NY.gov Portal State Agency Listing Search all of NY.gov
D E C banner
D E C banner

Disclaimer

The New York State Department of Environmental Conservation has added a link to a translation service developed by Microsoft Inc., entitled Bing Translator, as a convenience to visitors to the DEC website who speak languages other than English.

Additional information can be found at DEC's Language Assistance Page.

Scrima, John - Order and Judgment, November 21, 2003

Order and Judgment, November 21, 2003

STATE OF NEW YORK: DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of the Alleged Violations of Article 27 of the Environmental
Conservation Law ("ECL") of the State of New York and Title 6, Part 360
of the Official Compilation of Codes, Rules and Regulations ("6 NYCRR")
of the State of New York by:

JOHN SCRIMA,
Respondent

ORDER AND JUDGMENT

DEC File No. R4-2003-0722-91

WHEREAS:

  1. Pursuant to a motion for order without hearing dated August 7, 2003, the New York State Department of Environmental Conservation ("Department") Staff commenced an administrative enforcement proceeding against respondent John Scrima ( "Respondent").
  2. In the motion for order without hearing, Staff alleged two claims against Respondent with respect to a property owned by Respondent located on Lape Road in the Town of Charleston, Montgomery County: (1) that Respondent violated and continues to violate 6 NYCRR 360-1.7(a)(1)(i) by operating a solid waste management facility without a permit, and (2) violated and continues to violate 6 NYCRR 360-1.14(w) by not properly closing his solid waste management facility pursuant to Department approval. As set forth in the motion for order without hearing, Staff seeks a penalty in the amount of $10,000, and an order of the Commissioner directing Respondent to take certain remedial and corrective actions, including an order directing the removal and proper disposal of all solid waste from the site within 180 days, with documentation provided to the Department within 30 days of disposal.
  3. The motion for order without hearing was mailed, via certified mail, to Respondent on August 8, 2003. Respondent received the motion for order without hearing on August 12, 2003.
  4. Service of process was accomplished in accordance with 6 NYCRR 622.3.
  5. Pursuant to 6 NYCRR 622.12, Respondent's time for responding to the motion for order without hearing expired September 1, 2003. Respondent has failed to file an answer or otherwise appear in this matter.
  6. Department Staff served a notice of motion for default judgment dated September 19, 2003, upon Respondent, detailing Respondent's failure to answer or otherwise appear.
  7. In its September 19, 2003 motion papers, Staff also moves to amend the pleadings to correct the location of the property stated in the motion for order without hearing.
  8. A copy of the notice of motion for default judgment and motion to amend and supporting papers were filed with the Office of Hearings and Mediation Services and the matter was assigned to Administrative Law Judge (ALJ) Molly T. McBride. A copy of the ALJ's default summary report is attached. I adopt the ALJ's report.

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

  1. Staff's motion to amend is hereby granted, and the first paragraph of the motion for order without hearing dated August 7, 2003, is corrected to indicate that the subject property is located on Lape Road in the Town of Charleston, Montgomery County.
  2. Staff's motion for default judgment is hereby granted. Pursuant to 6 NYCRR 622.15, Respondent is adjudged to be in default. As a result, Respondent is deemed to have admitted the factual allegations in the motion for order without hearing and to have waived his right to a hearing on the issue of liability in this enforcement proceeding.
  3. The facts alleged in the motion for order without hearing establish by a preponderance of evidence that Respondent:
    1. Is the owner of a solid waste management facility located at Lape Road in the Town of Charleston, Montgomery County.
    2. Violated and continues to violate 6 NYCRR 360-1.7(a)(1)(i) by operating a solid waste management facility without a permit, and violated and continues to violate 6 NYCRR 360-1.14(w) by not properly closing his solid waste management facility pursuant to Department approval.
  4. In view of the foregoing, Respondent violated and continues to violate ECL article 27 and 6 NYCRR part 360.
  5. Pursuant to ECL 71-2703, a violation of ECL article 27, title 7, or its implementing regulations, authorizes the imposition of civil penalties not to exceed $7,500 per day for each violation and $1,500 for each day that the violation continued.
  6. As a consequence of the violations adjudged above, it is ordered that:
    1. Respondent shall pay a civil penalty of Ten Thousand Dollars ($10,000). No later than 30 days after the date of this order and judgment, such payment shall be made in the form of a certified check or money order payable to the order of the "New York State Environmental Conservation" and delivered to the Department at the following address: Ann Lapinski, Assistant Regional Attorney, NYSDEC Region 4, 1150 North Westcott Road, Schenectady, New York 12306.
    2. Within 180 days of the effective date of the Commissioner's order and judgment, Respondent shall remove all solid waste from the site and properly dispose of the solid waste at a permitted facility. Within 30 days of proper disposal, Respondent shall provide documentation to the Department of disposal at a permitted facility.
  7. All communications between Respondent and Department Staff concerning this order and judgment shall be made to: Ann Lapinski, Assistant Regional Attorney, NYSDEC Region 4, 1150 North Westcott Road, Schenectady, New York 12306.
  8. The provisions, terms and conditions of this order and judgment shall bind Respondent and Respondent's agents, servants, employees, successors, and assigns and all persons, firms and corporations acting for or on behalf of Respondent.

