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.

Sutter, John - Order, November 5, 1998

Order, November 5, 1998

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

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

JOHN SUTTER
Pompey (T)
Onondaga County, New York,
Respondent.

ORDER

DEC Case No. R7-0990-96-06

WHEREAS:

  1. Pursuant to a Notice of Hearing and Complaint both dated January 7, 1997, New York State Department of Environmental Conservation (Department) Region 7 Staff commenced an administrative enforcement proceeding against the Respondent, John Sutter.
  2. Respondent was served with the Notice of Hearing and Complaint on February 14, 1997 by personal service.
  3. Service of process was accomplished in accordance with 6 NYCRR §622.3(a)(3), consistent with CPLR 308, by personal delivery to Respondent.
  4. The time for Respondent to serve an Answer would have expired on March 6, 1997, but was extended by successive extensions until September 10, 1997. Respondent failed to serve an Answer to Department Staff's Complaint within that time, or since.
  5. With respect to such failure to answer, DEC Staff made a Motion for Default Judgment by Notice of Motion dated September 21, 1998, with supporting affidavit, exhibits, and proposed Order.
  6. I adopt the findings of the Administrative Law Judge's report which is attached hereto.
  7. Pursuant to §622.15 of 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.
  8. Respondent is in continuing violation of the provisions of 6 NYCRR §360-1.7(a)(1)(i) by operating a landfill at his property located on Sweet Road, Town of Pompey, Onondaga County, New York (the Facility).
  9. Respondent is in continuing violation of the provisions of 6 NYCRR §360-1.5(a) for unauthorized disposal of solid waste at the Facility.
  10. A portion of the Facility is operated by Respondent for the disposal of construction and demolition debris.
  11. Respondent's violations of the provisions of 6 NYCRR §§360-1.7(a)(1)(i) and 360-1.5(a) have caused the release of more than 10 cubic yards of solid waste into the environment.
  12. Respondent is in violation of the provisions of 6 NYCRR §§360-1.14(e)(2) and 360-10.4(j) by disposing of regulated medical waste and accepting regulated waste for disposal at the Facility mixed with and in contact with other solid waste.
  13. Respondent is in violation of the provisions of 6 NYCRR §360-1.14(e)(2), §360-14.1(c)(1) and §360-14.1(c)(2) by managing unauthorized used oil in waste piles and by disposing of unauthorized used oil directly on the land at the Facility.
  14. Respondent is in violation of the provisions of 6 NYCRR §360-13.1(b) by disposing of more than 1,000 waste tires at the Facility.
  15. Respondent violated the provisions of 6 NYCRR §360-1.14(q) by conducting open burning at the Facility.

NOW THEREFORE, having considered this matter, it is ORDERED that:

  1. Respondent John Sutter is assessed a civil penalty of Five Thousand Dollars ($5,000.00) for the violations cited above, which shall be due and payable to the Department within sixty (60) days following service of a copy of this Order upon the Respondent.
  2. Respondent John Sutter is further assessed a civil penalty of Thirty-One Thousand Dollars ($31,000.00) for the violations cited above, payment of which is suspended conditioned upon Respondent's compliance with the provisions of this Order. Payment of the Thirty-One Thousand Dollars ($31,000.00) suspended penalty shall become due and payable in the event that Respondent fails to comply with the provisions of this Order.
  3. Respondent John Sutter shall immediately cease and desist all disposal of solid waste and the operation of a solid waste management facility at the Facility.
  4. Respondent John Sutter shall commence and complete proper closure of the Facility pursuant to the requirements of 6 NYCRR §§360-1.14(w) and 360-2.15, or as otherwise acceptable to the Department. Respondent shall also monitor and maintain closure of the Facility. Respondent shall commence closure activities within 90 days following service of a copy of this Order upon Respondent and complete closure activities with 12 months thereafter, or within a time frame deemed acceptable by the Department. Closure, monitoring and maintenance shall be subject to the Department's approval, and representatives of the Department shall be permitted access to the Facility in order to perform such inspections and tests as the Department may deem appropriate to determine Respondent's compliance with this Order and acceptable closure, monitoring and maintenance.
  5. All communications between the Respondent and the Department concerning this Order shall be made to the Regional Director, New York State Department of Environmental Conservation, Region 7 Headquarters, 615 Erie Boulevard West, Syracuse, New York 13204-2400.
  6. 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 for or on behalf of the Respondent.

