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Tougher, John and John Thomas - Order, June 25, 2003

Order, June 25, 2003

STATE OF NEW YORK :DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of
the Alleged Violations of Article 23 of the Environmental Conservation Law of the State of New York
and Title 6 of the New York Compilation of Codes, Rules and Regulations
by,
John Tougher and John Thomas,

Respondents.

Order

Case No. R5-20010313-151

WHEREAS:

  1. Pursuant to §622.15 of Title 6 of the New York Compilation of Codes, Rules and Regulations (6 NYCRR), staff of the Region 5 office of the New York State Department of Environmental Conservation (DEC or Department) duly served a motion for default judgment upon respondent John Thomas by first class mail on May 15, 2003.
  2. The notice of motion and supporting papers state that on January 3, 2003, staff served the respondent John Thomas with a notice of hearing and complaint. The notice of hearing included a statement, pursuant to 6 NYCRR 622.3, that failure to respond within twenty (20) days of receipt of the complaint constitutes a default and waiver of the right to a hearing. The staff documents that the time for service of the answer expired with no reply from the respondent John Thomas.
  3. John Thomas has failed to serve a reply to staff's motion for a default judgment.
  4. Failure to answer a complaint is a ground for a default judgment pursuant to 6 NYCRR 622.15.
  5. I adopt the findings of Administrative Law Judge Helene G. Goldberger in the summary report annexed hereto.
  6. While Staff's motion seeks a penalty of $6,000, the complaint alleges "a violation" of Environmental Conservation Law §23-2711(1) for which the maximum penalty, pursuant to ECL §71-1307, is $5,000. Staff's complaint erroneously states that the penalty for such violation is $500 and does not allege any more than one such violation; nor does it allege the occurrence of any continuing violation to justify any penalty based on a theory of a continuing violation. Accordingly, the maximum penalty that can be imposed in this proceeding, assuming each of the facts stated in the complaint to be true, is $5,000.

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

  1. Pursuant to 6 NYCRR 622.15, John Thomas is found to be in default and accordingly, staff's allegations against John Thomas in its complaint are deemed to have been admitted by him.
  2. Between June 24, 1998 and July 19, 1998, John Thomas violated Environmental Conservation Law §23-2711(1) by conducting mining activity without a permit.
  3. Within thirty (30) days from the date of service of a conformed copy of this order, John Thomas is to pay a penalty of FIVE THOUSAND DOLLARS ($5,000) by cashier check, certified check or money order payable to "NYSDEC."
  4. Staff's application for an order directing remediation is denied without prejudice to Staff's reapplication for an order directing John Thomas to remediate the site following a final determination of appropriate remediation, if any, in the proceedings pending against John Tougher.
  5. All communications between John Thomas and the Department concerning this order, including the payment of the penalty, shall be made to the Department's Region 5 Director, New York State Department of Environmental Conservation, Route 86, P.O. Box 296, Ray Brook, New York 12977-0296.
  6. The provisions, terms and conditions of this order shall bind John Thomas, his agents, servants, employees, successors, and assigns and all persons, firms and corporations acting for or on behalf of John Thomas.

For the New York State Department
of Environmental Conservation
/s/
_____________________________
By: Erin M. Crotty, Commissioner

Dated: Albany, New York
June 25, 2003

TO: John Thomas
1248 VT. Rt. 31
Poultney, Vermont 05764

John Thomas
R.D. #1, Box 193
Poultney, Vermont 05764

Christopher A. Lacombe
Regional Attorney
NYS Department of Environmental Conservation
Region 5
Route 86, P.O. Box 296
Ray Brook, New York 12977-0296

John R. Winn, Esq.
13 North Street
Granville, New York 12832
(Attorney for Respondent John Tougher)

STATE OF NEW YORK :DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of
the Alleged Violations of Article 23 of the Environmental Conservation Law of the State of New York
and Title 6 of the New York Compilation of Codes, Rules and Regulations
by,

Case No. R5-20010313-151

Default Summary Report

John Tougher and John Thomas,

Respondents.

Proceedings

Pursuant to §622.15 of Title 6 of the New York Compilation of Codes, Rules and Regulations (6 NYCRR), staff of the Region 5 office of the New York State Department of Environmental Conservation (DEC or Department) served a notice of motion for default judgment upon respondent John Thomas by first class mail on May 15, 2003. This notice of motion and supporting papers were received by the Office of Hearings and Mediation Services (OHMS) on May 19, 2003. To date, the OHMS has not received responsive papers from Mr. Thomas and the deadline for service of a reply has passed. See, 6 NYCRR § 622.6(c)(3).

The notice of motion and supporting papers provides that on January 3, 2003, staff served respondent Thomas by certified mail with a notice of hearing and complaint(1). Included with staff's motion papers are copies of the certified mail receipt and return card that indicate that Mr. Thomas received the notice of hearing and complaint on January 9, 2003. The notice of hearing states that the respondent must service his answer to the complaint within twenty days of receipt or be subject to a default and waiver of the right to a hearing. The respondent failed to serve his answer within the twenty days provided by regulation and to date no answer has been filed. See, 6 NYCRR §622.4(a). Staff also served respondent John Tougher by certified mail with a notice of hearing and complaint. However, since Mr. Tougher filed an answer, staff does not seek a default judgment against him.

Discussion

Failure to answer a complaint is a basis for a default judgment pursuant to 6 NYCRR §622.15. This regulation requires that a motion for a default judgment 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 timely file an answer; and (3) a proposed order. The staff has submitted an affidavit of service of the notice of hearing and complaint as well as a copy of the certified mail receipt card indicating receipt by the respondent on January 9, 2003. This documentation proves that staff served its notice and complaint consistent with the requirements of 6 NYCRR §622.3(3). In addition, Regional Attorney Christopher A. Lacombe has affirmed that the respondent has failed to serve an answer. Staff has also included with its motion papers a proposed order. Staff's motion was properly served on respondent, and as of May 28, 2003, this office has not received any reply from Mr. Thomas. The time by which Mr. Thomas had to respond to the motion - May 20, 2003 - has passed. 6 NYCRR §622.6(c)(3).

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 a proposed order.

Recommendation

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

/s/
________________________
Helene G. Goldberger
Administrative Law Judge

Dated: Albany, New York
May 28, 2003

1 The affirmation of Regional Attorney Christopher A. Lacombe states that the complaint was served on January 3, 2002. However, based upon Ms. Forrester's affidavit of service and the annexed copy of the certified mail receipt indicating that the year of service was 2003, the date in Mr. Lacombe's affirmation appears to be a typographical error.

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