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Waite, Dale - Ruling, August 16, 1994

Ruling, August 16, 1994

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of
Alleged Violations of the Environmental Conservation Law ("ECL")
Article 24 and of Title 6 of the Official Compilation of Codes, Rules and Regulations
of the State of New York ("6 NYCRR") Part 663 by

DALE WAITE
Pompey, New York
Respondent

RULING ON MOTION
TO REOPEN DEFAULT
Case #R7-0762-92-12

Proceedings

On May 5, 1994, Commissioner Langdon Marsh issued a default order pursuant to 6 NYCRR 622.15 to the Respondent Dale Waite. The order imposed a $12,000 civil penalty and required the Respondent to remediate his filling of freshwater wetlands on the subject site.

Mr. Waite's attorney, retained after issuance of the order, Douglas H. Zamelis, Esq., of the firm of Hancock & Estabrook, Syracuse, sent a letter to Commissioner Marsh dated June 7, 1994, seeking a modification in the Order reducing the penalty to $1500. Mr. Zamelis also asked that his letter be considered a motion to reopen the default pursuant to CPLR 5015(a)(1). The attorney for the Region 7 Department Staff, Jennifer Powell, Esq., wrote to Commissioner Marsh in opposition to Respondent's motion on June 17, 1994.

Commissioner Marsh referred this correspondence in the nature of a motion to reopen a default to me, the assigned Administrative Law Judge. Such motions are required to be made to the ALJ pursuant to 6 NYCRR 622.15(d).

Ruling

In his motion-letter, counsel for Respondent states that Mr. Waite is unable to pay the $12,000 civil penalty, although he has already begun the remedial work. Mr. Zamelis further outlines the circumstances in which Respondent's former attorney refused to settle the case and then defaulted at the scheduled hearing.

6 NYCRR 622.15(d) sets forth the standards for reopening a default judgment as follows:

"A motion to reopen a default judgment may be granted consistent with CPLR Section 5015. The ALJ may grant a motion to reopen a default upon a showing that a meritorious defense is likely to exist and that good cause for the default exists."

In order to satisfy these requirements, a movant to reopen a default judgment must provide an affidavit of merits or a verified proposed answer establishing a likely meritorious defense and an excuse for the default (see e.g. Stewart v. Warren, 134 AD2d 585 [1987]). Mr. Zamelis' letter to the Commissioner fails to meet these requirements.

Respondent's only claim that could be considered a possible meritorious defense is that he cannot afford to pay the civil penalty. A respondent's ability to pay may be considered in a hearing in determining the amount of a penalty, but this possible mitigating factor alone is not truly a defense. In any event, in order to establish such a claim on a motion to reopen a default, an affidavit of merits or proposed answer must be submitted by one with personal knowledge of the facts and circumstances, not by an attorney (see e.g. M. Cooper Motor Leasing, Ltd. v. Data Discount Center, Inc., 125 AD2d 454 [1986]). No such affidavit by Mr. Waite himself or anyone else with firsthand knowledge of his finances was submitted here.

Respondent's claim of excusable default is based on the alleged law office failure of his former attorney. Law office failure alone is not, as a matter of law, a sufficient excuse to vacate a default (see e.g. Cervino v. Konsker, 91 AD2d 249 [1983]). While it is within the discretion of the judge to consider law office failure along with other factors in determining motions to reopen defaults (see e.g. Buderwitz v. Cunningham, 101 AD2d 821 [1987]), the absence of an affidavit establishing a meritorious defense is determinative in this proceeding.

Conclusion and Recommendation

Since Respondent has failed to satisfy the requirements for reopening a default under either 6 NYCRR 622.15(d) or CPLR 5015, his motion to reopen the default or modify the order should be denied.

/s/
Andrew S. Pearlstein
Administrative Law Judge

Dated: August 16, 1994
Albany, New York

To: Dale Waite
214 Swamp Road
Fabius, New York 13063

Douglas H. Zamelis, Esq.
Hancock & Estabrook
1500 Mony Tower
P.O. Box 4976
Syracuse, New York 13221-4976

Jennifer L. Powell, Esq.
Assistant Regional Attorney
NYSDEC Region 7
615 Erie Boulevard West
Syracuse, New York 13204-2400

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