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WHEREAS plaintiffs commenced this action on August 15, 2022 by filing a
Summons and Verified Complaint (the “Complaint,” Dkt. 1). Plaintiffs duly served
the Complaint on August 16, 2022 on each of the defendants (Dkt. 4-7).
WHEREAS the Complaint seeks relief that includes payment of civil
penalties to the New York State Department of Environmental Conservation
(“DEC”), and injunctive relief requiring that defendants (1) investigate and
remediate subsurface contamination at 155-11 Liberty Avenue in Jamaica, New
York, also known as 95-49 Tuckerton Street (the “Salvage Yard”) under DEC
oversight, and (2) remove all petroleum bulk storage tanks at the Salvage Yard, or
properly register such tanks with DEC.
WHEREAS the first cause of action in the Complaint seeks judgment: (1)
finding defendants liable for violating the Oil Spill Law, codified at Navigation Law
SUPREME COURT OF THE STATE OF NEW YORK
QUEENS COUNTY
PEOPLE OF THE STATE OF NEW YORK, SEAN
MAHAR
, Interim Commissioner of the New York
State Department of Environmental Conservation,
and the NEW YORK STATE DEPARTMENT OF
ENVIRONMENTAL CONSERVATION
Plaintiffs,
v.
LSM AUTO PARTS & RECYCLING INC.;
LIBERTY SCRAP METAL INC.; BGN REAL
ESTATE LLC; and THREE SONS REAL ESTATE
GROUP LLC,
Defendants.
CONSENT JUDGMENT
Index No.
717005/2022
Hon. Karina E. Alomar
3:24 p.m.
6/28/2024
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§§ 173, 175 and 176(1)) and DEC implementing regulations at 17 NYCRR §§ 32.3
and 32.5; (2) enjoining defendants, jointly and severally, to (a) submit to DEC,
within 60 days of service of the judgment, a work plan that (i) details the
methodologies for investigating and remediating a series of petroleum spills at the
Salvage Yard documented as open and unremediated in DEC’s spills database (the
“Spills”), (ii) includes a schedule of compliance with milestone dates for completing
the investigatory phase and then Salvage Yard remediation, and (iii) includes
submission of a final report documenting completion of Spill remediation in
accordance with the approved work plan, and (b) after approval of the work plan by
DEC, implement the work plan in accordance with the schedule in the approved
plan; and (3) assessing a penalty against them, jointly and severally in the amount
of up to $25,000 per day for prior and ongoing violations of the Navigation Law and
DEC regulations associated with each of the Spills, plus interest and other charges
under applicable law.
WHEREAS the second cause of action seeks judgment: (1) finding
defendants liable for violating the Vehicle Dismantling Law, codified at
Environmental Conservation Law (ECL) § 27-2303 and DEC implementing
regulations at 6 NYCRR §§ 360-13.1, 360.19(k)(3), 361-7.5(b), 371.1, and 372-2 in
connection with improper handling of hazardous and toxic automobile fluids,
including engine oil, transmission fluid, transaxle fluid, front and rear axle fluid,
brake fluid, power steering fluid, antifreeze/coolant, and fuel, most commonly
gasoline (“Automobile Fluids”); (2) enjoining defendants, jointly and severally to (a)
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immediately cease discharging or otherwise releasing Automobile Fluids onto the
ground or into the waters of the State, or into a drain or storm sewer; (b)
immediately cease dismantling automobiles or other motor vehicles without
employing measures to capture and contain all Automobile Fluids removed or
discharged from all components of the vehicles; and (c) within 60 days of service of
the judgment, submit to DEC the required annual reports under ECL § 27-2303(1)
and 6 NYCRR §§ 360.19(k)(3), 361-7.5(b) for calendar years 2019, 2020 and 2021 on
the appropriate DEC form; and (3) assessing a civil penalty of up to $1,000 per day
for each violation for as long as it continues or continued.
WHEREAS the third cause of action in the Complaint seeks judgment: (1)
finding defendants liable, jointly and severally, for violating DEC’s petroleum bulk
storage regulations codified at 6 NYCRR §§ 613-1.9, 613.3, 613-4.1, 613-4.2, and
613-4.3; (2) enjoining defendants, jointly and severally, within 60 days of service of
the judgment, to (a) remove or register all petroleum bulk storage tanks at the
Salvage Yard, (b) properly register any new tanks with DEC, and (c) submit
evidence of corrective action to DEC Region 2’s Bulk Storage Unit; and (3) assessing
civil penalties for each petroleum bulk storage violation of up to $37,500 per day.
