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Crossbay Contracting Corp - Decision and Order, January 18, 1995

Decision & Order January 18, 1995

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

the Alleged Violations of Articles 27 and 71 of
the New York State Environmental Conservation Law ("ECL") and
Part 360 of Title 6 of the Official Compilation of Codes, Rules and Regulations of
the State of New York ("6 NYCRR")

- by -

CROSS BAY CONTRACTING CORP,
Kings County

Respondent

DECISION
AND
ORDER

WP 049-94
W1-0272-94-07

WHEREAS:

  1. Staff of the Eastern Field Unit of the New York State Department of Environmental Conservation (the "Staff") duly served a Notice of Motion for Judgment Without Hearing (the "Notice") upon Respondent by personally serving two copies of the Notice on Respondent's statutory agent for service of process, the New York Secretary of State, pursuant to CPLR 306(b)(1). Satisfactory proof that such service was completed on October 19, 1994 has been provided by the Staff. The Staff also personally served a copy of the Notice at Respondent's last known place of business. Satisfactory proof that such service was completed on December 1994 has been provided by the Staff.
  2. The Notice included a notice, pursuant to 6 NYCRR 622.12(b), that a failure to file a response within twenty (20) days after receipt of the Notice constitutes a default. Pursuant to CPLR 308(b)(1) and 3012(c), Respondent had thirty days from October 19, 1994 within which to serve a response to the Notice. As of December 23, 1994, Respondent had failed to file a response as required by the regulations.

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

  1. Respondent Cross Bay Contracting Corp. is found to have violated ECL 27-0707(1) and 6 NYCRR Part 360-1.7(a)(1)(ii) by operating a solid waste management facility in the State of New York without a permit.
  2. Respondent Cross Bay Contracting Corp. shall immediately cease and desist operating a solid waste management facility.
  3. For the violations found above, Respondent Cross Bay Contracting Corp. pay an administrative penalty in the amount of Sixty-Four Thousand Five Hundred Dollars ($64,500).
  4. Respondent is required to restore the premises to the satisfaction of this Department.
  5. All communication between Respondent and Department Staff concerning this Order shall be made to: Hugh L. McLean, Esq., Department of Environmental Conservation, Eastern Field Unit, 200 White Plains Road, Fifth Floor, Tarrytown, New York 10591-5805.
  6. The provisions, terms and conditions of this Order shall bind Respondent, its 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: LANGDON MARSH, COMMISSIONER

Dated: Albany, New York
January 18, 1995

To: Hugh L. McLean, Esq.
Enforcement Attorney
NYSDEC - Eastern Field Unit
200 White Plains Road, Fifth Floor
Tarrytown, NY 10591-5805

Cross Bay Contracting Corp.
242 Nevins Street
Brooklyn, NY 11217

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

the Alleged Violations of Articles 27 and 71 of
the New York State Environmental Conservation Law ("ECL") and Part 360 of Title 6 of
the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR"), by

CROSS BAY CONTRACTING CORP.,
Kings County

Respondent.

DEFAULT SUMMARY REPORT

Proceedings

Staff of the Department of Environmental Conservation served a notice of motion for order without hearing on the Respondent, Cross Bay Contracting Corp., by delivery of papers to the Office of the New York State Secretary of State on October 19, 1994. In accordance with 6 NYCRR 622.12(b), the notice said that the Respondent's failure to answer within 20 days of receipt of the motion would constitute a default.

As required by 6 NYCRR 622.12(a), a copy of the motion and supporting papers was filed with the Department's Chief Administrative Law Judge ("ALJ") together with an affidavit of service, which was dated October 28, 1994, and signed by Frederick Stannard, a Department investigator. The affidavit said that service was accomplished by personal delivery of the motion upon an employee of the Secretary of State's Albany office.

Upon being assigned this matter, I wrote a letter (a copy of which is attached to this report as Appendix "A") to Hugh Mc Lean, the DEC attorney who filed the motion. In the letter, dated November 25, 1994, I said that the Office of Hearings had received no response to the motion for order without hearing, and therefore I would ordinarily entertain any motion Staff would make for a default judgment. However, by review of Mr. Stannard's affidavit, it did not appear that the motion had been properly served.

