ML20125E501
| ML20125E501 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 06/11/1985 |
| From: | Irwin D HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | Asselstine J, Palladino N, Roberts T NRC COMMISSION (OCM) |
| References | |
| CON-#285-371 OL, NUDOCS 8506130140 | |
| Download: ML20125E501 (9) | |
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e HUNTON & WILLIAMS 2000 PENNSYLVANIA AVENuc. N.W.
P.O. Box 19230 7o7rastmeaim st.ast p o som asas WAS H INGTON. D.C. 2o000 a...... Ave us
.icmuono, y,.o w.a rasia maw vo.a. maw vo.m ioevi TEta.=ont so4 yes eaoo TELapwoms ria seo eroo Twm fio.ees-ooes TELEPHONE 202 955 1500 veten7s4'on ri st v noamia sama vowta a e a t suisoino e o aos soo 3
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TEttanons voz asa aaoo on-sc? olAL No 2o2 999-CFFICE OF SECF ' ts s 00CXLTitlG A SU "
ERANCH l,
BY HAND
{
The Honorable Nunzio J.
Palladino, Chairman 2
Commissioner Thomas M.
Roberts Commissioner James K. Asselstine Commissioner Frederick M.
Bernthal Commissioner Lando W.
Zech i
Long Island Lighting Company (Shoreham Nuclear Power Station)
=
Docket No. 50-322-OL y
Dear Chairman Palladino and Commissioners:
LILCO understands that Herbert H.
Brown, Esq., of the firm l
of Kirkpatrick & Lockhart and formerly counsel for Suffolk
=
County in this proceeding, served on you a letter yesterday R
t evening by hand, requesting postponement of today's scheduled meeting to consider a 5% low power license for the Shoreham Nuclear Power Station.
LILCO also understands that Mr. Brown's letter attaches an opinion letter from another law firm j
purporting to place him and his firm under an ethical duty to continue to present before the Commission various positions previously espoused by them, notwithstanding their recent discharge by the Suffolk County Executive.
LILCO has not yet reviewed Mr. Brown's letter, and was given no notice of its intended issuance.
On the basis of 2
information available, LILCO submits the following brief response in the interest of placing its views, in whatever summary fashion necessary, before the Commission prior to this afternoon's meeting:
8506130140 850611 i
PDR ADOCK 05000322 C
H UNTON & WILLIAM s
' 1.
On May 30, Suffolk County Executive Peter Cohalan issued Executive Order 1985-1, authorizing and directing a review of the offsite emergency plan prepared by LILCO for the Shoreham plant, and the County's participation in an exercise of that plan.
On June 6, eight Suffolk County legislators :nd officials of four East End towns in the County filed suit in the New York Supreme Court to enjoin the executive order and declare it null and void.
On June 7 a temporary restraining order was denied by Justice Jack J. Cannavo in Hauppauge.
Yesterday, another judge, Justice Robert W. Doyle sitting in Riverhead, held, on a motion for a preliminary injunction and without awaiting receipt of a responsive pleading by respondent Peter Cohalan, that Executive Order 1985-1 was null and void.
He also denied LILCO's motion to intervene in the case.
The County Executive filed a notice of appeal from this judgment yesterday evening.
Since the judgment is against an officer of a municipal corporation, filing of the notice of appeal automatically stays the judgment pending appeal under New York law.
CPLR Sec. 5519(a)l.,(e) (attached).
Thus Executive Order 1985-1 remains in effect.
2.
LILCO understands that the County Executive, through the County Attorney, has today reiterated the dismissal of Kirkpatrick & Lockhart originally set out in his letter of June 3 to you.
LILCO, as a third party to this intramural dispute, takes no position at the present on the merits of either the County Executive's prerogative to dismiss counsel or the ethical obligations of counsel once dismissed by his client.
However, whatever the outcome of these issues, their occurrence underscores the importance of the Commission's not allowing its implementation of its duties under federal law to be diverted by the vagaries of local politics.
In particular, the provisions of 10 CFR Sec. 50.47(d), governing issuance of low power licenses, are simply independent of the emergency planning requirements of the Commission's regulations for a full power license.
Thus LILCO, if it meets the other requirements for a low power license, is entitled to receive one regardless of the outcome of this or any succeeding attempt by members of the Suffolk County legislature to disrupt the Suffolk County Executive's performance of his duties.
