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Sepenoski, Antone Peter - Ruling, January 25, 2002

Ruling, January 25, 2002

NEW YORK STATE : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the matter of the Alleged Violations of Articles 11, 33 and 71
of the Environmental Conservation Law of the State of New York
and Title 6, Parts 2 and 320 to 329 of the Official Compilation
of Codes, Rules and Regulations of the State of New York, by

ANTONE PETER SEPENOSKI, (Jr.)
and
PETER A. SEPENOSKI aka
ANTONE PETER SEPENOSKI III,
Respondents

RULING ON MOTION
DEC Case # R1-2001-0406-67

Proceedings

This Ruling addresses the motion of the New York State Department of Environmental Conservation ("DEC") dated January 8, 2002 for an Order directing the severance of the above entitled action into two actions, to wit: one against Antone Peter Sepenoski, (Jr.) and the other action against Peter A. Sepenoski, aka Antone Peter Sepenoski III upon the grounds that severance will be in the furtherance of convenience and will avoid prejudice. The motion is supported by the affidavit of Karen A. Murphy, Esq. dated January 8, 2002. Respondent Peter A. Sepenoski has opposed the motion by affirmation of Eric J. Bressler, Esq. dated January 14, 2002. The matter was assigned to Administrative Law Judge Molly T. McBride.

This action was commenced by service of a Notice of Hearing and Complaint upon the Respondents on April 27, 2001. An Answer dated January 4, 2002 was served on January 17, 2002 on the Office of Hearings and Mediation services on behalf of Peter A. Sepenoski denying the essential allegations of the Complaint.

Discussion

The motion by DEC seeks the severance of the action into two actions. DEC bases its request to sever the action on the fact that Respondent Peter A. Sepenoski has recently passed away. The motion is denied.

Pursuant to New York Civil Practice Law and Rules 1015(a) "The death of a party divests a court of jurisdiction until a proper substitution has been made." Accordingly, this office does not have jurisdiction over the proceeding at this time unless there has been a substitution of a legal representative for the deceased Respondent. No assertion has been made that any substitution has been made.

CONCLUSION

The motion for severance of the action is denied.

/s/
Molly T. McBride
Administrative Law Judge

Dated: January 25, 2002
Albany, New York

To: Karen A. Murphy, Esq.
NYS Department of
Environmental Conservation
Region 1 Office
SUNY Stony Brook Campus
Stony Brook, New York 11790-2356

Wickham, Wickham & Bressler, P.C.
275 Broad Hollow Road, Suite 111
Melville, New York 11747

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