks on the Jake, and that they
must remove the floating docks. Defendants
responded by contending that the structures were
not docks, but were boats or vessels and they
refused to remove them.
Plaintiff commenced this action in June 2004
seeking injunctive relief and civil penalties. By
order dated April 15, 2005 (and entered May 9,
2005), Supreme Court granted plaintiffs motion for
summary judgment determining that the
structures were docks. The court ordered
defendants “to remove immediately their floating
docks from Lake George.” Defendants did not
remove the two docks from the lake and its
navigable tributaries (see 6 NYCRR 645-2.1 [cd])
and, in fact, added a third floating dock in late May
2005. Following a hearing on the issue of civil
penalties as directed in the order entered in May
2005, Supreme Court did not impose any penalty
for the period prior to the April 15, 2005 date of its
decision or 10 days thereafter to afford ample time
for defendants to have received notice of the
decision. However, it imposed a penalty of $500
per day for the period April 25, 2005 to October 14,
2005 for each of the two existing docks and May 31,
2005 to October 14, 2005 for the added third dock,
resulting in total civil penalties of $241,500.
Defendants appeal.!
Initially, we find that, contrary to plaintiff's
contention, defendants’ appeal from the final
judgment 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 in to determine
civil penalties. It was thus nonfinal and reviewable
in the appeal from the subsequent final 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 disputed
structures were docks and not boats or vessels. The
ECL and plaintiff's regulations prohibit the
construction of a dock or wharf without a permit
' We have, as requested by Defendants, taken judicial notice
of and considered the record in Lake George Park Commn V
Salvador (___ AD3d ___ [decided herewith] [appeal No
506034]), which involved the same parties and another
enforcement action (see generally Oakes v Muka, 56 AD3d
Watertown. Inc., 24 AD3d 1229, 1231 {2005)).
(see ECL 43-0117 [4]; 6 NYCRR 646-1.1 [a] [1]). A
wharf is defined as “a wharf or portion of a whart
extending from or along the lakefront”(6 NYCRR
645-2.1 [p]). Plaintiff submitted affidavits
establishing, and photographs clearly depicting,
that the disputed structures were docks being used
to berth boats. Plaintiffs position regarding the
structures was consistent with the regulatory
Janguage as well as common understanding of what
constitutes a dock. No substantial factual issues
requiring a trial were set forth by defendants and
thus summary judgment was properly granted.
Defendants content that the penalties should
have been limited to the corporate defendant and
not extended to the individual defendants. This
argument was not raised before Supreme Court
and, accordingly, was not properly preserved for
our review (see State of New York v Williamson, 8
AD3d 925, 929 [2004]). In any event, the
individual defendants, among other things, were
the sole owners and officers of the corporation, they
were personally involved in the construction and
installation of floating docks, and they had
commenced several! proceedings in their individual
names challenging plaintiffs various actions as to
the marina. This record supports assessing
penalties against all defendants (see ECL 71-3303
[1]; see generally Matter of Colella v New York
State Dept. of Envtl. Conservation, 196 AD2d 162,
169 [1994]; Matter of Jackson’s Marina v Jorling,
193 AD2d 863, 866 [1993]).
Next, we find unavailing defendants’
argument that reversal is required because
plaintiff did not comply with conditions set forth in
Los)
\O
ECL 71-3305 (3) when seeking a penalty in excess
of $5,000. Under ECL 71-3308 (1), a civil penalty
can be assessed by either “[plaintiff] after an
opportunity to be heard, or by the court in any
action of proceeding initiated by the [A]ttorney
(GJeneral in the name of [plaintiff].”. Where
plaintiff seeks to assess a penalty in an
administrative proceeding, the procedures of ECL
71-3305 (3) and, concomitantly, ECL 71-1709 apply.
However, where, as here, an action is commenced
by the Attorney General in Supreme Court, the
procedures of ECL 71-3305 (3) do not apply. Nor is
there any statutory requirement that 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 discretion
in choosing the amount of such a penalty so long as
the court explains its choice and it is not
disporporionate to the offense” (Tatta v State of
New York.20 AD3d 105 [2005], lv denied 5 NY3d 716
[2005]; see Matter of People v Applied Card Sys.. Inc.. 4]
AD3d 4, 10 [2007], affd 11 NY3d 105 [2008], cert denied
sub nom. Cross Country Bank. Inc. v New York. _ US
—_, 129 § Ct 999 [2009]). Although Supreme Court
noted its skepticism regarding the sincerity and
reasonableness of defendants’ position that the floating
docks were vessels not subject to plaintiff's regulation, it
nevertheless assessed no penalty for the lengthy period of
time prior to its April 2005 ruling on that issue, during
which defendants made use of two of the floating docks.
The court also assessed no penalty during the 10 days after
its ruling to ensure adequate notice and opportunity to act
in compliance therewith. However, thereafter defendants
not only continued to keep the two floating docks in the
40
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 than authorized by
statute (see ECL 71-3303 [1]) and, under the
circumstances, fell within Supreme Court’s discretion.
We have considered the remaining issues asserted
by defendants and find them unavailaing.
Cardona, P.J., Malone Jr., Stein and Garry, JJ,
concur.
ORDERED that the order and judgment are
affirmed, without costs.
ENTER
IS
Michael J. Novack
Clerk of the Court
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, ’ ' y
SUPREME COURT OF THE STATE OF NEW
YORK APPELLATE DIVISION: THIRD
ARTMENT
LAKE GEORGE PARK COMMISSION,
N SALVADOR
KATHLEEN A
VA
WC)
|
A
H}
nd
SAL
VADOR, Individually
ind as the owners. Officer LD Ca N\
ind managers of the 506034
YUNHAM’S RESORT Warren County
YRP., d/b/a DUNHAM'S [Index No
BAY LODGE, INC Appeal N
ind/or DUNHAM'S BAS
BOAT and BEACH CLUB
INC.;: DUNHAMS RESORT
CORP., d/b/a DUNHAM'’S
erica GE INC. and
NHAM'S BAY BOA
in 4 BEACH CLUB
INC., and WILLIAM ROBINSON
ndividually and d/b/a LAKSESIDI]
BOAT RENTALS
WILLIAM ROBINSON
Individually and d/b/a
\KESIDE BOAT RENTALS
Defendant
44
SUPREME COURT OF THE STATE OF NEW
YORK APPELLATE DIVISION: THIRD
DEPARTMENT
LAKE GEORGE PARK COMMISSION,
Plaintiff-Respondent,
AD Case No.
against- Hssex County
Index No. 45591
JOHN SALVADOR, JR (Appeal No. 2)
And KATHLEEN
SALVADOR, individually,
Vb/a DUNHAM'S BAY BOAT
AND BEACH CLUB, and d/b/a
DUNHAM'S BAY LODGE,
And DUNHAM'S RESORT
CORP.,
Defendants-Appellants
PLEASE TAKE NOTICE that the Decision
ind Order on Motion of the Appellate Division,
Third Department, denying the motion for a stay of
enforcement pending appeals in the above-entitled
matters, a copy of which is attached hereto, was
filed and entered in the Third Department County
Clerk’s Office on February 17, 2009
Dated: February 18, 2009 Andrew M. Cuomo
Attorney General
of the State of New
York
By: /S/
Lawrence A.
Rappoport
Associate Attorney
Attorney for the
Lake Geroge Park
Commission
The Capitol
Albany, New York
12224
(018) 474-1191]
To Galvin and Morgan, Esqs
217 Delaware Avenue
Delmar, New York 12054
46
State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: February 17, 2009
Case # 506034
LAKE GEORGE PARK | DECISION AND
COMMISSION Respondent, ORDER ON
V MOTION
JOHN SALVADOR JR. et al.,
Doing Business as DUNHAM’S
BAY BOAT AND BEACH
CLUB, INC., and Doing Business
As DUNHAM'S BAY LODGE,
Et al., Appellants.
(And Another Related Action.)
Motion for stay pending appeals
Upon the papers filed in support of the
motion and the papers filed in opposition thereto, it
is
ORDERED that the motion is denied,
without costs.
PETERS, J.P., LAHTINEN, KANE, MALONE JR.
AND STEIN, JJ., concur.
ENTER:
Michael J. Novack
47
Clerk of the Court
SUPREME COURT OF THE STATE OF NEW
YORK WARREN COUNTY
LAKE GEORGE PARK COMMISSION,
Plaintiff, NOTICE OF
ENTRY
-AGAINST- Index No. 45591
RJT. No.
06-1-2004-033636
JOHN SALVADOR, JR.
And KATHLEEN
SALVADOR, individually,
d/b/a DUNHAM'’S BAY BOAT
AND BEACH CLUB, and d/b/a
DUNHAM’S BAY LODGE,
And DUNHAM’S RESORT
CORP..,
Defendants.
