Opinion
00 Civ. 6147 (RWS).
September 12, 2007
Attorney for Plaintiff, LAWRENCE B. GOLDBERG, ESQ., New York, New York.
Attorney for Defendants, ANDREW M. CUOMO, Attorney General of the State of New York, New York, New York, By: LISA FEINER, ESQ., GORDON J. JOHNSON, ESQ., Assistant Attorneys General, Of Counsel.
OPINION
Plaintiff East Bay Recycling, Inc. ("Plaintiff" or "East Bay") has moved pursuant to Rule 15(b), Fed.R.Civ.P., to amend its Amended Complaint to conform with the evidence to be presented at trial. Defendants John P. Cahill ("Cahill"), Commissioner of the New York State Department of Environmental Conservation ("DEC"); Mary Ellen Kris ("Kris"), Regional Director of DEC Region Two; William R. Adriance ("Adriance"), Deputy Chief Permit Administrator of DEC Region Two; Stuart M. Fox ("Fox"), Deputy Chief Permit Administrator of DEC Region Two; and Jeffrey Rabkin ("Rabkin"), Environmental Analyst, DEC Region Two (collectively, the "Defendants" or the "State") have cross-moved pursuant to Rule 56, Fed.R.Civ.P., for summary judgment to dismiss the Plaintiff's claims that were not previously dismissed. For the reasons set forth below, Plaintiff's motion is denied, and Defendants' motion is granted.
Prior Proceedings
This action was commenced on August 17, 2000, with the filing of East Bay's complaint alleging due process and equal protection claims arising out of Defendants' refusal of East Bay's application for a permit to construct and operate a solid waste station in the Bronx, New York. Defendants moved to dismiss the complaint, and the motion was referred by the Honorable Deborah A. Batts to Magistrate Judge Douglas F. Eaton, who issued a Report and Recommendation on March 23, 2001.
East Bay filed an amended complaint on April 10, 2001. The Defendants again moved for summary judgment pursuant to Rule 56, Fed.R.Civ.P., and Plaintiff cross-moved for a continuance pursuant to Rule 56(f), Fed.R.Civ.P. On February 8, 2002, Magistrate Judge Eaton filed a Report and Recommendation (the "February 2002 R R") granting summary judgment and dismissing the First, Second, Fourth, Fifth, Seventh, Eighth, Ninth, Tenth, Eleventh and Fourteenth Claims and the Third Claim to the extent that it alleged a claim based on malicious intent. East Bay's Rule 56(f) motion for a continuance was granted with respect to the Third Claim to the extent it alleged a claim based on a lack of rational basis, the Sixth Claim as Magistrate Judge Eaton had construed it, and the Twelfth Claim for declaratory judgment. The Thirteenth Claim for attorney's and expert fees was not dismissed. Magistrate Judge Eaton further recommended that claims for monetary damages against the Defendants in their official capacities be dismissed for lack of jurisdiction and that summary judgment be granted dismissing claims against the Defendants in their individual capacities.
Objections to the February 2002 R R were filed by the Defendants on March 3, 2002, and by Plaintiff on March 8, 2002.
On July 23, 2004, upon the recusal of Judge Batts, the action was assigned to the Honorable Barbara S. Jones. On August 31, 2004, the action was reassigned to the Honorable Gerard E. Lynch. On October 13, 2004, the action was reassigned to this Court.
A scheduling order was entered on December 6, 2004, supplemental materials were filed, and the objections to the February 2002 R R were heard and marked fully submitted on February 16, 2005. The objections were overruled and the recommendations adopted by this Court. See East Bay Recycling, Inc. v. Cahill, No. 00 Civ. 6147(RWS), 2005 WL 1412978 (S.D.N.Y. June 13, 2005). Summary judgment was granted, dismissing all but the Third Claim to the extent it alleged a claim based on lack of rational basis, the Sixth Claim as construed by Magistrate Judge Eaton, the Twelfth Claim for declaratory judgment, and the Thirteenth Claim for attorney's and expert fees. Id. Plaintiff's Rule 56(f) motion for a continuance was granted as to the Third, Sixth, and Twelfth Claims. Id. Claims for monetary damages against the Defendants in their official capacities were dismissed for lack of jurisdiction and claims against the Defendants in their individual capacities were dismissed based on the defense of qualified immunity. Id.
