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Pradhu, Ramesh d/b/a QVS Dry Cleaning - Decision and Order, August 8, 2002

Decision and Order, August 8, 2002

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter
- of -
an Alleged Violation of Article 19 of the Environmental Conservation Law ("ECL") and Section 232.16 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR 232.16")

- by -

Ramesh Pradhu, d/b/a
QVS Dry Cleaning,
Respondent.

DECISION AND ORDER

Case No. R5-200010402-159

WHEREAS:

  1. Pursuant to a Notice of Hearing and Complaint dated September 27, 2001, the New York State Department of Environmental Conservation ("DEC") Staff commenced an administrative enforcement proceeding against the Respondent.
  2. The Respondent, Ramesh Pradhu, was served with a Notice of Hearing and Complaint on September 29, 2001
  3. Service of process was accomplished in accordance with 6 NYCRR 622.3.
  4. The Respondent's time for serving an Answer to the Complaint expired on October 19, 2001.
  5. Department Staff made a Motion for Default Judgment dated November 21, 2001 outlining the failure to answer the complaint.
  6. According to 6 NYCRR 622.15, the Respondent is found to be in default and to have waived his right to a hearing in this enforcement proceeding. Therefore, Department Staff's allegation against the Respondent in its complaint is deemed to have been admitted by the Respondent.
  7. The Respondent violated 6 NYCRR 232.16 by failing to conduct an annual inspection of his stand alone mixed use dry cleaning facility.

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

  1. The Respondent shall pay to the New York State Department of Environmental Conservation a civil penalty in the amount of Four Thousand Dollars ($4,000), such penalty to be due 30 days after service of this Order upon the Respondent.
  2. Payment of the penalty, and other communications concerning this order, shall be to Christopher A. Lacombe, Esq., at the Region 5 office of the New York State Department of Environmental Conservation, Route 86 - P.O. Box 296, Ray Brook, New York, 12977.

For the New York State Department
of Environmental Conservation

_____________/s/_____________
By: Erin M. Crotty,
Commissioner
Albany, New York

Dated: August 8, 2002

TO: Ramesh Pradhu
QVS Dry Cleaning
15 Park Avenue
Clifton Park, New York 12065

Christopher A. Lacombe, Esq.
New York State Department of Environmental Conservation
Division of Legal Affairs, Region 5
Route 86 - P.O. Box 296
Ray Brook, New York 12977

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter
- of -
an Alleged Violation of Article 19 of the Environmental Conservation Law ("ECL") and Section 232.16 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR 232.16")

- by -

Ramesh Pradhu, d/b/a
QVS Dry Cleaning,
Respondent.

Default Summary Report

Case No. R5-20010402-159

Proceedings

On September 27, 2001, Staff of the Department of Environmental Conservation ("the Department," or "DEC") mailed a Notice of Hearing and Complaint to Ramesh Pradhu, the Respondent in this matter. Mr. Pradhu, as owner of QVS Dry Cleaning in Clifton Park, New York, was charged with not conducting an inspection of the business during the year 2000, in violation of ECL 19-0301 and 6 NYCRR 232.16.

The hearing notice said that within 20 days following the receipt of the complaint, the Respondent was required to serve his answer upon the Department, and that failure to timely answer would result in a default and waiver of the Respondent's right to a hearing.

By written motion dated November 21, 2001, DEC Region 5 Attorney Christopher A. Lacombe requested that a default order be issued requiring the Respondent to pay a civil penalty of Four Thousand Dollars ($4,000). The motion was based on the Respondent's failure to submit a timely answer. The motion was made to the Department's Office of Hearings and Mediation Services and assigned to me for a ruling.

Upon review of the motion, I noticed that it did not contain instructions as to when and to whom a response was required. Then, on December 21, 2001, I spoke with Mr. Lacombe, who confirmed that no response had been sent to him. Because no response had been filed with this office either, and to assure the Respondent a full opportunity to respond to the motion, I sent a letter to the Respondent extending his response time to January 18, 2002. A copy of that letter, dated December 21, 2001, is attached as Appendix "A" to this report. No response to the motion, by the Respondent or anyone on his behalf, was made before January 18, 2002, and none has been made since.

Findings of Fact

  1. On September 29, 2001, the Notice of Hearing and Complaint in this matter, dated and mailed on September 27, were received by an agent of the Respondent, Ramesh Pradhu, at QVS Dry Cleaning, 15 Park Avenue, Clifton Park. [See affidavit of service of Barbara A. Forrester and U.S. Postal Service certified mail receipt, attached as Appendix "A" to the default motion.]
  2. The Notice of Hearing advised the Respondent that within 20 days following receipt of the complaint, he was obliged to serve an answer to Mr. Lacombe at the Department's Region 5 office in Ray Brook. The notice also advised the Respondent that failure to timely answer would result in a default and a waiver of his right to a hearing.
  3. The Respondent's time for serving an answer expired on October 19, 2001. No answer has ever been filed in this matter.

Discussion

According to DEC's hearing regulations, a Respondent's failure to file a timely answer constitutes a default and a waiver of the Respondent's right to a hearing. [See 6 NYCRR 622.15(a).] In such an event, DEC Staff may move for a default judgment, such motion to 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 file a timely answer; and
  3. a proposed order. [See 6 NYCRR 622.15(b).]

Ms. Forrester's affidavit of service (coupled with the mailing receipt) adequately demonstrates that the Notice of Hearing and Complaint were mailed to the Respondent on September 27, 2001, and received by an agent on his behalf on September 29, 2001. Pursuant to 6 NYCRR 622.3(a)(3), service was completed when the papers, sent by certified mail, were received.

Pursuant to 6 NYCRR 622.4(a) and consistent with the instructions in the hearing notice, an answer signed by the Respondent, his attorney or other authorized representative was due 20 days after the Respondent received the Department's papers. Because the papers were received on September 29, a response was due by October 19, 2001.

No answer to the complaint has ever been filed with the Department. This is confirmed by Mr. Lacombe's affirmation in support of the default motion, which indicates that the Respondent failed to file an answer to the complaint or have any other contact with the Department.

Conclusion

The requirements of 6 NYCRR 622.15(b) for a motion for a default judgment have been adequately met. The Respondent has defaulted and waived his right to a hearing in this matter.

Recommendation

The Commissioner should sign the attached order confirming the default and providing the relief requested by Department Staff in its complaint.

The order, prepared by me, corrects several minor deficiencies in the proposed order submitted by DEC Staff:

  1. It deletes the reference to violation of ECL 19-0301, since this section provides powers to, and duties for, the Department. However, it preserves the reference to violation of 6 NYCRR 232.16, which imposes obligations on dry cleaning facilities.
  2. It indicates that the Respondent's time for serving an answer to the complaint expired on October 19, 2001 (20 days after the complaint was received), not October 29, 2001 (the date in DEC Staff's proposed order).
  3. It sets a due date for payment of the civil penalty, which was absent from DEC Staff's proposed order.
  4. It provides an address for payment of the civil penalty and other future communications the Respondent might have with the Department in response to the order.
  5. It corrects the signature line to indicate that the order should be signed by the Commissioner and not by the assigned administrative law judge.

_____________/s/_____________
Edward Buhrmaster
Administrative Law Judge

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