PLEASE TAKE NOTICE that the Decision
and Order in the above-entitled matter, signed by
the Hon. Richard T. Aulisi on October 10, 2008, a
copy of which is attached hereto, awarding Plaintiff
Lake George Park Commission a total sum of
$241,500.00 in civil penalties against defendants
John Salvador, Jr., Kathleen A. Salvador, and
Dunham’s Resort Corp. (the “Salvador defendants”)
was filed and entered in the Warren County Clerk’s
Office on November 25, 2008, and docketed as a
48
judgment pursuant to C.P.L.R. § 2222 on December
4, 2008.
Dated: December 15, 2008 Andrew M. Cuomo
Attorney General
Of the State of
New York
-
Philip Bein
Assistant Attorney
General
Attorney for the
Lake George Park
Commission
The Capitol
Albany, New York
12224
To: Galvin and Morgan, Esq.
217 Delaware Avenue
Delmar, New York 12054
49
SUPREME COURT OF THE STATE OF NEW
YORK WARREN COUNTY
LAKE GEORGE PARK COMMISSION.
75 Fort George Road
P.O. Box 749
Lake George, New York 12845,
Plaintiff, JUDGMENT
-agalnst- Index No. 45591
RJI. No.
56-1-2004-033636
JOHN SALVADOR, JR.
And KATHLEEN SALVADOR,
Individually, d/b/a DUNHAM’S
BAY BOAT AND BEACH
CLUB, and d/b/a DUNHAM’S
BAY LODGE,
37 Alexy Lane
Lake George, New York 12845
And
DUNHAM’S RESORT CORP..,
3000 State Route 9L
Lake George, New York 12845.
Defendants.
S0
The claim of plaintiff Lake George Park
Commission for civil penalties against defendants
in the above entitled action having come on for trial
before the Honorable Richard T. Aulisi on July 8,
27, and 29, 2005; August 1 and 3, 2005; January 3,
5 and 6, 2006; and March 6, 2006, and the court
having signed a Decision and Order on October 10,
2008, a copy of which is annexed hereto, which was
entered in the Warren County Clerk’s Office on
November 25, 2008,
NOW, on the motion of Andrew M. Cuomo,
Attorney General of the State of New York, Philip
Bein, Assistant Attorney General, of counsel, it 1s
ADJUDGED AND DECREED that plaintiff
Lake George Park Commission shall recover from
defendants John Salvador, Jr., Kathleen A.
Salvador, and Dunham’s Bay Resort Corp., the
total sum of $241,500.00 1n civil penalties and that
plaintiff Lake George Park Commission shall have
execution therefore.
Judgment signed this 4% day of December,
ee,
is/
WARREN COUNTY CLERK
SUPREME COURT OF THE STATE OF NEW
YORK COUNTY. OF WARREN
LAKE GEORGE PARK COMMISSION.
Plaintiff.
DECISION & ORDER
JOHN SALVADOR, JR., AND
KATHLEEN SALVADOR,
Individually, d/b/a DUNHAM’S
BAY BOAT and BEACH CLUB,
And DUNHAM’S BAY LODGE;
And DUNHAM’S RESORT CORI
Defendants
The parties in the above entitled matter
have been participants in numerous lawsuits
involving the defendants’ property and/or business
which are situated on the shores of Lake George in
Warren County, New York. A portion of the
litigation has proceeded through the Federal Court
system and other portions of the litigation have
proceeded through the State Court system. By
Decision dated April 15, 2005, this Court granted
summary judgment to the plaintiff, finding
defendants to be in violation of the State
Environmental Conservation Law § 43-0117 (4) and
6 NYCRR § 646-1.1(a) by placing three floating
WN
ho
bhanaal
docks in the waters of Lake George without
necessary permits. Pursuant to this Court’s
Decision dated April 15, 2005, plaintiff was t
submit a Proposed Order directing immediaté
removal of the docks and plaintiffs application f
7. & . | + " }
civil fines was granted, with a hearing scheduled t
determine the amount of such fines oll Wing a
hearing 1n such matter, plaintiff presented an or
summation on March 6, 2006. while defendant
chose to submit their summation in writing. Th
Court has withheld its determination pending th
conclusion of hearings in a separate proceeding a]
‘ _
.eaty Inno .i¢ yy f the ,iT) mont |
involving violations of the Environmenta!
Y ry .
Conservation Law by defendants. Those heari
now been completed and a D Ts
nave now det NIeTE 1 | 1IS1ON @ '
Nn that prot ng ‘ be yr 1S j | y YY
—
P
ae |
>
—
b
—
;
J
| L- a [or r h 7 rn | } Yr +} t T ” + T
LOCK appea’®s lO Dave Placed 1D Wate]
, -
; 1 ‘ )
LreoTvge on or before June oU. ZU03. ana
}
impermissibly remained in such waters unt
. ‘) f 4 ~ . srt oir ¢ .
October 14, 2005.2 The second dock appears
been placed in the waters on or before .
La AC rt rye ark (| } r
Kathleen A Salvador, Individually and as the Owner
Officers and Managers of Dunham’s Resort Cory
Dunham's Bay Lodge, Inc , d/b/a Dunham’s Bay Boat and
Beach Club, Inc., Dunham's Resort Corp., d/b/a Dunhan
Bay Lodge, Inc., and/or Dunham's Bay Boat and Beach ‘
Inc., and William Robinson, Individually and d/b/a Lakesid
Boat Rentals — Index # 37573
The floating docks actually remained in the water fo
longer period of time, yet the Court permitted defendant
move the docks back into the lake on October 15, 2005 for
winter storage.
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ibjecting defendants to civil penalties.
: ] . | y Lf; 9 |
fendants’ failure to remove such docks after such
nd indeed, defendants’ subsequent placement
1 third dock into the waters of Lake George after
ich date warrants imposition of the maximum
fr ‘ *, ‘ . ™ hs » . - -
nalties set forth in Environmental Conservation
Ae! ‘ 71
hus. insofar as such Decision was mailed
‘ ) , - }
\pril 20, 20) and defendants would have
ike George by the defendants on May 31, 2'
with an additional penalty of $500.00 for each day
thereafter that such dock remained in the water,
up to and including October 14, 2005. According]
the Court finds that plaintiff is entitled to civil
penalties from the defendants in the amount of
$241,500.00.
The foregoing constitutes the Decision and
Order of this Court.
Signed this 10** day of October, 2008 at Johnstown
vv - mae x
New York
—
HON. RICHARD T. AULISI
Justice of the Supreme Court
TESTIMONY FROM
MITIGATION HEARING RECORDS
White Testimony, Mitigation Hearing Exhibit-39
Record in #37573, at 4690-4693:
Q. I bebeve that you testified earlier that
there were changes in Commission
regulations in 1988; is that correct?
A. Yes.
Q. Okay. And did those relate to the
changes or expansion of authority that
was given to the Commission under
Chapter 617 of the Laws of 1987?
A. Yes.
Q. Going back to the July 3*4, 1981,
registration of marinas, or permitting
of marinas, can you tell me what
process was established to accomplish
that, if any, by the DEC?
A. As I mentioned, you know, the DEC
would issue a notice of pendency of the
application to adjacent owners, to the
town where the facility was located,
perhaps to other parties of interest
and/or entities within the DEC for
comments. It would review the
comments and make a determination.
Q. I think I missed a step. Going back to
the beginning, how would someone
who had docks on Lake George, or
wharfs on Lake George, know that
they were considered by the DEC to be
a marina as of July 34, 1981?
A They might read about in the news-
paper, let’s say, or receive notice.
Q. And who received notice?
A. I'm sorry. I don't recall.
Q. ...[H]ow someone would know that
i
they had to register or request a
permit as a marina. You indicated, |
believe, in your response that some
people would receive notice. Who was
that notice form?
A. Well, it would have been from the
DEC.
White Testimony, Mitigation Hearing Exhibit-39
Record in #37573, at 4697-4701:
Q. You testified a couple of moments ago
about the 646 originally--or the
original 646--what do you mean by
that?
A. I meant the 646 regulations that were
promulgated by DEC on July 34,
1981.
Q. At some point in time did there come
to be a different 646?
A. Yes.
Q. Can you explain?
A. The current 646 regulations of the
commission were repealed and
supplanted.
Mr. Rappoport: Supplanted the --
The Witness: The original DEC 646
regulations.
Q.
_ oa~
ee
Q.
Q.
So am I correct that as of today, DEC
has no regulations that relate to Lake
George under 646?
No.
Included in 646?
That’s right. The 646 subpart is now
exclusively regulations of the Lake
George Park Commission.
After January 1‘*, 1988, were there
any provisions of 646 of the DEC
regulations that were continued by the
Com-mission in the July 3"4--I’m sorry-
-from the July 374, 1981 DEC regs?
Mr. Rappoport: If I may ask, do you
mean without change?
Ms. Galvin: Yes.
[ don't know.
Are there any that continued in
substantially the same form?
I’m sure there are some.
Going back to the July 34, 1981, DEC
regs. If someone who owned a facility
which the DEC would have identified
as a marina failed to obtain a permit,
what, if anything, did you as the
secretary of the Commission have to
do in your job responsibilities?
