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New York State Water Resources Comm'n v. Liberman

Citation: 2 ELR 20470
No. No. 17728, 326 N.Y.S.2d 284/3 ERC 1910/37 A.D.2d 484, (N.Y. App. Div., 12/01/1971)

In action to restrain defendant from placing fill in navigable waters of Lake Cayuga adjacent to his property without first obtaining permit, several affirmative defenses are dismissed and one added. Six year statute of limitations in New York statute pertaining to "spoliation" is no defense since that provision applies only to personal property, not to real property. Defense based on alleged retroactive application of section of New York law fails since cause of action is expressly limited to violations occurring after effective date of statute. Public interest in, and necessity for, regulation of water resources in manner provided by a disputed section of New York conservation laws brings provision clearly within police power of state. Contested enforcement procedure is proper method of regulation and not a taking of private property without just compensation. Issue of title to land is irrelevant since state may regulate land under navigable waters even when title is in private ownership. Laches is no defense since limitations on time state should act must be statutory, and laches should not apply to state's right to protect property held in trust for its people. Defendant permitted to add defense of discriminatory enforcement of conservation laws based on facts in affidavit to motion to amend.

Counsel for Plaintiff
Louis J. Lefkowitz Atty. General
Stanley Fishman
Ruth Kessler Toch
Julius Feinstein Of Counsel
State of New York
Department of Law
Albany, New York 12224

Counsel for Defendant
Barry M. Shulman
MacKenzie, Smith, Lewis, Michell & Hughes
600 Onondaiga County Savings Bank Bldg.
Syracuse, New York 13202