Plaintiff's instant motion to amend the Amended Complaint pursuant to Federal Rule of Civil Procedure 15(b) was filed on December 27, 2006, and Defendants' cross-motion for summary judgment pursuant to Federal Rule of Civil Procedure 56 was filed on March 21, 2007. Both motions were heard and marked fully submitted on April 11, 2007.
The Facts
The facts have been outlined in the February 2002 R R. (February 2002 R R, at 11-18.) The overview has been stated, in pertinent part, as follows:
Plaintiff's primary argument (contained in the First and Second Claims) . . . attacks DEC's decision to review (rather than automatically rubber-stamp) the environmental analysis performed by the New York City Department of Sanitation ("DOS").
To outline the context of this argument, I insert here a brief description of the legal provisions governing environmental reviews, and a few key facts. . . . Responsibility for the environmental review of solid waste transfer stations in New York City is shared by DEC and DOS pursuant to a 1992 Stipulation and Order (the "Stipulation"). The Stipulation calls for a "coordinated review," and sets forth a procedure in which each agency sends to the other a "draft" declaration — either "negative" (indicating that there would be no significant environmental impact) or "positive" — concerning specified environmental factors. With respect to Plaintiff's application, DEC sent DOS a draft negative declaration as to certain environmental factors. DOS then conducted a lengthy review (in which DEC failed to participate) concerning other environmental factors, and sent a draft negative declaration ("DOS's East Bay Negative Declaration") to DEC. The Stipulation provides that DEC "may" co-sign such a draft negative declaration. DEC informed Plaintiff that DEC was required to conduct its own review of DOS's environmental findings before it could co-sign DOS's East Bay Negative Declaration. . . .
Plaintiff alleges that, for other applicants who have obtained a draft negative declaration from DOS, DEC relies on DOS's analysis and co-signs DOS's negative declaration without any independent DEC review of DOS's analysis. The record shows that this was indeed DEC's practice from 1992 to 1998, with respect to all applicants previous to Plaintiff. However, Defendants assert that, commencing with Plaintiff's application, DEC adopted a practice of independently reviewing DOS's environmental analyses. Defendants provide information as to three instances (subsequent to Plaintiff's application) where DEC, after reviewing DOS's analysis, has required the applicant to provide further information and to make revisions or take other action relating to the application. Defendants also contend (a) that there are misstatements and inconsistencies in Plaintiff's application which provide a rational basis for Defendants' actions, and (b) that there is no evidence of malicious intent.
I conclude that Defendants have established as a matter of law (a) that their decision to review DOS's analysis of Plaintiff's application did not violate Plaintiff's equal protection rights, and (b) that Plaintiff is not entitled to a declaratory judgment that DOS's East Bay Negative Declaration is binding on DEC.
Plaintiff also alleges an equal protection claim with respect to DEC's delay in processing Plaintiff's application and DEC's subsequent insistence (following Plaintiff's eventual demand for a decision and DEC's letter denying the permit) that Plaintiff could not "reactivate" the application review (as DEC's denial letter recommended) but must re-start the entire application process. (Third, Sixth and Seventh Claims). The result has been that DEC has refused to listen to Plaintiff's response to DEC's criticisms and has told Plaintiff to go back to "square one" and start the lengthy application process all over again.
A brief reference to key facts is again necessary to understand the basis for Plaintiff's claim. For over 14 months after DEC received DOS's East Bay Negative Declaration, DEC failed to inform Plaintiff as to the matters about which DEC was concerned (thus withholding from Plaintiff the opportunity to respond to those concerns), despite a specific promise by DEC of prompt action and despite Plaintiff's repeated inquiries (and offers to provide additional information, if required). Plaintiff filed a demand for a decision on its application, and DEC responded in a letter which cited deficiencies in the application and "strongly suggest[ed]" that Plaintiff contact the DEC regional office "to discuss how to reactivate application review with a re-submission of a revised application." Plaintiff, seeking to follow that recommended course, submitted further information and revisions to its original application in response to DEC's expressed concerns. DEC did not deal with the merits of Plaintiff's responses. It did not reactivate Plaintiff's original application, but rather insisted that Plaintiff would have to file an entirely new application and repeat, from the beginning, the expensive and time-consuming application process (including a new environmental review).
