Congelosi v. New York State Department of Agriculture & Markets , 169 A.D.2d 1008 ( 1991 )

Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court, entered in Albany County) to review a determination of the Commissioner of Agriculture and Markets which denied petitioner’s application for a domestic animal health permit.

The evidence reveals that although a judgment had been entered against petitioner in 1985 imposing a $2,000 fine for his failure to obtain a domestic animal health permit (hereinafter DAHP), he never paid the fine; in 1988 he was held in contempt and an additional fine of $55,750 was imposed. At the hearing on his subsequent application for a DAHP, petitioner admitted that even after the 1985 judgment he continued to sell and buy horses without a DAHP and that he knew he was violating the law in so doing (see, Agriculture and Markets Law § 90-c). He also could not provide all of the necessary records to show that the horses he sold had been tested for equine infectious anemia as required by Agriculture and Markets Law § 95-c. This evidence, coupled with further testimony at the hearing, showed that petitioner, inter alia, had "engaged in a course of dealing of such a nature as to satisfy the [CJommissioner [of Agriculture] of his inability or unwillingness properly to conduct [his] business” (Agriculture and Markets Law § 90-e [6]). Therefore, the denial of petitioner’s application was supported by substantial evidence and must be upheld (see, Matter of Burback v Gerace, 111 AD2d 566; Matter of Mendel & Son v New York State Dept. of Agrie. & Mkts., 90 AD2d 567, appeal dismissed 58 NY2d 970, lv denied 58 NY2d 610). Petitioner’s remaining contentions have been considered and found to be lacking in merit.

Determination confirmed, and petition dismissed, without costs. Casey, J. P., Mikoll, Yesawich, Jr., Levine and Mercure, JJ., concur.