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Graziani, Thomas and John - Order, May 2, 2000

Order, May 2, 2000

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter

- of -

Alleged Violation of Article 24 of the Environmental Conservation Law (ECL) and Part 663 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York (6 NYCRR)

- by -

Thomas and John Graziani,
Respondents.

ORDER Case No. 96-49 R9-4413-96-10

WHEREAS:

  1. Pursuant to a Notice of Hearing and Complaint, dated May 25, 1999, the New York State Department of Environmental Conservation (DEC) Staff commenced an administrative enforcement proceeding against the Respondents.
  2. The Respondents, John and Thomas Graziani, were served with a Notice of Hearing and Complaint on June 10, 1999, and June 11, 1999, respectively.
  3. Service of process was accomplished in accordance with 6 NYCRR Section 622.3 and CPLR Section 2103.
  4. Respondents' time for serving an Answer to the Complaint expired on July 1, 1999.
  5. DEC Staff made a Motion for Default, dated April 5, 2000, outlining this failure.
  6. Staff's motion is addressed in the attached summary report of Administrative Law Judge Edward Buhrmaster, which I adopt as my own.
  7. According to Section 622.15 of 6 NYCRR, the Respondents are in default and have waived their right to a hearing in this enforcement proceeding. Therefore, DEC Staff's allegations against the Respondents in its Complaint are deemed to have been admitted by them.
  8. The Respondents violated ECL Section 24-0701(1) and (2) by placing fill, constructing a road, and installing buried roadside utilities in and adjacent to a regulated freshwater wetland, CC-33, without a permit. Wetland CC-33 is located within the boundaries of Respondents' Thompson Woods subdivision in the Town of Clarence, Erie County.

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

  1. The Respondents shall pay to the Department a penalty in the amount of Nine Thousand Dollars ($9,000), Three Thousand Dollars ($3,000) for each of the three above-referenced violations, such penalty to be due 30 days after service of this Order on one or both of the Respondents.
  2. The Respondents shall immediately cease further clearing, filling or grading activity on site without Department approval.
  3. Within 30 days of service of this Order on one or both of them, The Respondents shall provide for a survey of the state-regulated wetland boundary in accordance with Department requirements for wetlands survey and mapping.
  4. Also within 30 days of service of this Order on one or both of them, the Respondents shall submit a completed wetland map for Department review and approval.
  5. All communications from the Respondents to the Department concerning this Order shall be made to the Department's Region 9 Director, 270 Michigan Avenue, Buffalo, New York, 14203-2999.
  6. The provisions, terms and conditions of this Order shall bind the Respondents, their officers, directors, agents, servants, employees, successors and assigns and all persons, firms and corporations acting for or on behalf of the Respondents.

For the New York State Department
of Environmental Conservation

_____________/s/_____________
By: John P. Cahill, Commissioner
Albany, New York

Dated: May 2, 2000

TO: Thomas and John Graziani
8319 Parliament Circle
East Amherst, New York 14051

David F. Stever, Esq.
New York State Department of
Environmental Conservation, Region 9
270 Michigan Avenue
Buffalo, New York 14203-2999

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter

of

Alleged Violation of Article 24 of the Environmental Conservation Law (ECL) and Part 663 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York (6 NYCRR) by:

DEFAULT SUMMARY REPORT

Case No. 96-49 R9-4413-96-10

THOMAS AND JOHN GRAZIANI,

Respondents.

Proceedings

Staff of the Department of Environmental Conservation (DEC) issued a Notice of Hearing and Complaint, both dated May 25, 1999, to the Respondents in the above-referenced matter. The notice indicated that, pursuant to 6 NYCRR 622.4, the Respondents were to serve an answer to the complaint upon DEC Staff within 20 days of its receipt.

By papers dated April 5, 2000, DEC Staff counsel David F. Stever moved for a default judgment against both Respondents due to their failure to timely file answers to the complaint. Staff's papers were received at the Department's Office of Hearings and Mediation Services on April 10, 2000, and forwarded to me to decide the motion. Staff mailed the papers to the Respondents under a cover letter of Mr. Stever dated April 5, 2000. Nothing has been received from the Respondents by way of a reply to Staff's motion.

Findings of Fact

  1. DEC Environmental Conservation Officer (ECO) James M. Rogers personally served copies of the Notice of Hearing and Complaint in this matter upon John Graziani on June 10, 1999, and Thomas Graziani on June 11, 1999.
  2. The Notice of Hearing advised the Respondents that, pursuant to 6 NYCRR 622.4, they were obliged to serve an answer upon DEC Staff within 20 days of receiving the notice and complaint. The notice also advised the Respondents that failure to make timely service of an answer would result in a default and waiver of the Respondents' right to a hearing.
  3. The Respondents failed to file an answer to the complaint or have any other contact with the Department.

Discussion

According to 6 NYCRR 622.15(a), a respondent's failure to file a timely answer constitutes a default and a waiver of the

respondent's right to a hearing. In such a circumstance, DEC Staff may move for a default judgment, such motion to contain:

  1. proof of service upon the respondent of the notice of hearing and complaint;
  2. proof of the respondent's failure to file a timely answer; and
  3. a proposed order. [See 6 NYCRR 622.15(b).]

DEC Staff's proof of service upon John and Thomas Graziani is the affidavits of ECO Rogers, who personally delivered to both men copies of the notice and complaint. The proof that the Respondents did not answer the complaint is the affirmation of DEC Staff counsel David Stever. The Respondents have offered no response to Staff's motion and therefore nothing suggests either that the notice was not served or that a timely answer was filed. Staff have provided a proposed order which would confirm the default and impose the relief requested in the underlying matter. With my minor modifications to set deadlines for the Respondents' obligations, a copy of that order is attached for the Commissioner's signature.

Conclusion

The requirements of 6 NYCRR 622.15(b) for a motion for a default judgment have been adequately met. The Respondents have defaulted and waived their right to a hearing.

Recommendation

The attached order confirming the default should be signed and served upon the Respondents.

_____________/s/_____________
Edward Buhrmaster
Administrative Law Judge
Albany, New York

Dated: April 21, 2000

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