Plaintiff alleges that, by these actions, Defendants intentionally treated Plaintiff differently from others similarly situated. Plaintiff further alleges both (a) lack of a rational basis and (b) malicious intent.East Bay Recycling, Inc., 2005 WL 1412978, at *2-3 (quoting February 2002 R R, at 4-5).
Discussion 1. Plaintiff's Rule 15(b) Motion Is Denied
Plaintiff has moved pursuant to Federal Rule of Civil Procedure 15(b) to "amend" the Amended Complaint to conform to the facts to be presented at trial. The clear intent of the motion is to gain reinstatement of claims previously dismissed by this Court on summary judgment. See East Bay Recycling, Inc., 2005 WL 1412978. The Rule 15(b) motion is untimely and improper, and is therefore denied.
Rule 15(b) reads as follows:
When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice the party in maintaining the party's action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence.
Despite Plaintiff's contentions to the contrary, (Pl.'s Mem. in Supp. 10-11), such a motion may not be made at "any time." Although the language of the rule does indicate that the motion "may be made upon motion of any party at any time," the rule also indicates that it pertains "when issues not raised by the pleadings are tried" and "if evidence is objected to at the trial." FED. R. CIV. P. 15(b). Accordingly, such a motion can only be made "at any time" during or subsequent to a trial, but not before. The cases that Plaintiff cites in support of its contention that such a motion is timely prior to trial are inapposite. See Young v. Rabideau, 821 F.2d 373, 375 (7th Cir. 1987), cert. denied, 484 U.S. 915 (1987) ("Nor did he request an amendment to his pleadings at the time that the submitted evidence on the prison rule was objected to at trial. Pursuant to Rule 15(b) . . ., the court could have considered an amendment at that time."); Chatin v. New York, No. 96 Civ. 420(DLC), 1998 WL 196195, at *4 (S.D.N.Y. Apr. 23, 1998) ("An amendment of the pleadings after trial is governed by Rule 15(b), Fed.R.Civ.P.").
The Court could construe Plaintiff's motion as one to amend the Amended Complaint pursuant to Federal Rule of Civil Procedure 15(a), under which a court may grant leave to amend a complaint "when justice so requires." FED. R. CIV. P. 15(a). Plaintiff is not seeking to amend its Amended Complaint, however. Rather, Plaintiff is seeking to reinstate claims already contained in the Amended Complaint that were previously dismissed on summary judgment. Having failed to present any new evidence that would compel the Court to construe the motion as a Rule 15(a) motion, let alone grant such a motion, the motion is denied.
2. Defendants' Summary Judgment Motion Is Granted
i. Summary Judgment
a. Standards of Review
Pursuant to Rule 56, Fed.R.Civ.P., summary judgment may be granted only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); SCS Commc'ns, Inc. v. Herrick Co., 360 F.3d 329, 338 (2d Cir. 2004). The court will not try issues of fact on a motion for summary judgment, but rather, will determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). A court shall render judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c); see also Celotex, 477 U.S. at 322;Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000).
Summary judgment is appropriate where the moving party has shown that "little or no evidence may be found in support of the nonmoving party's case. When no rational jury could find in favor of the nonmoving party because the evidence to support its case is so slight, there is no genuine issue of material fact and a grant of summary judgment is proper." Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1223-24 (2d Cir. 1994) (internal citations omitted).
The moving party has the initial burden of showing that there are no material facts in dispute, Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970), and can discharge this burden by demonstrating that there is an absence of evidence to support the nonmoving party's case, Celotex, 477 U.S. at 325. The nonmoving party then must come forward with "specific facts showing that there is a genuine issue for trial," FED. R. CIV. P. 56(e), as to every element "essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322.