For the foregoing reasons, LILCO requests that the Commission not let this latest last-minute ploy disrupt it from taking whatever action it may have previously intended to take
e.-
HUNTON & WILLIAMS with respect to LILCO's long-pending application for a low power license for Shoreham.
Respectfully submitted, f.3M g
W. Taylor Reveley, III
[
Donald P.
Irwin cc:
Counsel for All Parties Courtesy Copy:
Herbert H.
Brown, Esq.
Jun 11,95 12:21 PALL CORP.0 ElST HILLS, NEW YORK P.C2 McKINNEY'S CONSOIJDATED LAWS OF NEW YORK ANNOTATED l
Book 7B Civil Practice Law and Rules CPLR 5501 to 604 Practice Commentaries By DAVID D. SIEGEL 1dAIL Annetettens From State and Federal Courts f
and State Agencies J T. F A W 3n, M I E N.
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EAST HILLS, NEW ?CFK F,03 5519 APPEALS--GENERALLY APPEAIMENERALLY Art. 53 Art. 55 acnable probability of succene ou ap-from order of the appeIInte division. peal and existence of irreparabse is-Ahern v. McNab, 1000,16 Mine.2d jury in event an injuncuon does not Schwartz v. Rockefeller. Ifr/2, fee,1R0 N.Y.8.2d SIG inaue.
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Service upon the adverse par-eth Iteport Leg.INc. (19e2) No. 8, p-tra.iting, nodjfy.
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ty of a notice of appeal or an affidavit of intention to mo Ilnalari injune-a2s.
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u a Jun 11,85 12:32 PALL CcRF., EAST HILLS, N EW '.' C R K p,g ~. 5519 APPEAIA--GENERALLY Art. 54 6. the appellar.t or moving party is in possesalon or control of real property which the judgment or order directs be con-voyed or delivered, and an undertaking in a sum fixed by the 2 court of original instance is g'ven that the appellant or moving ? party will not commit or suffei to be committed any waste and that il the judgment or order appealed from, or any part of it, is affirmed, or the appeal is dismissed, the appellant or moving Q party shall pay the value of the use and occupancy of such prop-erty, or the part of it as to which the judgment or order is af-firmed, from the taking of the appeal until the delivery of pos-session of ti e property; if the judgment or order directs the sale of mortgaged property and the payment of any deficiency, the undertaking shall also provide that the appellant or moving par-ty shall pay any such deficiency; or 7. the judgment or order directs the performance of two or more of the acts specified in subparagraphs two through six and i 4 the appellant or moving party complies with each applicable sub-paragraph. (b) 8tay in action defended by insurer. If an appealis taken from a judgment or order entered against an insured in sa ae-tion which is defended by an insurance corporation, or other in-g surer, on behalf of the insured under a policy of insuranos the h limit of liability of which is less than the amount of said jude-ment or ortler, all proceedings to enforce the judgment or oder to the extent of the policy coverage shall be stayed pending the appeal, and no action shall be commenced or maintained against the insurer for payment under the policy pending the appeal. where the insurer: 1. files with the clerk of the court in which the judgment or [ order wr.a entered a sworn statement of one of its officers, de-1 acribing the nature of the policy and the amount of coverage to-gether with a written undertaking that if the judgment or order appealed from, or any part of it, is affirmed, or the appeal is dis-d missed, the insurer shall pay th-amount directed to be paid by _3 the judgment or order, or the part of it at to which the judgment -j or order is affirmed, to the extent of the limit of liability in the 2 policy, plus interest and costs; 2. serves a copy of such sworn statement and undertaking i upon the judgment creditor or his attorney; and 5 8. delivers or mails to the insured at the latest address of l the insured appearing upon the records of the insurer, written 2 l i I notice that the enforcement of such judgment or order, to the extent that the amount it directs to be paid exceeds the limit of } 182 = f'W 2 5
