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Wiebicke, Ernest F. Jr. - Ruling, September 18, 2003

Ruling, September 18, 2003

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of
the Alleged Violations of Articles 24 of the Environmental Conservation Law
of the State of New York and Part 663 of Title 6
of the New York Compilation of Codes, Rules and Regulations by,

Ernest F. Wiebicke, Jr.,
Respondent.

Ruling: Staff's Motion for Default
Case No. R5-20021115-281

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 Ernest F. Wiebicke, Jr. by first class mail on August 5, 2003. This notice of motion and its supporting papers were received by the Office of Hearings and Mediation Services (OHMS) on September 7, 2003. Because these papers were missing Exhibits A-G referenced in the Regional Attorney's affirmation, the Administrative Law Judge (ALJ) requested by letter dated August 26, 2003 that these documents be sent to the OHMS as well as to the respondent as soon as possible. On September 10, 2003, the OHMS received a new set of motion papers from staff dated September 8, 2003 that contained the missing exhibits. Among these documents is a letter to Mr. Wiebicke from Regional Attorney Christopher Lacombe indicating that these motion papers were also served upon respondent at the same time. As of September 18, 2003, this office has not received any response from Mr. Wiebicke to staff's motion.

The notice of motion and supporting papers provide that on February 26, 2003, staff served respondent Ernest F. Wiebicke, Jr. by certified mail with a notice of hearing and complaint. Included with staff's motion papers are copies of the certified mail receipt and return card that indicate that Judy Wiebicke received the notice of hearing and complaint on February 28, 2003. Ex. B annexed to Lacombe Affirmation. The notice of hearing states that the respondent must serve his answer to the complaint within twenty days of receipt or be subject to a default and waiver of the right to a hearing. Ex. C to Lacombe Aff.

The complaint alleges that, without an Article 24 permit, the respondent placed fill and built a culvert in a tributary of Delegan Brook that is located in Class 1 freshwater wetland Q-11. Ex. C to Lacombe Aff., Complaint ¶ 6. The wetland is located in the Town of Wilton, Saratoga County. Id. By letter dated March 17, 2003, Mr. Wiebicke wrote to Mr. Lacombe. Ex. D to Lacombe Aff. In the letter, the respondent denies certain allegations in staff's complaint and raises various defenses. Id. The respondent does not assert that he had a permit for this work. Included in staff's motion papers is Mr. Lacombe's subsequent correspondence to the respondent indicating that a second site visit occurred on April 23, 2003 at which Messrs. Lacombe and Wiebicke were present. Ex. E to Lacombe Aff. By letter dated May 6, 2003, Mr. Lacombe wrote to Mr. Wiebicke summarizing his observations at the site visit and his discussions with the respondent. Id. Included with that letter was a proposed consent order to resolve the alleged violations. Id. In a letter dated May 21, 2003 to Mr. Wiebicke, Mr. Lacombe mentions a telephone call that Mr. Wiebicke made to his office on May 13, 2003 in which they discussed the Department's position in this matter. Ex. F to Lacombe Aff. That letter also includes a May 30, 2003 deadline for Mr. Wiebicke to submit a response to staff and details the nature of the proposal that is expected. Mr. Lacombe sent another letter to Mr. Wiebicke dated June 13, 2003 indicating that the respondent had not replied to the May 13 letter and requiring a response by June 18, 2003. Ex. G to Lacombe Aff. Apparently, Mr. Wiebicke did not submit anything further and staff elected to continue this enforcement proceeding.

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 February 28, 2003. However, the respondent did submit a response to the complaint dated March 17, 2003 - within the twenty day time limit set forth in 6 NYCRR § 622.4(a). This response is in the form of a letter rather than a formal pleading. And while it does not identify specifically each numbered allegation that the respondent is answering, it does contain a general response to the allegations of illegal fill as well as allege certain defenses to this proceeding.

The default provisions of Part 622 are meant to address circumstances where a respondent has been absent from the proceedings - failure to answer, failure to appear at a pre-hearing conference, or failure to appear at a hearing. 6 NYCRR § 622.15. In this circumstance, the respondent has submitted an answer, however inartful, and participated in subsequent settlement discussions with Department staff. To find a default in these circumstances would be unfair as it would deny an individual, who has responded to staff's complaint and is unrepresented by counsel, the opportunity to fully present his version of the facts. This has not been the practice of this Department as demonstrated In the Matter of Robert Michaels, 2003 WL 21225108 (May 19, 2003). In that enforcement matter, despite the pro se respondent's failure to answer, the staff proceeded to a pre-hearing conference and hearing and the Commissioner decided the case on the merits - not on a technical default. See also, In the Matter of Paula Cogen, 2003 WL 21001796 (April 7, 2003) (staff moved for default judgment based upon respondent's failure to appear at pre-hearing conference not based upon letter answer to complaint.)

Conclusion

Staff's motion for a default judgment does not meet the requirements of 6 NYCRR § 622.15(b) because the respondent submitted a timely response to the complaint. Therefore, I am denying the motion for default and directing staff and the respondent to contact this office (518-402-9003) by no later than September 26, 2003 to schedule a conference call to discuss future proceedings in this matter.

__________/s/___________
Helene G. Goldberger
Administrative Law Judge

Dated: Albany, New York
September 18, 2003

TO: Ernest Wiebicke, Jr.
4386 Route 50
Saratoga Springs, New York 12866-2915

Christopher A. Lacombe, Regional Attorney
NYSDEC - Region 5
Route 86 - P.O. Box 296
Ray Brook, New York 12977

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