The court "must resolve all ambiguities and draw all reasonable inferences in favor of the party defending against the motion."Lopez v. S.B. Thomas, Inc., 831 F.2d 1184, 1187 (2d Cir. 1987);see also Eastway Constr. Corp. v. New York, 762 F.2d 243, 249 (2d Cir. 1985). However, the court must inquire whether "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Liberty Lobby, Inc., 477 U.S. at 249. If there is not, summary judgment is proper.See id. at 249-50.
ii. "Class-of-One" Equal Protection Claims
To establish a class-of-one equal protection claim, Plaintiff must show that it was "intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment." Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (citing Sioux City Bridge Co. v. Dakota County, 260 U.S. 441 (1923); Allegheny Pittsburgh Coal Co. v. Comm'n of Webster Cty., 488 U.S. 336 (1989)); see also Cobb v. Pozzi, 363 F.3d 89, 110 (2d Cir. 2004). In recognizing such class-of-one claims, the Supreme Court has explained that "`[t]he purpose of the equal protection clause of the Fourteenth Amendment is to secure every person within the State's jurisdiction against intentional and arbitrary discrimination, whether occasioned by express terms of a statute or by its improper execution through duly constituted agents.'" Olech, 528 U.S. at 564 (citing Sioux City Bridge Co., 260 U.S. at 445 (quoting Sunday Lake Iron Co. v. Township of Wakefield, 247 U.S. 350, 352 (1918)).
With respect to being similarly situated, to succeed on a class-of-one claim in the Second Circuit, a plaintiff must establish that:
(i) no rational person could regard the circumstances of the plaintiff to differ from those of a comparator to a degree that would justify the differential treatment on the basis of a legitimate government policy; and (ii) the similarity in circumstances and difference in treatment are sufficient to exclude the possibility that the defendants acted on the basis of a mistake.Clubside, Inc. v. Valentin, 468 F.3d 144, 159 (2d Cir. 2006) (citing Neilson v. D'Angelis, 409 F.3d 100, 105 (2d Cir. 2005)). Overall, "to succeed on a `class of one' claim, the level of similarity between the plaintiff and the persons with whom they compare themselves must be extremely high." Neilson, 409 F.3d at 104 (citing Purze v. Vill. of Winthrop Harbor, 286 F.3d 452, 455 (7th Cir. 2002)). A court may grant summary judgment in a defendant's favor for lack of similarity "where no reasonable jury could find that the persons to whom the plaintiff compares itself are similarly situated." Clubside, Inc., 468 F.3d at 159 (citing Harlen Assocs. v. Inc. Vill. Of Mineola, 273 F.3d 494, 499 n. 2 (2d Cir. 2001); Neilson, 409 F.3d at 106).
b. Defendants' Rule 56.1 Statement
Plaintiff has contended that Defendants' summary judgment motion should be denied for failure to submit a Rule 56.1 Statement in conformance with Local Civil Rule 56.1. (Pl.'s Mem. in Opp'n 9.) The rule states: "Failure to submit such a statementmay constitute grounds for denial of the motion." LOCAL CIV. R. 56.1(a) (emphasis added).
Since Plaintiff's Rule 56(f) motion was granted "without prejudice to the State's ability to renew its motion for summary judgment upon the completion of that discovery," East Bay Recycling, Inc., 2005 WL 1412978, at *8, Defendants' summary judgment motion will not be denied for failure to file a new Rule 56.1 Statement. Defendants filed a Rule 56.1 Statement with their original summary judgment motion. That Rule 56.1 Statement has now been submitted as an exhibit to Plaintiff's counsel's declaration in support of Plaintiff's motion to amend. (See Defs.' Reply 3; Declaration of Lawrence B. Goldberg, Esq., Dec. 26, 2006 ("Goldberg Decl."), Ex. 1.) Furthermore, there are no new claims being asserted by the Plaintiff that Defendants need address in a revised Rule 56.1 Statement. Finally, Defendants have submitted a Supplemental Local Rule 56.1 Statement of Material Facts in support of their cross-motion and in opposition to Plaintiff's motion.