s Jun 11,85 12:24 PA'.L Co?F., EA5T H:LL5, NEW ? C F. X .o..~ ; f 551 1 (E--GENERALLY Art. 65 Art. 55 APPEAL 8-GENERAlu ing party is in possession er control liability in the policy, is not stayed in respect to the insured. A i i judgment or order directs be con-stay of enforcement of the balance of the amount of the judg. , undertaking in a suin fixed by the ment or order may be imposed by giving an undertaking, as pro-s given that the appellset or moving vided in paragraph two of subdivision (a), in an amount equal ( uffer to be consmitted any waste and to that balance. ) (c) Stay and limitation of stay by court order. The court fd from or to which an appeal is taken or the court of original in-p lant m aney M s stance may stay all proceedings to enforce the judgment or or-fh i g 9, g dar appealed from pending an appeal or determination on a mo-f tha appeal until the delivery of pos-ti n f r permission to appeal in a case not provided for in subdi-5 the judgment or order directs the sale vision (a) or subdivision (b), or may grant a limited stay or d the payment of'Ey deficiency, the may vacate limit or modify any stay imposed by subdivision vide that the appellant or moving par-(a), subdivision (b) or this subdivision, except that only the i court to which an appeal is taken may vacate, limit or modify a '"#U der directs the, performance of two or stay imposed by paragraph one of subdivision (a). i in subparagraphs two through six and (d) Undertaking. On an appeal from an order affirming a arty compHes with each app!!eable sub-judgment or order, the undertaking shall secure both the order and the judgment or order which is affirmed. I nded by If an appeal is taken mi f%ntinuation af a'w-lhhe juogmem or -- gM _ r entered an lasured in an ac-a affirmed or modified, the stay shall continue f ve fro i e an insuramenforpongNon7or other in_ days service upon the appellant of notice of entry in naured under a policyM Insurance the s is less than the amount of said judg-hie court to hich the appeal was taken of the o determin-4 dings to enforce the' judgment or order , ing the appeal. here an appeal is taken i such an order, 3 y c:verage shall be stayed pending the [ the stay shall conth e until the final de inntion of that ap-t peal. Subject to an or roviding erwise, any stay granted til be commenced or maintained against under the policy pending the appeal, 6 - pending the determination ton for leave to appeal shall, S in the event such motion is , continue for five days after i a copy he order denying such mo. ( service upon the movant i < (f the court in which the judgment or ti of entry ther >rn statsenent of one of its officers, de-Q on, together with no te po!!cy and the amount of coverage to-(f) Proceedin after stay. A stay of reement shall not pitvent the rt of original instance from p ding in any i id:rtaking that if the judgment or order h matter n affected by the judgment or order ap led from or trt cf it, 's affirmed, or the appeal is dis-i l pay the amount directed to be paid by \\/\\ from ecting the sale of perishable property. ,r the parQf it as to which the judgment L 1M2, c. 308; amended L.1063, c. 63z, 3 o a. L.d - NL 1: L. V th; extent of the limit of liability in the 1975, c. 70, i 1. l l costs; I such sworn stasuneet undertaking xi. ,s.. wee. [ tor CY his attorBe75 19M Amendment. sum. leh 1,. of n copy of the order deriylng mich upon theM(ured At the ^ t addreas of 197rs, c. 70. I 1. eff. kpt.1.19M. prd. motion, with notim of entry thereof. to the in I rds 4 written vided that stay = granted pending a 1946 Amoedmont. Subd. (s), par. I e motion for leave to ap;wal shall, if 1. UQ63, c. 741, eff. Sept.1.1006, ment Cf such judgmen orM, to the the motion in dente 1. continue for 3 ornitted "and the judsment or order it directs to be pal &saceeds the limit of darn after.ervice vien the morant dir. cts either the parin.nt of.. rum 183 182 c. .... '?h .n -, e s;.. ~. ,.v;n e .>3 c. ,..,.a ,. ~ -. n L^
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) Jmi 11,85 12:36 PALL CCP.E., EAST HILLS, NEW 'icRK E 06 h ,o 55,17 ctVIL ParerICE LAW AND RUI28 5 weee 1 7; ( ry udgment order superseded that of newal. Royal Business Fundo Corp. v. l ear date and was appealable. Marine Commercial Trading Co., Inc., 1977,60 g Midland Bank v. Fisher,1W1,86 A.D.2d A D.2d 864, 401 N.Y.S.9d 80. 906,447 N.Y.S.2d 186 A et denial of besnehen of de.
