Matter of Ki Hyung Chung v New York City Envtl. Control Bd.

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Matter of Ki Hyung Chung v New York City Envtl. Control Bd. 2012 NY Slip Op 31288(U) May 3, 2012 Supreme Court, New York County Docket Number: 109347/11 Judge: Peter H. Moulton Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE O F NEW YORK NEW YORK COUNTY m .11m y YO? M PRESENT: PART Just/ce Index Number : 109347/2011 CHUNG, KI HYUNG VS . NYC ENVIRONMENTAL CONTROL BOARD SEQUENCE NUMBER : 001 ARTICLE 78 INDEX NO. MOTION DATE MOTION SEQ. NO. - , were mad on thin motlon tolfor The following papers, numbered 1 to Notice of MotIonlOrder to Show Cause Anlw@rlnQAffldavlb 2-6 -Affldavita - Exhlbita I NO(@). - Exhlblk IWd. IW s ) . Rsplylng Affidavita Upon the foregoing papero, It lo ordered that thls rmetihn Is MAY 1 6 2012 -- ,J.S.C. Dated: 1. CHECK ONE: ..................................................................... 2. CHECK AS APPROPRIATE: 3. CHECK IF APPROPRIATE: .............. MOTION IS: ................................................ CASE DISPOSED 0GRANTED 0DENIED 0SElTLE ORDER C]DO NOT POST 0GRANTED IN PART r]OTHER 0SUBMIT ORDER FIDUCIARY APPOINTMENT REFERENCE [* 2] Lndex No, 1093474 1 Petitioner, - against - FILED NEW YORK CITY ENVIRONMENTAL CONTROL BOARD, Petitioner moves to vacate a default judgment entered against her in the amount of $24,000 based on her failure to appear at an Environmental Control Board hearing on May 4,20 10. The hearing date was contained in a Notice of Violation and Hearing (the Notice ). Petitioner s counsel states that petitioner never received the Notice, and points out that the city listed in the Notice is Flushing when in fact it is undisputed that the correct city is Fresh Meadows. Petitioner also maintains that service of the Notice w s not effectuated pursuant to the New York a City Charter Q 1049-a because the Notice was Posted to Mailbox which does not satisfy the requirement under that provision that it be posted in a conspicuous place upon the premises. Yte Although the Notice also provides that it was posted after a reasonable attempt to effec ? ! p .&ev8 %Or, service those reasonable efforts are not specified. Counsel further states that petitioner +P , $ % . < I +q4& received a response to her request to vacate her default, after she filed a form Request for a New <.J po+ pop %! * + A ?- /+ c % The Notice was affirmed under penalty of perjury by the issuing officer. Although not specified in any of the papers, the affirmation was apparently made pursuant to ECL $71-0205. 1 4 [* 3] Hearing After a Failure to Appear (Vacating a Default) (the Request for New Hearing ). Further, counsel states that he did not receive a response to two letters which he sent to respondent after he was retained in February 201 1, to inquire about the status of petitioner s application. Respondent cross moves to dismiss this proceeding as time barred by the four month statute of limitations under CPLR 6 2 17(1). Respondent claims that petitioner was notified of the agency s denial of her request to open the default, by notice dated September 10,2010. However, the affidavit of serviGe of the mailing is sworn to over one year later, on November 4,201 1. The affidavit, which is made by FEDCAP Rehabilitation Services, Inc., as agents for respondent, does not explain how the two affiants knew that they had in fact made such a mailing. Apparently concluding that there was some problem with the service of the agency decision, respondent made a clerical error and resent notice of the denial on or about May,9,2011to petitioner and his counsel (Affrm In Support of Cross Motion 122). Respondent also cross moves to dismiss the proceeding on the basis that petitioner s claim \ of improper service of the Notice was not preserved for review, citing cases that hold that arguments which are not raised at the agency hearing, may not be raised later in an Article 78 proceeding. Respondent s counsel notes that the agency s denial ofthe application to vacate the default was made because Your reason for not appearing is not listed in ECB s rule. Therefore, counsel maintains that the service issue raised here cannot be considered because it was not raised before the agency, Counsel submits the affidavit of petitioner in reply. To the extent that petitioner s affidavit denies receipt of the agency decision allegedly mailed May 9,201 1, the reply was the first opportunity for petitioner to respond. Although the affidavit should have been submitted wt the moving papers (the petition was only verified by counsel) to the extent that petitioner ih denied receipt o f the Notice, there is no dispute that petitioner filled out the Request for New Hearing, and swore to the information contained therein. 