New York State Department of Environmental Conservation v. O'Neill

853 plan. When defendants failed to submit an amended plan by the extension date, plaintiffs, by letter, required the submission of an amended plan within seven days and removal of the materials from the site by a specified date. Defendants failed to comply with either condition, and plaintiffs commenced this action to enforce the consent order. In granting plaintiffs’ motions, the court required defendants to remediate and close the solid waste disposal plant and to pay fines and stipulated penalties in the amount of $600 per day, from January 15, 1997 to January 26, 1999. We reject the contention of defendants that the terms of plaintiffs’ letter rendered them unable to comply with the terms of the consent order; the letter merely reiterated the terms of the consent order (cf., State of New York v Town of Wolcott, 270 AD2d 931). The court properly determined that, pursuant to the consent order, the goal of the parties was to close the facility and not, as defendants contend, to permit defendants to resume its operation. Moreover, the court properly directed defendants to pay the fines and civil penalties to which the parties stipulated in the consent order. Contrary to defendants’ contention, the force majeure clause of the consent order was not implicated by plaintiffs’ actions, and, in any event, defendants failed to invoke the clause as required by the consent order. Finally, defendants have abandoned any issues with respect to those affirmative defenses and counterclaims that are not addressed on appeal (see, Karas v Corning Hosp. [appeal No. 1], 262 AD2d 1039), and we conclude that the court properly dismissed those affirmative defenses and counterclaims that are addressed on appeal. (Appeal from Judgment of Supreme Court, Cayuga County, Bender, J. — Summary Judgment.) Present — Pigott, Jr., P. J., Wisner, Scudder and Lawton, JJ.