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12 E 86th Street Associates - Order, November 28, 2000

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of the Alleged Violation of Article 17 of
the Environmental Conservation Law of the State of New York and
Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York

- by -

12 E. 86TH STREET ASSOCIATES

ORDER

Case No. 2-278963

WHEREAS:

  1. Pursuant to Part 622.15 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") Staff of the New York State Department of Environmental Conservation duly served a Notice of Hearing and Complaint upon the Respondent, 12 E. 86TH STREET ASSOCIATES, by certified mail, return receipt requested. The affidavit of December 7, 1999 states that the Respondent was served by placing a true and correct copy of the Notice of Hearing and Complaint in a secure postpaid wrapper addressed to Respondent and mailed to Respondent by certified mail return receipt requested. The associated return receipt indicates that the Notice of Hearing and Complaint were received by Respondent on December 31, 1999.
  2. The Complaint asserted one cause of action. On July 14, 1997, the registration for the Respondent's (2-278963) facility located at 12 EAST 86TH STREET, NEW YORK, NY, expired, and the Respondent has failed to voluntarily comply or submit clear evidence that this Petroleum Bulk Storage facility is in compliance. Respondent has failed to register its petroleum bulk storage facility. Respondent is in violation of 6 NYCRR Part 612.2.
  3. The Notice of Hearing and Complaint stated that a pre-hearing conference was scheduled to take place on January 19, 2000 at 3:30 PM at the Region 2 Office of the NYS Department of Environmental Conservation, located at One Hunters Point Plaza, 47-40 21st Street, Long Island City, New York 11101-5407. The Notice included a statement that, pursuant to 6 NYCRR Part 622.15, a failure to timely answer or failure to attend a hearing or failure to attend a pre-hearing conference would result in a default under 6 NYCRR Part 622.15 and a waiver of Respondent's right to a hearing. Respondent failed to serve an answer and failed to appear at the pre-hearing conference. Accordingly, Department Staff's allegations against Respondent in its Complaint are deemed to have been admitted by the Respondent.

    Staff documents by affirmation of DEC Attorney Benjamin A. Conlon that:

    1. Respondent failed to appear at the pre-hearing conference;
    2. Respondent failed to serve on the Department an answer within 20 days of its receipt of the Notice of Hearing and Complaint or otherwise timely manner;
    3. the penalty imposed is appropriate based on the violation(s) and the duration of the violation(s); and
    4. failure to answer a complaint or to appear at a pre-hearing conference are both grounds for a default judgment pursuant to 6 NYCRR Part 622.15.
  4. A copy of the motion and supporting papers were filed with the Office of Hearings and Mediation Services and the matter was assigned to Administrative Law Judge Molly T. Mc Bride. Submitted herewith is a copy of the Default Summary Report. (attached) I adopt the ALJ's report.

NOW, THEREFORE, having considered this matter, it is ORDERED that:

  1. Pursuant to 6 NYCRR Part 622.15, Respondent is found to be in default.
  2. Respondent, 12 E. 86TH STREET, NEW YORK, NY, pay a civil penalty of Seven Thousand Five Hundred ($7,500.00) dollars within 30 days of service of this Order to the New York State Department of Environmental Conservation, 50 Wolf Road, Room 410A, Albany, New York 12233-5550 for the violation asserted in the complaint.
  3. Within thirty (30) days of the Order, Respondent shall submit to the Department a completed application to register its petroleum bulk storage facility located at 12 E. 86TH STREET ASSOCIATES, NEW YORK, NY, as well as a certified check or money order in the amount of the registration fee(s) required under 6 NYCRR Part 612.3.
  4. Respondent permanently cease and desist from any and all future violations of the ECL and Rules and Regulations promulgated pursuant thereto.
  5. All communications from the Respondent to the Department concerning this order shall be made to the Department's Region 2 Director, One Hunters Point Plaza, 47-40 21st Street, Long Island City, New York 11101-5407.
  6. The provisions, terms and conditions of this order shall bind the Respondent, his agents, servants, employees, successors and assigns and all persons, firms and corporations acting for or on behalf of the Respondent.

For the New York State Department
of Environmental Conservation
/s/
By: John P. Cahill, Commissioner

Dated: Albany, New York
November 28, 2000

TO: BENJAMIN CONLON, ESQ.
50 WOLF ROAD
ALBANY, NEW YORK 12203-5550

12 E.86th STREET ASSOCIATES
12 E. 86TH STREET
NEW YORK, NEW YORK 10028

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of the Alleged Violation of Article 17
of the Environmental Conservation Law of the State of New York
and Title 6 of NYCRR of the State of New York

- by -

12 E. 86TH STREET ASSOCIATES.

Respondent.

DEFAULT SUMMARY REPORT

DEC Case No. 2-278963

Proceedings

By notice of motion dated August 5, 2000, staff of the Department of Environmental Conservation (DEC or Department) sought a judgment by default against respondent concerning alleged violations of the Article 17 of the Environmental Conservation Law (ECL). It is alleged by DEC that respondent violated Article 17 of the ECL by failing to register its petroleum bulk storage facility in New York New York. In support of its motion, DEC submitted an affirmation of Assistant Regional Attorney Benjamin A. Conlon, affidavit of Peter Huang of the DEC, a proposed Order and proof of service of the Notice of Hearing and Complaint on the Respondent, by certified mail, return receipt on December 13, 1999.

As of the date of the Motion, Respondent has failed to appear and serve an Answer or otherwise move, although the time to do so expired on or about January 13, 2000. Further, Staff submitted proof that said Notice of Hearing and Complaint directed Respondent to appear for a pre-hearing conference on January 19, 2000. The affirmation of attorney Conlon indicates that Respondent failed to appear at said conference and did not obtain, nor request an adjournment of the conference.

Respondent was served with the Notice of Motion for Default Judgment and supporting papers on or about August 5, 2000. Respondent has not opposed the motion.

DEFAULT PROCEDURES:

Title 6 New York Official Compilation of Codes, Rules and Regulations ("6 NYCRR") Part 622.15, "Default Procedures" provides, in pertinent part: (b) The motion for a default judgment .... must contain: (1) proof of service upon the Respondent of the notice of hearing and complaint or such other document which commenced the proceeding; (2) proof of the respondent's failure to appear or failure to file a timely answer; and (3) a proposed order."

The following Findings are based upon the papers submitted, as identified above.

FINDINGS

  1. On December 13, 1999 Staff served a Notice of Hearing and Complaint on Respondent 12 E. 86th Street Associates. The time to Answer or otherwise move expired on January 13, 2000. No Answer has been served to date.
  2. The Notice for Hearing and Complaint served on December 13, 1999 directed Respondent to appear for a pre-hearing conference on January 19, 2000. No appearance was made by Respondent at said conference.
  3. Staff served the motion for default judgment and supporting papers on Respondent on or about August 5, 2000. Respondent has not opposed said motion, the time to serve papers in opposition expired on or about August 21, 2000.
  4. The requirements for a default judgment have been adequately met as prescribed by 6 NYCRR Part 622.15(b).

CONCLUSION

The motion for default judgment should be granted.

/s/

Molly T. McBride
Administrative Law Judge

Dated: November 17, 2000
Albany, New York

To: Benjamin A. Conlon, Esq.
NYS Department of Environmental Conservation

12 E. 86th Street Associates
12 E. 86th Street
New York, New York 10028

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