NEW YORK STATE DEPARTMENT OF
ENVIRONMENTAL CONSERVATION
___________/s/____________
By: Erin M. Crotty, Commissioner

Dated: Albany, New York
November 21, 2003

TO: John Scrima
187 Gridley Road
Esperance, NY 12066

Ann Lapinski, Assistant Regional Attorney
New York State Department of Environmental Conservation, Region 4
1150 North Westcott Road
Schenectady, New York 12306

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of the Alleged Violation of Article 27 of the Environmental
Conservation Law of the State of New York and Title 6 of the Official
Compilation of Codes, Rules and Regulations of the State of New York
(6 NYCRR) Part 360 by

JOHN SCRIMA,
Respondent

DEFAULT SUMMARY REPORT

DEC File No. R4-2003-0722-91

Proceedings

By Notice of Motion dated September 19, 2003 Staff of the Department of Environmental Conservation (DEC Staff, Department) sought a judgment by default against John Scrima (Respondent) concerning alleged violations of Article 27 of the Environmental Conservation Law (ECL). It is alleged by DEC that Respondent violated 6 NYCRR 360-1.7 and 360-1.14 by operating a waste management facility without a permit and for not closing the facility pursuant to Department approval.

In support of its motion, DEC submitted an affirmation of Assistant Regional Attorney Ann Lapinski, Esq. dated September 19, 2003, a proposed Order and proof of proper service of the Motion for Order without Hearing and the Motion for Default on the Respondent.

As of the date of the default Motion, Respondent has failed to appear or answer the Motion for Order without Hearing or otherwise move.

Respondent was served with the Notice of Motion for Default Judgment and supporting papers on or about September 19, 2003 by regular mail. Respondent has not opposed the motion. DEC Staff's motion also seeks to amend the Motion for Order without Hearing to correct an error in the motion. That Motion provides two different descriptions for the property at issue and DEC Staff seeks to correct the pleadings to reflect the correct address only.

DEFAULT PROCEDURES:

Section 622.15, "Default Procedures" provides, in pertinent part: (b) The motion for a default judgment .... 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.

AMEND PLEADINGS

Pursuant to 6 NYCRR 622.5(b) pleadings may be amended with permission of the ALJ absent prejudice to the ability of any other party to respond. The Motion to Amend seeks to amend the Motion for Order without Hearing to correct the property address. The Motion contained an error which stated that the property was located on Lape Road in the Town of Esperance, Schoharie County. The property is located on Lape Road in the Town of Charleston, Montgomery County. The affidavit in support of the motion for order without hearing, however, identified the correct address and the deed for the property was attached to the motion as an exhibit. The Respondent has defaulted with respect to the motion for order without hearing. The amendment is no more than a mere correction.

The following Findings are based upon the papers submitted, as identified above.

FINDINGS

  1. On August 8, 2003 DEC Staff served a Motion for Order without Hearing on Respondent John Scrima. The time to Answer or otherwise move expired on September 1, 2003. No Answer has been served to date. The Motion included a statement that failure to answer constitutes a default.
  2. On September 19, 2003 DEC Staff served a Notice of Motion for Default Judgement and Motion to Amend the prior motion on Respondent John Scrima. No Answer has been served nor has the Respondent otherwise moved.
  3. The requirements for a default judgment have been adequately met as prescribed by 6 NYCRR section 622.15(b).
  4. Granting the motion to amend will not prejudice the Respondent.

RECOMMENDATION

The motion to amend and the motion for default judgment should be granted. This Summary Report and Staff's proposed Order can be referred to the Commissioner for final determination.

___________/s/_______________
Molly T. McBride
Administrative Law Judge

Dated: Albany, New York
October 27, 2003

To: Ann Lapinski, Esq.
NYS Department of Environmental Conservation
Region 4 Office
1150 North Westcott Road
Schenectady, New York 12306

John Scrima
187 Gidley Road
Esperance, New York 12066

  • PDF Help
  • For help with PDFs on this page, please call 518-402-9003.
  • Contact for this Page
  • Office of Hearings and Mediation Services
    NYS DEC
    625 Broadway, 1st Floor
    Albany, New York 12233-1550
    518-402-9003
    Send us an email
  • This Page Covers
  • Page applies to all NYS regions