Rios v New York City Dept. of Bldgs.

[*1] Rios v New York City Dept. of Bldgs. 2011 NY Slip Op 51563(U) Decided on August 16, 2011 Supreme Court, Queens County McDonald, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 16, 2011
Supreme Court, Queens County

In the Matter of Fabio Villa Rios, Petitioner,

against

The New York City Department of Buildings and the New York City Environmental Control Board, Respondents.



417/11

Robert J. McDonald, J.

The following papers numbered 1 to 10read on this application by petitioner for a judgment pursuant to Article 78 to set aside the Administrative Decision of the Environmental Control Board dated November 4, 2010, denying petitioner's request for a new Hearing.

Papers

Numbered

Notice of Petition-Petition-Affidavits-Exhibits1-4

Answering Affidavits-Exhibits5-7

Reply Affidavits8-10 [*2]

Upon the foregoing papers it is ordered and adjudged that the application is determined as follows:

In this Article 78 proceeding, petitioner seeks a judgment setting aside determinations dated November 4, 2010, and October 26, 2010, made by respondent The New York City Environmental Control Board (ECB), which denied petitioner's requests for new hearings on four violations issued by respondent The New York City Department of Buildings (DOB).

Petitioner is the owner of 1665 Woodbine Street, Ridgewood, New York, a six-family house that is rent stabilized. On December 19, 2009, a DOB inspector issued Notice of Violation (NOV) number 34824568X (NOV 68X) to petitioner for the subject residence altered for occupancy as a dwelling for more than the legally approved number of families in violation of Administrative Code § 28-210.1. No cure date was given in this notice, and petitioner was directed to appear at a mandatory hearing scheduled for February 9, 2010. As noted in the affidavit/affirmation of service, NOV 68X was posted at the front entrance of the subject premises. According to the affidavit of mailing, copies were mailed to petitioner at the subject premises and 92-01 Lamont Avenue, Elmhurst, New York 11373 (Lamont address), which was petitioner's address on file with the New York City Department of Housing Preservation and Development (HPD). The address on file with the Department of Finance (DOF) was the same as the address of the subject premises, and no additional address was on file with the DOB or ECB.

Petitioner did not file a certificate of correction with the DOB and failed to appear at the ECB hearing on February 9, 2010. On February 16, 2010, ECB issued a default order against petitioner and imposed a penalty of $6,000.00. According to the affidavit of mailing, the default order was sent to petitioner at the subject premises and the Lamont address on February 16, 2010.

The DOB inspector also issued NOV number 34824569H (NOV 69H) on December 19, 2009, to petitioner for work without a permit at the subject premises in violation of Administrative Code § 28-105.1. No cure date was given in this notice, and petitioner was directed to appear at a mandatory hearing scheduled for February 9, 2010. Like NOV 68X, NOV 69H informed petitioner of the consequences of failing to appear at the scheduled hearing. As noted in the affidavit/affirmation of service, NOV 69H was posted at the front entrance of the subject premises. According to the affidavit of mailing, copies were mailed to petitioner at the subject premises and the Lamont address. The address on file with the DOF was the same as the address of the subject premises, and no additional address was on file with the DOB or ECB.

Petitioner did not file a certificate of correction with the DOB and failed to appear at the ECB hearing on February 9, 2010. On February 16, 2010, ECB issued a default order against petitioner and imposed a penalty of $8,000.00. According to the affidavit of mailing, the default order was sent to petitioner at the subject premises and the Lamont address on February 16, 2010.

On May 10, 2010, a DOB inspector issued NOV number 34847178M (NOV 78M) to [*3]petitioner for unlawful acts - failure to comply with an order of the Commissioner, that is, to correct NOV 69H, in violation of Administrative Code § 28-201.1. The remedy was to comply with the Commissioner's order and obtain a permit. In addition, NOV 78M directed petitioner to appear at a mandatory hearing at ECB on July 13, 2010 for an opportunity to answer and defend the allegations set forth in the NOV, and informed petitioner of the consequences of failing to appear at the scheduled hearing.

As noted in the affidavit/affirmation of service, NOV 78M was posted at the front entrance of the subject premises. According to the affidavit of mailing, a copy was mailed to petitioner at the subject premises on June 3, 2010. The address on file with the DOF was the same as the address of the subject premises, and no additional address was then on file with the DOB, ECB or HPD.

Petitioner failed to appear for the scheduled hearing on July 13, 2010. On July 19, 2010, ECB issued a default order against petitioner and imposed a penalty of $12,000.00. According to the affidavit of mailing, the default order was sent to petitioner at the subject premises.

On October 27, 2010, after petitioner notified ECB of a change in his address, a copy of NOV 78M also was sent to petitioner at 58-11 Middle Village, New York 11379 (Middle Village address).

On September 23, 2010, a DOB inspector issued NOV number 34880626L (NOV 26L) to petitioner for unlawful acts - failure to comply with te order of the Commissioner, that is, to correct NOV 69H, in violation of Administrative Code § 28-201.1. The remedy was to comply with the Commissioner's order and obtain a permit. NOV 26L directed petitioner to appear at a mandatory hearing at ECB on November 16, 2010 for an opportunity to answer and defend the allegations set forth in the NOV, and informed petitioner of the consequences of failing to appear at the scheduled hearing.

As noted in the affidavit/affirmation of service, NOV 26L was posted at the front door of the subject premises. According to the affidavit of mailing, a copy was mailed to petitioner at the subject premises on October 7, 2010. The address on file with the DOF was the same as the address of the subject premises, and no additional address was then on file with the DOB, ECB or HPD.

