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Jackson, Chauncey (Estate of) - Order, May 10, 2000

Order, May 10, 2000

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

the Alleged Violation of Article 27 of the New York State Environmental Conservation Law (ECL)

- by -

ESTATE OF CHAUNCEY JACKSON and
BRUCE HOLLENBECK, Executor

Respondents

ORDER
DEC Case No.
R4-1844-95-10

WHEREAS:

  1. Pursuant to the Notice of Hearing and Complaint dated August 18, 1998, the New York State Department of Environmental Conservation Staff ("Staff") commenced an administrative enforcement proceeding against the Respondents.
  2. The Respondents, the Estate of Chauncey Jackson, through its attorney Marvin Parshall, and Bruce Hollenbeck, Executor, were served with a Notice of Hearing and Complaint on August 20, 1998, all as further addressed in the attached ALJ Ruling on Motion to Sever/Dismiss and Summary Report on Motion for Summary Default, hereby adopted as my decision.
  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 October 8, 1998.
  5. DEC Staff made a Motion for Default Judgment dated April 20, 1999 outlining this failure.
  6. The Respondents are found to be in default and have waived their right to a hearing in this enforcement proceeding. Therefore, Staff's allegations in its Complaint are deemed to have been admitted.
  7. Before his death, Mr. Chauncey Jackson violated Article 27 of the Environmental Conservation law and the regulations promulgated thereunder. More specifically, Mr. Jackson violated 6 NYCRR 360-1.7(a) by operating a solid waste management facility upon land he owned on Lape Road, Town of Charleston, Montgomery County, State of New York. The Respondents, the Estate of Chauncey Jackson and Bruce Hollenbeck in his capacity as Executor of the Estate, are now responsible for the property of the Estate and the liabilities Mr. Jackson incurred during his life.
  8. Upon review of the ALJ's Report and the record of this proceeding, I concur with ALJ P. Nicholas Garlick's Ruling and Summary Report in this matter.

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

  1. No hearing is required to determine whether Mr. Chauncey Jackson committed the violations identified in the attached ALJ's report.
  2. Respondents, the Estate of Chauncey Jackson and Mr. Bruce Hollenbeck in his capacity as Executor of the Estate, shall pay or arrange the payment of a penalty in the amount of Fifty Thousand Dollars ($50,000) within thirty (30) days of service upon the Respondents of a confirmed copy of this Order.
  3. Within 30 days of this Order, the Respondents shall provide a plan to the Staff for the lawful removal and disposal at a permitted facility of all solid waste from the site which is the subject of this proceeding. The plan shall include a schedule that completes removal of all solid waste from the site within 180 days of the date of this Order. The plan shall be subject to the written approval of Staff.
  4. By the first day of each month, beginning no less than 30 days following the date of Commissioner's Order, the Respondents shall submit a report detailing all activities undertaken to ensure compliance with the plan which the Staff approves pursuant to paragraph III, above. The report shall also indicate the name and location of the permitted facility to which all solid waste is removed for disposal, and shall include copies of all receipts from such facilities documenting the date, time, amount by weight, and description of solid waste disposed.
  5. The provisions, terms, and conditions of this Order and the attached ruling 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.
  6. All communications between the Respondent and the Department with respect to this matter shall be made to the Department's Region 4 Director, 1150 North Westcott Road, Schenectady, New York 12306.

For the New York State Department
of Environmental Conservation

_____________/s/_____________
By: John P. Cahill, Commissioner

Dated: Albany, New York
May 10, 2000

TO: Bruce Hollenbeck
Estate of Chauncey Jackson
RD 1 Hollenback Rd.
Worchester, New York 12197

Ann Lapinski, Esq.
Asst. Regional Attorney
NYSDEC, Region 4
1150 N Westcott Rd
Schenectady, New York 12306

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

the Alleged Violation of Article 27 of the New York State Environmental Conservation Law,

-by-

ESTATE OF CHAUNCEY JACKSON and
BRUCE HOLLENBECK, Executor

Respondents.

Ruling on
Motion to Sever/Dismiss and
Summary Report on Motion for Default Judgment

Case No.
R4-1844-95-10

This ruling is in response to two motions. The first was made by Marvin D. Parshall, Esq. requesting that his client, Mr. Bruce Hollenbeck's name be removed from the caption of this proceeding because he was improperly named as a respondent. The second was made pursuant to Title 6 of the Official Compilation of Codes Rules and Regulations of the State of New York, Section 622.15, by the New York State Department of Environmental Conservation ("Department") Staff ("Staff") for a default judgment against the Estate of Chauncey Jackson and Bruce Hollenbeck, Executor. For reasons more fully discussed below, the first motion is denied and the second is granted.

Background

On May 4, 1994, June 19, 1995 and July 1, 1996, Department Staff inspected property owned by Chauncey Jackson on Lape Road, in the Town of Charleston, Montgomery County. During these inspections, Staff determined that the site was being used for the unpermitted storage and disposal of solid waste.

On October 8, 1996 Chauncey Jackson died. Thereafter, Bruce Hollenbeck was duly named Executor of Mr. Jackson's estate by the Surrogates Court of Montgomery County.

On August 18, 1998, Staff, through its attorney Ann Lapinski, served a Notice of Hearing and Complaint upon Mr. Hollenbeck, as Executor of the Estate of Chauncey Jackson, and on Marvin Parshall Esq., the attorney for the Estate of Chauncey Jackson. The record indicates that some discussions then occurred between Staff and Mr. Parshall, but no Answer was ever received from the Respondents.

