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Roides, Michael - Decision and Order, September 17, 1998

Decision and Order, September 17, 1998

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter
- of -
Violations of Part 612 and 613 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York

- by -

MICHAEL ROIDES, individually
and
d/b/a Mike's Shamrock Service Station,
Respondent.

DECISION AND ORDER

Case No. R8-1118-97-11

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 8 office of the New York State Department of Environmental Conservation (the "staff") duly served a motion for default judgment ("motion") upon respondent, Michael Roides, by first class mail on July 16, 1998.
  2. The notice of motion and supporting papers provided that on March 4, 1998 staff served the respondent by certified mail with a copy of a notice of hearing and complaint. The notice of hearing included a statement that, pursuant to 6 NYCRR §622.12(b), a failure to file a response within twenty (20) days after receipt of the notice constituted a default. Attached to staff's papers is a copy of the return receipt card for the certified mail bearing a delivery date on March 10, 1998.
  3. Additionally, staff issued a notice of default by first class mail on April 22, 1998 affording respondent an additional opportunity to serve an answer and advising him of staff's intent to seek relief by default if he failed to do so.
  4. Respondent has failed to answer, otherwise appear or respond in any fashion to the notice of hearing and complaint or the notice of default within the time designated to do so.
  5. I adopt the conclusions of the Administrative Law Judge's report, attached hereto.
  6. Failure to answer a complaint is grounds for a default judgment pursuant to 6 NYCRR §622.15. As of August 12, 1998, respondent has failed to respond to the staff's motion.

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

  1. Pursuant to 6 NYCRR §622.15, respondent is found to be in default and accordingly, staff's allegations in its complaint against Michael Roides individually and d/b/a Mike's Shamrock Service Station, are deemed to have been admitted by respondent.
  2. The respondent violated 6 NYCRR §§612.2 and 613.5 by failing to properly register his petroleum bulk storage facility and by failing to conduct required tightness testing on underground petroleum storage tanks at the facility.
  3. Within thirty (30) days of service of a copy of this order upon respondent, Michael Roides individually and d/b/a Mike's Shamrock Service Station shall properly register the facility in accordance with the requirements of 6 NYCRR §612.2 and pay the registration fee established by 6 NYCRR §612.3.
  4. With respect to tanks 001, 002 and 003 identified in staff's complaint, within thirty (30) days of service of a copy of this order upon respondent, Michael Roides individually and d/b/a Mike's Shamrock Service Station shall:
    1. conduct tightness testing on each of the underground petroleum storage tanks and connecting piping systems, submit test results to the Department, and take the steps required to empty, replace, repair or close leading systems all in the manner specified in 6 NYCRR 613.5(a)(5); or
    2. permanently close the underground petroleum storage tanks and connecting piping systems in accordance with 6 NYCRR Part 613.9(b), (c), (d) and (e).
  5. A civil penalty of TWENTY-THREE THOUSAND DOLLARS ($23,000) is assessed against Michael Roides individually and d/b/a Mike's Shamrock Service Station. EIGHT THOUSAND DOLLARS ($8,000) is due immediately and shall be paid within thirty (30) days of the service of a copy of this Order upon respondent. The balance of the penalty in the sum of FIFTEEN THOUSAND DOLLARS ($15,000) shall be suspended and shall not be payable unless respondent fails to comply satisfactorily with the provisions of paragraph III of this Order in a timely fashion.
  6. All communication between respondent and Department staff concerning this Order shall be made to: Assistant Regional Attorney Leo J. Bracci, Department of Environmental Conservation, Region 8, 6274 East Avon-Lima Road, Avon, New York 14414.
  7. The provisions, terms and conditions of this Order shall bind respondent, its 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, NY
September 17, 1998

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of Alleged Violation
- of -
Parts 612 and 613 of the Official Compilation of Codes, Rules and Regulations of the State of New York

- by -

Michael Roides, individually and
d/b/a Mike's Shamrock Service Station,
Respondent

DEFAULT SUMMARY REPORT

File No. R8-1118-97-11

Summary

The present report concerns a motion for a default judgment which the Region 8 Staff of the Department of Environmental Conservation (the "Department Staff") served in the matter of Michael Roides, individually and doing business as Mike's Shamrock Service Station (the "Respondent"), pursuant to Section 622.15 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR"). The report recommends that the motion be granted.