We--I might have to make a written
confirmation of that failure, develop
materials that would support that,
report that to my superiors, draft
notices of the condition of
Q.
A.
Wan
)
noncompliance, participate with the
regional staff in compliance efforts,
appear as a witness in enforcement
cases, provide testimony.
In your experience as secretary to the
Commission and later as senior
environmental analyst while you were
working for the DEC, were there in-
stances in which enforcement actions
were brought against person or
persons who operated marinas that
the DEC identified as marinas, but
had not filed for permits?
I’m sure there must have been, but I
just don’t recall any specific cases.
And do you recall how enforcement
procedures were followed with respect
to any of those which you can’t
identify specifically, but in general?
Generally, Notice of the Condition of
Noncomplhance would be given to the
appropriate representatives of the
marina. They might be afforded an
opportunity to rectify that situation
via an order on consent, perhaps,
invited to apply for a permit going
forward in order to satisfy the
requirements.
And when you say apply for a permit
going forward, would that be a permit
that would have been issued to wipe
out the prior non-compliance?
No. Typically the DEC policy would
be not to issue a permit for an activity
Q.
that had been completed. However,
when talking about regulations that
deal with ongoing permit
requirements, in order to afford the
parties who had rectified the violation
through some means, the opportunity
then to obtain the permits that they
would be required to have, then they
would be able to apply--once they
rectified the violation--they would be
able to apply for a permit going
forward.
And does the process you just
described continue in essentially the
same form today, or has that changed
under the Commission?
It continues in essentially the same
form.
The Lake George Park Commission
would have been substituted for DEC.
But they would be similar, those
procedures.
White Testimony, Mitigation Hearing Exhibit-39
Record in #37573, at 4702-4704:
Q.
I’ll rephrase. Are there any marinas in
existence today which were in
existence prior to or at the time of the
inception of the DEC July 374 1981
regs requiring permitting of marinas
which still have not been permitted, if
you know?
61
Mr. Rappoport: Again, continuing
objection. [The objection was not
raised at trial by Plaintiff. nor was it
ruled on by the Court below]
There is one I know of.
Can you identify it?
I believe it’s called the Silver Bay
Marina.
Has enforcement action been taken
with respect to Silver Bay, or
whatever its name is, the existing
marina.
I just don’t recall the particulars of
that.
Do you recall when that occurred
approximately?
No, I don’t.
And is that marma still in existence?
I don't know.
After January 15t, 1988, did the
Commission issue marina permits to
marinas which had not been
permitted, which had been in
existence but had not been permitted
under the July 3, 1981, DEC regs?
Mr. Rappoport: Again, a continuing
objection. [The objection was not
raised at trial by Plaintiff, nor was it
ruled on by the Court below]
Yes.
And how long did that continue”?
It continues till today.
White Testimony, Mitigation Hearing Exhibit-39
Record in #37573, at 4709-4711:
Q.
Now, during the period of time from
June 34,1988 until the Commission
got around to, say, Joe’s Marina, Joe's
Marina had been permitted by the
DEC under prior regs, would Joe’s
Marina have been deemed by the
Commission after June 3, 1988 to be
unpermitted? Or am I[ missing
something in this process?
Well, it would be deemed unpermitted,
but it would not be subject to
enforcement.
Mr. Rappoport: And if you can explain
more thoroughly.
(The objection was not raised at
hearing by Plaintiff, nor was it ruled
on by the Court below]
Well, we would hold that it only fair
that facilities that were lawfully
existing, subject to new permit
requirements and standards, be
afforded notice and an opportunity to
apply before being subject to
enforcement.
Well [sic. Were] all those marinas that
held marina permits as of June 3°9,
1988 given notice of revocation of
revocation of their DEC permits?
Mr. Rappoport: That wasn’t Mr.
White’s testimony. It wasn’t notice of
revocation.
Q.
Q.
Q.
If it wasn't revocation, what was it?
Can you explain?
They were given notice that permit
requirements--and new standards and
permit requirements were established
by the Commission. New standards
would apply, and that they were
afforded an opportunity to apply for
those --that permit.
Were they informed that their DEC
permit no longer--or ceased to exist?
I] don't recall the particulars of the not-
ice, but the relevant parts were now
permit required, opportunity to apply.
Between January 1, 1988 and June
3'4, 1988, what was the status of the
marinas that held DEC permits?
Mr. Rappoport: Maybe you could re-
phrase that. When you say status, it’s
upslear.
Were they permitted?
Well, I don't know exactly how you--
that might require interpretation. But
I do know that the responsibility to
administer the regulations was
transferred by legislation to the
Commission.
Mr. Rappoport: When you say
regulation of the--
Of the original, what we've been refer-
ring to as the original 646 regulations.
Nothing--those regulations continued
to exist. They had not been repealed.
So certainly, the Commission took no
Testimony,
5505-5508:
Q.
64
enforcement action against people for
not having a permit during that
period.
John Salvador at Record in #37573, at
Mr. Salvador, after you learned that
the Park Commission had a problem
with your six-foot dock extensions, did
you do anything to attempt to remedy
it?
Yes.
And what did you do?
What we tried to do was to show the
Commission when the dock extensions
were put in place and the permits
under which we were working at the
time, the permits that were in effect
and the jurisdiction of the issuing
agency over that portion of the work
that we were doing.
Mr. Rappoport: Your Honor, I’m going
to move to strike that...
Ms. Galvin: Your Honor, may I be
heard on that point?
The Court: Yes, you may.
Ms. Galvin: It is our intention that it
has never been thoroughly litigated
because Mr. Salvador- -this is- -the
hearing on the other matter referred
to as Salvador 2 which also went into
mitigation and this particular hearing
are the first opportunities that Mr.
Salvador has had to obtain any
65
evidence in the possession of the Park
Commission, to have witnesses and to
be able to determine, for example, a
perfect example is the Mike White
deposition where he learned about the
possibility of being able to go back and
amend his registration form. If he had
known about that before he certainly
would have taken advantage of it.
That was the first time we heard
about it the next application came to
him, he filled 1t out and he sent it in
immediately but he has never had
that opportunity. On the order to show
cause, [ put in numerous subpoena
requests because I needed judicial
subpoenas from Judge Moynihan in
order to be able to have the Park
Commission people compelled to come
with their records. If we had had those
at that time, I sincerely doubt if we
would be sitting here today. It would
have been resolved.
The Court: Who should I be angry
with, Judge Moynihan then? With all
candor, Mr. Salvador, I’m worried
about myself at this point and my
mental stability.
Ms. Galvin: Your Honor, this has
been the first opportunity we've had to
cross-examine any witnesses to get the
document information that we’ve need
and we couldn’t- -we could not defend
when we weren't given a hearing.
60
The Court: I understand that but the
issue we're dealing with before me is
mitigation, amount of penalties, if
any, and /or mitigation. I don’t need- -]
have been involved now with these
cases, these Salvador cases for several
years. I think I have a good handle on
the extent to which Mr. Salvador is
engaged in theses things and has some
pretty good knowledge of the situation
for a layperson. I don’t need a detailed
recitation of what he might not have
known or what he might have tried to
do had he known. IJ think he would
have put his full efforts into whatever
it was, knowing him as I do.
The question is just give me a general,
a general statement. I understand
where you're going with this but
honestly, I’m familiar with it. J think
the Appellate Division is familiar with
it so whoever has to pass on all of this
understands and J think you're just
cluttering the record and it’s not
necessary. I understand his rationale
and I’m saying that on the record, [’m
giving it to you. I understand his
rationale.
Next question.
CURRENT
OFFICIAL COMPILATION OF CODES,
RULES AND REGULATIONS OF THE STATE
OF NEW YORK
TITLE 6. DEPARTMENT OF
ENVIRONMENTAL CONSERVATION
PART 646. SUBSTANTIVE REGULATIONS
§§645.1 to 646.3. Repealed
SUBPART 646-1. DOCKS, WHARFS, MOORINGS
AND MARINAS
§6 NYCRR 646-1.1 Docks, wharfs and moorings.
(a) General prohibitions.
(1) No person shall construct, erect, place, alter,
modify, enlarge, or expand any dock, wharf or
mooring on waters of Lake George without having
first obtained a permit from the commission; and
(2) No person shall use or maintain a dock, wharf
or mooring on waters of Lake George unless the
dock, wharf or mooring 1s registered with the
commission, and the fees required pursuant to
Subpart 645-7 are paid in full when due.
(b) Annual registration. Each dock, wharf and
mooring shall, on or before April 1st of each year,
be registered with the commission on such forms as
the commission may prescribe. Such forms shall
include certification by the owner or operator of the
number of vessels to be berthed at the facility and
the names of the owners thereof, including the
vessels that will be registered to the owner or the
owner's immediate family, and the vessels that will
be registered to other persons.
