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Parent, Jr., David - Ruling, October 1, 2003

Ruling, October 1, 2003

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of the Alleged Violation of
Articles 27 and 71 of the Environmental Conservation
Law of the State of New York and of Title 6
of NYCRR of the State of New York ("6 NYCRR") by

DAVID PARENT, JR. individually and as
administrator and a distributee of the Estate of
David Parent, Sr., deceased
Respondent.

RULING
DEC File No. R3-20000808-156

PROCEEDINGS

By Notice of Motion dated June 13, 2002 Staff of the Department of Environmental Conservation (DEC Staff, Department) sought a judgment by default against David Parent, Jr. (Respondent) concerning alleged violations of Articles 27 and 71 of the Environmental Conservation Law (ECL) and 6 NYCRR Part 360. It is alleged by DEC that Respondent violated ECL Article 27 and 6 NYCRR 360-13.1(b) and 360-1.5(a) for storing more than 1,000 or more waste tires at a time without first obtaining a permit from the Department and for storing said tires for more than 60 days without the required disposal facility permit or Department authorization.

In support of its motion, DEC Staff submitted an affirmation of Assistant Regional Attorney Jennifer David Hesse, Esq. dated June 13, 2003 and a proposed Order.

The DEC Staff also presented proof of service of the Notice of Hearing and Complaint on the Respondent's attorney. As of the date of the Motion, Respondent has failed to appear and serve an answer to the Complaint or otherwise move.

Respondent's counsel and the Respondent were served with the Notice of Motion for Default Judgment and supporting papers on or about June 13, 2002. Respondent has not opposed the motion.

DEFAULT PROCEDURES

Section 622.15, "Default procedures" provides, in pertinent part: "(b) The motion for a default judgment .... 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."

The following Findings are based upon the papers submitted, as identified above.

FINDINGS

  1. On May 17, 2002 DEC Staff served a Notice of Hearing and Complaint dated May 15, 2002 on Respondent's counsel, not Respondent. The time to answer or otherwise move expired on June 6, 2002. No Answer has been served to date.
  2. DEC Staff served the motion for default judgment and supporting papers on Respondent and his counsel on or about June 13, 2002. Respondent has not opposed said motion.

DISCUSSION

The default motion procedures identified above indicate that the Respondent must be served with the Notice of Hearing and Complaint. In this case, the Respondent's counsel was served. Also, 6 NYCRR Part 622, Uniform Enforcement Hearing Procedures, details the procedures to be followed when commencing an administrative action. 6 NYCRR 622.3(a)(3) requires service of the Notice of Hearing and Complaint "by personal service consistent with the CPLR or by certified mail." In reviewing the CPLR it is clear that service upon an agent rather than the party is only permissible when there has been the execution and filing of the necessary documents that authorize such service. CPLR 318 authorizes service upon an agent for a party when the party has executed a written document, "acknowledged in the same manner as a deed, and with the consent of the agent endorsed thereon. The writing shall be filed in the office of the clerk of the county in which the principal to be served resides or has its principal office." DEC Staff has not alleged any such writing existed here that authorized service upon the attorney in place of the Respondent.

RULING

The motion for default judgement is denied.

___________/s/_______________
Molly T. McBride
Administrative Law Judge

Albany, New York
October 1, 2003

To: Jennifer David Hesse, Esq.
NYS Department of Environmental Conservation
Region 3 Office
21 South Putt Corners Road
New Paltz, New York 12561-1696

David Parent, Jr.
P.O. Box 396
Mahopac, New York 10541-0396

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