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JR Tree Spraying, Inc. - Order, November 15, 1999

Order, November 15, 1999

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

Alleged Violations of Article 33 and 71 of the Environmental Conservation Law and Parts 325 and
326 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York

- by -

JR TREE SPRAYING, INC. d/b/a JR EXTERMINATING
(Business Registration No. 10231 and No. 08147) and
PAUL INGRASSIA, President (Certification No. C1-674456)

Respondents.

ORDER

Case No. R1-5792-96-02

WHEREAS:

  1. Pursuant to Section 622.15 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") Staff of the New York State Department of Environmental Conservation duly served a Notice of Hearing, Pre-Hearing Conference, and a Amended Verified Complaint upon Paul Ingrassia ("Respondent" or "Ingrassia") by certified mail, return receipt requested.
  2. The complaint asserted sixteen causes of action. The first cause of action alleges upon information and belief, that on or about June 11, 1993, Respondents caused or allowed the operation of a Pesticide Business at 601 Portion Rd., Ronkonkoma, NY without a NYS Pesticide Business Registration in violation of ECL Sections 33-0907 (1) , (2) and (3) and 6 NYCRR §325.23 (b) and (c).
  3. The second cause of action alleges upon information and belief, that on or about June 4, 1994, Respondents caused or allowed the operation of a Pesticide Business at 601 Portion Rd., Ronkonkoma, NY without a NYS Pesticide Business Registration in violation of ECL Sections 33-0907 (1), (2) and (3) and 6 NYCRR §325.23(b) and (c).
  4. The third cause of action alleges upon information and belief, that on or about July 8, 1994, Respondents caused or allowed the operation of a Pesticide Business at 601 Portion Rd., Ronkonkoma, NY without a NYS Pesticide Business Registration in violation of ECL Sections 33-0907 (1), (2) and (3) and 6 NYCRR §325.23(b) and (c).
  5. The fourth cause of action alleges upon information and belief, that on or about August 10, 1994, Respondents caused or allowed the operation of a Pesticide Business at 601 Portion Rd., Ronkonkoma, NY without a NYS Pesticide Business Registration in violation of ECL Sections 33-0907 (1), (2) and (3) and 6 NYCRR §325.23(b) and (c).
  6. The fifth cause of action alleges upon information and belief, that on or about July 8, 1995, Respondents caused or allowed the operation of a Pesticide Business at 601 Portion Rd., Ronkonkoma, NY without a NYS Pesticide Business Registration in violation of ECL Sections 33-0907 (1), (2) and (3) and 6 NYCRR §325.23(b) and (c).
  7. The sixth cause of action alleges upon information and belief, that on or about July 12, 1995, Respondents caused or allowed the operation of a Pesticide Business at 601 Portion Rd., Ronkonkoma, NY without a NYS Pesticide Business Registration in violation of ECL Sections 33-0907 (1), (2) and (3) and 6 NYCRR §325.23(b) and (c).
  8. The seventh cause of action alleges upon information and belief, that on or about September 6, 1995, Respondents caused or allowed the operation of a Pesticide Business at 601 Portion Rd., Ronkonkoma, NY without a NYS Pesticide Business Registration in violation of ECL Sections 33-0907 (1), (2) and (3) and 6 NYCRR §325.23(b) and (c).
  9. The eighth cause of action alleges, upon information and belief, that on or about June 11,1993, Respondents provided the services of commercial application of Pesticides doing business at 601 Portion Rd., Ronkonkoma, NY without NYS Pesticide Business Registration in violation of ECL §33-1301 (8-a); and 6 NYCRR §§325.23 (a) and 325.17(b).
  10. The ninth cause of action alleges, upon information and belief, that on or about June 4, 1994, Respondents provided the services of commercial application of Pesticides doing business at 601 Portion Rd., Ronkonkoma, NY without NYS Pesticide Business Registration in violation of ECL §33-1301 (8-a); and 6 NYCRR §§325.23 (a) and 325.17(b).