In determining the maximum number of permitted
docks, wharfs or moorings, the commission may
review any subdivision of land created on or after
the effective date of these regulations [June 3,
1988] which involved the lot or parcel in issue to
determine the maximum number of docks, wharfs
or moorings permitted and base such number upon
the total foot-age of lakefront prior to the
subdivision.
6 NYCRR 646-1.2
SUBPART 646-1. DOCKS, WHARFS, MOORINGS
AND MARINAS .
§646-1.2. Class A Marinas.
In addition to the requirements of other sections of
this Subpart, all Class A marinas servicing the
waters of Lake George shall comply with the
following:
(a) General requirements.
(1) No person shall construct, expand, or operate a
Class A marina servicing the waters of Lake
George, or alter or expand the number or type of
services or recreational activities offered without
obtaining a permit from the commission, or if a
permit has been issued for the subject facility, a
modification to the permit for that facility which
authorizes the new or expanded services or
recreational uses. Permits shall be issued for a
maximum of 5 years.
(2) No permit shall be issued for the construction,
operation or expansion of a quick launch facility
which was not in existence and operating, or for
which no permit was issued, prior to the effective
date of these regulations.
(3) Permits issued pursuant to §646-1.2(a)(1) of this
Title may be issued only to the owner of the facility
or in the alternative to a lessee of the facility and
shall authorize activities and uses at that facility. A
permit may not be relocated to other facilities
unless a permit for the different facility has been
issued by the commission. Marina permits will be
modified to reflect a sale or transfer of the facility
to another owner subject to a determination by the
commission that the facility 1s in accordance with
the requirements of this Subpart and permits
issued 1n accordance with this Subpart. Lakefront
marina facilities at separate locations under
common ownership shall] require separate permits
pursuant to §646-1.2(a)(1) of this Title.
(4) Special Permits. A special permit is a permit
granted, by the Commission to operate any new
recreational activity as defined in §646-2.3(a)(1) of
this Title or the recreational activities or uses
contained in §646-1.4 of this Subpart. Special
permits are not transferrable to another location
and shall not be leased or transferred to another
location, facility or operator.
(b) Specific requirements. No Class A marina shall
be constructed, expanded or operated without pro-
viding the following:
(1) Restrooms, including toilet facilities, for the use
by customers, which shall be available at all times
from May ist to October 31st of each year.
(2) One on-site parking space or adequate off-site
parking for each vessel berthed. Where the Class A
marina offers rides, instruction or water-based
recreation for a fee, adequate parking must be
provided for customers of the Class A marina.
(3) An adequate storage area for trailers or the
storage of trailers shall be prohibited.
(4) Where applicable, proof of compliance with New
York State fire code standards and DEC bulk
storage standards for the storage of gasoline and
hazardous materials. If applicable, no permit
application shall be complete until proof of
compliance is submitted to the commission.
(5) For each Class A marina with a petroleum sales
facility, a plan relative to the inspection and
maintenance of petroleum storage facilities and all
associated equipment, and appropriate measures
relative to spill prevention and countermeasures.
Such plan shall include:
(i) the inspection of all plumbing and related
pumping equipment, not less than daily, to guard
against leakage of petroleum products into the
waters of the
park;
(11) the training of each person pumping motor fuels
in procedures to guard against the spillage of such
motor fuels into the waters of the park and
procedures to respond to a spill; and
(111)the maintenance, in close proximity to the
pumping facilities, of such equipment as is
necessary to respond to any spill of petroleum
products into the waters of the park or on to land or
structures where it may flow into the waters of the
park.
(6) Adequate garbage and debris disposal facilities
with leakproof containers, which must be properly
maintained.
(7) Facilities for the disposal of sanitary wastes
from vessels with on-board sanitary equipment
including:
(1) on-site pumpout facilities, or proven access to
pumpout facilities, for use by vessels which use the
services of the Class A marina; and
(i) facilities for the disposal of waste from portable
marine toulets, or proven access to such facilities,
for use by vessels which use the services of the
Class A marina.
Such faculties shall be designed, installed, operated
and maintained to prevent the discharge of
contaminants from marine toilets to the waters of
the park or the ground from which they may flow
into the waters of the park. For the purposes of this
paragraph, vessels using the services of the Class A
marina shall include vessels which moor, dock or
are quick launched by the marina. Written proof of
access to disposal! facilities for a period equal to the
life of the permit shall be required. Off-site
facilities must be located within a reasonable
distance from the Class A marina.
(8) A boat cleaning area that is designed, operated
and maintained in such a manner to prevent
contamination of the waters of the park shall be
provided, or boat cleaning shall be prohibited.
(9) All Class A marina owners or operators engaged
in the rental of personal watercraft (PWC) as that
term is defined in §646-2.3(a)(3) of this Title upon
the waters of Lake George shall in addition to the
regulations governing PWC contained in Subpart
646-2 of this Title comply with the following
regulations:
(i) The owner or operator of a PWC shall ensure
that prior to operation all users of PWC have read
the rules and regulations governing their operation
as contained in this Subpart, as well as Subpart
646-2 of this Title. All users shall sign a form
prepared by the owner or operator that indicates
the user has read said rules and regulations. The
owner or operator shall maintain written records
that the above requirements have been complied
with. The records are subject to inspection by the
commissioner upon reasonable notice.
(11) If the PWC is part of a rental fleet or group of
PWCs, a tour guide shall operate a vessel with the
fleet or group.
(ii) A fleet or group shall not consist of more than 6
PWC. The tour guide shall guide the operations
and behavior of the fleet or group. The tour guide
shall not be in charge of more than 1 fleet or group
at any time.
6 NYCRR 646-1.4
SUBPART 646-1. DOCKS, WHARFS, MOORINGS
AND MARINAS
§646-1.4. Special permits for recreational uses.
(a) New recreational activities. No person shall
operate or engage in any new recreational activity
as de-fined in §646-2.3(a)(1) of this Title or
recreational use without first obtaining a special
permit from the commission pursuant to this
Subpart.
(b) Seaplanes.
(1) No person, except for a gratutitous guest, shall
berth a seaplane or use any dock, wharf, mooring or
ramp, or any other facility for the berthing of a sea-
plane without having first obtained a special
permit from the commission. When issued, a
special permit shall be issued to the person owning
the seaplane. Special permits issued pursuant to
this section are not transferrable. Discontinuation
of the authorized use for a period of 1 year of more
shall result in expiration of the special permit.
(2) A special permit pursuant to this section shall
be granted upon timely application and payment of
any application fees, to any person owning a dock,
wharf or berthing facility, mooring or ramp which
has been in continual use for the berthing of a
seaplane prior to the effective date of these
regulations except that such permit shall be
conditioned on, and each such seaplane owner shall
conform with, the provisions of paragraph (1) of
this subdivision.
(3) The following provisions shall apply to the
operation of seaplanes:
(i) Commercial use of a seaplane to or from the
waters of Lake George is prohibited as provided in
§248 of the General Business Law of the State of
New York.
(11) Seaplanes shall be operated in such a manner
so as not to cause unnecessary audible impacts to
adjacent property owners.
(111) All facilities used for seaplanes including any
dock, wharf or mooring or other berthing facility
shall conform with the provisions of this Subpart.
(iv) Seaplanes shall be berthed in accordance with
the provisions of this Subpart.
(v) Issuance of a special permit pursuant to this
section shall be subject to the requirements set
forth in §§646-1.2 and 646-1.5 of this Title.
(c) Parasails.
(1) No person shall use or operate a parasail on the
waters of Lake George without first having
obtained a special permit from the commission.
Special permits issued pursuant to this section are
not transfer-able. Discontinuation of the use or
operation of any parasaul for a period of 1 year or
more shall result in expiration of the special
permit.
(2) Whenever a parasailing operation and the
facility where the parasailing operation is berthed
and maintained are held in common ownership
with the facilities of a Class A marina, the special
permit required herein will be merged with
approvals pursuant to §646-1.2 of this Subpart and
only 1 application to the commission shall be
required.
(3) Existing parasail and parasail operations. The
owner of any parasail or the owner of any parasail
business in continuous operation prior to the
effective date of these regulations and registered
with the commission pursuant to Subpart 646-2 of
this Title shall, upon timely filing of application
and payment of any application fees, be granted a
special permit subject to the requirements set forth
in §§646-1.2 and 646-1.5 of this Subpart.
(4) All parasail operators shall conform with the
following provisions:
(i) Each parasail operator shall be limited to a
maximum of 2 take-off and landing craft and 3
parasails in the air at any 1 time.
-
(11) Spectators shall not be permitted on the take-of
and landing craft.
(ii) Take-off and landing craft with parasails in
flight shall maintain a minimum distance between
the craft of % mile. If such distance separation is
not provided by the respective parasail operators,
then the commission may prescribe zones of
operation and schedules for the use of such zones as
part of any special permit. Such zones and
schedules shall be de-signed to afford competing
business equal access to more desirable operating
areas.
(iv) Parasails shall be operated only between the
hours of 8 a.m. to 7 p.m. or sunset whichever is
earlier.
