Brostoff, L - Order, October 12, 2000
Order, October 12, 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 -
Case No. 3-016470
- 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") Staff of the New York State Department of Environmental Conservation duly served a Notice of Hearing and Complaint upon the Respondent, L. BROSTOFF by certified mail, return receipt requested. The affidavit of SCOTT W. OWENS 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 April 5, 2000.
- The Complaint asserted one cause of action, that the Respondent has failed to register its Bulk Storage facility (3-016470) located at 600 South Road Poughkeepsie, New York with the NYSDEC in accordance with the requirements set forth in 6 NYCRR Part 612.2 and the Respondent has failed to voluntarily comply or submit clear evidence that this PBS facility is in compliance. Respondent has failed to register its petroleum bulk storage facility. Respondent is in violation of 6 NYCRR §612.2.
- The Notice of Hearing and Complaint stated that an answer to the complaint was due within 20 days of service of the complaint and that a pre-hearing conference was scheduled to take place on APRIL 28, 2000. The Notice included a statement that, pursuant to 6 NYCRR §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 §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 Benjamin A. Conlon that:
- Respondent failed to appear at the pre-hearing conference;
- Respondent failed to serve on the Department an answer within 20 days of its receipt of the Notice of Hearing and Complaint or in an otherwise timely manner;
- the penalty imposed is appropriate based on the violation and the duration of the violation; and
- failure to answer a complaint and to appear at a pre-hearing conference are both grounds for a default judgment pursuant to 6 NYCRR §622.15.
- A copy of the Notice of Motion and supporting papers seeking the judgment by default 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, have considered this matter, it is ORDERED that:
- Pursuant to 6 NYCRR §622.15, Respondent is found to be in default.
- Respondent, L. BROSTOFF shall 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.
- Within thirty (30) days of service of the Order, Respondent shall: (1) submit to the Department a completed application to register its petroleum bulk storage facility located at 600 South Road Poughkeepsie, New York as well as a certified check or money order in the amount of the registration fee required under 6 NYCRR 612.3.
- The Respondent shall immediately cease and desist from any and all future violations of the ECL and Rules and Regulations promulgated pursuant thereto.
- All communications from the Respondent to the Department concerning this order shall be made to the Department's Region 3 Director, 21 South Putt Road, New Paltz, New York 12561-1696.
- The provisions, terms and conditions of this order shall bind the Respondent, its 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
By: John P. Cahill, Commissioner
Dated: Albany, New York
October 12, 2000
TO: BENJAMIN CONLON, ESQ.
50 WOLF ROAD
ALBANY, NEW YORK 12203-5550
600 SOUTH ROAD
POUGHKEEPSIE, NEW YORK 12601
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 -
DEFAULT SUMMARY REPORT
DEC Case No.
By notice of motion dated August 7, 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 Poughkeepsie, New York. In support of its motion, DEC submitted an affirmation of Assistant Regional Attorney Benjamin A. Conlon, affidavit of R. Daniel Bendell 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 April 5, 2000.
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 May 3, 2000. Further, Staff submitted proof that said Notice of Hearing and Complaint directed Respondent to appear for a pre-hearing conference on April 28, 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 7, 2000. Respondent has not opposed the motion.
Section 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.
- On April 5, 2000 Staff served a Notice of Hearing and Complaint on Respondent L. BROSTOFF. The time to Answer or otherwise move expired on May 3, 2000. No Answer has been served to date.
- The Notice for Hearing and Complaint served on April 5, 2000 directed Respondent to appear for a pre-hearing conference on April 28, 2000. No appearance was made by Respondent at said conference.
- Staff served the motion for default judgment and supporting papers on Respondent on or about August 7, 2000. Respondent has not opposed said motion, the time to serve papers in opposition expired on or about August 21, 2000.
- The requirements for a default judgment have been adequately met as prescribed by 6 NYCRR section 622.15(b).
The motion for default judgment should be granted. This Summary Report and Staff's proposed Order (attached hereto) can be referred to the Commissioner for final determination.
Molly T. McBride
Administrative Law Judge
Dated: September 22, 2000
Albany, New York
To: Benjamin A. Conlon, Esq.
NYS Department of Environmental Conservation
50 Wolf Road, Room 410A
Albany, New York 12233-5550
600 South Road
Poughkeepsie, New York 12601