WHEREAS defendants filed a Verified Answer on October 20, 2022 (Dkt.
11).
WHEREAS the parties have engaged in settlement discussions regarding a
consent judgment that would resolve plaintiffs’ claims through defendants’
implementation of a subsurface investigation followed by appropriate remedial
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actions, as approved by DEC, at the Salvage Yard, and payment of monetary
penalties.
WHEREAS defendants retained Galli Engineering, P.C. (“Galli”) to perform
a subsurface investigation of contamination at the Salvage Yard under DEC
oversight and to advise defendants on removal or proper registration of petroleum
bulk storage tanks and removal of an automobile scale at the Salvage Yard.
WHEREAS on December 22, 2022, DEC approved an initial remedial
investigation work plan submitted to DEC by Galli, and Galli submitted an initial
Sampling Report to DEC in April 2023.
WHEREAS on August 2, 2023, Galli informed DEC that defendants had
authorized Galli to oversee proper removal of a 1,500 gallon above-ground storage
tank (the “Aboveground Storage Tank”) and an automobile scale (the “Scale”) from
the Salvage Yard.
WHEREAS following additional communications with DEC Galli submitted
a supplemental remedial investigation work plan to DEC on August 21, 2023, which
DEC approved on August 25, 2023 (annexed hereto as Exhibit A);
WHEREAS on October 20, 2023, the parties submitted an Interim
Stipulation (Dkt. 12) which, among other things, set December 5, 2023 as the target
date for Galli’s submission of the Supplemental Remedial Investigation Report to
DEC and stayed discovery through January 31, 2024, and plaintiffs submitted a
Request for Judicial Intervention to request that the Court so-order the Interim
Stipulation;
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WHEREAS on December 11, 2023, the parties submitted a Revised Interim
Stipulation and Order (Dkt. 17) which, among other things, set March 4, 2024 as
the extended target date for Galli’s submission of the Supplemental Remedial
Investigation Report to DEC and stayed discovery through March 29, 2024, and
whereas the Court (Alomar, J.) so-ordered that Revised Interim Stipulation on
December 12, 2023 (Dkt. 20).
WHEREAS Galli provided three interim progress reports to DEC required
under the Revised Interim Stipulation and Order, on December 22, 2023, January
22, 2024, and February 22, 2024.
WHEREAS DEC confirmed on January 24, 2024 that the Aboveground
Storage Tank had been removed.
WHEREAS DEC communicated to Galli on March 4, 2024 that defendants
needed to immediately implement interim remedial measures to address free
petroleum product documented by Galli at the Site, pending agreement on a final
remedial plan, and on March 11, 2024 DEC communicated the need for an
investigation of potential soil vapor intrusion affecting the indoor air of the building
at the Site.
WHEREAS on April 15, 2024, the parties filed a stipulation amending the
case caption to reflect the substitution of Sean Mahar as Interim Commissioner of
DEC effective April 15, 2024, in place of former DEC Commissioner Basil Seggos
(Dkt. 25).
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WHEREAS on June 12, 2024, Galli submitted to DEC the Supplemental
Remedial Investigation Report and a proposed work plan for interim remedial
measures to address free petroleum product at the Salvage Yard.
WHEREAS on June 12, 2024, a proposed work plan for investigating soil
vapor intrusion at the Site was submitted to DEC.
WHEREAS plaintiffs and defendants wish to resolve this matter according
to the following terms, without further litigation, and plaintiffs and the State of
New York have concluded that entry of this Consent Judgment is in the public
interest.
WHEREAS defendants have ceased vehicle dismantling operations at the
Salvage Yard and do not intend to resume vehicle dismantling operations at the
Salvage Yard.
WHEREAS defendants waive any jurisdictional defenses and consent to the
jurisdiction of this Court for the purposes of entering and enforcing this Consent
Judgment.
IT IS HEREBY STIPULATED, ORDERED, AND DECREED, as
follows:
I. JURISDICTION AND VENUE
1. This Court has jurisdiction over the subject matter of this action
pursuant to provisions of the New York State Oil Spill Act (Navigation Law Article
12, particularly §§ 173, 176, 192, 193 and 200(1)) and ECL §§ 71-1929(3), 71-1931,
and 71-2727(2), as well as Judiciary Law § 140-b. Defendants waive all objections
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and defenses they may have to the jurisdiction of the Court or to venue in this
County. The Court shall have continuing jurisdiction to enforce the terms of this
Consent Judgment and to resolve any disputes that may arise hereunder.