(v) Parasauls shall not be in flight within 500 feet of
shore.
(5) Staff.
(i) Each operator shall maintain a crew of at least
2, including a pilot and an observer on the tow craft
at all tumes during operation. The observer on the
tow craft must be at least 16 years of age. The
observer must maintain visual contact with the
parasail at all times while the parasail is in the air.
(ii) Drivers. All drivers of tow craft must pass the
New York State written pilot-engineer
examination. In addition, with the exception of
pilots engaged, participating or employed in
parasail operation upon the waters of Lake George
prior to July 1, 1990, all pilots must log a minimum
of 50hours actual driving time accompanied by a
qualified and experienced pi-lot. A pilot is qualified
and experienced if the pilot has logged at least 200
hours of actual driving time or operated a tow craft
for 2 full seasons on Lake George.
(1) Raft crew members. There shall be a crew of at
least 2, including the driver on the raft at all times.
With the exception of raft crew members engaged,
participating or employed 1n parasailing activities
upon the waters of Lake George prior to July 1,
1990 all raft crew members must log a minimum of
10.hours actual working time on Lake George with
a qualified and experienced crew member present
on the raft. A crew member is qualified and
experienced if the crew member has 100 hours of
actual crew time or has participated in a crew at
least 1 full season on Lake George.
(iv) The owner or operator must maintain written
records that the above requirements have been
complied with. The records are subject to inspection
by the commission upon reasonable notice.
(6) Equipment.
(i) Any parasail which contains a rip, hole,
damaged line, or damaged or inoperable hardware
must be immediately withdrawn form service until
repaired.
(11) All harnesses must be kept in good and working
condition and be free from any damage.
(ui) All parasails, accompanying apparatus and
equipment shall be inspected by the owner or
operator prior to use, on a daily basis. Written
records of the inspections shall be maintained by
the owner or operator and made available to the
commussioner for review upon reasonable notice.
(av) The owner or operator shall maintain written
re-cords of the size, make and condition of the
parasail and the date of purchase of the parasaul.
The records are subject to inspection by the
commission upon reasonable notice.
(v)Rafts shall be equipped with radios which are
capable of receiving and transmitting on marine
channel! 16.
(vi) A United States Coast Guard approved
personal flotation device shall be provided for each
person on the raft. All persons engaged in
parasailing shall wear a United States Coast
Guard approved Type III personal flotation device.
(7) Accidents. Accidents involving parasails shall be
reported in writing by the owner or operator to the
commission within 48 hours after such accident.
(d) Tour boats.
(1) No person shall construct or operate a tour boat
on the waters of Lake George without first
obtaining a special permit pursuant to this section.
A special permit shall be granted for any tour boat
which was placed into service on Lake George prior
78
to the effective date of these regulations. Special
permits shall be issued for a term not to exceed 5
years. Special permits are subject to the
requirements set forth in §§646-1.2 and 646-1.5 of
this Subpart.
(2) The following provisions shall apply to the
operation of existing tour boats and in the review of
applications for tour boats:
(i) Tour boats shall not be berthed so as to interfere
with navigation, access to adjacent property,
significantly interrupt views or encroach on
riparian rights of another.
(11) All tour boats shall be designed to minimize
wakes produced and shall not be operated in such a
way as to produce a wake which will cause
shoreline erosion or property damage or endanger
the safety of others.
(ui) No tour boat shall by use of loud speakers, live
music or other sound producing machines or
equipment, except a horn, exceed a sound level of
86 db as measured at 50 feet from 8 a.m. to 7 p.m.
or sunset whichever is earlier of 72db as measured
from any point upland of the mean high-water
mark from 7 p.m. or sunset whichever is earlier
and 8 a.m.
(iv)Tour boat operators shall take all necessary
steps to prevent any litter or debris from being
thrown or discharged from the vessel and shall
announce the prohibition contained in ECL, §17-
1711 against littering in Lake George by loud
speaker at the beginning of each tour. Each tour
boat shall be equipped with an adequate number of
covered receptacles.
79
(v) Tour boats shall be operated from properly per-
mitted marina facilities.
(vi) Tour boats shall provide systems for the safe
removal, handling and disposal of fuel, sewage,
waste-water, oil and other lubricants and solid
wastes.
(vil) Whenever a tour boat and the facility where it
is berthed are held in common ownership with the
facilities of a Class A marina, the special permit
required herein wil] be merged with approvals
pursuant to §646-1.2 of this Subpart and only one
application to the commission shall be required.
6 NYCRR 646-1.5
SUBPART 646-1. DOCKS, WHARFS, MOORINGS
AND MARINAS
Section 646-1.5. General provisions applicable to
special permits.
(a) Prior to the issuance of any special permit
pursuant to the provisions of this Subpart, the
commission may require submission of information
necessary to determine whether the proposed
activity will result in overcrowding, congestion,
safety hazards or impair the water quality or other
environmental re-sources of the Park. This may
include, but not be hmited to, specifications on the
craft, its power, maneuverability, craft speed,
equipment, noise out-put, lighting, wake, proposed
operation including points of departure and
landing, course, speed of operation and hours of
operation.
(b)The commission may require the submission of
alternative design, equipment or methods of
80
operation to mitigate specific impacts identified by
the commission.
6 NYCRR 646-1.6
SUBPART 646-1. DOCKS, WHARFS, MOORINGS
AND MARINAS
Section 646-1.6. Miscellaneous provisions.(a) Prior
to granting any permit relative to a dock, wharf,
mooring or marina, the commission shall as-certain
the probable effect of the proposed facility and the
operation thereof on the health, safety and welfare
of the public and on the resources of the park. The
commission shall also ascertain the impact of the
proposed facility upon the congestion of Lake
George and the probable visual, cultural and
audible effects of the proposed facility on the
neighborhood in which the facility is proposed and
on the park. Where the commission determines
that the facility will have an undue impact upon
the health, safety, or welfare of the public or the
resources of the park, lead to overcrowding or
congestion, or cause undue visual, cultural or
audible impacts on the neighborhood or the park, a
permit shall be denied.
(b) Any person owning, operating, or constructing a
dock, wharf or mooring, shall be responsible for the
complete removal of pilings, cribs, chains and
blocks, floats and/or any other related components
which are abandoned or fall into disuse.
(c) All persons shall comply with all conditions
issued with any permit issued for the construction,
operation or use of a dock, wharf, mooring or
marina. Failure to comply with any such condition
shall be a violation and grounds for the immediate
revocation of the permit and/or the imposition of a
fine for each day from the date the violation first
occurred until the violation is corrected.
(d) A permit shall not be required for maintenance
and repair of an existing dock, wharf or mooring if
such repairs do not alter the size or shape of the
dock or wharf. All repairs must conform to the
requirements of this Subpart.
(e) Any change in use of an existing marina which
increases the number and/or types of vessels
serviced shall require a modification to any
previously is-sued permit.
(f) Prior to the issuance of any permit which
involves the commercial use of a dock, wharf or
mooring, or the registration of any such facility, the
commission shall require the applicant to certify
that the facilities and associated land uses are in
compliance with applicable provisions of state and
local laws, ordinances, rules and regulations.
(g) No person shall clean any vessel with chemicals
or detergents where runoff into or contamination of
the waters of the park is likely to occur.
(h) No person shall launch a vessel into or remove a
vessel from the waters of the park without
inspecting the vessel and its trailer, if any, to
ensure the detection of marine growth, including
macrophytes (weeds), or any other hull
contamination, and removing said growth and
disposing of it so as to ensure that it is not
discharged into the waters of the park.
9o”*”
(i) No person shall launch any vessel into the
waters of the park, or operate a vessel on the
waters of the park, which is not permanently
sealed to prevent the discharge of wastewater into
the waters of the park.
(j) No permit shall be issued under §§646-1.1 and
646-1.2 of this Subpart, and no facility shall be
registered under § 646-1.3 of this Subpart unless
the applicant demonstrates that the requirements
of those sections have been complied with. If,
during the life of the registration or permit the
dock, wharf or mooring, or marina, ceases to meet
the requirements of this Subpart, the registration
or permit shall be subject to immediate revocation
and the owner or operator shall be subject to the
imposition of a fine for each day until the violation
is corrected.
(k) No vessel shal] be berthed at a dock, wharf or
mooring without the prior consent of the adjoining
landowner so as to encroach beyond the adjacent
property line extended into the lake on the same
axis as the property line runs onshore where it
meets the lake, or at a nght angle to the mean
high-water mark, whichever results in the lesser
setback.
(1) No person shall operate or put to use a
commercial dock, wharf, mooring, Class A marina
or Class B marina without implementing a
maintenance pro-gram sufficient to keep all docks,
wharves, adjacent shoreline, water and lake bottom
clean of debris.
(m)The construction of a dock, wharf or mooring
may also require a permit from other agencies,
including the following: the department; the U.S.
Army: Corps of Engineers; in certain locations, a
wetlands permit or a land use permit from the
APA; and/or municipal zoning approval.
