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Cahill, Margaret d/b/a Lewis Trading 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 -

MARGARET CAHILL
d/b/a LEWIS TRADING COMPANY,

Respondent

ORDER

Case No. R5-2300-98-12

WHEREAS:

  1. Pursuant to the 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.
  2. Respondent Margaret Cahill, was served with a Notice of Hearing and Complaint on March 23, 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 April 12, 1999.
  5. DEC staff made a Motion for Default Judgment dated
  6. 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.
  7. Respondent violated Environmental Conservation Law §17-1009 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:

  1. Respondent pay a penalty in the amount of THIRTY FIVE HUNDRED ($3,500.00) DOLLARS.
  2. All communications between Respondent and Department Staff concerning this Order shall be made to the Department's Region 5 Director, New York State Department of Environmental Conservation, Route 86, P.O. Box 296, Ray Brook, New York 12977-0296.
  3. 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

_____________/s/_____________
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 -

MARGARET CAHILL

Respondent

SUMMARY REPORT

on the Motion for Default Judgment

Case No.R5-2300-98-12

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") Region 5 Staff ("Staff") has moved for a default judgment against Margaret Cahill (the "Respondent").

Staff made its motion on May 21st, 1999 by sending to 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, among other things; 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.

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 March 12, 1999, Staff sent a Notice of Hearing and Complaint to Respondent Margaret Cahill via certified mail with return receipt.
  2. An Affidavit of Service indicates that the Notice of Hearing and Complaint was placed in a secure wrapper envelope addressed to the Respondent and the envelope was put in a post office box regularly maintained by the United States Government Postal Service.
  3. The receipt for the aforesaid mailing was returned to Staff, indicating the mail was received March 23rd, 1999 and signed by M. Cahill.
  4. As of May 21st, 1999 (the date of the motion papers), Margaret Cahill had not responded to the Notice and Complaint.
  5. The requirements for a default judgement have been adequately met as prescribed by 6 NYCRR §622.15(b).

Conclusion

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

_____________/s/_____________
Francis W. Serbent
Administrative Law Judge

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