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Decaprio/Nationwise Exterminating - Ruling, March 24, 1994

Ruling, March 24, 1994

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

Proceedings to Deny and Revoke Business Registrations and Applicator Certifications based upon
Fraudulent Business Practices and Violations of Article 33 of
the Environmental Conservation Law and Part 325 of Title 6 of
the Official Compilation of Codes, Rules and Regulations of the State of New York,

- by -

FERDINAND DECAPRIO, JR., a/k/a
FREDERICK DECAPRIO, JR., a/k/a
FRED DECAPRIO, JR., a/k/a
FERDINAND DICAPRIO, JR., a/k/a
FREDERICK DICAPRIO, JR., a/k/a
FRED DICAPRIO, JR.,

CLAIRE DECAPRIO, a/k/a
CLAIRE COSTANZO,

LILLIAN COSTANZO, a/k/a
LILLIAN GLAZER COSTANZO, a/k/a
LILLY COSTANZO,

CHARLES SCHNEIDER,

ANDRE TAYLOR,

NATIONWISE EXTERMINATING AND DEODORIZING, INC., and

ALL OF THE ABOVE-NAMED RESPONDENTS
ALSO DOING BUSINESS AS

1.) TERMITES AND ANTS COMPANY,
2.) A-ALL PEST CONTROL, INC., and
3.) ALL CONSERVATION, INC.

RESPONDENTS

RULING ON MOTION TO AMEND COMPLAINT AND NOTICE OF ADJOURNMENT

The Department Staff have submitted a Motion to Amend the Complaint in this matter. The Department Staff seek to amend the Complaint to: 1) correct certain typographical errors; 2) bring the Complaint into conformance with the rulings issued on May 11, 1993 and December 16, 1993; and 3) to charge violations which have allegedly occurred since the original Complaint was served in July 1992. The Department Staff also request, in the event that the motion is granted, that the Amended Complaint be deemed served upon the Respondents on receipt of the ruling on the Motion to Amend the Complaint. The Department Staff claim that no new Respondents were added to the Amended Complaint as indicated by the caption and relief sought and that the relief sought in the Amended Complaint is identical to that sought in the original Complaint.

The originally named Respondents (with the exception of Respondents TERMITES AND ANTS COMPANY and ALL CONSERVATION, INC.) object to and oppose the Motion to Amend the Complaint on the grounds that the Department Staff have failed to show good cause for the granting of the motion and that the "amendments" delete entire Counts, add completely new Counts and add new Respondents. These Respondents claim that the proposed "amended" complaint is an exhaustive attempt to initiate an entirely new action.

Discussion

The essence of administrative adjudication is a fair forum to rapidly resolve disputed issues. Rapid resolution of the dispute may have to give way to fairness and equity but there must come a point in time when the tallying of new offenses ceases and adjudication commences. That time is approaching. Given that the original Notice of Hearing and Complaint was dated July 30, 1992 and that extensive disclosure has already occurred, it is not efficient to now add additional charges which will require further extensive disclosure.

The Department Staff's claims that no new Respondents were added to the Amended Complaint and that the relief sought in the Amended Complaint is "identical to that sought in the original Complaint" are simply not true. The proposed Amended Complaint contains allegations concerning one "Respondent Ralph Rinaldi" who is not even mentioned in the original Complaint. The relief sought in the proposed Amended Complaint includes a request that (all?) the Respondents be found in violation of 6 provisions of the Environmental Conservation Law and 2 provisions of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York which were likewise not cited in the original Complaint and which are based on events which allegedly occurred after the original Complaint was filed.

TERMITES AND ANTS COMPANY and ALL CONSERVATION, INC. have not appeared in these proceedings. As noted on the record of the hearing on May 11, 1993 there is an uncertainty if TERMITES AND ANTS COMPANY and ALL CONSERVATION, INC. have ever been served the original Notice of Hearing and Complaint.

_____________/s/_____________

Dated:

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