More particularly, the affidavit said "a copy" of Staff's papers had been served on the Secretary of State, whereas duplicate copies must be served to effect good service, as specified in Business Corporation Law (BCL) Section 306(b)(1).

Rather than simply dismiss this matter and require that the motion be resubmitted, I said I would retain jurisdiction and provide Staff an opportunity to correct its error. I said that if two copies were actually served on the Secretary of State, Mr. McLean could provide me with a corrected affidavit from Mr. Stannard. But if, as it appeared, only one copy was served, then Mr. McLean would have to serve the papers again.

Under a cover letter of December 23, 1994, Mr. McLean submitted a motion for a default judgment pursuant to 6 NYCRR 622.15. The motion contained a corrected affidavit from Mr. Stannard indicating that on October 19, 1994, he actually served two copies of the notice of motion for order without hearing on the Secretary of State's office. A copy of the notice was also delivered to the Respondent's last known place of business, 242 Nevins Street in Brooklyn, on December 19, 1994, according to an affidavit from DEC investigator Lidio Rivera, which is appended to the motion for default.

In an affidavit, Mr. McLean asserts that on December 23, 1994, he sent by certified mail a copy of the motion for default to the Respondent at its Nevins Street address. The Respondent has not answered this motion and has made no contact with me or the Office of Hearings.

Discussion

The Department's enforcement regulations provide that in lieu of a notice of hearing and complaint, Department Staff may serve, in the same manner, a motion for order without hearing together with supporting affidavits reciting all the material facts and other available documentary evidence [6 NYCRR 622.12(a)]. A Respondent's failure to timely respond constitutes a default, and Department Staff may then make a motion to the ALJ for a default judgment [6 NYCRR 622.15(a)].

Staff's motion for order without hearing was properly served in that two copies were hand-delivered to the Office of the Secretary of State. That office is designated by law as an agent for service of process for domestic corporations [see BCL Section 304]. Service of process on the Secretary of State as agent of a domestic corporation is made by personally delivering duplicate copies of the process to the Secretary's Albany office [see BCL Section 306(b)]. Service was completed on October 19, 1994, based on Mr. Stannard's corrected affidavit, which is dated November 30, 1994.

The Respondents did not answer the motion for order without hearing within the 20 days fixed in Staff's papers or within the 30 days allowed by statute [CPLR Section 3012(c)] where service is made by delivery to the Secretary of State. In keeping with a recommendation made in my letter of November 25, 1994, Staff also delivered its motion papers to the Respondent's last known address on December 19, 1994. Again, there has been no response by the Respondent, either to the motion or my November 25 letter to Mr. McLean, which was copied to the Respondent, and which invited the Respondent's questions about Department hearing procedure.

According to Department regulation [6 NYCRR 622.15(b)], a motion for a default judgment must contain:

(1) proof of service upon the Respondent of the document which commenced the proceeding;

(2) proof of the Respondent's failure to file a timely answer; and

(3) a proposed order.

Mr. Stannard's corrected affidavit demonstrates proper service of the motion for order without hearing. Mr. McLean's affirmation of December 23, 1994, in support of the Department's motion for a default, notes that as of that date, the Respondent had failed to file a response to the motion for order without hearing. The deadline for a response having long since passed, it is now demonstrated that the Respondent failed to file a timely answer. A proposed Decision and Order granting the default has been submitted by Department Staff and is attached to this report.

Conclusion

Staff's motion for a default judgment meets the requirements of 6 NYCRR 622.15(b) as outlined above. Therefore, in accordance with 6 NYCRR 622.15(c), this summary report, which is limited to a description of the circumstances of the default, is hereby submitted to the Commissioner, accompanied by Staff's proposed order.

Recommendation

The Commissioner should grant the default judgment requested by Department Staff.

_____________/s/_____________
Edward Buhrmaster
Administrative Law Judge

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