Proceedings

On or about March 4, 1998, the Department Staff sent a notice of hearing and complaint to the Respondent. The complaint alleged that the Respondent had violated 6 NYCRR Parts 612 and 613 (Registration of Petroleum Storage Facilities; Handling and Storage of Petroleum). The site of the alleged violations is property at 425 Thurston Road, Rochester, New York.

The notice of hearing and complaint were sent by certified mail, return receipt requested. The return receipt, with the signature of an unidentified person and the date of March 10, 1998, was returned to the Department's Region 8 office.

The notice of hearing contained a statement informing the Respondent that his failure to answer or appear would result in a default and a waiver of his right to a hearing.

The Respondent did not serve an answer, appear or initiate any contact with the Department Staff within the 20 days to do so specified in the notice of hearing. On April 22, 1998, the Department Staff sent to the Respondent a notice of default, notifying him that he had failed to serve an answer to the complaint within the designated time and was therefore in default. The letter also stated that unless the Respondent filed an answer on or before May 15, 1998, the Department Staff would move for a default order.

On July 16, 1998, the Department Staff moved for a default judgment based on the Respondent's failure to answer the complaint. The motion was sent to the Office of Hearings and Mediation Services of the Department of Environmental Conservation, with copies sent to the Respondent at two addresses: 82 Calhoun Avenue, Rochester, New York 14606 and c/o Mike's Shamrock Service, 425 Thurston Road, Rochester, New York 14619. As of August 12, 1998, the Office of Hearings and Mediation Services has not received any response from the Respondent concerning the motion for a default judgment, nor a copy of an Answer.

Discussion

The procedures for a default judgment are provided in 6 NYCRR Section 622.15. The regulation provides that a respondent's failure to file a timely answer constitutes a default and a waiver of the respondent's right to a hearing. In this event, the Department Staff may make a motion to the Administrative Law Judge ("ALJ") for a default judgment. Failure to appear at a hearing or at a scheduled pre-hearing conference also constitute defaults, although those circumstances are not under consideration in the present case.

6 NYCRR 622.15(b) requires that a motion for default judgment 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 regulation further provides that upon a finding by the ALJ that the requirements of subdivision 622.15(b) have been adequately met, the ALJ will submit a summary report, which will be limited to a description of the circumstances of the default, and the proposed order to the Commissioner.

In the present case, the Department Staff has submitted a statement by Leo J. Bracci, Esq., Assistant Regional Attorney in Region 8, which proves that the notice of hearing and complaint were served upon the Respondent on March 10, 1998.

The statement also proves that the Respondent failed to file an answer. The notice of hearing informed the Respondent that failure to answer would constitute a default and would result in waiver of the right to be heard in the matter. The notice of hearing directed that the Respondent file an answer with the Department by 20 days from receipt of the complaint, which would have been March 30, 1998. The Respondent did not file an answer.

No answer, nor any other correspondence from the Respondent, has been submitted to the Office of Hearings and Mediation Services following the motion for a default judgment.

The Department Staff submitted a proposed order with the motion for a default judgment.

Thus, the requirements of 6 NYCRR 622.15(b) have been met with respect to the motion for a default judgment in this matter. In accordance with 6 NYCRR 622.15(c), this summary report, which is limited to a description of the circumstances of the default, will be submitted to the Commissioner accompanied by a proposed order.

Recommendation

The Commissioner should grant the default judgment requested by the Department Staff in this matter.

_____________/s/_____________
Susan J. DuBois
Administrative Law Judge
Albany, New York

Attachment

TO: Michael Roides
82 Calhoun Avenue
Rochester, New York 14606

Michael Roides
c/o Mike's Shamrock Service Station
425 Thurston Road
Rochester, New York 14619

Leo J. Bracci, Esq.
NYS Department of Environmental
Conservation, Region 8
6274 Avon-Lima Road
Avon, New York 14414

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