II. APPLICABILITY
2. The obligations of this Consent Judgment apply to and are binding
upon plaintiffs and defendants, and their respective agents, heirs, successors, and
assigns.
3. No transfer of ownership of the Site (defined in Section III below) or
any portion thereof shall relieve defendants of their obligations to ensure that the
terms of the Consent Judgment are implemented.
III. DEFINITIONS
4. Whenever the terms set forth below are used in this Consent
Judgment, the following definitions shall apply:
a. “DEC” shall mean the New York State Department of Environmental
Conservation.
b. “DEC-Approved Supplemental Remedial Investigation Work Plan”
shall mean the plan appended to this Consent Judgment as Exhibit A.
c. “Site” or “Salvage Yard” shall mean 155-11 Liberty Avenue in Jamaica,
New York 11433 also known as 95-49 Tuckerton Street 11433,
designated as Queens County Tax Block 10108, Lots 312, 314 and 319.
d. “Defendants” or “defendants” shall mean LSM Auto Parts & Recycling
Inc.; Liberty Scrap Metal Inc.; BGN Real Estate LLC; and Three Sons
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Real Estate Group LLC.
IV. DEC REVIEW OF PROPOSED INTERIM REMEDIAL MEASURES
AND SOIL VAPOR INTRUSION INVESTIGATION PROPOSAL
5. Defendants have submitted to DEC a proposed work plan for Interim
Remedial Measures to address free petroleum product at the Site (“IRM Work
Plan”). DEC shall provide written notification either that it approves the IRM Work
Plan, or that DEC finds it deficient and declines to approve it. Should DEC find the
IRM Work Plan deficient and decline to approve it, DEC shall provide a written
explanation of the basis or bases for its disapproval. Defendants shall submit to
DEC a revised IRM Work Plan addressing DEC’s grounds for disapproval within 14
days of DEC’s disapproval. If DEC concludes that the re-submitted IRM Work Plan
is still not approvable, defendants shall continue to revise the proposed Plan as
directed by DEC to make it approvable. However, defendants shall be in violation of
the requirement to submit an approvable IRM Work Plan as of the 14
th
day to re-
submit.
6. Defendants have submitted to DEC a proposed work plan for a soil
vapor intrusion investigation (“SVI Investigation Work Plan”) at the Site. DEC
shall provide written notification either that it approves the SVI Investigation Work
Plan, or that DEC finds it deficient and declines to approve it. Should DEC find the
SVI Investigation Work Plan deficient and decline to approve it, DEC shall provide
a written explanation of the basis or bases for its disapproval. Defendants shall
submit to DEC a revised SVI Investigation Work Plan addressing DEC’s grounds
for disapproval within 14 days of DEC’s disapproval. If DEC concludes that the re-
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submitted SVI Investigation Work Plan is still not approvable, defendants shall
continue to revise the Plan as directed by DEC to make it approvable. However,
defendants shall be in violation of the requirement to submit an approvable revised
SVI Investigation Work Plan as of the 14
th
day to re-submit.
V. DEFENDANTS’ REGISTRATION OF THE REMOVED
ABOVEGROUND STORAGE TANK, REMEDIATION OF THE SCALE,
AND IMPLEMENTATION OF INTERIM REMEDIAL MEASURES AND
SOIL VAPOR INTRUSION INVESTIGATION
7. Defendants shall remediate the Scale in accordance with the DEC-
approved Remedial Action Work Plan (as discussed below) and submit proof to DEC
that the Scale has been remediated in the Remedial Action Report (as discussed
below). Defendants shall submit to DEC signed and completed registration
documents for the Aboveground Storage Tank removed from the Salvage Yard in
accordance with 6 NYCRR § 613-1.9 within 30 days of the Effective Date (as defined
in paragraph 42 below) by mail to the following address:
Attn: PBS Registration
NYSDEC
Division of Environmental Remediation
625 Broadway
Albany, NY 12233
8. Defendants shall implement the Interim Remedial Measures that
address free petroleum product at the Site within 14 days of DEC’s approval of an
IRM Work Plan, or by July 15, 2024, whichever is later.