c. There Are No Issues of Material Fact Regarding Plaintiff's Three Remaining Substantive Claims
Having denied Plaintiff's Rule 15(b) motion, only three substantive claims remain: (1) Plaintiff's equal protection claim based on DEC's delay in processing Plaintiff's application prior to Plaintiff's five-day demand letter; (2) Plaintiff's equal protection claim based on DEC's insistence that Plaintiff file an entirely new application; and (3) Plaintiff's claim for declaratory judgment that the DOS Negative Declaration is legally sufficient, binding, and fully effective, that the period of "coordinated review" is concluded, and that the State Environmental Quality Review Act ("SEQRA") process is concluded. See East Bay Recycling Inc., 2005 WL 1412978. No issues of material fact having been established in support of any of these three remaining claims, the claims are dismissed.
Plaintiff's claim for attorney's and expert fees is also still pending.
i. Plaintiff's Equal Protection Claim Based on the Delay in Processing Its Permit Application Is Dismissed
East Bay's Rule 56(f) motion for a continuance was granted as to its Third Claim, a "class of one" equal protection claim based on the delay in processing Plaintiff's permit application; specifically, the almost fifteen months between DEC's receipt of the DOS Negative Declaration on March 26, 1998, and the denial of East Bay's permit in DEC's June 14, 1999 letter (the "June 14 letter").
Defendants may succeed on their summary judgment motion by showing that Plaintiff has failed to adduce evidence of similarly situated applicants that were treated differently and that such differential treatment was "intentional, irrational, and wholly arbitrary." Martinson v. Menifee, No. 02 Civ. 9977(LTS) (HBP), 2007 WL 2106516, at *10 n. 8 (S.D.N.Y. July 18, 2007) (citing Bizzarro v. Miranda, 394 F.3d 82, 88 (2d Cir. 2005); Giordano v. City of New York, 274 F.3d 740, 751 (2d Cir. 2001)). Defendants having met their burden with respect to Plaintiff's Third Claim, the summary judgment motion is granted in this regard and the claim is dismissed.
In support of its claim, Plaintiff points to only two other applicants as similarly situated and differently treated: (1) Kid's Waterfront; and (2) Tully Environmental. (Pl.'s Mem. in Supp. 5, 22; Goldberg Decl. ¶¶ 72-84; Pl.'s Mem. in Opp'n 15-16; Defs.' Mem. in Opp'n 32.) The Kid's Waterfront application was processed in 1997, however, prior to DEC's initiation of its independent and heightened scrutiny of DOS's environmental analyses. (See Goldberg Decl. Exs. 32 52; February 2002 R R, 31-32 ("In short, the evidence . . . supports the conclusion that, for applicants subsequent to Plaintiff, DEC independently reviews DOS's analysis.").) DEC has admitted granting the Kid's Waterfront permit without conducting additional SEQRA review. (February 2002 R R, at 28 n. 42.) Since DEC's independent environmental analysis of the East Bay permit application would inevitably take more time, Kid's Waterfront and East Bay cannot be considered similarly situated for the purposes of this inquiry. See Clubside, Inc., 468 F.3d at 159 (finding that a court may grant summary judgment in a defendant's favor for lack of similarity "where no reasonable jury could find that the persons to whom the plaintiff compares itself are similarly situated.").
According to Defendants, the DEC produced "hundreds of permit application files for counsel to review." (Defs.' Mem. in Opp'n 32.)
The February 2002 R R concluded that the implementation of this policy was not malicious and was rationally based on "increasing public concern over the health impacts of waste transfer stations." (February 2002 R R, at 33-34.)
Tully Environmental is similarly situated to East Bay in that it was subjected to the same policy of increased DEC scrutiny. Unlike East Bay, however, Tully Environmental's Negative Declaration was signed by the DEC on June 26, 2000, (Declaration of Lisa Feiner, Feb. 27, 2007 ("Feiner Decl. II"), Ex. G), and its permit was issued on September 7, 2000, (id. Ex. H). Neither of the parties appears to have submitted evidence as to when DEC received the Tully Negative Declaration from DOS. Therefore, it is not possible to compare the amount of time between DEC's receipt of DOS's Negative Declaration and final action on the permit application for Tully as compared to East Bay. It will be assumed, for the sake of argument, that this period for the Tully application was shorter than for the East Bay application.
