Ashline Fruit Co. - Order, July 6, 1999
Order, July 6, 1999
STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
In the Matter of
the Alleged Violation of Article 17 of the Environmental Conservation Law (ECL)
and Part 612 of Title 6 of the Official Compilation of Codes, Rules and Regulations of
the State of New York (6 NYCRR)
- by -
ASHLINE FRUIT COMPANY CO., INC.
ORDER FILE NO.
- Pursuant to a Notice of Hearing and Complaint dated March 12, 1999, the New York State Department of Environmental Conservation (DEC) Staff commenced an administrative enforcement proceeding against the Respondent.
- Respondent, Ashline Fruit Co., was served with a Notice of Hearing and Complaint on March 15, 1999.
- Service of process was accomplished in accordance with 6 NYCRR §622.3 and CPLR §2103.
- Respondent's time for serving an Answer to the Complaint expired on April 4, 1999.
- DEC Staff made a Motion for Default Judgement dated May 21, 1999 outlining this failure.
- According to §622.15 of 6 NYCRR, Respondent is found to be in default and having waived its right to a hearing in this enforcement proceeding. Therefore, Department Staff's allegation against Respondent in its Complaint are deemed to have been admitted by Respondent.
- Respondent violated Environmental Conservation Law §178-1009 and 6 NYCRR §612.2 by failing to timely register its petroleum bulk storage tanks with the Department.
NOW, THEREFORE, have considered this matter, it is ORDERED that:
- Respondent pay a penalty in the amount ONE-THOUSAND FIVE HUNDRED ($1,500) DOLLARS.
- All communications between Respondent and Department Staff concerning this Order shall be made to Department's Region 5 Director, New York State Department of Environmental Conservation Route 86, P.O. Box 296, ray Brook, New York, 12977-0296.
- The provisions, terms and conditions of the Order shall bind the Respondent, his agents, servants, employees, successors, and assigns and all persons, firms and corporations acting for or on behalf of Respondent.
For the New York State Department
of Environmental Conservation
By: John P. Cahill, Commissioner
Dated: Albany, New York
July 6, 1999
STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
In the Matter of
the Alleged Violation of Article 15 of the New York State Environmental Conservation Law
- by -
Ashline Fruit Company, Incorporated
Mill Street, Town of Willsboro, Essex County
Summary Report on
Motion for Default Judgment
Pursuant to Title 6 of the Official Compilation of Codes Rules and Regulations of the State of New York, Section 622.15, the New York State Department of Environmental Conservation ("Department") Region 5 Staff ("Staff") has moved for a default judgment against Ashline Fruit Company, Inc., (the "Respondent").
Staff made its motion on or about May 21st, 1999 by sending to Robert Ashline, Owner and the Respondent the following papers:
A Notice of Motion for Default Judgment dated May 21st, 1999; a Motion for Default Judgment; an Affirmation in Support of Motion for Default Judgment; and an unsigned Order; and by filing, on or about May 21st, 1999, said documents with the Department's Office of Hearings and Mediation Services.
Respondent's response to Staff's Motion was due on June 7th, 1999 pursuant to 6 NYCRR §622.6, presuming Respondent is entitled to an additional 5 days when service is made by ordinary mail and excluding Saturdays, Sundays and the public holiday.
No response to the motion has been received from the Respondent as of the date of this Summary Report.
Section 622.15, "Default procedures" provides in pertinent part:
"(b) The motion for a default judgment may be made orally on the record or in writing and 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.
"(c) Upon a finding by the ALJ that the requirements of subdivision (b) have been adequately met, the ALJ will submit a summary report, which will be limited to a description of the circumstances of the default, and the proposed order to the commissioner. ..."
The following Findings are based upon the papers submitted, as identified above.
- On March 12, 1999, Staff sent a Notice of Hearing and Complaint to Mr. Robert Ashline at Ashline Fruit Company, Inc., Respondent via certified mail with return receipt.
- An Affidavit of Service indicates that the Notice of Hearing and Complaint was placed in a secure wrapper envelope and the envelope was put in a post office box regularly maintained by the United States Government Postal Service. The envelope was sent to Robert Ashline, Ashline Fruit Co., Inc., Mill Street, Willsboro, NY 12996 alleged to be Respondents' business address as reflected in the Department's files.
- The receipt for the aforesaid mailing was returned to Staff, indicating the mail was received March 23rd, 1999 and signed by someone other than Robert Ashline.
- As of May 21st, 1999 (the date of the motion papers), Robert Ashline or Ashline Fruit Co., Inc. had not responded to the Notice of Hearing and Complaint.
- The requirements for a default judgement have been adequately met as prescribed by 6 NYCRR §622.15(b).
This Summary Report and Staff's proposed Order (attached hereto) can be referred to the Commissioner for final determination.
June 18, 1999
Albany, New York
Francis W. Serbent
Administrative Law Judge