Greenberg (Mark) Real Estate Co - Order, October 13, 2000

Order, October 13, 2000

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter

the Alleged Violation of Article 17 of the Environmental Conservation Law of
the State of New York and Title 6 of
the Official Compilation of Codes, Rules and Regulations of the State of New York

- by -

MARK GREENBERG REAL ESTATE CO.,

Respondent.

ORDER

Case No. 2-194514

WHEREAS:

Pursuant to Section 622.15 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") Staff of the New York State Department of Environmental Conservation duly served a Notice of Hearing and Complaint upon the Respondent, MARK GREENBERG REAL ESTATE CO., by certified mail, return receipt requested.
The Complaint asserted one cause of action. On July 7, 1997, the registration for the Respondent's (2-194514) facility located at 528 West 111th Street, expired, and the Respondent has failed to voluntarily comply or submit clear evidence that this PBS facility is in compliance. Respondent has failed to register its petroleum bulk storage facility. Respondent is in violation of 6 NYCRR §612.2.
The Notice of Hearing and Complaint stated that a pre-hearing conference was scheduled to take place on July 20, 2000 at 9:30am at the Region 2 Office of the NYS Department of Environmental Conservation, located at 47-40 21st Street, Long Island City, New York 11101-5407. The Notice included a statement that, pursuant to 6 NYCRR §622.15, a failure to timely answer or failure to attend a hearing or failure to attend a pre-hearing conference would result in a default under 6 NYCRR §622.15 and a waiver of Respondent's right to a hearing.
The affidavit of June 12, 2000 states that the Respondent was served by placing a true and correct copy of the Notice of Hearing and Complaint in a secure postpaid wrapper addressed to Respondent and mailed to Respondent by certified mail return receipt requested. The associated return receipt indicates that the Notice of Hearing and Complaint were received by Respondent on June 19, 2000.
Staff documents by affirmation of Benjamin A. Conlon that:
1. Respondent failed to appear at the pre-hearing conference;
2. Respondent failed to serve on the Department an answer within 20 days of its receipt of the Notice of Hearing and Complaint or otherwise timely manner;
3. the penalty imposed is appropriate based on the violation(s) and the duration of the violation(s); and
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.
A copy of the motion and supporting papers were filed with the Office of Hearings and Mediation Services and the matter was assigned to Administrative Law Judge Francis W. Serbent. Submitted herewith is a copy of the Default Summary Report (attached). I adopt the ALJ's report.

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

Pursuant to 6 NYCRR §622.15, Respondent is found to be in default.
Respondent, Mark Greenberg Real Estate Co., pay a civil penalty of Seven Thousand Five Hundred ($7,500.00) dollars.
Within thirty (30) days of the Order, Respondent shall submit to the Department a completed application to register its petroleum bulk storage facility located at 528 West 111th Street, as well as a certified check or money order in the amount of the registration fee(s) required under 6 NYCRR §612.3.
Respondent permanently cease and desist from any and all future violations of the ECL and Rules and Regulations promulgated pursuant thereto.
All communications from the Respondent to the Department concerning this order shall be made to the Department's Region 2 Director, 47-40 21st Street, Long Island City, New York 11101-5407.
The provisions, terms and conditions of this order shall bind the Respondent, his agents, servants, employees, successors and assigns and all persons, firms and corporations acting for or on behalf of the Respondent.

For the New York State Department
of Environmental Conservation

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

Dated: October 13, 2000

TO:
Mark Greenberg Real Estate Co.
8 Haven Avenue
Port Washington, NY 11050

Benjamin Conlon, Esq.
NYSDEC - Rm 410A
50 Wolf Road
Albany, NY 12233-5550

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter

the Alleged Violation of Article 17 of the Environmental Conservation Law of
the State of New York and Title 6 of
the Official Compilation of Codes, Rules and Regulations of the State of New York

- by -

MARK GREENBERG REAL ESTATE CO.,

Respondent.

Summary Report on Motion for Default Judgment

Case No. 2-194514

PROCEEDINGS

Pursuant to Title 6 of the Official Compilation of Codes Rules and Regulations of the State of New York, Section 622.15, the New York State Department of Environmental Conservation ("Department") Staff ("Staff") has moved for a default judgment against MARK GREENBERG REAL ESTATE Co., 8 Haven Avenue Port Washington, NY 11050, the Respondent.

Staff made its motion on or about September 6, 2000 by sending to, the Respondent, the following papers:

A Notice of Motion for Default Judgment dated September 6, 2000; a Motion for Default Judgment; an Affirmation in Support of Motion for Default Judgment; and an unsigned Order; and by filing, on or about September 6, 2000, said documents with the Department's Office of Hearings and Mediation Services.

Respondent's response to Staff's Motion was due on September 27, 2000 pursuant to 6 NYCRR §622.6, presuming Respondent is entitled to an additional 5 days when service is made by ordinary mail and excluding Saturdays, Sundays and the public holiday.

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

Default Procedures

Section 622.15, "Default procedures" provides in pertinent part:

"(b) 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;

"(2) Proof of the respondent's failure to appear or failure to file a timely answer; and

"(3) A proposed order.

"(c) Upon a finding by the ALJ that the requirements of subdivision (b) 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

On June 12, 2000, Staff sent a Notice of Hearing and Complaint to MARK GREENBERG REAL ESTATE Co., the Respondent.
An Affidavit of Service indicates that the Notice of Hearing and Complaint was placed in a secure postpaid wrapper addressed to MARK GREENBERG REAL ESTATE Co., 8 Haven Avenue Port Washington, NY 11050, and mailed via certified mail.
A signed return receipt card (PS Form 3811 attached) indicating Article Number 7099 3400 0009 0790 6627 for the aforesaid mailing was returned to Staff, indicating the mail was received June 19, 2000.
As of September 6, 2000 (the date of the motion papers) MARK GREENBERG REAL ESTATE Co. had not responded to the Notice of Hearing and Complaint.
The requirements for a default judgment have been adequately met as prescribed by 6 NYCRR §622.15(b).

CONCLUSION

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

_____________/s/_____________
Francis W. Serbent
Administrative Law Judge

Dated: Albany, New York
September 29, 2000