6 NYCRR 646-1.7
SUBPART 646-1. DOCKS, WHARFS, MOORINGS
AND MARINAS
Section 646-1.7 Exemptions.
The permit application requirements of this
Subpart shall not be applicable to the State,
including agencies of the State, or any municipality
acting in a governmental capacity.
84
NEW YORK STATE LAW
ENVIRONMENTAL CONSERVATION LAW
§ 71-3303. Civil and administrative sanctions.
1. Any person who violates any provision of, or
fails to perform any duty imposed by article 43 of
this chapter or any rule or regulation promulgated
pursuant thereto, or any term or condition of any
certificate or permit issued pursuant thereto, or
any final determination or order of the Lake George
park com-mission made pursuant to article 43 of
this chapter shall be lable for a civil penalty not to
exceed $500 dollars for each such violation and an
additional penalty of $500 dollars for each day
during which such violation continues, to be
assessed by the Lake George park commission
after an opportunity to be heard, or by the court in
any action or proceeding initiated by the attorney
general in the name of the Lake George park
commission. In addition thereto, such person may,
by similar process, be enjoined from continuing
such violation, and any permit or certificate issued
to such person may be revoked or suspended, or a
pending renewal application denied based upon
such violation.
2. Such civil penalty may be released or
compromised by the Lake George park commission
before the matter has been referred to the attorney
general; and, where such matter has been referred
to the attorney general, any such penalty may be
released or compromised and any action
commenced to recover the same may be settled and
discontinued by the attorney general with the
consent of the Lake George park commission
§ 71-3305. Administrative Procedures.
1. In any proceeding initiated by the Lake George
park commission pursuant to this title, the
commission or any person designated by the
commission for this purpose, may issue subpoenas
and administer oaths in connection with any
hearing or investigation under or pursuant to the
provisions of this chapter, and it shall be the duty
of the Lake George park commission and any
persons designated by it for such purpose to issue
such subpoenas at the request of and on behalf of
any respondent.
2. The Lake George park commission and those
persons designated by it shall not be bound by the
laws of evidence in the conduct of hearing
proceedings, but the determination shall be
founded upon sufficient legal evidence to sustain it.
3. All proceedings where the administrative
penalties sought by the Lake George park
commission exceeds $5,000 dollars, shall be
referred to the commissioner for processing 1n
accordance with the procedures specified in §71-
1709 of this chapter, except that, following the
processing of such proceedings, the Lake George
park commission shall make appropriate
determinations and issue an order in accordance
therewith in lieu of such action by the
commissioner. All proceedings where the
oo
pa
A
administrative penalties sought are less than or
equal to $5,000 dollars, may either be referred to
the commissioner as provided herein, or the Lake
George park commission may appoint a hearing
officer who must be an attorney admitted to
practice law in the state of New York, who shal!
preside over such hearing and report to the Lake
George park commission regarding the hearing.
The commission shall establish by rules and
regulations regarding qualifications of such
hearing officers and appointment procedures,
including per diem fees not to exceed $250 dollars.
§ 71-3307. Criminal sanctions.
Any person who, having any of the culpable mental
states defined in §15.05 of the penal law, shall
violate any of the provisions of or who fails to
perform any duty imposed by article 43 of this
chapter or any rules or regulations promulgated
thereto, or any fin-al determination or order of the
Lake George park commission shall be guilty of a
violation, and, upon conviction thereof, shall be
punished by a fine not to exceed $500 dollars for
each violation and $500 dollars for each day such
violation shall continue.
UNITED STATES
CONSTITUTION
PROVISIONS
United States Constitution Article I §10:
1. No state shall enter into any treaty,
alliance, or confederation; grant letters of
marque and reprisal; coin money; emit bills
of credit; make anything but gold and silver
coin a tender in payment of debts; pass any
bill of attainder, ex post facto law, or law
umpairing the obligation of contracts, or
erant any title of nobility.
No state shall, without the consent of the
Congress, lay any umposts or duties on imports or
ex-ports, except what may be absolutely necessary
for executing it's inspection laws: and the net
produce of all duties and imposts, laid by any state
on imports or exports, shall be for the use of the
treasury of the United States; and all such laws
shall be subject to the revision and control of the
Congress.
No state shall, without the consent of
Congress, lay any duty of tonnage, keep troops, or
ships of war 1n time of peace, enter into any
agreement or compact with another state, or with a
foreign power, or engage in war, unless actually
invaded, or in such imminent danger as will not
admit of delay.
*
oo
Amendment I
Congress shall make no law respecting an
establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of
speech, or of the press; or the right of the people
peaceably to assemble, and to petition the
government for a redress of grievances.
Amendment V
No person shall be held to answer for a capital, or
otherwise infamous crime, unless on a presentment
or indictment of a grand jury, except In cases
arising in the land or naval forces, or in the militia,
when in actual service in time of war or public
danger; nor shall any person be subject for the
same offense to be twice put in jeopardy of life or
limb; nor shall be compelled in any criminal case to
be a witness against himself, nor be deprived of life,
liberty, or property, without due process of law; nor
shall private property be taken for public use,
without just compensation.
14th Amendment
Section 1.
All persons born or naturalized in the United
States, and subject to the jurisdiction thereof, are
citizens of the United States and of the state
wherein they reside. No state shall make or
enforce any law which shall abridge the privileges
or immunities of citizens of the United States: nor
shall any state deprive any person of life, liberty, or
property, without due process of law; nor deny to
any person within its jurisdiction the equal
protection of the laws.
FEDERAL STATUTES
§ 453. Oaths of Justices and Judges
Each justice or judge of the United States shall
take the following oath or affirmation before
performing the duties of his office: “I, XXX XXX,
do solemnly swear (or affirm) that I will administer
justice without respect to persons, and do equal
right to the poor and to the rich, and that I will
faithfully and impartially discharge and perform all
the duties incumbent upon me as XXX under the
Constitution and laws of the United States. So help
me God."
28 U.S.C. § 1257. State Courts; Certiorari
(a) Final judgments or decrees rendered by the
highest court of a State in which a decision could be
had, may be reviewed by the Supreme Court by
writ of certiorari where the validity of a treaty or
statute of the United States is drawn in question or
where the validity of a statute of any State is
drawn in question on the ground of its being
repugnant to the Constitution, treaties, or laws of
the United States, or where any title, right,
privilege or immunity is specially set up or claimed
under the Constitution or the treaties or statutes
of, or any commission held or authority exercised
under, the United States.
(b) For the purposes of this section, the term
“highest court of a State: includes the District of
Columbia Court of Appeals.
90
RESOLUTION NO. 98-69
LAKE GEROGE PARK COMMISSION
SEPTEMBER 29, 1998
In the Matter of the Application of
DUNHAM’S BAY RESORT CORP., INC.
for a Class A Marina Permit
WHEREAS, the Lake George Park
Commission Regulations at 6 NYCRR Parts 645
and 646 establish requirements for the construction
and operation of marinas and operation of certain
recreational uses on Lake George; and .
