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Nephew, Reginald - Order, January 19, 2001

Order, January 19, 2001

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of the Alleged Violations of Article 17 of the Environmental Conservation Law of the State of New York and Part 612 of Title 6 of the New York Compilation of Codes, Rules and Regulations

by

Reginald Nephew
Respondent.

ORDER

Case No. R5-20000801-88

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 5 office of the New York State Department of Environmental Conservation (DEC or Department) duly served a motion for default judgment upon respondent Reginald Nephew by first class mail on January 3, 2001.
  2. The notice of motion and supporting papers provide that on November 21, 2000, staff served the respondent with a notice of hearing and complaint. The notice of hearing included a statement, pursuant to 6 NYCRR § 622.3, that failure to respond within twenty (20) days of receipt of the complaint constitutes a default and waiver of the right to a hearing. The staff documents that the time for service of the answer expired with no reply from the respondent.
  3. The respondent has failed to serve a reply to staff's motion for a default judgment.
  4. Failure to answer a complaint is a ground for a default judgment pursuant to 6 NYCRR § 622.15.
  5. I adopt the findings of Administrative Law Judge Helene G. Goldberger in the summary report annexed hereto.

NOW, THEREFORE, having considered this matter, it is ORDERED:

  1. Pursuant to 6 NYCRR § 622.15, respondent is found to be in default and accordingly, staff's allegations against Reginald Nephew in its complaint are deemed to have been admitted by the respondent.
  2. Respondent violated Environmental Conservation Law § 17-1009 and 6 NYCRR § 612.2 by failing to timely register his petroleum bulk storage tanks with the Department.
  3. Within thirty (30) days from the date of this order, respondent is to pay a penalty of THREE THOUSAND FIVE HUNDRED DOLLARS ($3,500.00) to the Department.
  4. All communications between respondent and the Department concerning this order shall be made to the Department's Region 5 Director, New York State Department of Environmental Conservation, Route 86, P.O. Box 296, Ray Brook, New York 12977-0296.
  5. 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 respondent.

For the New York State Department of Environmental Conservation

/s/
By: John P. Cahill, Commissioner

Dated: Albany, New York
January 19, 2001

TO: Mr. Reginald Nephew
4 Main Street
Mooers, New York 12958

Christopher A. Lacombe,
Regional Attorney
NYS Department of Environmental Conservation
Region 5
Route 86, P.O. Box 296
Ray Brook, New York 12977-0296

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of the Alleged Violations of Article 17 of the Environmental Conservation Law Default Summary Report of the State of New York and Part 612 of Title 6 of the New York Compilation of Codes, Rules and Regulations

by,

Reginald Nephew
Respondent.

Default Summary Report

Case No. R5-20000801-88

Proceedings

Pursuant to § 622.15 of Title 6 of the New York Compilation of Codes, Rules and Regulations (6 NYCRR), staff of the Region 5 office of the New York State Department of Environmental Conservation (DEC or Department) served a notice of motion for default judgment upon respondent Reginald Nephew by first class mail on January 3, 2001. This notice of motion and supporting papers were received by the Office of Hearings and Mediation Services (OHMS) on January 8, 2001.

The notice of motion and supporting papers provide that on November 21, 2000, staff served respondent Nephew by certified mail with a notice of hearing and complaint. Included with staff's motion papers are copies of the certified mail receipt and return card that indicate that Mr. Nephew received the notice of hearing and complaint on November 29, 2000. The notice of hearing states that the respondent must service his answer to the complaint within twenty days of receipt or be subject to a default and waiver of the right to a hearing. The respondent has failed to serve his answer by December 19, 2000.

Discussion

Failure to answer a complaint is a basis for a default judgment pursuant to 6 NYCRR § 622.15. This regulation requires that a motion for a default judgment 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 timely file an answer; and (3) a proposed order. The staff has submitted an affidavit of service of the notice of hearing and complaint as well as a copy of the certified mail receipt card indicating receipt by the respondent on November 29, 2000. This documentation proves that staff served its notice and complaint consistent with the requirements of 6 NYCRR § 622.3(3). In addition, Regional Attorney Christopher A. Lacombe has affirmed that the respondent has failed to serve an answer. Staff has also included with its motion papers a proposed order. Staff's motion was properly served on respondent, and as of January 16, 2001, this office has not received any reply from Mr. Nephew. The time by which Mr. Nephew had to respond to the motion - January 8, 2001 - has passed. 6 NYCRR § 622.6(c)(3).

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 a proposed order.

Recommendation

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

/s/
Helene G. Goldberger
Administrative Law Judge

Dated: Albany, New York
January 16, 2001

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