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DEC CONTRACTORS HAD THE RIGHT TO ENTER PROPERTY TO TEST FOR GASOLINE CONTAMINATION WITHOUT SIGNING THE PROPERTY OWNER’S ACCESS AGREEMENT, BECAUSE ONLY A CHANGE IN FORM WAS REQUIRED, THE DEC’S ACTION WAS CONVERTED TO A DECLARATORY JUDGMENT ACTION 4TH DEPT.

The Fourth Department, reversing Supreme Court, determined the Department of Environmental Conservation (DEC) and its contractors had the right to enter respondent’s property to test for gasoline contamination without signing an access agreement with the property owner. The property owner had refused entry to DEC contractors because its proposed access agreement was rejected by the DEC. The Fourth Department further determined a declaratory judgment action was the appropriate vehicle for the relief requested by the DEC and converted the action accordingly:

We … agree with the DEC that the Oil Spill Act authorizes it and its contractors or agents to enter suspected spill sites. Navigation Law § 178 provides, in pertinent part, that “[t]he department is hereby authorized to enter and inspect any property or premises for the purpose of inspecting facilities and investigating either actual or suspected sources of discharges or violation of this article or any rule or regulation promulgated pursuant to this article.  * * *

Where an unregulated discharge takes place, … the “person” responsible “shall immediately undertake to contain such discharge” … . As this does not always occur, “the [DEC] may undertake the removal of such discharge and may retain agents and contractors who shall operate under the direction of [the DEC] for such purposes” … , and in reading the Act’s sections together to best effectuate the Legislature’s intended objectives … , we conclude that the DEC’s contractors who “operate under the direction of [the DEC]” to investigate and remediate suspected and actual discharges of petroleum are authorized by statute, like the DEC, to enter the subject property for such purposes without acceding to landowner access agreements, but remaining subject only to restrictions imposed by law. Matter of State of New York (Essex Prop. Mgt., LLC), 2017 NY Slip Op 05525, 4th Dept 7-7-17

ENVIRONMENTAL LAW (NAVIGATION LAW, GASOLINE CONTAMINATION, DEC CONTRACTORS HAD THE RIGHT TO ENTER PROPERTY TO TEST FOR GASOLINE CONTAMINATION WITHOUT SIGNING THE PROPERTY OWNER’S ACCESS AGREEMENT, BECAUSE ONLY A CHANGE IN FORM  WAS REQUIRED, THE DEC’S ACTION WAS CONVERTED TO A DECLARATORY JUDGMENT ACTION 4TH DEPT)/CIVIL PROCEDURE (BECAUSE ONLY A CHANGE IN FORM WAS REQUIRED, THE DEC’S ACTION WAS CONVERTED TO A DECLARATORY JUDGMENT ACTION 4TH DEPT)/NAVIGATION LAW (GASOLINE CONTAMINATION, DEC CONTRACTORS HAD THE RIGHT TO ENTER PROPERTY TO TEST FOR GASOLINE CONTAMINATION WITHOUT SIGNING THE PROPERTY OWNER’S ACCESS AGREEMENT, BECAUSE ONLY A CHANGE IN FORM WAS REQUIRED, THE DEC’S ACTION WAS CONVERTED TO A DECLARATORY JUDGMENT ACTION 4TH DEPT)/OIL SPILL LAW  (NAVIGATION LAW, GASOLINE CONTAMINATION, DEC CONTRACTORS HAD THE RIGHT TO ENTER PROPERTY TO TEST FOR GASOLINE CONTAMINATION WITHOUT SIGNING THE PROPERTY OWNER’S ACCESS AGREEMENT, BECAUSE ONLY A CHANGE IN FORM WAS REQUIRED, THE DEC’S ACTION WAS CONVERTED TO A DECLARATORY JUDGMENT ACTION 4TH DEPT)/GASOLINE CONTAMINATION (NAVIGATION LAW, GASOLINE CONTAMINATION, DEC CONTRACTORS HAD THE RIGHT TO ENTER PROPERTY TO TEST FOR GASOLINE CONTAMINATION WITHOUT SIGNING THE PROPERTY OWNER’S ACCESS AGREEMENT, BECAUSE ONLY A CHANGE IN FORM WAS REQUIRED, THE DEC’S ACTION WAS CONVERTED TO A DECLARATORY JUDGMENT ACTION 4TH DEPT)

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THE SHOOTER, WHO WAS NEVER FOUND OR IDENTIFIED, WAS A PASSENGER IN A CAR DRIVEN BY DEFENDANT WHEN THE SHOOTER SHOT AT AND MISSED A PERSON SITTING IN A PARKED CAR; THE ATTEMPTED MURDER AND ASSAULT CONVICTIONS WERE AGAINST THE WEIGHT OF THE EVIDENCE; TWO-JUSTICE DISSENT (FOURTH DEPT).
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