WHREAS, Section 646-1.2 establishes that
no person shall construct, expand or operate a
Class A marina servicing the waters of Lake
George or alter or expand the number or types of
services or recreational activities offered without
obtaining a permit from the Commission, or if a
permit has been issued for the subject facility, a
modification to the permit for that facility which
authorizes the new or expanded services or
recreational uses; and
WHEREAS. In 1982, under the predecessor
regulations, the New York State Department of
Environmental Conservation (“NYSDEC’) issued a
marina permit for the subject facility which is
located on Dunham’s Bay in the Town of
Queensbury, County of Warren; and
WHEREAS, after receiving notice from the
Commission of the requirements of the aforesaid
regulations contained in 6 NYCRR Parts 645 and
646, Dunham’s Bay Resort Corp., Inc. (“Dunham’s
Bay’) applied to the Commission for a Class A
marina permit on or about May 13, 1997; and
WHEREAS, the Class A marina permit
application was reviewed in accordance with the 6
NYCRR Section 645-s and was the subject of public
notice and extensive and thorough review by the
Commission; and
WHEREAS, by letter dated September 23,
1998, Dunham’s Bay withdrew the aforesaid Class
A marina application; and
WHEREAS, the applicant through his
attorneys has indicated 1n the letter of September
23, 1998 and verbally at the Project Review
Committee Meeting on September 23, 1998 that
Dunham’s Bay will submit a new application for a
Class A marina permit; and
WHEREAS, upon information and belief, the
subject facility will continue to be operated as a
Class A marina without having received a Class A
marina permit from the Commission and the letter
of September 23, 1998 does not indicate an intent
to cease operations or reduce the level of activity at
the subject facility to that which was approved in
the aforesaid NYSDEC permit,
WHREAS, the record before the Commission
for the Class A marina permit application
establishes that the subject facility offered PWC
rental beginning in 1997 and this is not an activity
which was authorized by the NYSDEC marina
permit, and
WHREAS, the existing wharf registration
establishes that the permitted length of the wharfs
at the subject premises is 24 feet for each wharf;
however, since the date of issuance of the wharf
~
™~,
registration, the wharfs have been extended to 30
feet in length and in some instance have been
extended more than 30 feet in length, and
WHEREAS, Dunham’s Bay had not applied
for or received a permit to extend the wharfs as 1s
required by 6 NYCRR Section 646-1.1
NOW, THEREFORE, BE IT RESOLVED,
that the Commission acknowledges that the Class
A marina permit application has been withdrawn,
and be it further
RESOLVED, that the withdrawal of the
Class A marina permit application does not negate
the Commission’s jurisdiction over the subject
facility pursuant to Environmental Conservation
Law, Section 43-0101 et seq.; Chapter 617 of the
laws of 1987 effective January 1, 1988 and the
implementing regulations of the Lake George Park
Commission at 6 NYCRR Parts 645 and 646, and
be it further
RESOLVED, that as the Commission’s
regulations at 6 NYCRR 646 1.2 prohibit the
operation of a Class A marina without a permit
from the Commission, the Commission finds that
the continued operation of the subject facility
without a Class A marina permit form the
Commission is a violation of Commission
regulation, and be it further
RESOLVED, that the Commission finds that
the NYSDEC marina permit for the subject facility
was superseded by the enactment of the
Commission's regulations applicable to Class A
marinas on June 3, 1988, and be it further
RESOLVED, that the Commission
acknowledges that the NYSDEC permit mav he
utilized to establish a baseline level of marina
activity offered at the subject facility which would
for the basis of a Class A marina permit from the
Commission; however, the offering of PWC rental]
at the subject facility constitutes an expansion of
the subject facility and requires a permit form the
Commission pursuant to Section 646-1.2 of the
Commission's regulations; and be if further
RESOLVED, that the operation of PWC
rental at the subject facility without the necessary
permit constitutes a violation of the Commission's
regulations; and be it further
RESOLVED, that as the wharfs at the
subject premises have been extended and/or
modified without a permit, the wharfs are
maintained in violation of the permit requirements
and design standards of 6 NYCRR Part 646; and be
it further
RESOLVED, that the Commission refers the
matter of the aforesaid violations of the
Commission regulations to the Office of the New
York State Attorney General.
MOTION: Burleigh SECOND: Stewart
AYES NAYS ABSTENTIONS
7 0 0
94
STATE OF NEW YORK
SUPREME COURT COUNTY OF WARREN
LAKE GEORGE PARK COMMISSION,
Plaintiff,
-VS- DECISION
Index
HOQTKA
#37573
JOHN SALVADOR, JR., and KATHLEEN A.
SALVADOR, Individually and as the Owners,
Officers and Managers of DUNHAM’S RESORT
CORP., d/b/a DUNHAM’S BAY LODGE, INC.,
d/b/a DUNHAM’S BAY BOAT and BEACH CLUB,
INC., DUNHAM’S RESORT CORP., d/b/a
DUNHAM'’S BAY LODGE, INC., and/or
DUNHAM’S BAY BOAT AND BEACH CLUB,
INC., and WILLIAM ROBINSON, Individual and
d/b/a LAKESIDE BOAT RENATLS,
Defendants.
The parties in the above entitled matter
have been participants in numerous lawsuits
involving the defendants’ property anW/or business
which are situate on the shores of Lake George in
Warren County, New York. A portion of the
litigation has proceeded through the Federal Court
System and other portions of the litigation have
proceeded through the State Court system. In the
above entitled action, there have been numerous
motions which have been made but not decided due
to the fact that there was htigation in the Federal
system and that the parties were trying to
negotiate a resolution of their disputes. The Cor~t
95
has now been advised by the parties that the
Federal litigation is completed and that all sides
would like a Decision on the motions previously
made.
The Court will begin with the defendants’
motion to dismiss/summary judgment and the
plaintiffs cross motion for summary judgment. The
plaintiff commenced this action on December 28,
1998. On May 26, 2000, Judge Moynihan granted
plaintiffs application to serve an “Amended
Supplemental Complaint”. The amended complaint
contains ten separate causes of action. In the
complaint, the plaintiff seeks:(1) injunctive relief
compelling the defendants to reinstate their
application to the plaintiff for a Class “A” marina
permit; (2)injunctive relief enjoining the defendant
from renting or allowing the rental of personal
water craft from the defendants’ marina;
3)injunctive relief enjoining the defendants from
utilizing any portion of their 30 foot finger docks
until they remove the six foot extension docks or
until they receive a permit from the plaintiff
authorizing the six foot extension; (4)injunctive
relief prohibiting the defendants from constructing
their proposed boat ramp until and unless the
defendants obtain a permit from the plaintiff
authorizing the construction of the ramp; (5)the
plaintiff seeks various fines, penalties and interest
awards for the alleged violations committed by the
defendants.
The defendants, John Salvador, Jr., and
Kathleen A. Salvadors are the owners of certain
lands which comprise the Dunham’s Bay Lodge.
The property consists of multiple amenities and has
various uses. For the purpose of this Decision, it
will be simply referred to as the defendants’
marina. The defendant, William Robinson, is
alleged by the plaintitt to have operated a het ski
rental business out of the defendants’ marina
property.
The plaintiff has commenced this action dud
to the defendants alleged failure to comply with
the pertinent provisions of Article 43 of the New
York State Environmental Conservation law and
the plaintiffs implementing regulations which are
set forth in Title 6, Chapter IX of the Official
Compilation of the New York’s Codes, Rules and
Regulations.
The Court initially notes that the plaintiff
has asked this Court to treat the defendants’
5)
motion to dismiss as a motion for summary
judgment pursuant to CPLR §3211(c). The
defendants’ motion papers specifically refer to
summary judgment as a form of relief being sought
by the defendants. Jn light of the parties’ conduct
in charting a summary judgment course, the Court
will treat the defendants’ motion to dismiss as a
motion for summary judgment.
The defendants’ motion papers make various
references to Judge Moym) «ns Order of May 5,
2000, which granted the plaintiff the mght to serve
an amended complaint. The defendants assert that
this relief was improperly granted, thus the Court
should either grant the present motion of the
defendants to dismiss or, in the alternative, the
Court should deny the plaintiff's cross motion for
summary judgment. Ifthe defendants were
aggrieved by Judge Moynihan’s Order permitting
the plaintiff to amend the complaint, then the
defendants should have appealed that decision.
Having failed to do so, they cannot now claim that
this is a valid basis to defeat the causes of action
which are set forth in the plaintiffs amended
complaint.
The next central argument which permeates
many of the issues presently before the court is the
defendants’ claim that the permit which was issued
by the New York State Department of
Environmental Conservation was responsible for
overseeing marinas on Lake George. In November
of 1981, the defendants applied to the Department
of Environmental Conservation for a permit to
operate a marina on Lake George. At the same
time, the defendants also registered their docks
with the Department of Environmental
Conservation. The defendants’ docks were depicted
as being 24 feet in length at that time. In March of
1982, the defendants received their Marina Permit
from the Department of Environmental
Conservation.
In 1987, various amendments occurred
within the New York State Environmental
Conservation law which transferred the regulatory
authority of marinas from the Department of
Environmental Conservation to the newly created
agency of the Lake George Park Commission. The
plaintiff asserts that during the transition period, it
continued to recognize the former Department of
Environmental Conservation permits until such
time as the marinas were notified of the changes in
the new regulating scheme. In 1996, the
defendants were advised that they had to obtain a
nr
marina permit from the Commission. In 1997, the
defendants began the application process. In
September of 1998, the defendants withdrew their
application and reasserted their claim that the
previously issued Department of Environmental
Conservation permit (3/22/82) was irrevocable and
continued to govern the defendants’ marina
operations. The above entitled action was
thereafter commenced.
The Court finds that the defendants’ claim
that the previously issued Department of
Environmental Conservation permit continues to
govern its marina is completely without merit
ECL §43-0117(4) states, in part:
“.... the commission shall, consistent with
the purposes of this article, promulgate
regulations relative to the permitting of
boats, the registration and regulation of
docks, wharfs and mooring, the regulation of
marinas, the limits of speed and sound on
Lake George, the regulation of recreational
activities such as regatta-type events, water
skiing, parasailing and other similar
activities, and the regulation of tour boats,
boat rentals and other rental activities.
Following the promulgation of such
regulations: (a) no person shall construct any
dock, wharf, mooring, marina or put any
such structure to use without first obtaining
a permit from the Commission, and (b) no
person shall operate anv boat or vessel, or
undertake any regulated activity without
complying with such regulations and
obtaining a permit from the Commission. if
required. [end quotation marks omitted in
original}
The Court also noted that 6 NYCRR 646-1.2
contains explicit regulations concerning permits
and Class “A” marinas. The regulation specifically
states that a Class “A” marina may not operate
without obtaining a permit from the Lake George
Park Commission.