9. Within 45 days of DEC’s approval of the SVI Investigation Work Plan,
defendants shall complete implementation of the DEC-approved SVI Investigation
Work Plan at the Site and submit to DEC an SVI Investigation Report with
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laboratory results.
10. After review of the SVI Investigation Report, DEC or another agency of
the State shall issue a letter to defendants identifying any recommended remedial
or mitigative actions to address any SVI exposures affecting indoor air quality at
the building at the Site.
11. To the extent the implementation of the SVI Investigation Work Plan
is subject to approvals by other governmental agencies, defendants shall use best
efforts to immediately obtain all such approvals to avoid delay.
12. Defendants authorize DEC, including agents and employees thereof, to
access the Site to inspect and for any other purposes concerning implementation of
the DEC-approved IRM Work Plan and the DEC-approved SVI Investigation Work
Plan, during ordinary business hours.
VI. REVIEW OF THE SUPPLEMENTAL REMEDIAL INVESTIGATION
REPORT BY DEC
13. Defendants have submitted the Supplemental Remedial Investigation
Report to DEC. DEC shall provide written notification either that it approves the
report’s conclusion and recommendations, or that DEC finds the report deficient
and declines to approve it.
14. Should DEC find the Supplemental Remedial Investigation Report
deficient and decline to approve it, DEC shall provide a written explanation of the
basis or bases for its disapproval. DEC may require that defendants undertake
additional monitoring or other investigatory activities at the Site or near the Site in
order to address DEC’s concerns. Unless otherwise agreed with DEC, defendants
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shall have 60 days from DEC’s response to re-submit a revised report addressing
DEC’s concerns. If DEC concludes that the re-submitted report is still not
approvable, defendants shall continue to revise the report as directed by DEC to
make it approvable. However, defendants shall be in violation of the requirement to
submit a Supplemental Remedial Investigation Report as of the 60
th
day to re-
submit.
VII. DEVELOPMENT AND IMPLEMENTATION OF A REMEDIAL
ACTION WORK PLAN UNDER DEC OVERSIGHT
15. After DEC notifies defendants that DEC has approved the
Supplemental Remedial Investigation Report and after the State notifies
defendants of any recommended remedial actions to address the findings of the SVI
Investigation Report, unless otherwise agreed with DEC, defendants shall have 90
days from that date to submit to DEC a proposed remedial action work plan. The
proposed remedial action work plan shall (i) describe the phases of remedial actions
(including to mitigate any SVI exposures), (ii) include anticipated dates for the
completion of each phase, (iii) include at least three periodic interim progress
reports to DEC, with dates, and (iv) include a date for submission of a remedial
action summary report to DEC.
16. After DEC approves a remedial action work plan (the “DEC-Approved
Remedial Action Work Plan” or the “Plan”), defendants shall have 270 days, unless
otherwise agreed with DEC, to implement all phases of the Plan and to submit a
report summarizing the results (the “Remedial Action Report”) to DEC.
17. To the extent the implementation of the DEC-Approved Remedial
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Action Work Plan is subject to approvals by other governmental agencies,
defendants shall use best efforts to immediately obtain all such approvals to avoid
delay.
18. Defendants authorize DEC, including agents and employees thereof, to
access the Site to inspect and for any other purposes concerning implementation of
the DEC-Approved Remediation Work Plan, during ordinary business hours.
19. After defendants submit the Remedial Action Report to DEC, DEC
shall provide written notification that it either approves the report’s conclusion and
confirming that defendants have completed their remedial obligations under this
Consent Judgment, or that it finds the report deficient. Should DEC find the
Remedial Action Report deficient and decline to approve it, DEC shall provide a
written explanation of the basis or bases for its disapproval (“Determination of
Disapproval”). DEC may require that defendants undertake additional monitoring
or other remedial activities at the Site or with respect to off-Site contamination in
order to address DEC’s concerns. Unless otherwise agreed with DEC, defendants
shall have 60 days from DEC’s response to re-submit a revised report addressing
DEC’s concerns. If DEC concludes that the re-submitted report is still not
approvable, defendants shall continue to revise the report as directed by DEC to
make it approvable. However, defendants shall be in violation of the requirement to
submit a Remedial Action Report as of the 60
th
day to re-submit.