Petitioner failed to appear for the scheduled hearing on November 16, 2010. On November 22, 2010, ECB issued a default order against petitioner and imposed a penalty in the amount of $24,000.00.

On September 28, 2010, ECB received two "Request for a New Hearing After a Failure to Appear (Vacating a Default)" forms dated September 17, 2010 (the NOV 68X and NOV 69H request forms) from petitioner's attorney claiming petitioner never received the tickets and first learned of the tickets on August 24, 2010, while on the DOB website looking up another [*4]violation. Petitioner requested the new hearings for these violations be held on October 26, 2010. By letters dated November 4, 2010, ECB denied the hearing requests on the grounds that petitioner did not include information or documents he was asked to provide, or the documents provided did not prove his claim.

On September 17, 2010, ECB received a "Request for a New Hearing After a Failure to Appear (Vacating a Default)" form dated September 15, 2010 (the NOV 78M request form) from petitioner's attorney claiming it was less than 45 calendar days from the hearing date and that petitioner never received the ticket. Petitioner also claims therein that he first learned of NOV 78M on August 23, 2010, when he found the default decision and order on the floor of the subject premises. Petitioner requested a new hearing for this violation be held on October 26, 2010. By letter dated October 28, 2010, ECB denied the hearing request on the grounds that its records reflect that petitioner was properly served.

Initially, inasmuch as it is undisputed that petitioner did not submit a "Request for a New Hearing After a Failure to Appear (Vacating a Default )" form with regard to NOV 26L, he has not exhausted all administrative remedies regarding same. (See Watergate II Apartments v Buffalo Sewer Auth., 46 NY2d 52 [1978].) Nor has petitioner shown that resort to the available administrative remedies would have been futile. (See Matter of Surton Constr. Contr. Corp. v New York City School Constr. Auth., 81 AD3d 654 [2011].) Thus, to the extent that petitioner herein seeks to set aside NOV 26L and its related November 22, 2010 default order, the application is denied. Said claim is not ripe for judicial review and is dismissed as premature.

Next, with regard to NOV 68X, NOV 69H and NOV 78M, 48 RCNY § 3-82 allows a party who did not appear at an ECB hearing to make a request for a new hearing. 48 RCNY § 3-82 provides in relevant part: "(c) . . . Such request may be granted and a hearing conducted only if the respondent establishes that a new hearing was requested within one year of the time the respondent learned of the existence of the violation, and that there is a reasonable basis to believe that the respondent (1) did not receive the notice of violation because the respondent was (A) not properly served with the violation under article three of the civil practice law and rules . . . , section 1049-a of the New York City Charter . . . " Section 1049-a(d)(2)(a)(ii) of the City Charter in effect allows the service of a notice of violation by DOB to be made "by affixing such notice in a conspicuous place to the premises where the violation occurred . . . " and then pursuant to section 1049-a(d)(2)(b) by mailing to the respondent at the address of such premises and by mailing to the address of registered owners or agents.

Administrative determinations are subject to only limited judicial review, and will not be disturbed in the absence of a showing that they are wholly arbitrary or without any rational basis. (See Cove v Sise, 71 NY2d 910 [1988].) The petitioner in an Article 78 proceeding has the burden of demonstrating that the administrative determination under review is either arbitrary, capricious or affected by an error of law. (See CPLR 7803; see also Matter of Grossman v Rankin, 43 NY2d 493 [1977]; Matter of Shafer v Regan, 171 AD2d 311 [1991].) Petitioner here failed to meet this burden. [*5]

In order to vacate his defaults concerning NOV 68X, NOV 69H and NOV 78M, pursuant to 48 RCNY § 3-82(c), petitioner had to demonstrate to ECB that there was a "reasonable basis" to believe that he did not receive the notices of violation because DOB did not properly serve them in the manner provided by section 1049-a of the New York City Charter. Petitioner here did not demonstrate that ECB improperly determined that he had failed to make the required showing. Petitioner failed to show that there are genuine issues of fact and credibility concerning whether DOB actually made service of the notices of violation upon him in the legally prescribed manner. The affidavits of service evidence proper service of the violations upon petitioner and as for the required mailings, the respondents DOB and ECB alleged, without adequate rebuttal from petitioner, that except for the subject address, the Lamont address and the Middle Village address, no other address was on file with the DOF, DOB, ECB or HPD. Petitioner also failed to submit any affidavits attesting to specific facts contesting the allegations in the affidavits of service. Furthermore, the conclusory allegations by petitioner in his verified petition that he did not receive notice of the violations or hearing dates are insufficient to rebut the presumption of proper service. (See Matter of Intersimone v Appleton, 230 AD2d 742 [1996]; see e.g. Associates First Capital Corp. v Wiggins, 75 AD3d 614 [2010]; City of New York v Miller, 72 AD3d 726 [2010]; Washington Mut. Bank v Holt, 71 AD3d 670[2010].)

The ECB determined that petitioner had not made the showing required by 48 RCNY § 3-82(c), and, upon reviewing the record, the court finds that its determination was not arbitrary, capricious, unsupported by the facts, or contrary to law.

Accordingly, it is

ORDERED and ADJUDGED that petitioner's application to set aside NOV 26L and its related November 22, 2010 default order is denied; and it is further

ORDERED and ADJUDGED that petitioner's application to set aside the Administrative Decisions of the ECB dated November 4, 2010, and October 26, 2010, which denied petitioner's requests for new hearings regarding NOV 68X, NOV 69H and NOV 78M, is denied; and it is further

ORDERED and ADJUDGED that the instant proceeding is dismissed.

This constitutes the decision and judgment of the court.

Dated: Long Island City, NY

August 16, 2011

______________________________

ROBERT J. MCDONALD

J.S.C.