On April 20, 1999, DEC filed a motion for default judgment with Administrative Law Judge (ALJ) Robert O'Connor requesting the Commissioner sign an order compelling the payment of a fine and the development and implementation of a plan to remediate the solid waste on the Lape Road property.

On June 2, 1999 Mr. Parshall wrote to ALJ O'Connor expressing his displeasure at the fact that DEC had named Mr. Hollenbeck as a party respondent-defendant in this proceeding and asked that Mr. Hollenbeck be removed as a party in this matter. The next day ALJ O'Connor asked for citations and legal precedent from both parties on the question of whether it was appropriate to name Mr. Hollenbeck in the caption of this action. On June 24, 1999 Staff responded and the following day, Mr. Parshall provided his brief.

On March 31, 2000, ALJ P. Nicholas Garlick was assigned this matter from ALJ O'Connor.

Position of the Parties on the Motion to Sever/Dismiss

Mr. Hollenbeck's attorney has submitted a motion and brief requesting that his client be removed as a named respondent because it is unnecessary to name the Executor of Mr. Jackson's Estate in this case. He asserts that should a judgment be entered against the estate which had his client's name in the caption, that Mr. Hollenbeck's credit would be affected, his reputation would be tarnished and his credibility as a worthy citizen in the community would be impaired.

Staff responded by asserting that Mr. Hollenbeck is named in his capacity as Executor of Mr. Jackson's Estate and that all claims are against the estate. Staff makes no claim against Mr. Hollenbeck personally. Indeed, there is nothing in the record to indicate that Mr. Hollenbeck has acted in any manner other than honorably in this matter. Staff recognizes Mr. Hollenbeck's role in this matter as a purely fiduciary one.

Discussion and Ruling on Motion to Sever/Dismiss

The question presented is whether Staff acted improperly by naming Mr. Hollenbeck, in his capacity as Executor of the Estate of Chauncey Jackson, as a party in this matter.

There is no dispute regarding the capacity in which Mr. Hollenbeck is named in this matter. Both parties recognize that Mr. Hollenbeck is a party to this action solely due to his status as Executor to Mr. Jackson's Estate. Staff is not undertaking this action against Mr. Hollenbeck personally nor is it seeking penalties or any remedy at all from Mr. Hollenbeck. Staff only seeks to involve Mr. Hollenbeck in his representative capacity as executor. This is clear from the caption and from the record.

It is well established that an executor, who serves as a fiduciary to the estate, is expected to manage the affairs of the estate as a reasonable and prudent person would manage their own affairs. Matter of Hahn (4th Dept. 1983) 93 A.D. 2d 583, 462 N.Y.S. 2d 924 affirmed, 62 N.Y.2d. 861, 477 N.Y.S. 2d 604, 466 N.E. 2d 144. One of the powers necessary for such management is the power granted to executors in statute, namely the power to sue and be sued in their representative capacity as fiduciary (CPLR 1004). Further, an executor is also empowered to contest, compromise or otherwise settle any claim in favor of the estate, or in favor of third persons and against the estate (EPTL 11-1.1(b)(13)). This was a responsibility that Mr. Hollenbeck assumed when he agreed to serve as Executor of Mr. Jackson's Estate. Thus, as executor, Mr. Hollenbeck is empowered to defend the estate in court for liabilities incurred and actions that occurred during the lifetime of Mr. Jackson. Staff did not act improperly in naming Mr. Hollenbeck in his representative capacity as Executor of Mr. Jackson's Estate in this matter. The motion to sever Mr. Hollenbeck is denied.

Summary Report on Motion For Default Judgment

Staff made this motion on or about April 20, 1999 by sending to Marvin Parshall, Esq, Attorney for the Estate, and Mr. Bruce Hollenbeck, Executor of the Estate, the Respondents, the following papers:

A motion for Default Judgment dated April 20, 1999;
an Affirmation in Support of a Motion for Default Judgment;
and an unsigned Order.

And by filing, on or about April 20, 1999, said documents with the Department's Office of Hearings and Mediation Services.

Respondents' response to Staff's Motion was due on or about May 11, 1999, pursuant to 6 NYCRR section 622.6, presuming Respondents are entitled to an additional five 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 Respondents as of the date of this Ruling.

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

  1. On August 18, 1998, Staff sent a Notice of Hearing and Complaint to Bruce Hollenbeck, individually as Executor of the Estate, RD 1 Hollenbeck Rd., Worchester, New York, 12197 and Marvin Parshall, Esq., Parshall and West, 111 Main St., Worchester, New York, 12197.
  2. An Affidavit of Service indicates that true copies of the Notice of Hearing and Complaint were sent to Bruce Hollenbeck, individually as Executor of the Estate, RD 1 Hollenbeck Rd., Worchester, New York, 12197 and Marvin Parshall, Esq., Parshall and West, 111 Main St., Worchester, New York, 12197 by certified mail with a return receipt card (PS Form 3811 attached) indicating Article numbers Z 315 945 597 and Z 315 945 596, respectively.
  3. The receipt for the aforesaid mailing was returned to Staff, indicating the mail was received on or about August 20, 1998 and with the apparent signatures of Rachel Lusi and Mr. Parshall, respectively.
  4. As of April 20, 1999 (the date of the motion papers), the respondents have not responded to the Notice of Hearing and Complaint.
  5. The requirements for a default judgment have been adequately met as prescribed by 6 NYCRR section 622.15(b).

Conclusion

The motion to sever/dismiss is denied. The motion for a default judgment can be granted as proposed. This Ruling and proposed Order (attached hereto) can be referred to the Commissioner for final determination.

_____________/s/_____________
P. Nicholas Garlick
Administrative Law Judge

Dated: Albany, New York
May 1, 2000

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