VIII. MONETARY PENALTIES
20. Defendants shall pay DEC a civil penalty of Four Hundred and Ninety
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Seven Thousand Dollars ($497,000), of which Two Hundred and Eighty Seventy
Thousand Dollars ($287,000) shall be suspended (the “Suspended Penalty”) for so
long as defendants comply with the terms of this Judgment, including the remedial
requirements described in Sections IV, V, VI, and VII above, and the requirement to
pay the non-suspended $210,000 portion in accordance with paragraphs 21 and 22
below. DEC acknowledges that defendants’ payment of the $210,000 non-suspended
portion of the penalty shall include the money due to satisfy the $200 fee to DEC
under 6 NYCRR § 613-1.9(c) for proper initial registration and renewal registration
of the unregistered Aboveground Storage Tank that defendants removed from the
Salvage Yard.
21. Within 30 days of the Effective Date (as defined in paragraph 42
below) of this Consent Judgment, defendants or their counsel shall mail a bank
check in the amount of One Hundred and Twenty-Five Thousand Dollars ($125,000)
made out to “NYS Department of Environmental Conservation” with the following
in the “memo” line: “NYS Spill Compensation – 155-11 Liberty Ave, Jamaica, New
York” to counsel for plaintiffs at the following address:
Max Shterngel
Assistant Attorney General
New York State Office of the Attorney General
Environmental Protection Bureau
28 Liberty Street, 19
th
Floor
New York, NY 10005
22. Within 270 days of the Effective Date of this Consent Judgment,
defendants or their counsel shall mail a second bank check in the amount of Eighty-
Five Thousand Dollars ($85,000) made out to “NYS Department of Environmental
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Conservation” with the following in the “memo” line: “NYS Spill Compensation –
155-11 Liberty Ave, Jamaica, New York” to counsel for the State at the following
address:
Max Shterngel
Assistant Attorney General
New York State Office of the Attorney General
Environmental Protection Bureau
28 Liberty Street, 19
th
Floor
New York, NY 10005
23. If defendants fail to make any payment of the payable portion when
due in accordance with paragraphs 21 and 22 above, the complete payable penalty
of $210,000 shall become immediately due and subject to entry of judgment, to the
extent not already paid. The Clerk shall enter judgment in the amount of Two
Hundred and Ten Thousand Dollars ($210,000), minus any penalty amount already
paid, against defendants, upon application by plaintiffs at any time after defendants
fail to make such payments when due under paragraphs 21 and 22.
24. If defendants fail to timely comply with any requirement of this
Consent Judgment, including failing to make a timely payment, then plaintiffs shall
be entitled to make a written demand for any or all of the Suspended Penalty in
accordance with paragraph 27 below. Once payment of the Suspended Penalty
becomes due following such demand in accordance with paragraph 27, then the
Clerk shall enter judgment in the amount of Two Hundred and Eighty-Seven
Thousand Dollars ($287,000), or such lesser amount as may have been demanded by
plaintiffs, against defendants upon application by plaintiffs.
25. After defendants (a) satisfy the remedial requirements of this Consent
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Judgment and (b) defendants have paid the $210,000 non-suspended portion of the
penalty and any portion of the Suspended Penalty that plaintiffs have assessed that
defendants did not timely challenge or the Court has upheld after timely challenge,
plaintiffs’ counsel shall provide written confirmation that defendants have fulfilled
all the requirements of this Consent Judgment (“Completion Confirmation Letter”).
Such Completion Confirmation Letter shall be transmitted solely by Assistant
Attorney General Max Shterngel or another Assistant Attorney General. To the
extent any portion of the Suspended Penalty remains outstanding, such portion of
the Suspended Penalty shall be extinguished upon defendants’ receipt of the
Completion Confirmation Letter.
26. The Suspended Penalty provided for in this Consent Judgment shall be
in addition to any other rights, remedies, or sanctions available to the State of New
York and/or DEC for defendants’ violation of this Consent Judgment or applicable
law.
IX. VIOLATION NOTIFICATIONS AND CHALLENGES
27. Plaintiffs shall notify defendants of any violation of this Consent
Judgment by issuing a notice of violation (“NOV”). If plaintiffs issue an NOV or a
Determination of Disapproval pursuant to paragraph 19, defendants shall have 14
days from being served with such NOV or Determination of Disapproval to initiate
a challenge as provided below. The Suspended Penalty shall be due and payable by
defendants 45 days after their time to initiate a challenge expires or, if defendants
initiate a challenge, within 45 days after a decision of the Court is entered which
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upholds, in whole or in part, the challenged NOV or Determination of Disapproval.
