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Porto, Armando - Ruling and Default Order, March 9, 1998

Ruling and Default Order, March 9, 1998

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
50 Wolf Road
Albany, New York 12233-1010

In the Matter

- of the -

Alleged Violations of Articles 15, 25 and 71 of the New York State
Environmental Conservation Law ("ECL"), and Parts 608 and 661 of Title 6 of the Official
Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") by

ARMANDO PORTO
and

RICHARD PROVENZANO CONTRACTING, INC.

and

RICHARD PROVENZANO INDIVIDUALLY

and

RICHARD PROVENZANO AS PRESIDENT OF

RICHARD PROVENZANO CONTRACTING, INC.
File No. R1-5787-96-01

RULING GRANTING MOTION FOR EXPEDITED APPEAL

AND ISSUING AN ORDER IN DEFAULT

March 9, 1998

COMMISSIONER'S RULING GRANTING MOTION FOR EXPEDITED APPEAL
AND ISSUING AN ORDER IN DEFAULT

A request for leave to file an expedited appeal to the Commissioner on behalf of Region 1 Staff was received on February 17, 1998. Leave to file was granted by the Assistant Commissioner for Hearings and Mediation Services on February 18, and the Respondents were notified that papers in response to Staff's motion would be received through March 2, 1998. No responsive papers have been received. The appeal is now ripe for decision.

The appeal seeks review of Rulings of ALJ John H. Owen dated February 11, 1998 with respect to a motion for a default judgment against Respondents Porto and Provenzano (in various capacities). The ALJ's rulings under appeal directed that there be a hearing with respect to adequacy of service of the notice of hearing and complaint in January-February 1996 in this tidal wetlands enforcement case. Specifically, ALJ Owen ordered a hearing on:

  1. What was contained in the envelopes sent by Staff to the respondents by Certified Mail-RRR in late January-early February 1996?
  2. Is the Mount Sinai Post Office's date stamp (January 30, 1996) on the three return receipts signed on behalf of the three Provenzano respondents the date of the delivery?

Based on review of the file in this case, I find that proper service was made. I am granting the appeal and I am issuing the requested default order.

Our Department's default procedures are set out at 6 NYCRR 622.15. In subsection (a), a respondent's failure to file a timely answer constitutes a default and a waiver of the respondent's right to a hearing. Under subsection (b), Staff may move for a default with proof that:

  1. There was service of the notice of hearing and complaint on the respondent, and
  2. Respondent failed to file a timely answer.

Also, a proposed default order is to accompany the motion.

Under subsection (c), upon finding that the requisite requirements as to proof of service and failure to answer are met, the ALJ is to submit a summary report and proposed order to the Commissioner. The ALJ's report is to be "limited to a description of the circumstances of the default." The final order is to be made by the Commissioner. Under subsection (d), a motion to reopen a default can be made to the ALJ and can be granted where a meritorious defense exists and good cause for the default exists.

In this case, the record shows that the notice of hearing and complaint were served by certified mail on the three Provenzano defendants on January 30, 1998 and on Respondent Porto by certified mail (received at his office, but not at his residence) on February 9, 1996. See Affidavit of Craig Elgut dated November 4, 1997 at Appendix A. Any doubt that the certified mailings received at Respondents' respective addresses on such dates failed to include the notice of hearing and complaint in this proceeding should rationally be allayed by the fact that the Provenzano respondents appeared by an attorney, and that Mr. Porto signed in as present at a pre-hearing conference in this case on February 21, 1996. Moreover as there has been ongoing settlement discussion among Staff and the parties in this case since 1994, there is no basis on which to believe that any of the respondents are oblivious to the pendency of this enforcement case. The ALJ's contrary inference is irrational. He raised questions where none exist. The ALJ's conduct was so extreme as to question his impartiality. Respondents received ample notice of this proceeding, and in fact make no contrary claim. The ALJ's fixation upon service of process in this case has no foundation in reality.

The affidavits of Staff counsel affirm that copies of the notice of hearing and complaint were obviously sent to respondents. There is absolutely no point in holding a hearing on the first issue directed by the ALJ. Further, no purpose would be served by holding a hearing on whether the date of delivery was January 30, 1996. Respondent Provenzano appeared by counsel on February 5, 1996, mooting any argument as to the adequacy of service.

