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Clair, William - Order, January 16, 2003

Order, January 16, 2003

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the matter of

the alleged violation of Articles 25 and 71 of
the New York State Environmental Conservation Law ("ECL")
and Part 661 of Title 6 of the Official Compilation of
Codes Rules and Regulations of the State of New York ("6 NYCRR")

- by -

William Clair
914 Noyack Road
Southampton, New York,

Respondent.

(Suffolk County)

ORDER

Case No: R1-20010522-99

WHEREAS:

  1. Pursuant to a Notice of Hearing and Pre-Hearing Conference (the "Notice of Hearing"), and a Verified Complaint, dated July 12, 2001, the New York State Department of Environmental Conservation ("DEC" or the "Department") Region One Staff commenced an administrative enforcement proceeding against William Clair, the Respondent in this matter("Respondent").
  2. The supporting papers submitted with the motion prove that on July 27, 2001, the Department served the Notice of Hearing and Verified Complaint upon Respondent by certified mail. The Notice of Hearing directed that the Respondent file an answer with the Department within 20 calendar days of Respondent's receipt of the Notice of Hearing and Verified Complaint. The Notice of Hearing also stated that failure to answer would constitute a default and waiver of the right to a hearing. The time for Respondent to serve an answer has expired, and no answer has been served.
  3. I adopt the conclusions of the Administrative Law Judge's report, attached hereto.
  4. Failure to answer a Complaint is grounds for default judgment pursuant to 6 NYCRR Section 622.15.

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

  1. Pursuant to 6 NYCRR Section 622.15, Respondent is found to be in default and has waived his right to a hearing in this enforcement proceeding. Accordingly, the Department's allegations against Respondent are deemed to have been admitted by the Respondent.
  2. As set forth in detail in the Verified Complaint, Respondent has violated ECL Article 25 and 6 NYCRR Part 661 by four (4) separate and continuing activities, including: installation of a walkway approximately 19' long, varying in width from 4' to 7.5'; installation of a 3' x 14' ramp; and installation of two (2) 5' x 16' floating docks, in a regulated tidal wetland without the requisite permit.
  3. Pursuant to ECL Section 71-2503, any person who violates any provisions of, or who fails to perform any duty imposed by ECL Article 25 and 6 NYCRR Part 661 is subject to a civil penalty of up to TEN THOUSAND ($10,000) DOLLARS for each violation, and for each day the violation continues, as well as criminal penalties and injunctive relief.
  4. As a result of Respondent's violation of ECL Articles 25 and 71, and 6 NYCRR Part 661, Respondent shall pay a civil penalty of FORTY THOUSAND ($40,000) dollars. This penalty shall be paid by certified check or money order to "NYSDEC," Attention Regional Attorney, Legal Affairs Region One, New York State Department of Environmental Conservation, Building #40, SUNY Campus, Stony Brook, New York 11790-2356, within thirty (30) days of service of a conformed copy of this Order.
  5. Respondent shall immediately remove all structures which are in violation of the provisions of the ECL Article 25 and 6 NYCRR Part 661.
  6. All communications between Respondent and Department Staff concerning this Order shall be made to: Raymond E. Cowen, P.E., Regional Director, Region One, New York State Department of Environmental Conservation, Building #40, SUNY Campus, Stony Brook, New York 11790-2356.
  7. The provisions, terms and conditions of this Order shall bind Respondent, all 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: Erin M. Crotty,
Commissioner

Dated: Albany, New York
January 16, 2003

William Clair
914 Noyack Road
Southampton, New York 11968

Craig L. Elgut, Esq.
Assistant Regional Attorney
NYSDEC Region 1
Building #40, SUNY Campus
Stony Brook, New York 11790-2356

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

the Alleged Violation of Articles 25 and 71 of the Environmental Conservation Law ("ECL") and Part 661 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR")

- by -

WILLIAM CLAIR
914 Noyack Road
Southampton, New York

Respondent.

Summary Report On
Motion for Default Judgment

File No. R1-20010522-99

Proceedings

Pursuant to Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("NYCRR") Section 622.15, the New York State Department of Environmental Conservation ("Department") Staff ("Staff") has moved for a default judgment against the Respondent, WILLIAM CLAIR, of 914 Noyack Road, Southampton, New York.

Staff made its motion on or about September 5, 2001 by mailing to Respondent the following papers:

  • A Notice of Motion for Default Judgment dated September 5, 2001;
  • The Affirmation of Craig L. Elgut In Support of Motion for Default Judgment, dated September 5, 2001;
  • A Proposed Decision and Order; and
  • An Affidavit of Service dated September 5, 2001;

and by filing the above documents, on or about September 10, 2001, with the Department's Office of Hearings and Mediation Services.

On or about July 12, 2001, Staff mailed to Respondent via certified mail, return receipt requested, a Notice of Hearing and Pre-Hearing Conference, and a Verified Complaint, both dated July 12, 2001. The receipt for certified mail was signed by Respondent on July 27, 2001.

Pursuant to 6 NYCRR Section 622.6, the time for Respondent to answer or otherwise move with respect to the Verified Complaint expired on August 16, 2001.

Pursuant to 6 NYCRR Section 622.6(c)(3), the time for Respondent to file a response to the Department's motion for a default judgment expired on September 17, 2001.

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

Default Procedures

Section 622.15 of 6 NYCRR, "Default Procedures," provides in pertinent part:

  • A respondent's failure to file a timely answer . . . constitutes a default and a waiver of respondent's right to a hearing.
  • 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;
    • proof of the respondent's failure to appear or failure to file a timely answer; and
    • a proposed order.
  • Upon a finding by the ALJ that the requirements of subdivision (b) of this section 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

  • The Affirmation of Craig L. Elgut ("Elgut Affirmation") indicates that the Notice of Hearing and Pre-Hearing Conference, and the Verified Complaint, were sent certified mail, return receipt requested, addressed to Mr. William Clair, 914 Noyack Road, Southampton, New York 11968.
  • The Elgut Affirmation indicates further that the United States Postal Service returned the return receipt for certified mail, signed by William Clair, on July 27, 2001. The original return receipt is attached as Exhibit A to the Elgut Affirmation.
  • According to the Elgut Affirmation, no response to the Verified Complaint has been received.
  • The Elgut Affirmation indicates that on September 5, 2001, this motion was mailed to the Respondent.
  • As of September 5, 2001 (the date of the motion papers), Respondent had not served an answer or otherwise moved with respect to the Verified Complaint.
  • No response to the Department's motion has been filed.
  • The requirements for a default judgment have been met adequately as prescribed by 6 NYCRR Section 622.15(b).

Conclusion

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

_____________/s/_____________
Maria E. Villa
Administrative Law Judge

Albany, New York

William Clair
914 Noyack Road
Southampton, New York 11968

Craig L. Elgut, Esq.
Assistant Regional Attorney
New York State Department of Environmental Conservation
Division of Legal Affairs, Region One
Building #40, SUNY Campus
Stony Brook, New York 11790-2356

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