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Deposit Flying Club, Inc. - Order, November 20, 1995

Order November 20, 1995

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of
the Alleged Violations of Article 17 of the New York State Environmental Conservation Law,

- by -

DEPOSIT FLYING CLUB, Inc.,

Respondent.

DECISION and ORDER

R4-1809-95-02

WHEREAS:

  1. Pursuant to 622.15 of Title 6 of the New York Compilation of Codes, Rules and Regulations ("6 NYCRR") staff of the Region 4 office of the New York State Department of Environmental Conservation (the "staff") duly served a Motion for Default Judgment ("motion") upon respondent, Deposit Flying Club, Inc., by first class mail on October 18, 1995.
  2. The notice of motion and supporting papers provided that on September 19, 1995, staff had served the respondent by certified mail with a copy of a notice of hearing and complaint. The notice of hearing included a statement that pursuant to 6 NYCRR 622.12(b), a failure to file a response within twenty (20) days after receipt of the notice constitutes a default. The staff documents that the time for service of the answer, October 12, 1995, expired with no response from Deposit Fuel Company. Attached to staff's papers is the original signed return receipt card (Article No. Z 191 715 259) bearing a delivery date of September 22, 1995 and the signature of Gerald Mackin, Treasurer.
  3. The notice of hearing set forth a pre-hearing conference for October 12, 1995 at the Region 4 Stamford sub-office. Pursuant to 6 NYCRR 622.15, the notice provided that failure to appear at the conference would constitute a default. Assistant Regional Attorney Kelly affirms in support of the motion that respondent failed to appear at this conference.
  4. Failure to answer a complaint or to appear at a pre-hearing conference are both grounds for a default judgment pursuant to 6 NYCRR 622.15. As of November 21, 1995, respondent has failed to respond to the staff's motion.

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

  1. Pursuant to 6 NYCRR 622.15, respondent is found to be in default and accordingly, staff's allegations against Deposit Flying Club, Inc. in its complaint are deemed to have been admitted by respondent.
  2. The respondent violated Environmental Conservation Law 17-1009 and 6 NYCRR 612.2 by failing to register its petroleum bulk storage system.
  3. A civil penalty of ONE THOUSAND DOLLARS ($1,000.00) is assessed against respondent and such penalty is due within thirty (30) days of the service of a copy of this Order upon respondent.
  4. Within thirty (30) days of service of a copy of this Order upon respondent, Deposit Fuel Company shall register its petroleum bulk storage system or shall, in accordance with 6 NYCRR 613.9(b) permanently close such system. Prior to undertaking any closure activities on its system, respondent shall conform with the notice requirements of 6 NYCRR 613.9(c).
  5. All communication between respondent and Department staff concerning this Order shall be made to: Assistant Regional Attorney Gene Kelly, Department of Environmental Conservation, Region 4, 1150 North Westcott Road, Schenectady, New York 12306-2014.
  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: Michael D. Zagata, Commissioner

Dated: Albany, New York
November 27, 1995

To: Deposit Flying Club, Inc.
Dry Brook Road
Hancock, NY 13738

Gene Kelly, Esq.
Assistant Regional Attorney
New York State Department of
Environmental Conservation
Region 4
1150 North Westcott Road
Schenectady, New York 12306-2014

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

the Alleged Violations of Article 17 of the New York State Environmental Conservation Law, by

DEPOSIT FLYING CLUB, Inc.,

Respondent.

DEFAULT SUMMARY REPORT

R4-1809-95-02

Proceedings

Staff of the Region 4 office of the Department of Environmental Conservation served a notice of motion for a default judgment on the respondent, Deposit Flying Club, Inc., by mail on October 18, 1995. As required by 6 NYCRR 622.15, the motion was made by staff to the Office of Hearings.

Upon being assigned this matter, I wrote to Assistant Regional Attorney Gene Kelly noting that the documents submitted to the Office of Hearing did not include proof of service of the motion on the respondent. On October 26, 1995, Mr. Kelly submitted this proof. The respondent has not answered this motion and had made no contact with me or the Office of Hearings as of November 20, 1995.

In support of the motion for a default judgment, Assistant Regional Attorney Gene Kelly affirmed that on September 19, 1995, by certified mail, the staff served the respondent with a notice of hearing and complaint. As part of its documentation, thestaff presented the original signed return receipt card (Article No. Z 191 715 259) bearing a delivery date of September 22, 1995 and the signature of Gerald Mackin, Treasurer. The notice of hearing included a statement that pursuant to 6 NYCRR 622.12(b), a failure to file a response within twenty (20) days after receipt of the notice constitutes a default. The staff documents that the time for service of the answer, October 14, 1995, expired with no response from Deposit Flying Club, Inc.

The notice of hearing set forth a pre-hearing conference scheduled for October 12, 1995 at the Region 4 Stamford sub-office. Pursuant to 6 NYCRR 622.15, the notice provided that failure to appear at the conference would constitute a default. Assistant Regional Attorney Kelly affirms in support of the motion that respondent failed to appear at this conference.

Discussion

Failure to answer a complaint or to appear at a pre-hearing conference are both grounds for a default judgment pursuant to 6 NYCRR 622.15. The regulation requires that 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 appear or to file a timely answer; and (3) a proposed Order. The staff has submitted proof of the service of the notice of hearing and complaint pursuant to 6 NYCRR 622.3(3). In addition, the staff also affirms that the respondent failed to appear at the scheduled pre-hearing conference and to file an answer in response to the complaint. In the notice of hearing, respondent was made aware of the consequences of failure to answer and/or to attend the pre-hearing conference. Staff also included a proposed order with its motion. Staff's motion was properly served on the respondent and as of November 15, 1995, respondent has failed to respond to the staff's motion for a default judgment.

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/_____________
Helene G. Goldberger
Administrative Law Judge

Dated: November 20, 1995
Albany, New York

To: Gene Kelly, Esq.
Assistant Regional Attorney
New York State Department of
Environmental Conservation
Region 4
1150 North Westcott Road
Schenectady, New York 12306-2014

Deposit Flying Club, Inc.
Dry Brook Road
Hancock, New York 13783

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