Accordingly, I am satisfied that Staff's proof of service is adequate for purposes of compliance with 622.15(b)(1). I am further satisfied that Respondents have failed to file a timely answer.

Therefore I grant this appeal. I am contemporaneously signing Staff's proposed default order, which accompanies this decision.

For the New York State Department
of Environmental Conservation
____________/s/____________
By: John P. Cahill, Commissioner

Albany, New York
March 9, 1998

STATE OF NEW YORK:DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter

of

the Alleged Violations of Articles 15, 25 and 71 of the
New York State Environmental Conservation Law ("ECL"),
and Parts 608 and 661 of Title 6 of the Official Compilation of
Codes, Rules and Regulations of the State of New York ("6 NYCRR"), by

ORDER

File No. R1-5787-96-01

ARMANDO PORTO & RICHARD PROVENZANO

CONTRACTING, INC. AND

RICHARD PROVENZANO (Individually)

AND RICHARD PROVENZANO AS PRESIDENT

OF RICHARD PROVENZANO CONTRACTING, INC.

WHEREAS:

  1. Pursuant to a Notice of Hearing and Complaint dated January 23, 1996, New York State Department of Environmental Conservation (DEC) Region 1 Staff commenced an administrative enforcement proceeding against the above-named Respondents.
  2. Each Respondent was served with the Notice of Hearing and Complaint by Certified Mail on January 26, January 30, February 8 or February 9, 1996.
  3. Service of process was accomplished in accordance with 6 NYCRR 622.3.
  4. The time for Respondents to serve Answers expired at the latest March 6, 1996. Each Respondent failed to serve an Answer to Department Staff's Complaint within that time, or since.
  5. With respect to such failure to answer, DEC Staff made a Motion for Default Judgment, dated November 4, 1997.
  6. Pursuant to 6 NYCRR 622.15, each Respondent is found to be in default and as having waived its right to a hearing in this enforcement proceeding. Accordingly, Department's Staff's allegations against each Respondent in its Complaint are deemed to have been admitted by each Respondent.
  7. Each Respondent violated ECL Articles 15, 25 and 71 and 6 NYCRR Part 608 (by five separate and continuing activities) and Part 661 (by 8 separate activities) all as set forth in detail in the complaint.

NOW, THEREFORE, having considered this matter and being duly advised, it is ORDERED that:

  1. For having violated ECL Articles 15, 25 and 71 and 6 NYCRR Parts 608 and 661, each Respondent, jointly and severely with each other Respondent, is assessed a civil penalty of EIGHTY THOUSAND DOLLARS ($80,000).
  2. Each Respondent shall, within ten (10) days of the service of a conformed copy of this Order upon such Respondent, shall submit a remedial plan prepared by a New York State licensed Professional Engineer to the Department for approval which addresses, at a minimum, the recommendations contained in Department Staff's Schedule A to the Staff's Complaint.
  3. Within thirty (30) days of the Department Staff's approval of the remedial plan, Respondent shall complete all work required in the remedial plan, and shall provide a certification to Department Staff from the professional engineer that work has been completed in accordance with approved plans.
  4. All communications between Respondents and Department Staff concerning this Order shall be made to: Raymond Cowen, Regional Director, Region 1, NYSDEC, Building 40, SUNY Campus, Stony Brook, New York 11794.
  5. The provisions, terms and conditions of the Order shall bind each Respondent, his agents, servants, employees, successors and assigns and all persons, firms and corporations acting for or on behalf of Respondents.

For the New York State Department
of Environmental Conservation
____________/s/____________
By: John P. Cahill, Commissioner

Dated: March 9, 1997
Albany, New York

TO: Mr. Armando Porto
7 Clifton Avenue
Rocky Point, New York 11778

Mr. Armando Porto
c/o New York City School
Construction Authority
30-30 Thomson Avenue
Long Island City, New York 11101-3045

Mr. Richard Provenzano
67 Chestnut Street
Mount Sinai, New York 11766

Mr. Richard Provenzano
President
Richard Provenzano Contracting, Inc.
67 Chestnut Street
Mount Sinai, New York 11766

W. Gerard Asher, Esq.
444 New York Avenue
Huntington, New York 11743

Craig Elgut, Esq.
Assistant Regional Attorney
NYSDEC Region 1
Building 40, SUNY Campus
Stony Brook, New York 11790-2356

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