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Briggs, William B. - Order, April 13, 2000

Order, April 13, 2000

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

the Alleged Violation of Article 17 of the New York State Environmental Conservation Law,
and Title 6, Part 612 of the New York Codes, Rules and Regulations

- by -

William B. Briggs,

Respondent.

ORDER

DEC File No. R4-2202-99-08

WHEREAS:

  1. Pursuant to a Notice of Hearing and Complaint dated November 8, 1999, New York State Department of Environmental Conservation Staff ("Department Staff") commenced an administrative enforcement proceeding against the Respondent.
  2. Department Staff served Respondent, William Briggs, with a copy of the Notice of Hearing and Complaint by certified mail, return receipt requested and received by Respondent on November 16, 1999.
  3. Service of Process was accomplished in accordance with 6 NYCRR 622.3 and CPLR 2103.
  4. Respondent's time for serving an answer to the Complaint expired on December 6, 1999.
  5. Respondent failed to appear at the pre-hearing conference scheduled for December 8, 1999.
  6. With respect to such failure to answer, and failure to appear at the pre-hearing conference, Department Staff made a Motion for Default Judgment dated March 6, 2000 and such motion and supporting papers were filed with the Department's Office of Hearings and Mediation Services and the matter assigned to ALJ Francis W. Serbent, who has submitted a report thereon.
  7. Upon review of the ALJ's report (copy attached) and the record of this proceeding, I concur with the ALJ's Findings of Fact, Conclusions of Law, and Recommendations, which establish that Department Staff properly served a Notice of Hearing and Complaint upon the Respondent, that the Respondent failed to file a timely Answer, and that failure to make timely service of an Answer constitutes a default and a waiver of the Respondent's right to a hearing.
  8. Pursuant to Section 622.15 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York (6 NYCRR), Respondent is found to be in default and to have waived his right to a hearing in this enforcement proceeding. Accordingly, Department Staff's allegations against Respondent in its Complaint are deemed to have been admitted by the Respondent.
  9. Respondent violated ECL 17-1009 and 6 NYCRR 612.2 by failing to register its Petroleum bulk storage facility.

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

  1. Respondent pay a civil penalty of Three Thousand Five Hundred Dollars ($3,500.00), which shall be due and payable within thirty (30) days following the service of a conformed copy of this Order upon the Respondent.
  2. Respondent shall submit, within 30 days of execution of this Order, a completed application to register its petroleum bulk storage facility, as well as a certified check or money order in the amount of One Hundred Fifty Dollars ($150.00) for the registration fee(s) required under 6 NYCRR 612.3.
  3. The provisions, terms, and conditions of this Order and the attached ruling 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.
  4. All communications between the Respondent and the Department with respect to this matter shall be made to the Department's Region 4 Director, 1150 North Westcott Road, Schenectady, New York 12306.

For the New York State Department
of Environmental Conservation

_____________/s/_____________
By: John P. Cahill, Commissioner

Dated: Albany, New York
April 13, 2000

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

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

- by -

William B. Briggs
Route 23 A
Prattsville, New York, 12468

Respondent

Summary Report on Motion for Default Judgment

Case No. R4-2202-99-08

PROCEEDINGS

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") Staff ("Staff") has moved for a default judgment against William B. Briggs, Route 23 A, Prattsville, New York, 12468 (the "Respondent").

Staff made its motion on or about March 6, 2000 by sending to William B. Briggs, the Respondent, the following papers:

  1. A Notice of Motion for Default Judgment dated March 6, 2000;
  2. a Motion for Default Judgment;
  3. an Affirmation in Support of Motion for Default Judgment;
  4. and an unsigned Order;

and by filing, on March 8, 2000, said documents with the Department's Office of Hearings and Mediation Services.

Respondent's response to Staff's Motion was due on March 29, 2000 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 any public holiday.

No response to the motion has been received from the Respondent as of the date of this Summary Report.

Default Procedures

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.

FINDINGS

  1. On November 8, 1999, Staff sent a Notice of Hearing and Complaint to William B. Briggs, Route 23 A Prattsville, New York, 12468.
  2. An Affidavit of Service by Josephine Peconie indicates that a true and correct copy of the Notice of Hearing and Complaint was placed in a secure wrapper envelope and the envelope was put in an official depository under exclusive care and custody of the United States Government Postal Service. The envelope was sent to William B. Briggs, Route 23 A Prattsville, New York, 12468 by certified mail with a return receipt card (PS Forms 3800 [receipt for posting] and 3811 [as signed by the addressee] are attached) indicating Article Number Z 548 402 798.
  3. The receipt for the aforesaid mailing was returned to Staff, indicating the mail was received November 16, 1999 and apparently signed by William B. Briggs.
  4. As of March 6, 2000 (the date of the motion papers), William B. Briggs, had not responded to the Notice of Hearing and Complaint.
  5. The requirements for a default judgment have been adequately met as prescribed by 6 NYCRR §622.15(b).

CONCLUSION

The motion for a default judgment can be granted as proposed. This Summary Report and Staff's proposed Order (attached hereto) can be referred to the Commissioner for final determination.

April 3, 2000
Albany, New York

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