  11. The tenth cause of action alleges, upon information and belief, that on or about July 8,1994, Respondents provided the services of commercial application of Pesticides doing business at 601 Portion Rd., Ronkonkoma, NY without NYS Pesticide Business Registration in violation of ECL §33-1301 (8-a); and 6 NYCRR §§325.23 (a) and 325.17(b).
  12. The eleventh cause of action alleges, upon information and belief, that on or about August 10,1994, Respondents provided the services of commercial application of Pesticides doing business at 601 Portion Rd., Ronkonkoma, NY without NYS Pesticide Business Registration in violation of ECL §33-1301 (8-a); and 6 NYCRR §§325.23 (a) and 325.17(b).
  13. The twelfth cause of action alleges, upon information and belief, that on or about June 8,1995, Respondents provided the services of commercial application of Pesticides doing business at 601 Portion Rd., Ronkonkoma, NY without NYS Pesticide Business Registration in violation of ECL §33-1301 (8-a); and 6 NYCRR §§325.23 (a) and 325.17(b).
  14. The thirteenth cause of action alleges, upon information and belief, that on or about June 12,1995, Respondents provided the services of commercial application of Pesticides doing business at 601 Portion Rd., Ronkonkoma, NY without NYS Pesticide Business Registration in violation of ECL §33-1301 (8-a); and 6 NYCRR §§325.23 (a) and 325.17(b).
  15. The fourteenth cause of action alleges, upon information and belief, that on or about September 6,1995, Respondents provided the services of commercial application of Pesticides doing business at 601 Portion Rd., Ronkonkoma, NY without NYS Pesticide Business Registration in violation of ECL §33-1301 (8-a); and 6 NYCRR §§325.23 (a) and 325.17(b).
  16. The fifteenth cause of action alleges upon information and belief, that on or about June 4, 1994 in the Town of Oyster Bay, County of Nassau, State of New York, Respondent caused or allowed the misuse of the pesticide known as "Prentox Diazinon 4E Insecticide" (EPA Reg. No. 655-457) in that the mis-directed spray of such pesticide contacted Eddie Hauser on the property of Guirec Grand-Clement, 24 Muttontown Lane, East Norwich, NY in violation of 6 NYCRR §325.2(a) and (b).
  17. The sixteenth cause of action alleges upon information and belief, that on or about July 12, 1995 in the Town of Oyster Bay, County of Nassau, State of New York, Respondent caused or allowed the misuse of the pesticide known as "Prentox Diazinon 4E Insecticide" by applying this pesticide to a non-target crop known as a Hemlock tree and also using it on the non-target pest known as Hemlock Wooly Adegids in violation of 6 NYCRR §325.2(b).
  18. The notice stated that a pre-hearing conference and calendar call was scheduled to take place on October 13, 1999 at 2:30 p.m. at the New York State Department of Environmental Conservation, Conference Room 621, Albany, New York. The notice included a statement that pursuant to 6 NYCRR §622.15, a failure to timely answer or failure to attend a hearing or failure to attend a pre-hearing conference would result in a default under 6 NYCRR §622.15 and a waiver of Respondents' right to a hearing.
  19. The affidavit of Wendy S. DeForge states that she served Respondent Ingrassia by placing a true and correct copy of the Notice of Hearing Pre-Hearing Conference, and Amended Verified Complaint in a secure postpaid wrapper addressed to Respondent Ingrassia, and that the notice and complaint were mailed to Respondent by certified mail return receipt requested. The associated return receipt indicated that the notice and complaint were received by Respondent on September 3, 1999.
  20. Staff documents that the Respondent failed to answer the Amended Verified Complaint and also failed to appear at the scheduled pre-hearing conference on October 13, 1999.
  21. 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.

