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Schick, Nicholas - Order, April 3, 1997

Order, April 3, 1997

STATE OF NEW YORK: DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter
of
the Alleged Violation of Article 15 of the New York State
Environmental Conservation Law,

- By -

Nicholas Schick,

Respondent.

ORDER

DEC File No.

R4-1876-96-05

  1. Pursuant to a Notice of Hearing and Complaint dated December 3, 1996, New York State Department of Environmental Conservation (DEC) Region 4 Staff commenced an administrative enforcement proceeding against the Respondent.
  2. Respondent was served personally with the Notice of Hearing and Complaint on January 2, 1997.
  3. The time for Respondent to serve an Answer expired January 22, 1997. Respondent failed to serve an Answer to Department Staff's Complaint within that time, or since.
  4. With respect to such failure to answer DEC Staff made a Motion for Default Judgment on March 7, 1997.
  5. 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), Respondent is found to be in default and as having waived his right to a hearing in this enforcement proceeding. Accordingly, Department Staff's allegations against Respondent in its Complaint are deemed to have been admitted by Respondent.
  6. The Respondent violated ECL 15-0507 and 6 NYCRR 673.4 by failing to remediate the Lake Switzerland Dam.
  7. Respondent's violation of ECL 15-0507 and 6 NYCRR 673.4 is a continuing violation for each day in which Respondent fails to abate the dangerous conditions at the Dam.

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

  1. Respondent shall, within ten (10) days of the service of a conformed copy of this Order upon Respondent, submit a remedial plan (remedial plan) prepared by a New York State Professional Engineer to the Department for approval which addresses, at a minimum, the recommendations contained in Department Staff's April 27, 1995 and February 9, 1996 letters and any other deficiencies affecting the Dam's safety. The remedial plan may include either the repair or removal of the Dam; and
  2. Within 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.
  3. All communications between Respondent and Department Staff concerning this Order shall be made to the Department's Region 4 Director, New York State Department of Environmental Conservation, 1150 North Westcott Road, Schenectady, New York 12306.
  4. The provisions, terms and conditions of the Order shall bind the Respondent, his 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, Acting Commissioner

Albany, New York
April 3, 1997

TO:

Ann Lapinski, Assistant Regional Attorney
NYSDEC Region 4
1150 North Westcott Road
Schenectady, NY 12306

Nicholas Schick
R.D. 8
Mahanga Road, Nuhaka
Hawkes Bay, New Zealand

Nicholas M. Schick
P. O. Box 501
Gisborne, New Zealand

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter
of
the Alleged Violation of Article 15 of the New York State Environmental Conservation Law
by

Nicholas Schick

Respondent

SUMMARY REPORT

(Ruling on 2nd Motion for Default Judgment)

Case No.
R4-1876-96-05

Proceedings

Pursuant to Title 6 of the Official Compilation of Codes Rules and Regulations of the State of New York, Section 622.15, the New York State Department of Environmental Conservation ("NYSDEC") Region 4 Staff ("Staff") has moved for a default judgment against Nicholas Schick (the "Respondent"). This follows a September 6, 1996 ruling upon a similar motion which denied Staff its requested relief without prejudice to Staff to cure certain defects in service.

Staff made its motion by filing with the undersigned, on or about March 10, 1997, the following papers:

  • a Notice of Motion for Default Judgment dated 1997;
  • a Motion for Default Judgment; and
  • an Affirmation in Support of Motion for Default Judgment by Assistant Regional Attorney Ann Lapinski dated March 7, 1997 with attached exhibits including a Notice of Hearing and Complaint dated December 3, 1996, an Affidavit of Service of same, and an unsigned Order;
  • and by filing, on or about March 21, 1997, an affidavit of service of the aforesaid motion papers upon the Respondent on March 19, 1997, by mail.

Response to Staff's Motion was due on March 31, 1997, pursuant to 6 NYCRR 622.6.

No response to the motion has been received from the Respondent as of the date of this Ruling.

The motion is determined below upon the papers submitted, as identified above.

Findings on the Default

  1. Staff commenced the above captioned proceeding by serving the Respondent, Nicholas Schick, on January 2, 1997, with the Notice of Hearing and Complaint dated December 3, 1996. The affidavit of Francis Ian Young, Process Server, establishes that on January 2, 1997, Mr. Young personally delivered said Notice of Hearing and Complaint to Mr. Schick at his home on Mahanga Road, Mahia, New Zealand.
  2. Respondent failed to file an answer or otherwise respond to the Notice of Hearing and Complaint. The Notice of Hearing, signed by Ann Lapinski, Assistant Regional Attorney, stated, inter alia,

    "PLEASE BE ADVISED THAT within 20 days of receipt of the Complaint, you shall serve the undersigned with your Answer to the Complaint at the address below. Any affirmative defenses will be waived unless raised in the Answer. Failure to answer in a timely manner will result in a default and a waiver of Respondent's right to a hearing."

    Ms. Lapinski's affidavit establishes that as of March 7, 1997, Ms. Lapinski had yet to receive an Answer to the Complaint. This is well past the January 22, 1997 return date pursuant to the Notice and the regulations (622.4(a)), even allowing additional time for receiving mail from New Zealand.

Default Procedures

Section 622.15, "Default procedures" provides in pertinent part:

"(b) The motion for a default judgment may be made orally on the record or in writing and 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.

"(c) Upon a finding by the ALJ that the requirements of subdivision (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. ..."

Conclusions

The affidavits and exhibits submitted by the Department Staff in support of its motion for a default judgment provide proof of proper service of the Notice of Hearing and Complaint, and proof that the Respondent defaulted. Staff also submitted a proposed order. The requirements of 622.15(b) for a motion for a default judgment have therefore been met.

Order of Referral

This Summary Report and Staff's Proposed Order (attached hereto) are hereby referred to the Commissioner for final determination.

April 2, 1997
Albany, New York

/s/
Frank Montecalvo
Administrative Law Judge

Attachment: Proposed Order

To: Acting Commissioner John P. Cahill

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