Court says Cascino has ‘purged’ contempt

COPAKE—Until somebody can pinpoint exactly where Salvatore Cascino illegally dumped nearly 10,000 cubic yards of solid waste on his 300-acre Copake property, an Appellate Court says the offending material can stay there and Mr. Cascino doesn’t have to go back to jail.

Mr. Cascino, 79, of Larchmont, Westchester County is a convicted felon who has spent the past 21 years amassing violations of federal, state and town laws for illegal dumping, building and excavating at a place he calls Copake Valley Farm, along the east side of Route 22.

After spending 572 days in the Columbia County Jail since February 25, 2016, Mr. Cascino was sprung the afternoon of January 12, 2018 when his attorney at the time, Greg Lubow, filed an appeal on the issue of whether Mr. Cascino and his two LLCs: 13 Lackawanna Properties and Copake Valley Farm, all listed as defendants in a lawsuit brought by the Town of Copake, have complied with Columbia County Supreme Court Judge Jonathan Nichols’ order to remove 9,650 cubic yards of illegally dumped solid waste as directed to do (among other things) in a February 25, 2016 decision.

Judge Nichols found Mr. Cascino in both criminal and civil contempt of prior court orders and judgments and ordered Mr. Cascino to remain in jail until he proved that he had complied with the judge’s order noting, “the situation was self-created by [Mr. Cascino] and incarceration is the only device to attain compliance.”

Mr. Cascino was released from custody pending a determination on the January 2018 appeal.

The State of New York Supreme Court, Appellate Division Third Judicial Department entered its decision February 21, 2019.

Writing for the court, Justice Michael C. Lynch reversed Judge Nichols’ contempt order “with costs” and granted Mr. Cascino’s motion to “purge the contempt.”

Acknowledging “competing evidence” and “a continuing impasse,” Justice Lynch wrote, “we conclude that to continue Cascino’s incarceration any further would serve no viable purpose and cannot be sustained. We are satisfied that the record establishes a significant effort on defendant’s [Mr. Cascino’s] part to purge the contempt, while recognizing there remains some dispute as to whether all the disputed material has been removed.”

The Appellate Court decision seems to rest on the idea that Judge Nichols’ contempt order only identifies how much of the solid waste must be removed and not exactly where it must be removed from.

The six-page Appellate decision says, “… this basic description falls short of the required specificity for a contempt order.”

According to the Appellate Court, “The record indicates that defendants have removed more than 18,000 cubic yards of material from an area north of the ‘lone tree’ situate in the cornfield up to Lackawanna Road, and south of the ‘lone tree’ as much as 20 to 30 yards.”

Also, the Appellate Court refers to numerous dates and amounts of debris removed based on receipts provided by Mr. Cascino.

Yet during several Columbia County Supreme Court proceedings over two years, evidence was presented that Mr. Cascino moved the piles of dumped debris and spread them out across the property with a bulldozer. The solid waste was then plowed and harrowed into the soil and corn planted on top of it in the years since it was dumped. It was further brought to light at these proceedings that the receipts Mr. Cascino presented as proof of debris removal were riddled with inconsistencies. Some tickets had different tonnage and different load totals recorded on the top and bottom. At one of the locations where the material was taken, proprietors said the “tickets … were not valid” and based on Mr. Cascino’s own attorney’s statements at least some of the tickets were deemed “bogus.”

Attorney Victor Meyers of the Whitbeck, Benedict and Smith LLP law firm in Hudson, who represents the Town of Copake in Cascino matters, told The Columbia Paper this week, from California, “some of the tickets were bogus” but another problem was that the loads taken out “were not the material dumped there… some were concrete blocks and everything else.”

Adding to the elusiveness of the material in question—is that it masquerades as dirt. A. Jesse Paluch, an investigator with the state Department of Environmental Conservation (DEC) provided signed affidavits describing the material which he witnessed being dumped, as “a load of finely pulverized construction and demolition . . . debris . . . [that] included small pieces of glass, wire, wood chips and the like.” He said, the pulverized material was crushed mechanically. . . “to a point where it’s very small, very fine, and can’t be readily identified by the naked eye.” He later said the material itself “looks just like soil… but, in fact, it’s not,” according to the Appellate Court decision.

Mr. Meyers said the Appellate decision basically found that Mr. Cascino had been “in jail long enough and ducked the issue of whether Judge Nichols had abused his discretion” in the case.

Briefs presented to the Appellate Court by Mr. Cascino’s attorney for the appeal, William S. Nolan of Whiteman, Osterman and Hanna LLP in Albany, mentioned several times that Mr. Cascino is 79-years-old and had already been in jail for 572 days, said Mr. Meyers, noting the term “may be a record for confinement in a civil contempt” matter. Mr. Meyers said he told the court neither factor should play a part in the decision. So it does not come as “a total surprise,” he said.

Mr. Meyers said the “costs” that Copake must pay referred to in the Appellate decision are not attorneys fees but some “statutory costs that won’t amount to much” and have not yet been determined.

Mr. Meyers said he does not know how Copake officials will want to proceed. He said they “could appeal or go out there [on Cascino property] and see if they can find ” some of the disputed material. “It’s up for discussion.”

A call for comment to Mr. Cascino’s attorney was not returned.

In the meantime, Mr. Cascino has been busy working on “a master plan” for several buildings of various sizes and uses that he has presented to the Copake Planning Board, according to Planning Board Chairman Bob Haight. Mr. Cascino had applied for permission to go forward with a similar set of plans back in 2008, but his application was denied. Mr. Cascino appealed, but the Planning Board decision was upheld.

Mr. Haight said the current application remains under discussion and he is combing through legal papers trying to determine if the new plan is different from the old plan and if the buildings are indeed for a “farm operation.”

To contact Diane Valden email moc.r1553658413epapa1553658413ibmul1553658413oc@ne1553658413dlavd1553658413

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