28. Defendants shall have the right to challenge any NOV or
Determination of Disapproval by motion on notice before this Court. In any such
challenge, DEC’s NOV or Determination of Disapproval shall be upheld unless
defendants meet their burden of demonstrating that the NOV or Determination of
Disapproval was arbitrary, capricious or contrary to law.
29. If defendants fail to commence a challenge within 14 days in
accordance with paragraph 27, defendants waive their right to challenge the NOV
or Determination of Disapproval and any associated assessment of penalties in this
Court or any other forum.
30. In any motion brought pursuant to paragraph 28, service of the moving
papers shall be made by electronic delivery to:
Max Shterngel
Assistant Attorney General
New York State Office of the Attorney General
Max.Shternge[email protected]
and
Antonia Pereira
Regional Attorney, Region 2
New York State Department of Environmental Conservation
Antonia.Pereira@dec.ny.gov
X. SECURING ACCESS TO THE SITE IF IT IS LEASED
31. To the extent the Site becomes occupied by one or more tenants other
than one of the defendants or an affiliate, defendants shall incorporate into any
lease of the Site or of any portion of the Site the requirement that defendants and
their consultants or contractors (including but not limited to Galli), and any DEC
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employees or agents, be provided with access to the entire Site during ordinary
business hours for the purpose of implementing any of the investigatory or remedial
activities addressed in Sections IV, V, VI and VII of this Consent Judgment.
XI. POTENTIAL SALE OF THE SITE
32. In the event that defendants BGN Real Estate LLC and/or Three Sons
Real Estate Group LLC, voluntarily or pursuant to court order, undertake to sell,
transfer, or otherwise convey the Site (or any portion of the Site), or any interest
therein, prior to receiving a Completion Confirmation Letter from DEC, defendants
BGN Real Estate LLC and/or Three Sons Real Estate Group LLC shall, prior to
executing any contract of sale or other written agreement concerning sale of the
Site:
a. to the extent the reports are available to defendants, provide the
purchaser, successor in title, or assignee of the Site (or any portion of the
Site) with a copy of: (i) the Sampling Report from Galli dated April 11, 2023;
(ii) the Supplemental Remedial Investigation Report; (ii) the DEC-Approved
IRM Work Plan; (iii) the DEC-Approved SVI Investigation Work Plan, or if
such Plan has already been implemented, the SVI Investigation Report; (iv)
the DEC-Approved Remedial Action Work Plan, or if such Plan has already
been implemented, the Remedial Action Report; and (v) this Consent
Judgment as approved by the Court, with Exhibit A thereto; and
b. provide DEC with at least five business days written notice prior to
executing a contract for such sale and shall provide DEC with a copy of any
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such executed contract for sale, and if there is no such contract, provide DEC
notice of such sale at least 30 business days prior to any closing for such a
transaction, or auction for a compelled sale.
33. In any such sale, transfer, or conveyance, the contract of sale or
another written agreement between defendants BGN Real Estate LLC and/or Three
Sons Real Estate Group LLC and the purchaser, successor in title, or assignee shall
provide that the purchaser, successor in title, or assignee shall be required to
comply with the injunctive obligations of Sections IV, V, VI and VII set forth in this
Consent Judgment and all other terms and conditions of this Consent Judgment
(save for the penalty and Suspended Penalty provisions).
34. Failure to impose the obligations set forth in this Consent Judgment
into a contract of sale of the Site (or any portion of the Site) does not release
defendants or the purchaser(s) of the Site (or any portion of the Site), or of an
interest therein, from the obligations herein.
35. Defendants and the successor(s) to BGN Real Estate LLC’s and/or
Three Sons Real Estate Group LLC’s interest in the Site shall be jointly and
severally liable for the implementation of all injunctive obligations set forth in this
Consent Judgment even after any such sale, transfer or conveyance of the Site (or
any portion of the Site).
XII. NOTICES
36. Defendants shall serve any communication pursuant to this Consent
Judgment via email upon:
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Max Shterngel
Assistant Attorney General
New York State Office of the Attorney General
Max.Shternge[email protected]
and
Antonia Pereira
Regional Attorney, Region 2
New York State Department of Environmental Conservation
and
Ryan Piper, P.G.