2 [* 4] on the form Request for a New Hearing. Discus$ion The four month statute of limitations to challenge an agency decision runs from notice of a final determination (see Matter o Gonzalez, 47 NY2d 922 [ 19791). Where a party is entitled to f receive written notice, the statutory period of limitations does not run until notice is received in that form (see 90-92 Wadworth Ave. Tenants Assoc. v HPD, 227 AD2d 331 [lst Dept 19971 [HE D complied wt the notices mandated in connection with an Article SA rehabilitation loan and ih therefore, the proceeding w s barred by the four month statute of limitatiom]). The burden rests on a the agency to establish that the requisite notice was given (see Bludson v Popolizio, 166 AD2d 346 [1st Dept 19901). Respondent has failed to met its burden to demonstrate that this proceeding is barred by the statute of limitations. Respondent bases its argument upon the joint affidavit of service of two employees of respondents agent, sworn to over a year after the agency decision was allegedly b mailed. The employees swear that on September 10, 2010 we printed out a notice denying the request for a new hearing after a failure to appear for violation number 348396 145 to the respondent from ECB s Automated Information Management System ( AIMS ),and on September 13,2010, the next business day, we mailed said notice. No basis is asserted for the employees knowledge of mailing. Further, it would be unusual. fonboth employees to jointly print out, and mail, a notice. Lf the employees had different functions, the afidavit does not explain these functions, but merely states we printed out and we mailed the notice3 Moreover, if there was no issue with the 3Wherethe record indicates the existence of an established and regularly followed ofice mailing procedure, a rebuttable presumption of mailing arises (Matter of Go& ,47 NY2d at 923). 3 [* 5] mailing, it is unclear why respondent s counsel would refer to a clerical mistake. Although respondent s counsel claims that, based on a handwritten notation in the file, the denial was also mailed to petitioner and her counsel on May 9,2011, no affidavit of service is attached and petitioner and her counsel deny receiving that mailing. Respondent has also failed to establish that petitioner s claim of improper service of the Notice was not preserved for review. Respondent attaches the Request for New Hearing, filled out by petitioner (Exhibit E to the Affxrm In Support of Cross Motion), which states that she first learned of ticket by the default decision and order from Environmental Control Board (attached d~cument). ~ court cannot find that petitioner s claim of improper service was not presented The to the agency. Although petitioner appears to have had difficulty filling out the form, the Request for a New Hearing indicates that she did not receive notice of the hearing. There is no requirement that petitioner specify the particular defects in service raised by her counsel. It is hereby \ ORDERED that the cross motion to dismiss is denied; and it is further ORDERED that pursuant to CPLR 7804 (f), respondent is directed to answer the petition within 20 days after this court holds a settlement conference with clients and counsel present; and it is further ORDERED that the parties are directed to tmail the court at afield@courts.state.ny.us for 4No document is attached to Exhibit E. In her reply, petitioner claims to have only received two notices from respondent: the Notice of Collection, indicating the date mailed as 6/24/I 0, and the letter from respondent, dated August 11,ZO 10, acknowledging receipt of petitioner s Request for New Hearing, dated August 5,2010, but stating that the form could not be processed because the forms were not notarized. Respondent concedes that the form was then properly notarized, processed and denied. 4 [* 6] dates for the settlement conference. This constitutes the Decision and Order of the Court. Dated: May 3,2012 ENTER: 5

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