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

  1. Pursuant to 6 NYCRR §622.15, Respondent Ingrassia is found to be in default;
  2. Within thirty (30) days from service of this Order upon Respondent Ingrassia shall surrender his Pesticide Applicator Certification Identification Card ( No. C1-674456) to the Department;
  3. The Department will deny any future application of Respondent for a Pesticide Applicator Certification;
  4. Permanently cease and desist from any and all future violations of the ECL and Rules and Regulations promulgated pursuant thereto; and
  5. In accordance with ECL §71-2907, pay an administrative penalty in the sum of One Hundred and Fifteen Thousand ($115,000.00).

For the New York State Department
of Environmental Conservation

_____________/s/_____________
By: JOHN P. CAHILL, COMMISSIONER

Dated: Albany, New York
November 15, 1999

To: Paul Ingrassia
66 E. 34th Street 14A
New York, NY 10016

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

the Alleged Violations of Articles 33 and 71 of the Environmental Conservation Law and
Parts 325 and 326 of Title 6 of the Official Compilation of Codes, Rules and
Regulations of the State of New York by

JR Tree Spraying, Inc. d/b/a/ JR Exterminating
(Business Registration No. 10231 and No. 08147) and
Paul Ingrassia, President
(Certification No. C1-674456)

Respondents

Order of Referral on Default and

SUMMARY

REPORT

Case No.

R1-5792-96-02

Proceedings

Pursuant to Title 6 of the Official Compilation of Codes Rules and Regulations of the State of New York, Section 622.15, the New York State Department of Environmental Conservation ("DEC") Division of Environmental Enforcement Staff (the "Staff"), through Mitchell Khosrova, Esq., Chief, Enforcement and Compliance Assurance Bureau, have moved for a default judgment against Respondent Paul Ingrassia.

The Staff made their motion by serving via mail, on or about October 15, 1999, Respondent Paul Ingrassia with a Notice of Motion for Default Judgment and supporting papers; and by filing, on or about October 15, 1999, said documents plus an affidavit of service of same with the DEC Office of Hearings and Mediation Services. The supporting papers consist of the following: Motion for Default Judgment dated October 14, 1999; Affirmation in Support of Motion for Default Judgment by Mitchell Khosrova, Esq., dated October 14, 1999; a proposed Commissioner's Order; a September 1, 1999, Affidavit of Mail Service of Notice of Hearing and Amended Verified Complaint upon Paul Ingrassia; Receipt for Certified Mail and Domestic Return Receipt for Item No. Z 712 801 994; Notice of Hearing, Pre-Hearing Conference, and Amended Verified Complaint dated September 1, 1999; Amended Verified Complaint and Verification dated September 1, 1999.

Response to the Staff's Motion was due, and the record was closed, on October 26, 1999.

No response to the motion has been received from Respondent Ingrassia.

The motion is determined below upon the papers submitted, as identified above.

Findings on the Default

  1. The Staff commenced the above captioned proceeding by serving a Notice of Hearing, Pre-Hearing Conference, and Amended Verified Complaint (the "combined Notice") dated September 1, 1999, on Respondent Paul Ingrassia, President, JR Tree Spraying, Inc. d/b/a/ JR Exterminating, by certified mail, return receipt requested, addressed to:

    Paul Ingrassia
    166 East 34th Street, Apt. 14A
    New York, NY 10016

    which is Respondent Ingrassia's last known home address. The domestic return receipt for the mailing indicated that delivery took place on September 3, 1999, and was signed for by a "J B [illegible]."

  2. Service was not completed upon JR Tree Spraying, Inc. because the company was not operating at the two last known locations.
  3. Respondent Ingrassia failed to appear for the pre-hearing conference scheduled by the combined Notice for 2:30 PM, October 13, 1999 at the NYS Department of Environmental Conservation, 50 Wolf Road, Conference Room 621, Albany, NY. The conference was attended by the undersigned and by Mitchell Khosrova, Esq., who appeared upon behalf of the Department Staff.

Default Procedures

Section 622.15, "Default procedures" provides in pertinent part:

The motion for a default judgment may be made orally on the record or in writing and must contain:

(1) Proof of service upon the respondent of the notice of hearing and complaint or such other document which commenced the proceeding;

(2) Proof of the respondent's failure to appear or failure to file a timely answer; and

(3) A proposed order.

(c) Upon a finding by the ALJ that the requirements of subdivision (b) have been adequately met, the ALJ will submit a summary report, which will be limited to a description of the circumstances of the default, and the proposed order to the commissioner. ..."

Conclusions

The affidavits and exhibits submitted by the Department Staff in support of their motion for a default judgment provide proof of proper service of the Notice of Hearing and Complaint, and proof that Respondent Ingrassia defaulted. The Staff also submitted a proposed order. The requirements of Part 622.15(b) for a motion for a default judgment have therefore been met.

Order of Referral

This Summary Report and the Staff's Proposed Order (attached hereto) are hereby referred to the Commissioner for final determination.

_____________/s/_____________
Frank Montecalvo
Administrative Law Judge

Dated: October 27, 1999
Albany, New York

Attachment: Proposed Order

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