Even assuming, arguendo, that East Bay was treated differently than the similarly situated Tully Environmental, Plaintiff must still present evidence that such differential treatment was intentional, irrational, and arbitrary. According to the deposition of Defendant Mary Ellen Kris, former Regional Director of DEC Region 2, the Tully SEQRA process was given priority based on a request from "the city," (Feiner Decl. II Ex. A 161:15-20); specifically, "sanitation and city hall," (id. at 162:18-20). Kris stated:
Summary judgment has already been granted on this claim on the basis of malice. See East Bay Recycling, Inc., 2005 WL 1412978, at *1.
If we had 150 applications in the solid waste area to work on they would say look, here are ten projects that are very important to us. Tully was at the top of the list. That was the single most important project as far as they were concerned and asked us to please give priority to it.
(Id. at 162:10-16.)
Kris further indicated that Tully was a priority because it was "one of the companies bidding on the export contract in Queens." (Id. at 162:23-163:6.) According to the Defendants, Tully was prioritized as a result of the impending closure of the Fresh Kills landfill, where the City's municipal trash was being dumped. As a result of this closure, DOS was going to require "substantial additional land-based transfer capacity." (Defs.' Mem. in Opp'n 33.) Defendants have further asserted that "[b]ecause Tully Environmental was a proposed transfer station for DOS's new land-based trash export program, DOS's desire to expedite its permitting was a `legitimate government policy.'" (Id.)
Plaintiff has asserted that it, too, intended to bid on the City's Solid Waste Export Program. (Pl.'s Local Rule 56.1 Statement ¶ 105.) Furthermore, according to a July 15, 1998 DEC Memorandum, East Bay had "bid for a contract under the NYC Export Program," and DEC believed that East Bay's Environmental Assessment Statement ("EAS") needed to be revised to reflect possible participation in the program. (Goldberg Decl. Ex. 82, ¶ 9.)
However, Plaintiff has also submitted a November 18, 1997, article from The New York Times, which stated:
The city's Sanitation Department began soliciting bids yesterday from private companies to begin exporting residential garbage from Brooklyn and Queens by the end of the year. The plan, another step toward closing the Fresh Kills landfill on Staten Island in 2001, . . . .
The city began its exporting program in July in the Bronx, which now sends 1,750 tons of residential garbage to a landfill in Virginia.
(Goldberg Decl. Ex. 127.)
Whereas the proposed East Bay facility is located in the Bronx, where the export program was already underway as of July 1997, the proposed Tully facility is located in Queens, where the City was looking to expand the program at the end of 1997. Therefore, although both facilities may have been bidding on the NYC Export Program, it was not irrational or arbitrary for the DEC to expedite the Tully application in 2000 at the City's request because according to Kris, "you couldn't be responsive unless you had a permit and none of these facilities had permits. So they couldn't give any export contracts unless the permits were processed." (Feiner Decl. II Ex. A at 163:2-6.) In comparison, DEC received the DOS Negative Declaration for East Bay in March 1998, eight months after the export program had already commenced in the Bronx.
According to Plaintiff, Kris instructed Jeffrey Rabkin, a Region Two environmental analyst, to stop working on the East Bay application and to instead work on transfer station applications for facilities that were bidding on the Brooklyn Waste Export Plan. (Pl.'s Mem. in Supp. 7; Goldberg Decl. ¶ 100.) Although Plaintiff has not submitted any deposition testimony to support this assertion, such an instruction from Kris would be consistent with the City's priorities as indicated in the November 18, 1997, article from The New York Times submitted by East Bay. (See Goldberg Decl. Ex. 127.)
