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.

Caruso, Stephen - Decision and Order, March 23, 1999

Decision and Order, March 23, 1999

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

Alleged Violations of Articles 33 and 71 of the Environmental Conservation Law
and Part 325 of Title 6 of the New York Compilation of Codes, Rules, and Regulations

- by -

Stephen Caruso,
Individually
(Certified Applic. No. C3-643224)
and as Owner of Ace Exterminating

Respondent.

Decision and Order

Case No. D3-0001-99-01

WHEREAS:

  1. Pursuant to § 622.15 of Title 6 of the New York Compilation of Codes, Rules and Regulations (6 NYCRR), on or about March 4, 1999, staff of the New York State Department of Environmental Conservation's (DEC or Department) central office served the respondent with a notice of motion for a default judgment along with a supporting affirmation and exhibits. A copy of these motion papers was filed with the Office of Hearings and Mediation Services (OHMS) on March 4, 1999.
  2. The notice of motion and supporting papers provided that on January 15, 1999 the staff served the respondent by certified mail with a copy of a notice of hearing and complaint pursuant to 6 NYCRR § 622.3(a)(3). The notice of hearing included a statement that failure to timely answer or to appear at a pre-hearing conference would result in a default pursuant to 6 NYCRR § 622.15. The staff affirms that the respondent has failed to answer the complaint within the twenty days set forth in 6 NYCRR § 622.4 and also failed to attend a pre-hearing conference scheduled for February 9, 1999. Attached to staff's papers are copies of the signed return receipt cards (Article Nos. Z712801515 and Z712801514) bearing a delivery date of January 15, 1999 and the signatures of Ace Exterminating and of Stephen Caruso respectively.
  3. Failure to answer a complaint or to appear at a pre-hearing conference are both grounds for a default judgment pursuant to 6 NYCRR § 622.15. As of March 15, 1999, respondent had also failed to respond to the staff's motion for a default judgment.

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

  1. Pursuant to 6 NYCRR § 622.15, respondent is found to be in default and has waived his right to a hearing and accordingly, staff's allegations against Stephen Caruso, individually and as owner of Ace Exterminating, are deemed to have been admitted by respondent.
  2. The respondent violated Environmental Conservation Law (ECL) §§ 33-0907 and 33-1301(8)(a) and 6 NYCRR § 325.17(b) by engaging in the commercial application of pesticides without a valid business registration.
  3. Respondent shall pay a civil penalty of TWO THOUSAND DOLLARS ($2,000.) and such penalty is due within thirty (30) days of the service of a copy of this order upon respondent.
  4. Pursuant to ECL § 33-0909(1)(e), the pesticide applicator certification (C3-643224) of respondent Stephen Caruso is hereby revoked as of the date of this order.
  5. All communication between respondent and Department staff concerning this order shall be made to: Senior Attorney Kathleen L. Martens, Division of Environmental Enforcement, Department of Environmental Conservation, 50 Wolf Road, Albany, New York 12233.
  6. The provisions, terms, and conditions of this order shall bind respondent, its agents, servants, employees, successors and assigns and all persons, firms and corporations acting for or on behalf of respondent.

For the New York State Department
of Environmental Conservation

_____________/s/_____________
By: John P. Cahill, Commissioner

Dated: Albany, New York
March 23, 1999

TO: Stephen Caruso
55 Hillcrest Avenue
New Rochelle, NY 10801

Stephen Caruso, Owner
Ace Exterminating
55 Hillcrest Avenue
New Rochelle, NY 10801

Kathleen Martens, Esq.
Senior Attorney
NYSDEC
Division of Environmental Enforcement
50 Wolf Road
Albany, NY 12233-5500

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

Alleged Violations of Articles 33 and 71 of the Environmental Conservation Law
and Part 325 of Title 6 of the New York Compilation of Codes, Rules and Regulations

- by -

Stephen Caruso,
Individually
(Certified Applic. No. C3-643224)
and as Owner of Ace Exterminating,

Respondent.

Default Summary Report

Case No. D3-0001-99-01

Proceedings

Staff of the New York State Department of Environmental Conservation's (DEC or Department) Central Office served a notice of motion for a default judgment with a supporting affirmation and exhibits on the respondent, Stephen Caruso, individually and as owner of Ace Exterminating, by mail on or about March 4, 1999. Pursuant to § 622.15 of Title 6 of the New York Compilation of Codes, Rules and Regulations (6 NYCRR), the staff filed a copy of its motion papers with the Office of Hearings and Mediation Services (OHMS). The respondent has not answered the motion and had made no contact with the OHMS as of March 15, 1999, the deadline for filing responsive papers pursuant to 6 NYCRR § 622.6.

In support of the motion for a default judgment, Senior Attorney Kathleen L. Martens affirms that on January 14, 1999, by certified mail, the staff served the respondent with a notice of hearing, pre-hearing conference, calendar call and complaint in accordance with 6 NYCRR § 622.3(a)(3). As part of its documentation, the staff presented copies of the signed return receipt cards (Article Nos. Z712801515 and Z712801514) both bearing a delivery date of January 15, 1999. One return receipt is signed Ace Exterminating and the other appears to bear the signature of Stephen Caruso. The notice of hearing included a statement that failure to timely answer or failure to attend the pre-hearing conference will result in a default pursuant to 6 NYCRR § 622.15. Ms. Martens affirms that the respondent failed to serve an answer or to appear at the pre-hearing conference scheduled for February 9, 1999. Attorney Martens furthers states in her affirmation that respondent Caruso spoke to a Department paralegal, Ms. Michelle Peattie, on January 22, 1999 and he indicated to her that he would not attend the conference and did not wish to settle the case with DEC.

Discussion

Failure to answer a complaint or to appear at a pre-hearing conference are both 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 proceedings; (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(a)(3). In addition, the staff also affirms that the respondent failed to answer in response to the complaint or to appear at the scheduled pre-hearing conference. In the notice of hearing, the respondent was made aware of the consequences of failure to answer and/or attend the pre-hearing conference. Staff also included a proposed order with its motion papers. In addition, the 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 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
March 15, 1999

  • 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, NY 12233-1550
    518-402-9003
    Send us an email
  • This Page Covers
  • Page applies to all NYS regions