New York State Department of Environmental Conservation
Region 2
Ryan.Piper@dec.ny.gov
37. Plaintiffs shall serve any communication pursuant to this Consent
Judgment via First Class Mail upon:
Victoria Agnello
c/o Rigano LLC
538 Broad Hollow Road, Suite 301
Melville, NY 11747
with a courtesy email to James Rigano, Esq. at jrigano@riganollc.com and Alyse
Delle Fave, Esq. at [email protected].
XIII. MISCELLANEOUS
38. The provisions of this Consent Judgment shall be deemed to bind
defendants, their successors and assigns, and, should they file for bankruptcy, their
trustees in bankruptcy.
39. This Consent Judgment shall constitute the entire agreement of
plaintiffs and defendants with respect to settlement of the three causes of action in
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the Complaint. For the avoidance of doubt, this Consent Judgment does not settle
any of defendants’ liability to DEC or to the State of New York for any other
violations not addressed in the Complaint.
40. If defendants cannot comply with a deadline or requirement of this
Consent Judgment because of a war, strike, riot, or other condition which was not
caused by the negligence or willful misconduct of defendants and which could not
have been avoided by defendants through the exercise of due care, defendants shall
apply in writing to plaintiffs as soon as practicable after obtaining knowledge of
such fact and request an extension or modification of the deadline or requirement.
41. Defendants shall indemnify and hold DEC, the State of New York and
their representatives and employees harmless for all claims, suits, actions, damages
and costs resulting from the acts and/or omissions of defendants, intentional,
negligent, or otherwise, of every nature and description, arising out of or resulting
from the compliance or attempted compliance with the provisions of this Consent
Judgment by defendants or their employees, servants, agents, successors or assigns.
42. The effective date of this Consent Judgment (“Effective Date”) is the
date the Court-approved Consent Judgment showing entry by the County Clerk is
filed on the NYSCEF docket.
43. Nothing contained in this Consent Judgment shall be construed as a
release or waiver by the State of New York or DEC of its rights to seek penalties
and other relief for any violations of the Navigation Law, the ECL or other laws
from defendants or any other party, except to the extent this Consent Judgment
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resolves such violations. For purposes of clarity, by fully complying with this
Consent Judgment defendants will resolve all of their violations arising from or
otherwise concerning the allegations pled in the Complaint. If defendants agree to
this Consent Judgment but fail to complete the remedial requirements of this
Consent Judgment, they shall remain subject to DEC and/or State of New York
claims for violation of the Navigation Law, ECL or other laws, except that
defendants shall be absolved of monetary penalties for any violations that have
accrued through the Effective Date other than the penalties provided by this
Consent Judgment.
XIV. COMPLIANCE WITH FEDERAL TAX REPORTING REQUIREMENTS
44. Pursuant to 26 U.S.C. § 6050X and 26 C.F.R. § 1.6050X-1, the Office of
Attorney General of the State of New York (“OAG”) is required to send to the
Internal Revenue Service (“IRS”) annually, a completed IRS Form 1098-F (“Fines,
Penalties, and Other Amounts”) with respect to any court order or settlement
agreement (including consent judgments), that require a payor to pay an aggregate
amount that OAG reasonably believes will be equal to, or in excess of, $50,000 for
the payor’s violation of any law or the investigation or inquiry into the payor’s
potential violation of any law, including amounts paid for “restitution or
remediation of property” or to come “into compliance with a law.” OAG is further
required to furnish a written statement, which provides the same information
provided to the IRS, to each payor (i.e., a copy of IRS Form 1098-F). Failure to
comply with providing IRS Form W-9 or Tax Identification Number (“TIN”), as
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described below, may subject parties to a penalty, per 26 U.S.C. § 6723, 26 U.S.C. §
6724(d)(3), and 26 C.F.R. § 301.6723-1.
