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Conway, Virginia - Order, January 23, 2003

Order, January 23, 2003

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

the Alleged Violations of Articles 15, 25 and 71 of
the New York State Environmental Conservation Law ("ECL"), and Parts 608 and 661 of Title 6
of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR"),

- by -

VIRGINIA CONWAY

Respondent

(Suffolk County)

ORDER

FILE NO. R1-20010731-153

WHEREAS:

  1. Pursuant to a Notice of Hearing and Complaint dated August 23, 2001, New York State Department of Environmental Conservation (hereinafter referred to as the "DEC" or the "Department") Region One Staff commenced an administrative enforcement proceeding against the above-named Respondent.
  2. Respondent was properly served with the Notice of Hearing and Complaint by Certified Mail on August 27, 2001.
  3. Service of process was accomplished in accordance with 6 NYCRR §622.3.
  4. A two week extension of time was granted to Respondent when she failed to serve an Answer to Department Staff's Complaint within the proper time frame. The extension of time required that an Answer be served by October 3, 2001. Respondent has failed to serve an Answer to Department Staff's Complaint within that time or since.
  5. With respect to such failure to answer, DEC Staff made a Motion for Default Judgment pursuant to 6 NYCRR §622.15.
  6. Pursuant to 6 NYCRR §622.15, Respondent is found to be in default and as such has waived her 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.
  7. Respondent has violated ECL Article 25 and 6 NYCRR Part 661 by eight (8) separate activities, including: the substantial reconstruction of a 5' x 9.5' landing, 3' x 10' stairway, 4.5' x 5' landing, 3' x 18.5' stairway, 5' x 71.75' fixed dock including the installation of 9" piles, 4' x 14' ramp and a 8' x 20' float, and the clear-cutting of vegetation in the regulated adjacent area to a regulated tidal wetland, as set forth in detail in the complaint.
  8. Pursuant to ECL §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.
  9. Respondent has violated ECL Article 15 and 6 NYCRR Part 608 through the jetting in of pilings below the mean high water level in tidal wetlands that are adjacent to and contiguous to navigable waters of the state, as set forth in detail in the complaint.
  10. Pursuant to ECL 71-1107, any person who violates any provisions of or who fails to perform any duty imposed by ECL Article 15 and 6 NYCRR 608.5 subjects the violator to a civil penalty of up to five thousand ($5,000) dollars for each violation.
  11. Pursuant to a Notice of Hearing and Complaint dated October 25, 2001, Department Region One Staff commenced an administrative enforcement proceeding against the above-named Respondent.
  12. Respondent was properly served with the Notice of Hearing and Complaint by Certified Mail on October 31, 2001.
  13. Service of process was accomplished in accordance with 6 NYCRR §622.3.
  14. The time for Respondent to serve an Answer expired on November 20, 2001. Respondent has failed to serve an Answer to Department Staff's Complaint within that time, or since.
  15. Respondent was properly served with a Notice of Pre-Hearing Conference by Certified Mail on October 31, 2001, to take place on November 8, 2001, and the Respondent failed to appear.
  16. With respect to such failure to answer or appear, DEC Staff made a Motion for Default Judgment pursuant to 6 NYCRR §622.15.
  17. Pursuant to 6 NYCRR §622.15, Respondent is found to be in default and as such has 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.
  18. Respondent has violated ECL Article 25 and 6 NYCRR Part 661 through the jetting in of pilings in regulated tidal wetlands, as set forth in detail in the complaint.
  19. Pursuant to ECL §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.
  20. Respondent has violated ECL Article 15 and 6 NYCRR Part 608 through the jetting in of pilings below the mean high water level in tidal wetlands that are adjacent to and contiguous to navigable waters of the state, as set forth in detail in the complaint.
  21. Pursuant to ECL 71-1107, any person who violates any provisions of or who fails to perform any duty imposed by ECL Article 15 and 6 NYCRR 608.5 subjects the violator to a civil penalty of up to five thousand ($5,000) dollars for each violation.

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

  1. The Respondent is in default for having failed to answer the complaint and is found to have violated ECL Articles 15, 25 and 71 and 6 NYCRR Parts 608 and 661, and based upon Department Staff's recommendations concerning a reduction in the penalty from the statutory maximum, Respondent is assessed a civil penalty of fifty thousand ($50,000) dollars. Respondent shall, within ten (10) days of the service of a conformed copy of this Order, submit this penalty payment by Certified Check or Money Order made out to "NYSDEC" to: Regional Attorney, Legal Affairs Region One, New York State Department of Environmental Conservation, Building #40, SUNY Campus, Stony Brook, NY 11790-2356.
  2. Respondent shall immediately remove all structures constituting violations at the Site.
  3. All communications between Respondent and Department Staff concerning this Order shall be made to: Raymond E. Cowen, PE, Regional Director, Region One, New York State Department of Environmental Conservation, Building # 40, SUNY Campus, Stony Brook, NY 11790-2356.
  4. The provisions, terms and conditions of the 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 23, 2003

TO: Mr. and Mrs. Conway
5150 New Suffolk Avenue
Mattituck, NY 11952

Mr. and Mrs. Conway
110 East St. Marks Place
Valley Stream, New York 11580

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 15 and 25 of the Environmental Conservation Law of
the State of New York and Parts 608 and 661 of Title 6 of NYCRR of the State of New York ("6 NYCRR")

- by -

VIRGINIA CONWAY,

Respondent.