In general, the executive branch and its agencies are afforded considerable deference at both the federal and state levels when it comes to setting policy priorities and allocating resources. See, e.g., Sierra Club v. Gorsuch, 715 F.2d 653, 658 (D.C. Cir. 1983) ("Such deference derives from an agency's discretion to set its own priorities"); Campaign for Fiscal Equity, Inc. v. New York, 861 N.Y.3d 14, 29 (N.Y. 2006) ("The legislative and executive branches of government are in a far better position than the Judiciary to determine . . . priorities for the allocation of the State's resources."); Mohr v. Greenan, 803 N.Y.S.2d 876, 880 (N.Y.Sup.Ct. 2005) (citing Jiggetts v. Grinker, 75 N.Y.2d 411, 414 (N.Y. 1990)) ("Broad policy choices, which involve the ordering of priorities and the allocation of finite resources, are matters for the executive and legislative branches of government"). It is not the role of this Court to question any permitting priorities that may have been established by the City, the DOS, or the DEC in light of the impending closure of the Fresh Kills landfill.
Additionally, as noted by the Defendants, New York law gives applicants some level of control over the length of time that the DEC may expend in reviewing a permit application. See N.Y. ECL § 70-0109; 6 NYCRR § 621.6. (Defs.' Mem. in Opp'n 32.) Specifically, by statute, if the DEC has not rendered a permit decision within the time periods specified, applicants may demand action, and the DEC is required to respond to the demand within five working days (i.e., the five-day demand letter). See N.Y. ECL § 70-0109; 6 NYCRR § 621.6. Accordingly, East Bay could have sent its five-day demand letter to the DEC as soon as the statutory deadline for action had expired, or as early as July 2, 1996. (Defs.' Mem. in Opp'n 32.) However, East Bay did not send its five-day demand letter to the DEC until June 2, 1999. (Goldberg Decl. Ex. 96.) Therefore, the period of review of the East Bay application could potentially have been abbreviated if East Bay had acted sooner.
Overall, the Defendants have shown that the DEC had a rational basis for expediting the Tully application. Plaintiff having failed to present evidence that the difference in the treatment of East Bay and Tully Environmental was irrational and arbitrary, Defendants' motion for summary judgment is granted and the claim is dismissed.
ii. Plaintiff's Equal Protection Claim Based on DEC's Requiring a New Application Is Dismissed
East Bay's Rule 56(f) motion for a continuance was also granted as to its Sixth Claim "as the Magistrate Judge construed it."East Bay Recycling Inc., 2005 WL 1412978, at *1. In the February 2002 R R, Magistrate Judge Eaton construed the "basis" of the Sixth Claim as "Defendants' interpretation of the June 14 letter as requiring Plaintiff to file a `new' application if it wished to pursue its application for a transfer station." (February 2002 R R, at 43.) The June 14 letter to East Bay (the "June 14 letter") stated in relevant part:
Given that the current application does not meet permitting standards, is missing information, and raises questions about the environmental assessment, I strongly suggest that you contact the regional office to discuss how to reactivate application review with a re-submission of a revised application which would address the faults evident in the current application.
(Goldberg Decl. Ex. 95, at 2.) The letter did not contain any language specifying that the application had been denied, but did advise "that an applicant may request a public hearing if the permit is denied. . . ." (Id.) Plaintiff's claim, as construed by Magistrate Judge Eaton, is that in requiring East Bay to re-start the entire application process despite this language in the June 14 letter, DEC was intentionally treating East Bay differently than other similarly situated permit applicants without a rational basis.
To succeed on their summary judgment motion, Defendants must show either that there were no similarly situated applicants who were not required to re-start the permit application process but instead were allowed to re-submit a revised application or, in the alternative, that Defendants had a rational basis for treating East Bay in this manner. Plaintiff having failed to present sufficient evidence in support of its Sixth Claim as construed by Magistrate Judge Eaton, Defendants' summary judgment motion is granted in this regard and the claim is dismissed.
Defendants have asserted that "there are no similarly worded letters to applicants who were not required to submit new applications." (Defs.' Mem. in Supp. 29 n. 12.) In support of this contention, Defendants have re-submitted DEC's responses to five-day demand letters submitted by solid waste transfer station permit applicants from 1992 through February 2005. (See Declaration of Lisa Feiner, February 16, 2005 ("Feiner Decl. I"), Ex. A.) In all, twenty-two DEC letters were submitted, of which six applications were granted, three applications were denied, and three of the letters indicated that the request for a decision had been withdrawn. In addition, six of the letters indicated that the request for a decision was untimely, two indicated that extensions of time for a DEC response had been granted, one indicated that the application was considered to have been suspended, and one indicated that an additional step in the review process was warranted. (See id.)
