Matter of Kuei-Tang Chen v City of New York Envtl. Control Bd.

[*1] Matter of Kuei-Tang Chen v City of New York Envtl. Control Bd. 2012 NY Slip Op 51226(U) Decided on July 5, 2012 Supreme Court, Queens County Markey, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 5, 2012
Supreme Court, Queens County

In the Matter of The Application of Kuei-Tang Chen, Petitioner, for a Judgment under Article 78 of the Civil Practice Laws and Rules Annulling Determination dated August 9, 2011, Denying Application to Vacate Default Judgment concerning Violation No. 34858718H

against

The City of New York Environmental Control Board, Respondents.



23585/2011



For the Petitioner:Joseph C. Angelo, Esq., 25-77 Francis Lewis Blvd., Bayside, New York 11358

For the Respondent:Michael A. Cardozo, Esq., Corporation Counsel for the City of New York, by Yungbi A. Jang, Assistant Corporation Counsel, 100 Church Street, New York, New York 10007

Charles J. Markey, J.

The following papers numbered 1 to 12 read on this Article 78 proceeding by petitioner Kuei-Tang Chen for a judgment vacating the determination of City of New York Environmental Control Board ("ECB") dated August 9, 2011, which denied the application to vacate a default judgment with respect to Notice of Violation number 34858718H , and in the alternative vacating the default judgment and dismissing the [*2]violation. Respondent ECB cross moves for an order dismissing the petition on the grounds of statute of limitations.

Papers Numbered

Notice of Petition- Verified Petition-Affidavit-Exhibits (A-G)....................1-3

Notice of Cross Motion -Affirmation-Exhibits (A-O)...................................4-7

Opposing Affidavit..........................................................................................8-9

Reply Affirmation-Exhibits (P-Q) .................................................................10-12

Petitioner Kuei-Tang Chen ("Chen"), upon the foregoing papers, seeks judicial review of a determination of the ECB dated August 9, 2011, which denied the application to vacate a default on the grounds that it had previously denied his application to vacate said default.

Respondent City of New York Environmental Control Board ("ECB"), in its cross motion, seeks to dismiss the petition on the grounds of statute of limitations, and asserts that petitioner's first application to vacate his default was denied and that notice of said denial was provided to petitioner on April 5, 2011. ECB contends that this proceeding is untimely as it was commenced on September 15, 2011, more than a month after the statute of limitations had expired. ECB further maintains that the petitioner's second request to vacate the default made on August 4, 2011, and the ECB's denial of said request on August 9, 2011, did not extend the statute of limitations.

Here, the applicable statute of limitations is four months from the date the ECB's determination became final and binding on the petitioner (CPLR 217). A proceeding becomes final and binding when "the petitioner has received notice of the determination and is aggrieved by it" (Cauldwest Realty Corp. v City of New York, 160 AD2d 489, 490 [1990]; citing Biondo v New York State Bd. of Parole, 60 NY2d 832, 834[1983]).

Although petitioner Chen alleges in the petition that he did not seek to vacate the January 18, 2011 default until August 4, 2011, the documentary evidence does not support this allegation. Rather, an application to vacate said default was made by George Frangoulis, on behalf of Kuei-Tang Chen and Leon Stepanian, on March 28, 2011, which was received by the ECB on March 31, 2011.

The respondent asserts that it mailed the notices of violations and other pertinent notices to Chen using the addresses it maintains in its files. In support of this claim, respondent has submitted an affidavit from an employee regarding certain computer printouts and its AIMS system. That affidavit was previously submitted in an unrelated [*3]action in New York County and specifically refers to the parties in that action. Said affidavit, therefore, is not relevant to this proceeding, and will not be considered here.

Respondent ECB has failed to submit proof, in admissible form, that its first determination denying petitioner's application to vacate the default was actually mailed to petitioner Chen, or his representative Frangoulis, on April 5, 2011. The petitioner thus possibly and plausibly entirely unaware that the March, 2011 request to vacate the default had been received and determined by the ECB, prior to filing the August 4, 2011 request to vacate the default. See the undersigned's recent decisions in both Matter of Gallo v City of New York, 36 Misc 3d 1204(A), 2012 WL 2434967, 2012 NY Slip Op 51188(U)

[Sup Ct Queens County 2012], and Briglio v City of New York, (2012 WL 2148907, 2012 NY Slip Op 51052(U) [Sup Ct Queens County 2012].

Furthermore, since the petitioner seeks judicial review of the August 9, 2011 determination, the within proceeding is timely.

The respondent's cross motion to dismiss the petition is, accordingly denied. The respondent is directed to serve and file its answer, the administrative record and any supporting papers, within 20 days from the service of this order together with notice of entry (CPLR 7804[e]).

The petitioner thereafter shall have 10 days to serve any reply papers, and the parties shall re-notice this proceeding no later than 40 days after the service of a copy of this order, bearing the dated stamp of the Clerk, together with notice of entry.

The foregoing constitutes the decision, opinion, and order of the Court.

_______________________________

J.S.C.

Dated: July 5, 2012