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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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

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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

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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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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.

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Appendix — Salvador v. Lake George Park Commission · 562 U.S. 1272 | Frix