- 2. Reasulemass f
's eroes anotion which sought to Although plaintiff filed noties of ap. -l d!amise four of plaintiff's five causes of peal only from order which was super. acties was not supersedal by unsp-seded by resettled order, resettled order peeled order male upon reargument die-could be reviewed on from origi. I miss his fifth cause of action, and ut order. Topper v. otual 1)fe Inc. thus e I was viable. Foz *. ie-Co. of New York, 1978, 82 A.D.9d 982, i sier,1980, A.D.2d 800, 481 N.Y.S.2d 403 N Y.S.2d 742, affirmed 46 N.Y.3d 69 974, 415 N.Y.8.2d 829, 300 N.E.2d 142. g g ju nt to laintiff, dismioamg coun. Appast from prior order granting suay ras den defendant's mo. mary judgment in ejeetment action was k-tien to vacate its fault would be dis. diamlased as academic where such order missed as academie where order was was superseded by subsequent resettled superseded by subsequent order denying order. Sujecki v. O'Brinkle, IFf7, 60 7 i reargument and implicitly denying re-A.D.2d 778,398 N.Y.S.2d 734. 'l 8 5618. Preliminary injunction or teenporary reet' raining order by ap. 5 C j pellate division l Federal Rates of Appellate 7,-. l Injunction pending appeal, see Rule 5,28 U.8AA. l l West's McElanet's Forme Affidavit in support of motion for prelhninary injunction pending appeal, see CPLR t A Forma 5 3 43. } Order granting prelkninary injunction nding appeal, see CPLR Forma i 344. a Order te show cause upon motion for p iminary injunction pending appeal (eastala-ing temporary restraining order), see CPLR Forms 5 9 42. 8 5519, ' Stay of enforcernent t [See main volumefor test of(n) to bf)] 3 k (e) Continuation of stay. If the judgment or order appealed from is 1 l affirmed or modified, the stay shall continue for five days after service upon the appellant of the order of affirmance or modifleation with notice of y its entry in the court to which the appeal was taken. If an alis taken, I or a motion is made for insion to appeal, from such an before the ~ h expiration of the five the stay shall continue until five days after t service of notice of the entry of the order determining such appeal or .Q, motion. When a motion for permission to appeal is involved, the stay, or any other sta granted pending determination of the motion for permlesion t y i to appeal, sha : 7 ^ 8 kg (1) if the motion is granted, continue until five days after the appeal is determined; or A. (11) if the motaon is denied, continue until five days after the movant k served with the order of denial with notice of its entry. ' (f) Proceedings after stay. A stay of enforcement shall not Prevent the court of original instance from proceeding in any matter not affected b) the judgment or order appealed from or from directag the sale of perisha i ble property [ (As ameeded 1.1979, s. 389, t 1.) -= g 8"'l "$$- -S 4.r-f g [ i ~y R m w q p n.;
Jun 11,95 12:39 PALL COPP., EAST HILLS, NEW YORK p.D ? CIVIL PRAC1'K.E LAW AND RUI' 8 5519 E C1Vib PRACflCE LAW AND RULES E 1979 Amendsneet. Subd. (e). L.linW, grunted pending ee #terminadon of a a persedd ^ ~^ "a-
- c. 239, l 1, eff. Jan.1,1980, provided for motaon for leave to appeal sha!!, in the d
A.DJd 884, #1 N.g Co.E es..,197f, 57 ~ Trado lae i a pealable. Y.83 condnention of stay after service of or-event such mouon is denied, condnue for ik,1981,06 D. der of affirmance or modification, for five days after service upon the movant a w continuation of stay on moucn for per. of a copy of the order denying such c branehee of 2. Maa=**Aa===t mission to appeal from such an order motion. together with notice of entry a .ic which sought Althesh plaindff filed nouse of made before expiration of 5 day period, thereof"', and adde <1 sentence beginning 4 nt f*e five e=="' peal only from order which woe av omitted sentenee reading: "Subant to "When a mouon" together with clauses e-ap reeded by u seded branetded order, remetthd an eMler pfDviding otherwise, any sky @ and % Jp n.a., _ ^- seuld he reviewed on appeal from ] st,e d nedon, and order. Topper v. Mutual lif ine. a inble. Fox v. Ie- . of New York, 1978, 62 A.D. 932 Supplementary Practice Co=imentary 1 Id iGO,48{ N.YA3d N.YAad 742, affirmed 48 .Y.2d O 08%'8d O' O'*9'I F i 415 N.Y.S.2d 329, 388 N.E. 142. 2*-
- '**d*8 '*"**'I 1979 from prior order gran '