In one final point, the Court additionally
notes that the very permit which the defendants
rely upon (DEC 3/22/82) specifically states at
paragraph “2”:
“Granting of this permit does not relieve the
permittee of the responsibility of obtaining
any other permission, consent or approval]
which may be required for this marina.”.
In light of the foregoing, this Court finds that
the defendants’ marina property is subject to the
pertinent provisions of Article 43 of the New York
State Environmental Conservation Law and the
regulations promulgated thereunder. The Court
will now address the various causes of action set
forth in plaintiffs amended supplemental
complaint dated June 19, 2000.
Plaintiffs first cause of action seeks
injunctive relief compelling the defendants to
reinstate their application to the plaintiff for a
Class “A” marina permit and an Order restraining
the defendants from exceeding the level of uses that
existed at the marina as of June 3, 1998. The
Court will deny defendant’s motion to dismiss and
will grant the plaintiffs cross motion for summary
judgment on this cause of action.
100
Plaintiffs second cause of actions seeks civil
penalties for continued operation of the defendants;
marina without a Class “A” marina permit. The
Court will deny defendants’ motion to dismiss. The
Court will grant the plaintiffs cross motion and the
Court will schedule a hearing for the purpose of
determining the amount of civil penalties.
Plaintiffs third cause of action seeks
injunctive relief enjoining the defendants from
renting or allowing the rental of personal water
craft from the defendants’ marina until such time
as the defendants obtain a permit from the Lake
George Park Commission authorizing such uses.
The Court will deny the defendants’ motion to
dismiss this cause of action and will grant the
plaintiffs cross motion for summary judgment.
Plaintiffs fourth cause of action seeks civil
penalties for the period of time that the defendants
allowed rentals of personal water craft without a
permit. The court will deny the defendants’ motion
to dismiss and the court will grant the plaintiffs
summary judgment motion and will schedule a
hearing for the purpose of determining the amount
of civil penalties.
Plaintiffs fifth cause of action seeks
injunctive relief enforcing prior Orders of the Court
which required the removal of the six foot
extensions which the defendants had added to their
25 finger docks without first obtaining a permit.
The Court will deny the defendants’ motion to
dismiss and will grant the plaintiff's cross motion
for summary judgment.
Plaintiffs sixth cause of action seeks civil
penalties for the defendants’ maintenance of the
101
unpermitted six foot extensions of their 25 finger
docks. The Court will deny defendants’ motion to
dismiss and grant the plaintiffs cross motion for
summary judgment. The Court will schedule a
hearing for the purpose determining the amount of
civil penalties.
Plaintiff's seventh cause of action seeks
injunctive relief enjoining the defendants from
undertaking any further construction efforts on the
boat ramp until such time as a valid permit is
issued by the Commission authorizing the ramp.
The plaintiff further seeks an Order which would
require the removal of the ramp if it has already
been constructed or partially constructed. The
Court will deny the defendants’ motion to dismiss
and will grant the plaintiffs cross motion for
summary judgment.
Plaintiffs eighth cause of action seeks civil
penalties with respect to the ramp. The Court will
deny Defendants’ motion to dismiss. The Court will
schedule a hearing to determine the amount of civil
penalties, if any.
Plaintiffs ninth and tenth causes of action
seek civil penalties concerning the defendants’
alleged failure to pay the regulating fees in a
proper and timely manner. The Court will deny
the defendants’ motion to dismiss and the Court
will schedule a hearing on this item of damage to
determine the amount of civil penalty, if any.
The Court also notes for the record that the
plaintiffs motion to quash certain subpoenas which
were requested in connection with a hearing on
plaintiffs Temporary Restraining Order is now
moot. The plaintiff has received summary
>
10:
judgment on the merits and there is no longer a
need to conduct a hearing in connection with the
Temporary Restraining Order which was
previously issued by the Court.
Plaintiff to submit a proposed Order on
notice to defendants.
This writing constitutes the Decision of the
Court.
Signed this 19% day of July, 2004, at
Gloversville, New York.
j
/c
HON. RICHARD T. AULISI
Justice of the Supreme Court
Permit No. 50-81-0071 MA
New York State Department of Environmental!
Conservation
Hudson Street Ext., Warrensburg, N.Y. 12885
MARINA PERMIT
Article 9, Title 1 ECL (6 NYCRR Part 646)
PERMIT ISSUED TO
Dunham’s Bay Lodge
ADDRESS OF PERMITTEE
RD #1, Box 111A, Lake George, NY 12845
LOCATION OF MARINA
Dunham's Bay
DESCRIPTION OF MARINA
Sale or rental of marine products, s
and dock space
for 67 boats
TOWN COUNTY VILLAGE
Queensbury Warren
GENERAL CONDITIONS
1. The marina shall be subject to inspection by
authorized representatives of the
Department of Environmental Conservation.
2. Granting of this permit does not relieve the
permittee of the responsibility of obtaining
any other permission, consent or approval
which may be required for this marina.
ee)
vo.
6.
co
104
By acceptance of this permit the permittee
agrees that the permit is contingent upon
strict compliance with all conditions included
herein.
Rest room facilities shall be available to
customers whenever the marina is open.
Trash disposal receptacles shall be provide
and maintained during operation.
The shoreline and adjacent waters of Lake
George shall be maintained in a clean
condition.
Parking for
be provided and maintained on the marina
site or at an adjacent off-street site in
accordance with a lease or other contractual
io
customer vehicles shal]
agreement.
Any increase in the number of vessels
accommodated or increase 1n the scope of
operation shall require an amendment of this
permit.
The applicant has accepted and expressly, by
the execution of the application, the full legal
responsibility for all damages, direct or
indirect, of whatever nature, and by
whomever suffered, arising out of the project
described herein and has agreed to
indemnify and save harmless the State form
suits, actions, damages and costs of every
name and description resulting from the said
project.
105
PERMIT ADMINISTRATOR
ISSUE DATE
/s/ Richard A. Wild
March 22, 1982
PERMIT
106
OFFICIAL DOCK SURVEY REPORT
DATE: 6/24/88
LAKE LEVEL:
WATER DEPTH: 12°
SURVEYORS: Tracey Clothier, John Salvadore
[stc. ]
NAME OF FACILITY: Dunhams Bay Lodge
TYPE OF FACILITY: _X Commercial __
Residential ___ Association
LOCATION: Town of Queesnbury — Dunhams Bay
PARCELID NO.: _ Ss DEC PERMIT NO.::
50.-8.1-0071 Marina
NAME OF OWNER: John Salvadore [sic.]
CONTACT PERSON: Same
MAILING ADDRESS:
PHONE NUMBER: (518) 656-9242
DESCRIPTION OF FACILITY:
LAUCH VY NONE___ CUSTOMER USE
ONLY_ PUBLIC LAUNCH____
GAS DOCKS: __ NONE 1 NUMBER OF
PUMPS
BOAT SLIP RENTAL: _ 60. TOTAL NUMBER
OF SLIPS
_1 TOTAL NUMBER
OF MOORINGS
(PRIVATE)
BOAT STORAGE: __12.. TOTAL NUMBER
QUICK LAUNCH FACILITIES: __. YES _v
NO
BOAT RENTALS: _v_ YES NO
—_-
NUMBER ROWBOATS TYPES
107
CANOES
OTHER SERVICES: 24 hour restrooms
Pumpout Facilities Planned
1988
108
LAKE GEORGE PARK COMMISSION
AGREEMENT FIXING COMMERCIAL DOCK
FEES
WHEREAS, Article 43 of the Environmental
Conservation Law requires the owner of a
commercial dock on Lake George to pay an annual
fee of $2.50 per linear foot of commercial dock to
the Lake George Park Trust Fund which is
administered by the Lake George Park Commission
(“the Commission”), now therefore it is
AGREED by the Commission and the
undersigned owner/operator of the commercial dock
facilities described below, that 1021 feet of
commercial dock at said facility are subject to such
fees and further that the appropriate annual fee for
such dock(s) is $2552.50 ($2.50 x 1021 linear feet)
and further that said amount will be remitted to
the Commission by the undersigned owner/operator
by check or money order no later than the first day
of June 1988, and on or before April 1 of each year
thereafter.
This agreement may be rescinded by the
Commission at any time if it is determined by the
Commission that the amount of the linear footage
of commercial dock specified herein is not accurate.
In the event of rescission of [sic.] the Commission,
the Commission shall set the new fee. Said fee
shall not take effect until 30 days from the date
notice thereof is mailed to the owner/operator. The
owner/operator may make request for re-
109
determination of said new fee pursuant to the
regulations of the Commission.
The commercial dock(s) subject to this
agreement is described as follows:
Dunham’s Bay Lodge
Owner: John Salvadore [szc.]
Location: Dunham’s Bay
Town/Village: Queensbury
Tax Map No. a
Date: 1-25-88
LAKE GEORGE PARK COMMISSION
By: /s/ Tracey M. Clothier _ John
Salvadore [sic.]
Name
Owner/Operator
By: ; a By: /s/ John
Salvador, Jr
Name Name
Title Title
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.