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Schick, Nicholas - Ruling on Motion for Default Judgment, September 6, 1996

Ruling on Motion for Default Judgment, September 6, 1996

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

Ruling on 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").

Staff made its motion by sending to the Respondent, on or about August 22, 1996, the following papers:

A Notice of Motion for Default Judgment dated August 22, 1996; a Motion for Default Judgment; an Affirmation in Support of Motion for Default Judgment; and an unsigned Order; and by filing, on or about August 23, 1996, said documents plus an affidavit of service of same with the DEC Office of Hearings and Mediation Services. The affidavit of service states that these documents were placed in a secure postpaid wrapper addressed to the Respondent at the New York City address discussed below, in the NYSDEC Region 4 mailroom, and that such mail is picked up by the U.S. Postal Service at 1:30 PM on a daily basis.

Assuming that both the mailing address and manner of mailing were proper (see discussion below), response to Staff's Motion was due on September 3, 1996 pursuant to 6 NYCRR 622.6, presuming Respondent is entitled to an additional 5 days when service is made by ordinary mail.

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. On June 13, 1996, Staff sent a Notice of Hearing and Complaint to Respondent Nicholas Schick via certified mail with return receipt.
  2. Said documents were sent to Respondent at 130 Madison Avenue, New York, NY 10016, alleged to be Respondent's "business address as reflected in DEC's files, an address to which previous correspondence, to which he had responded, had been sent to Mr. Schick."
  3. The receipt for the aforesaid mailing was returned to Staff, indicating the mail was received June 18, 1996 at the New York address by someone other than Mr. Schick.
  4. As of August 22, 1996 (the date of the motion papers), Mr. Schick had not responded to the Notice and Complaint.
  5. Before issuing the Notice and Complaint, Staff had previously sent a letter to Respondent at the aforementioned New York address on February 9, 1996.
  6. On April 15, 1996, Staff received Mr. Schick's response to its February correspondence. Mr. Schick's response was dated April 4, 1996, and bore the following return address: "Nicholas M. Schick, P. O. Box 501, Gisborne, New Zealand." Said response also contained telephone and facsimile numbers for him.

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. ..."

Discussion

As indicated above, the first step in obtaining a default judgment is to prove that the respondent was served with the notice of hearing and complaint.

Pursuant to 6 NYCRR 622.6 "General rules of practice":

"(a) Service of papers.

"(1) Rule 2103 of the CPLR will govern service of papers except that service upon the respondent's duly authorized representative may be made by the same means as provided for service upon an attorney."

Under Rule 2103, for service upon a party by mail to be valid, the paper must be mailed to him at the address "designated" by him "for that purpose" or, if none is designated, at his "last known address" (see CPLR Rule 2103(b)(2) and (c)).

The record does not reveal that Respondent designated his alleged "business address" as the address for service of papers. Nor does it reveal that the person who actually received the papers was his "duly authorized representative." Upon the record herein, it appears that Respondent's "last known address" -- and the address to which service should have been directed -- is his Gisborne, New Zealand address. Service was directed to the wrong place.

Rule 2103 (b)(2) further provides that "service by mail shall be complete upon mailing ..." and subdivision (f) states that "'Mailing' means the deposit of a paper enclosed in a first class postpaid wrapper ... in a post office or official depository under the exclusive care and custody of the United States Postal Service within the state ..." No affidavit of service of the Notice and Complaint accompanied the motion papers. The affirmation supporting the motion merely states in conclusory fashion that the secretary "served" the documents. The essential facts listed in CPLR Rule 2103 needed to support the legal conclusion of "service" are nowhere to be found. Affidavits regarding mailed papers by persons other than the person who actually mailed the papers which do not recite that the mailing was made in the manner specified by the rule are insufficient to prove service. Metzger v Esseks, 168 AD2d 287 (1st Dept., 1990).

Since Staff has not established that the papers were sent to the proper address, nor otherwise established that they were mailed in the manner specified by CPLR Rule 2103, Staff has not proved service as required under 6 NYCRR 622.15(b)(1). Therefore, Staff's motion for default judgment must be denied at this time without prejudice.

Ruling

Staff's motion for a default judgment is denied without prejudice. Staff is granted leave to either submit additional documentation to establish proper service of both the Notice and Complaint and the Motion for Default Judgment papers, or to initiate service of the Notice and Complaint again. I will retain this matter on my docket in the interim.

_____________/s/_____________
Frank Montecalvo
Administrative Law Judge
Albany, New York

Dated: September 6, 1996

To: David Keehn, Assistant Regional Attorney
NYSDEC Region 4
1150 North Westcott Road
Schenectady, NY 12306

Nicholas Schick
130 Madison Avenue
New York, NY 10016

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

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