sem-iff dismineing's me., Judgment la ejeetment n was C&519.4. Consinulag Stay Through Second AppenL sopo in defendant af uit would be die. as needense where a h order The 1979 Amendment Clarifyina Comunsauen of Stay When e where order was was a rueded by subsequen reacttled Permies6on to Appeal Required ut ent order denying order. Sujecki v. O' 11R7, 69 2p citly denying tv-A.D.3d 8,898 N.Y12d 7 As the original Commentary on this provinism indicates, at page 189 of the main wohune, it was apparently the 14gintature's intenden to offer the automatie continuation of a first-appeal stay not on! when reet'alaing r by ap-the second appeal lay of right, but also when it was of ki which me y 14 unction or teaspo r e ivialon requires permusion. The 1979 amendment confirms this legislauve "I** N lao clarifles what is to happen to the stay in the aftermath of an as cal, see Rule 8, SB UAC.A. application for leave to appeal. If the motion for leave is granted, it is now conteraplated that there is West's lieKinner% IF rms to be another full appeal; paragraph @ thus condneen the firsteleeel g o stay through W entm accend level 1 and untD five after a
- o motion for C" y infenetion
' s appeal, see CPLR that appea!is setarmined. If that a has reversed and the -1 further to stay. ] {udgment or order that was appealed, there is nothin h den aner ili inary injunction appeal CPLR Forms i 9:44 Ut has afGrmed it, ufonement wn! be stand onh ii on motjon for pre bquecdon ding appeal (contalry the termination, afur which the prevailing party can go about enfore-rentaining ordert, aos Forme i 9 ing it (La., invoke the procedures of Article 52 of the CPLR, etc.). j-) If the motion for leave is denied, the stay willlast only unul five days er forcement -.. after the party who moved for leave (the would-be ap ilant) has been Se mii t solumefor farf of(a) (d) sened with a copy of the order denying leave, wit notice of that order's entry. Paragraph (iih with the lifting of that stay, the in of stay. If the judgment order a sled from is judgment or order becomes enforcihte. i fis 3, the stay shall continue f five da after service in some Instances two modons for leave to a 1 may be paratiesh 3 L t f the order of affirmance or ificatio with notice of ble. In Court of Appeals practice, for example, re are esses in which T at to which the appeal wee if an a
- intaken, a motaon for leave to appeal to the Court of Appeals may first be made 4
h *or permtsalon to appeal, f such an o r before the to b app *Itate Division, and then, if that does not succeed, the modon f e says, the stay shall ntinue until fiv days after may be npvated before the Court of Appule itself. See CPLR 5603(ab 'Ihe five-da extension of the stay, after the denial of leave by the o the entry of the determining suc appeal or Appenate ineion, anords the movant an opportunity to mene the tr tion for permission to ppeal is involved
- e sta ' or motion to the Court of Appeals. As the original Commen pointa 6t ed pending determin n of the modon for n
out (page 190 of the main volume), the makieg of that modon l during the five< lay period following the denial of the first one should -= enable the movant to avoid any hiatus in which, boesume of the absence Z . i granted, continue til five days after the la of a stay, the judgment (or orderl creditor can sneak in with some cnforcement devies. I-I. a denied, contin antil five days after the t le hoe automatic continuancos of the stay apply, according to the e r ef denial with of p entry. . amendment, to "ts.e stay, or any other stay granted ding determma-tjon of the mndon for perminaion to appeal". language has a i Ter stay. A e of enfeitsinneng an not t the specific purpose. The words "W stay" could, in the complex context - not aff " 7y of cpl.R mek be taken to mfer to only such stay as automoucaUy n tance from - { %" h-the sale of P" ha-results at the conclusion of the first level of appenL h additional i ir ap- - language makse sure that the automatie contJnuanee wGI apply even if 200,i L) no stay was outatending during the first appeal. For example: 44, 45 k.e ' "~ k.A l'~' g a /, q.,u k ' h .~;f-i e yf ,,w ',e..y. 4>, 'j w j '. [ $ I ;'.. '.Q. " ? . ;. 3.4 ,7 5 -i
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