45. In order to provide OAG with sufficient information to enable it to
fulfill these reporting obligations to IRS, each defendant shall:
a. Complete an IRS Form W-9 (“Request for Taxpayer Identification Number
and Certification”), which is available at https://www.irs.gov/pub/irs-pdf/fw9.pdf;
b. Within 30 days of the Effective Date of this Consent Judgment (as defined
in paragraph 42 above), email its completed IRS Form W-9 to Assistant Attorney
General Max Shterngel at max.[email protected], or mail the completed IRS
Form W-9 to the following address:
Max Shterngel
Assistant Attorney General
New York State Office of the Attorney General
Environmental Protection Bureau
28 Liberty Street, 19th Floor
New York, NY 10005
c. In the event that a defendant has certified in its completed IRS Form W-9
that it has applied for a TIN and that the TIN has not been issued to a defendant
within 30 days after the Effective Date of this Consent Judgment (as defined in
paragraph 42 of this Consent Judgment), then that defendant shall further:
i. notify OAG by e-mailing Assistant Attorney General Max Shterngel at
max.shterngel@ag.ny.gov of this fact within 45 days after the Effective Date of this
Consent Judgment (as defined in paragraph 42 of this Consent Judgment); and
ii. within five days of that defendant’s receipt of its TIN, provide that
defendant’s TIN via email to Assistant Attorney General Max Shterngel at
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max.shterngel@ag.ny.gov or mail that defendant’s TIN to the following address:
Max Shterngel
Assistant Attorney General
New York State Office of the Attorney General
Environmental Protection Bureau
28 Liberty Street, 19th Floor
New York, NY 10005
XV. SIGNATORIES
46. The parties may execute this Consent Judgment in counterparts and
by electronic signature. Copies of signatures, including copies transmitted
electronically, shall be treated as originals.
XVI. ATTACHMENTS
47. The following attachments are attached to and incorporated into this
Consent Judgment: “Exhibit A” is the DEC-Approved Supplemental Remedial
Investigation Work Plan.
[The remainder of this page is blank.]
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AGREED
TO:
Date:
(G
|2t)
202
4
.
RIGANO
LLC
Attorneys
for
Defendants
LSM
Auto
Parts &
Recycling
Inc.; Liberty
Scrap
Metal
Inc.;
BGNReal
Estate
LLC;
and
Three
Sons Real
Estate Gro
LLC
By:
Jame
P.
Rigano,
Esq.
Alyse
elle
Fave,
Esq.
Rigano LLC
538
Broad
Hollow,
Suite
301
Melville,
NewYork 11747
(631)
921-2988
Date:
2C4
LSM
AUTO
PARTS
&
RECYLCING
INC.;
LIBERTY
APMETAL
INC.;
BGN
RE
ATELLC;
HREESONS
REAL
A E
GR U
LLC
By:
Victoria
Agnello
Date:
LETITIA
JAMES
Attorney
General
of State
of New
York
Attorn.ey
for
Plaintiffs
People
of
the State
of
New
York,
Sean
Mahar,
the
Interim
Commissioner
of
the New
York
State
Department
of
Environmental
Conservation,
and
the New
York
State
Department
of
Environmental
Conservation
By:
Andrew
J.
Gershon
Max
Shterngel
Assistant
Attorneys
General
Environmental
Protection
Bureau
28
Liberty
Street
New
York,
NY
10005
(212)
416-6692
Max.Shterngel©ag.ny.gov
FILED: QUEENS COUNTY CLERK 06/28/2024 03:24 PM
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24 of 26
AGREED
TO:
RIGANO
LLC
Date
^¯
Attorneys
for
Defendants
LSM
Auto
Parts
&
Recycling
Inc.;
Liberty
Scrap
Metal
Inc.;
BGN
Real
Estate
LLC;
and
Three
Sons
Real
Estate
Group
LLC
By:
James P.
Rigano,
Esq.
Alyse
Delle
Fave,
Esq.
Rigano LLC
538
Broad
Hollow,
Suite
301
Melville,
New
York
11747
(631)
921-2988
Date:
LSM
AUTOPARTS
&
RECYLCING
INC.;
LIBERTY
SCRAP
METAL
INC.;
BGN
REAL
ESTATE
LLC;
THREE
SONS
REALESTATEGROUPLLC
By:
Victoria
Agnello
Date:
LETITIA
JAMES
Attorney
General of
State of
NewYork
Attorney
for
Plaintiffs
People
of
the State
of
New
York,
Sean
Mahar,
the
Interim
Commissioner
of
the
New
York State
Department
of
Environmental
Conservation,
and
the
New
York State
Department
of
Environmental Conserv
tio
By:
Andrew
J. Gershon
Max Shterngel
Assistant
Attorneys
General
Environmental
Protection Bureau
28
Liberty
Street
New
York,
NY
10005
(212)
416-6692
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SO ORDERED AND ADJUDGED:
Date:___________________ By: _______________________________
Hon. Karina E. Alomar, J.S.C.
June 27, 2024
Index No.: 71005/2022
3:24 p.m.
6/28/2024
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26 of 26
