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Nystrom Enterprises - Order, July 14, 1994

Order, July 14, 1994

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

the Alleged Violations of Articles 23 and 71 of
the New York State Environmental Conservation Law and Part 551 of Title 6 of
the Official Compilation of Codes, Rules and Regulations of the State of New York,

- by -

NYSTROM ENTERPRISES,
ESTATE OF PHILIP M. NYSTROM,
DAVID NYSTROM and
DANIEL NYSTROM,

Respondents

ORDER

DEC Index No.
D9-A113-94-04

The Staff of the Department, by its Counsel, Carl G. Dworkin, having moved for an Order determining that Respondents are in default and other relief with respect to Staff's Motion for Order Without Hearing, and there having been no response filed by any of the Respondents with the Chief Administrative Law Judge, and having considered the report of the Administrative Law Judge, and there having been compliance by Staff with the requirements relative to the Motion for Default Judgment established by 6 NYCRR 622.15,

IT IS FOUND AND ORDERED THAT:

  1. Respondents are in default by virtue of their not having answered the charges proffered by Staff in its Motion for Order Without Hearing within the time allowed therefor by 6 NYCRR 622.4; and
  2. No hearing is required to determine whether the Respondents have violated ECL Section 23-0305.8(e) and 6 NYCRR Part 551 because there are no facts in dispute; and
  3. Respondents violated the requirements of ECL 23-0305.8(e) and 6 NYCRR Part 551; and
  4. The relief sought by Staff may be granted as a matter of law; and
  5. There is imposed upon Respondents, jointly and severally, a penalty in the amount of TWENTY-FIVE THOUSAND DOLLARS ($25,000), to be made payable to and remitted to the Department within ten (10) days of the effective date hereof. The check shall be transmitted to CARL G. DWORKIN, Esq., Principal Administrative Litigator, Division of Environmental Enforcement, NYS Department of Environmental Conservation, 50 Wolf Road, Albany, New York 12233-5500.

For the New York State Department
of Environmental Conservation

_____________/s/_____________
By: LANGDON MARSH, COMMISSIONER

Dated: July 14, 1994
Albany, New York

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
50 Wolf Road
Albany, New York 12233-1550

In the Matter

- of -

Alleged Violations of Articles 23 and 71 of
Environmental Conservation Law of the State of New York (ECL) and Part 551 of Title 6 of
the Official Compilation of Codes, Rules and Regulations of the State of New York (6NYCRR)

- by -

Nystrom Enterprises,
The Estate of Philip M. Nystrom,
David Nystrom and Daniel Nystrom

RESPONDENTS

DEC No. D9-A113-94-4

HEARING REPORT

- by -

____________/s/____________
Daniel P. O'Connell

Administrative Law Judge

Summary

Pursuant to 6 NYCRR 622.15 [effective January 9, 1994], this Summary Report addresses a motion by the Staff of the Department of Environmental Conservation (the Department) for a default judgement against Nystrom Enterprises, the estate of Philip M. Nystrom, David Nystrom and Daniel Nystrom. As explained below, the Department has met the requirements of 622.15(b). Therefore, the Commissioner should grant the Department's motion for default judgment and issue the proposed Order.

Proceedings

Pursuant to 6 NYCRR 622.12 the Department individually served Nystrom Enterprises, the estate of Philip M. Nystrom, David Nystrom and Daniel Nystrom (the Respondents) with notices of a motion for an order without hearing, and copies of a motion for an order without hearing dated April 19, 1994. In the motion for an order without hearing, the Department alleged the Respondents violated ECL Article 23 and 6 NYCRR Part 551, and requested a joint and several civil penalty of $25,000. As of May 31, 1994, the Respondents had not answered the Department's motion for an order without hearing, either individually or collectively.

With a cover letter dated June 17, 1994, the Department filed a notice of motion for default judgment and a motion for default judgment as provided by 622.15. The Department included an affirmation by Carl G. Dworkin, Esq., Principal Administrative Litigator, with attached exhibits. The exhibits were copies of four Domestic Return Receipts signed by each Respondent. The Department offered Mr. Dworkin's affirmation with the attached exhibits to prove that the Department duly served each Respondent with the motion for an order without hearing, and that the Respondents did not answer the motion for an order without hearing. The Department also provided a proposed Order which concludes that the Respondents violated ECL Article 23 and 6 NYCRR Part 551, and assesses a joint and several civil penalty of $25,000.

The Department's notice of motion for default judgment set a return date of June 27, 1994. As of that date, the Respondents had not replied to the Department's motion for a default judgment. The record of the proceeding closed on June 27, 1994.

Discussion and Recommendations

Section 622.15 limits the ALJ's review of a motion for a default judgement to the circumstances of the default. The Commissioner must grant the default if the Department proves that it properly served the Respondents with the motion for an order without hearing, and that the Respondents did not answer the Department's motion.

Section 622.3(a)(3) provides for service of the motion for an order without hearing by certified mail. When service is by certified mail, it is complete when the Respondent receives the Department's motion and supporting papers.

Regarding the Department's motion for a default judgement, Mr. Dworkin's affirmation and the copies of the Domestic Return Receipts signed by each Respondent, or a representative, prove that the Department sent a copy of the notice of motion for an order without hearing and the motion for an order without hearing to each Respondent by certified mail return receipt requested. Therefore, the Department served each Respondent with the motion for an order without hearing in a manner consistent with 6 NYCRR 622.3(a)(3).

The notice of motion for an order without hearing informed the Respondents that they had to answer the motion within twenty calendar days after they received the motion and supporting papers. The copies of the Domestic Return Receipts signed by representatives of Nystrom Enterprises and the estate of Philip M. Nystrom as well as by David Nystrom show that these Respondents received their respective copy of the Department's motion and supporting papers on April 25, 1994. Consequently, these Respondents had to answer the motion for an order without a hearing, either individually or collectively, by May 16, 1994.

A copy of the Domestic Return Receipt signed by Daniel Nystrom shows that he received his copy of the Department's motion on May 10, 1994. Twenty calendar days from May 10, 1994 is May 30, 1994. Since May 30, 1994 was a legal holiday (Memorial Day), Daniel Nystrom's Answer was due on May 31, 1994. As of May 31, 1994, none of the Respondents had answered the Department's motion for an order without hearing, either individually or collectively. Therefore, the Respondents did not respond to the motion for an order without hearing within the prescribed 20 day period.

The Department properly served the Respondents with the motion for an order without hearing, and the Respondents did not answer the Department's motion on time. The Commissioner should grant the Department's motion for default judgment, and issue the proposed Order. This Order concludes that the Respondents violated ECL Article 23 and 6 NYCRR Part 551, and assesses a joint and several civil penalty of $25,000.

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