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Smith, Alice D. - Order, December 31, 2000

Order, December 31, 2000

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL
CONSERVATION

In the Matter of the Alleged
Violations of Article 17 of the
the New York State Environmental
Conservation Law and Parts 612 and
613 of the Official Compilation of
Codes, Rules and Regulations of the
State of New York by

Alice D. Smith (Trust Fund),
15 High Street
Fort Plain, NY 13339

Respondent.

ORDER

DEC File No.

R4-2000-0726-60

WHEREAS:

  1. Pursuant to a Notice of Hearing and Complaint dated September 29, 2000, New York State Department of Environmental Conservation (Region 4) Staff commenced an administrative enforcement proceeding against the Respondent.
  2. Respondent, Alice D. Smith (Trust Fund) was served with a Notice of hearing and Complaint on September 29, 2000.
  3. Service of process was accomplished in accordance with 6 NYCRR §622.3 and CPLR §2103.
  4. Respondent's time for serving an answer to the Complaint expired on October 24, 2000.
  5. Pursuant to 6 NYCRR 622.8, the Notice of Hearing a pre-hearing conference was scheduled for 10:30 AM, Friday, October 27, 2000 at the Department's Region 4 Headquarters in Rotterdam.
  6. Respondent, Alice D. Smith (Trust Fund) did not appear for the pre-hearing conference scheduled for 10:30 AM at the Region 4 Headquarters.
  7. With respect to such failures to answer and failure to appear at a scheduled pre-hearing conference, DEC Staff made a Motion for Default Judgment, dated November 8, 2000.
  8. 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 having waived its 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.
  9. Respondent violated 6 NYCRR §612.2.

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

  1. Respondent shall pay a civil penalty of Seven Thousand Five Hundred ($7,500.00) dollars within thirty (30) days of the Order.
  2. Respondents shall, within 30 days of the effective date of the Commissioner's Order submit to the Department a completed application to register its petroleum bulk storage facility, as well as a certified check or money order in the amount of the registration fee(s) required under 6 NYCRR §612.3.
  3. Respondent permanently cease and desist from any and all future violations of the ECL and Rules and Regulations promulgated pursuant thereto.
  4. All communication from the Respondent to the Department concerning this Order shall be made to the New York State Department of Environmental Conservation, Region 4, 1150 North Westcott Road, Schenectady, New York 12306.
  5. The provisions, terms and conditions of this Order shall bind the Respondent, his agents, servants, employees, successors and assigns and all persons, firms and corporations acting for or on behalf of the Respondent.

For the New York State Department
of Environmental Conservation
_____________/s/_____________
By: John P. Cahill, Commissioner

Dated: Albany, New York
December 31, 2000

TO: Alice B. Smith (Trust Fund)
15 High Street
Fort Plain, NY 13339

Robert P. Leslie, Esq.
NYSDEC - Region 4
1150 North Westcott Road
Schenectady, NY 12306

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of the Alleged Violations of Article 17
of the New York State Environmental Conservation Law and
Parts 612 and 613 of the Official Compilation of Codes,
Rules and Regulations of the State of New York by
Alice D. Smith (Trust Fund)
15 High Street
Fort Plain, New York 13339

Respondent

Summary Report on
Motion for Default
Judgment
Case No. R4-2000-0726-60

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 ("Department") Staff ("Staff") has moved for a default judgment against Alice D. Smith (Trust Fund), 15 High Street Fort Plain, New York 13339 (the "Respondent").

Staff made its motion on or about November 8, 2000 by sending to Alice D. Smith (Trust Fund), the Respondent, the following papers:

A Notice of Motion for Default Judgment dated November 8, 2000; a Motion for Default Judgment; Affirmations in Support of Motion for Default Judgment and a proposed Order.

and by filing, on or about November 8, 2000, said documents with the Department's Office of Hearings and Mediation Services.

Respondent's response to Staff's Motion was due on December 6, 2000 pursuant to 6 NYCRR §622.6, presuming Respondent is entitled to an additional 5 days when service is made by ordinary mail and excluding Saturdays, Sundays and any public holiday.

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

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. ..."

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

FINDINGS

  1. On September 29, 2000, Staff sent a Notice of Hearing and Complaint to Alice D. Smith (Trust Fund), the Respondent.
  2. An Affidavit of Service indicates that the Notice of Hearing and Complaint was placed in a secure postpaid wrapper addressed to Alice D. Smith (Trust Fund), 15 High Street, Fort Plain, New York 13339 and mailed via certified mail.
  3. A signed return receipt card (PS Form 3811 attached) indicating Article Number 7099 3220 0008 2267 7097 for the aforesaid mailing was returned to Staff, indicating the mail was received on October 3, 2000 at the Claston Manor Folks Home, #318, Herkimer, NY 13350.
  4. As of November 8, 2000 (the date of the motion papers), Alice D. Smith (Trust Fund), had not responded to the Notice of Hearing and Complaint.
  5. The requirements for a default judgement have been adequately met as prescribed by 6 NYCRR §622.15(b).

CONCLUSION

The motion for a default judgement can be granted as proposed. This Summary Report and Staff's proposed Order (attached hereto) can be referred to the Commissioner for final determination.

December 21, 2000
Albany, New York

/s/
Francis W. Serbent
Administrative Law Judge

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