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Scotts Company (The) - Ruling 2, December 20, 2001

Ruling 2, December 20, 2001

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter
-of-
Alleged Violations of the New York State Environmental Conservation Law Articles 33 and 71, and Part 326 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York,

- by -

The Scotts Company,
Respondent.

RULING: Staff's Motion to Amend Complaint -

November 26, 2001

DEC Case No. R4-20000306-1

Proceedings

On April 26, 2000, New York State Department of Environmental Conservation (DEC or Department) staff served the respondent with a notice of hearing and complaint relating to the alleged illegal sale, offering for sale, distribution, transportation and delivery of a pesticide - Grubex - in the State of New York. Respondent served its answer dated May 15, 2000 to the complaint. With consent of respondent's counsel, DEC staff served an amended complaint dated July 6, 2000 that added allegations regarding another unregistered pesticide - Ortho RosePride Systemic Triple Action Spray. The respondent served an answer dated August 2, 2000. In December 2000, respondent moved to dismiss thirteen out of the fourteen causes of action and staff cross-moved to dismiss respondent's second affirmative defense regarding staff's actions on the respondent's registration applications. In a ruling dated February 16, 2001, I denied respondent's motion and granted staff's motion. There have been no further proceedings related to this matter until staff's current motion to amend its complaint for the second time.

On November 26, 2001, staff served a motion to amend its complaint including a proposed amended complaint and an affirmation in support by Maureen Serafini, Director of the Bureau of Pesticides Management. The amendment relates primarily to alleged violations by respondent that took place on April 19, 2001 concerning the sale of the unregistered pesticide "Grubex."

Ruling

Section 622.5(b) of Title 6 of the New York Compilation of Codes, Rules and Regulations (6 NYCRR) provides that after a first amendment, consistent with the New York Civil Practice Law and Rules (CPLR), a party may amend a pleading with permission of the administrative law judge (ALJ) or Commissioner so long as there is no prejudice to the other party's ability to respond. Rule 3025(b) provides that permission to amend should be "freely given" unless there is resulting prejudice or surprise to the opposing party. In a letter dated December 10, 2001, Michael B. Gerrard, counsel for respondent, confirmed that the Scotts Company has no objection to staff's motion to amend while reserving its rights to raise defenses with respect to the substance of the amended complaint. Accordingly, pursuant to 6 NYCRR § 622.5(b), I grant the staff's motion. The respondent is to serve its amended answer within twenty days of receipt of this ruling pursuant to 6 NYCRR § 622.4(a). By no later than February 14, 2002, the parties shall contact the ALJ to discuss scheduling the hearing.

_____________/s/_____________
Helene G. Goldberger
Administrative Law Judge
Albany, New York

Dated: December 20, 2001

TO: Michael B. Gerrard, Esq.
Arnold & Porter
399 Park Avenue - 39th Floor
New York, New York 10022-4690

Nathaniel Barber, Senior Attorney
NYSDEC - Bureau of Enforcement and
Compliance Assurance - 14th Floor
625 Broadway
Albany, New York 12233-5500

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