Since the wording of the June 14 letter is unusual as compared to the other DEC responses to five-day demand letters submitted by the Defendants, Plaintiff appears to have been treated somewhat differently than other applicants who submitted a five-day demand letter to the DEC. Nevertheless, it is appropriate to construe the June 14 letter as a denial of Plaintiff's application.
Although a somewhat unsatisfying explanation, Defendants have indicated that the lack of a specific denial in the June 14 letter was an "oversight." (Goldberg Decl. Ex. 122; see also id. Ex. 125.) Defendants clarified that the June 14 letter was a denial in a timely manner (eighteen days), (see Goldberg Decl. Ex. 125), thereby putting the Plaintiff on notice that its application had been denied. Finally, two of the three denial letters submitted by the Defendants were based, at least in part, on some of the same reasons cited in the June 14 letter, including that: (1) the proposal did not meet permitting standards as required by 6 NYCRR; and (2) the application failed to include required information regarding the facility plan. (Compare id. Ex. 95, with Feiner Decl. I Ex. A, Sept. 28, 1992 letter re. Clean Earth, Inc. application, and Feiner Decl. I Ex. A, Oct. 18, 1999 letter re. B. Manzo and Sons application.)
Magistrate Judge Eaton agreed that the June 14 letter was a denial, stating:
The June 14 letter was clearly neither a grant of a permit nor a grant of a permit with conditions. It clearly stated that the application did not meet permitting standards. If the letter were not a denial, there would be no reason for it to refer to "reactivation" of application review.
(February 2002 R R, at 45 n. 59.)
Although none of the five-day response letters submitted by the Defendants includes a language construction similar to that used in the June 14 letter, neither does any of the letters denying an application indicate that an applicant may reactivate the review process by re-submitting a revised application. Moreover, Plaintiff has failed to provide evidence of any other waste transfer station applicant that has had an application denied by the DEC and was thereafter allowed to re-submit a revised application without restarting the application process anew.
Accordingly, Defendants' motion for summary judgment is granted as to the Sixth Claim and the claim is dismissed. See Celotex, 477 U.S. at 325.
iii. Declaratory Judgment
Plaintiff's Twelfth Claim seeks a declaration under state law that the DOS's Negative Declaration, rejected by the DEC in the exercise of its expertise and discretionary authority, is in fact legally sufficient and binding and that the SEQRA process was concluded in a manner favorable to East Bay. Although Magistrate Judge Eaton recommended sustaining this claim and granting Plaintiff's Rule 56(f) motion for a continuance, he also concluded that the Defendants had established, as a matter of law, that East Bay is not entitled to a declaratory judgment that DOS's East Bay Negative Declaration is binding on the DEC. See East Bay Recycling. Inc., 2005 WL 1412978, at *6. Furthermore, Magistrate Judge Eaton concluded that even if Plaintiff was to succeed in establishing an equal protection claim against the Defendants based on delay in processing East Bay's permit application, it still would not justify a declaration that the DOS's Negative Declaration was legally binding on the DEC or that the DEC was required to sign it. See id. This Court further concluded that no such declaration would be warranted even if Plaintiff was to succeed on its Sixth Claim, as construed by Magistrate Judge Eaton. See id. n. 2.
No evidence having been put forward to contradict this Court's prior conclusions, the Defendants' summary judgment motion is granted in this regard and the claim is dismissed.
Conclusion
For the foregoing reasons, Plaintiff's motion to amend the Amended Complaint pursuant to Rule 15(b), Fed.R.Civ.P., is denied. In addition, Defendants' motion for summary judgment is granted and the Third, Sixth and Twelfth Claims of Plaintiff's Amended Complaint are dismissed. All of the substantive claims in Plaintiff's Amended Complaint having been dismissed, Plaintiff's claim for attorney's fees and expert fees pursuant to 42 U.S.C. § 1988 is dismissed as moot.
Submit judgment upon notice.
It is so ordered.