DEFAULT SUMMARY REPORT

DEC File No.

R1-20010731-153

Proceedings

By Notice of Motion dated December 27, 2001 Staff of the Department of Environmental Conservation ("DEC", "Department") sought a judgment by default against Virginia Conway ("Respondent") concerning alleged violations of Articles 15 and 25 of the Environmental Conservation Law ("ECL") and 6 NYCRR Parts 608 and 661. It is alleged by DEC that Respondent violated ECL §25-0401and §15-0505 as well as 6 NYCRR §661.8 and §608.5 by causing or permitting to be caused substantial reconstruction of a 5' x 9.5' landing, 3' x 10' stairway, 4.5' x 5' landing and a 3' x 18.5' stairway in regulated adjacent area to a regulated tidal wetland without the required permit; by causing or permitting to be caused substantial reconstruction of a 5 x 71.75' fixed dock including 9" pilings, 4' x 14' ramp and 8' x 20' float in regulated tidal wetlands without the required permit; by causing or permitting to be caused clear cutting of vegetation in regulated adjacent area to a regulated tidal wetland without the required permit; by causing or permitting to be caused the installation of piles in regulated tidal wetlands and in navigable waters of the State without the required permit; by causing or permitting to be caused the installation of 4 pilings in regulated tidal wetlands without a permit; by causing or permitting to be caused the installation of 4 pilings in regulated tidal wetlands and in navigable waters of the State without the required permit.

In support of its motion, DEC submitted an affirmation of Assistant Regional Attorney Craig Lawrence Elgut, Esq. dated December 27, 2001, a proposed Order and proof of proper service of two Notices of Hearing and Complaint on the Respondent, one dated August 23, 2001 and the second dated October 25, 2001.

As of the date of the Motion, Respondent has failed to appear and serve an answer to either Complaint or otherwise move. With regards to the Complaint dated August 23, 2001 the Respondent's husband Paul Conway appeared for the Pre-Hearing Conference on September 19, 2001 and the Respondent was granted a 2 week extension of time to serve an answer to the Complaint. No answer has been served to date. With regards to the Complaint dated October 25, 2001 the time to answer or otherwise appear expired on November 14, 2001 and no answer has been served to date. Further, Staff submitted proof that said Notice of Hearing and Complaint directed Respondent to appear for a pre-hearing conference with regards to the October 25, 2001 Complaint on November 8, 2001 and 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 December 27, 2001. Respondent has not opposed the motion.

Default Procedures:

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.

Findings

  1. On August 23, 2001 Staff served a Notice of Hearing and Complaint dated August 23, 2001 on Respondent Virginia Conway. The time to answer or otherwise move expired on October 9, 2001. No answer has been served to date.
  2. The Notice for Hearing and Complaint dated August 23, 2001 directed Respondent to appear for a pre-hearing conference on September 19, 2001. Respondent did not appear but her husband Paul Conway appeared on her behalf. The Respondent was granted a 14 day extension of time to serve an answer to the August 23, 2001 complaint. No answer was served.
  3. Staff served a Notice of Hearing and Complaint dated October 25, 2001 on Respondent Virginia Conway. The time to answer or otherwise move expired on November 14, 2001. No answer has been served to date.
  4. The Notice for Hearing and Complaint dated October 25, 2001 directed Respondent to appear for a pre-hearing conference on November 8, 2001. Respondent failed to appear for the conference.
  5. Staff served the motion for default judgment and supporting papers on Respondent on or about December 27, 2001. Respondent has not opposed said motion. The time to serve papers in opposition expired on or about January 16, 2002.
  6. The requirements for a default judgment have been adequately met as prescribed by 6 NYCRR section 622.15(b).

Conclusion

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.

_____________/s/_____________
Molly T. McBride
Administrative Law Judge

To: Craig L. Elgut, Esq.
NYS Department of Environmental Conservation
Region 1 Office
Building 40
SUNY Stony Brook Campus
Stony Brook, New York 11790-2356

Virginia Conway
5150 New Suffolk Avenue
Mattituck, New York 11952

Virginia Conway
110 East St. Marks Place
Valley Stream, New York 11580

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