NEW YORK STATE DEPARTMENT OF
ENVIRONMENTAL CONSERVATION
/s/
By: John P. Cahill, Commissioner

Albany, NY
November 5, 1998

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

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

JOHN SUTTER
Pompey (T)
Onondaga County, New York,
Respondent.

DEFAULT SUMMARY REPORT

DEC Case No. R7-0990-96-06

Proceedings

Staff of the Region 7 Office of the Department of Environmental Conservation served a Notice of Motion for Default Judgment upon Respondent, John Sutter, by first class mail, on September 21, 1998.

Discussion

6 NYCRR §622.6(a) governs the service of "papers". A motion is a "paper" provided personal jurisdiction over the Respondent has been previously obtained.

§622.6(a) provides, in pertinent part, that service of papers is governed by CPLR 2103. CPLR 2103(c) provides that a party without an attorney may be served under subdivision (b)2, 4, 5 or 6 of CPLR 2103 in the same manner that an attorney to a party may be served.

Subdivision (b)2 (of CPLR 2103) provides that service may be made by mail to the address designated by the party or; if none, to the party's last known address. An affidavit of service of the Notice of Hearing and Complaint attached to the motion papers shows that the Respondent was personally served with the Notice of Hearing and Complaint on February 14, 1997, pursuant to 6 NYCRR §622.3(a)(3) and CPLR 308(1), so that personal jurisdiction was then obtained over the Respondent.

An affidavit of service of the motion papers attached to the motion show that the motion papers were mailed by first class mail to the Respondent on September 21, 1998 to the same address where the Respondent was personally served with the Notice of Hearing and Complaint. This affidavit also recites that this address was both the address designated by the Respondent and Respondent's last known address.

Assistant Regional Attorney William F. Gallagher consented to extend the Respondent's time to answer the Complaint (after Respondent attended a pre-hearing conference) to September 10, 1997. No answer was received on or before that date (or to date) and on that date Respondent was in default.

The motion was mailed to the Respondent on September 21, 1998 and it provided that any opposing papers must be filed with the Chief Administrative Law Judge and served upon Staff Counsel by October 16, 1998. Since no response has been received on or before that date and no extensions of time to respond to the motion have been granted, Respondent is in default on the motion as well.

Respondent "refused" delivery of the motion papers, noting on the envelope in which they were mailed: "Incomplete Appellation - Return to Sender".

Since CPLR 2103(b)(2), authorizing the first class mail service employed here, provides that such service "...shall be complete upon mailing..." Respondents refusal of the delivery of the mailing is unavailing and Respondent has waived not only his right to a hearing but his right to respond to the motion as well.

Failure to answer a complaint constitutes grounds for a default judgment pursuant to 6 NYCRR §622.15. The regulation requires that a motion for a default judgment must contain: (1) proof of service upon the Respondent of the document which commenced the proceeding; (2) proof of the Respondent's failure to appear or to file a timely answer; and (3) a proposed Order. The Staff has submitted proof of the service of the notice of hearing and complaint pursuant to 6 NYCRR §622.3(3). In addition, the staff also affirms that the Respondent failed to file an answer in response to the complaint. In the notice of hearing, Respondent was made aware of the consequences of failure to answer. Staff also included a proposed order with its motion. Staff's motion was properly served on the Respondent and as of October 27, 1998, Respondent has failed to respond to the Staff's motion for a default judgment.

Conclusion

Staff's motion for a default judgment meets the requirements of 6 NYCRR §622.15(b) as outlined above. Therefore, in accordance with 6 NYCRR §622.15(c), this summary report, which is limited to a description of the circumstances of the default, is hereby submitted to the Commissioner, accompanied by Staff's proposed Order.

Recommendation

The Commissioner should grant the default judgment requested by Department Staff.

/s/
John H. Owen
Administrative Law Judge

Dated: October 28, 2003
Albany, New York

TO: William F. Gallagher, Esq.
Assistant Regional Attorney
NYSDEC - Region 7
615 Erie Boulevard West
Syracuse, NY 13204

Mr. John Sutter
3488 Sweet Road, RD #2
Jamesville, NY 13078

  • 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