People v J & L Landscaping, Inc.
Annotate this CaseDecided on July 19, 2007
Criminal Court of the City of New York, Kings County
The People of the State of New York
against
J & L Landscaping, Inc.
2006SKN019495
For the People: Louise Moed, Esq.
For the Defendant: Morton Grossman, Esq.
Eileen N. Nadelson, J.
The instant prosecution commenced by the issuance of an appearance ticket to Defendant corporation for violation of three Department of Buildings regulations: One, section 26-127.2(j) [removing an order of the Department of Buildings {this chargewas subsequently dropped by the People}];Two, section 26-127.2 (j) [used and occupied, or permitted others to do so, a closedsection of premises closed by the Department of Buildings]; andThree, section 26-127.2 (k) [intentionally resisting an order of the Department ofBuildings].
These sections of the Administrative Code concern zoning regulations relating to using residential property for commercial purposes.
The appearance ticket was served on a clerk of the Secretary of State on January 12, 2006, pursuant to section 600.10 of the Criminal Procedure Law.
Defendant did not appear on the return date of January 30, 2006, and a default judgment was entered against Defendant in the amount of $5,000. On February 27, 2006, Defendant appeared by counsel and orally moved to vacate the default judgment, to which the People did not object.
Following the vacatur of the default, Defendant moved to dismiss the prosecution on March 9, 2006, alleging a lack of personal and subject matter jurisdiction. On July 26, 2006, the court denied Defendant's motion in a decision published as People v. J & Landscaping, 2006 NY Slip Op. 51480(U) (Crim. Ct Kings County 2006). While awaiting the court's decision, on April 28, 2006, the People filed a superseding information which forms the basis for the instant trial.
Defendant moved for leave to renew and reargue its motion to dismiss which was denied by the court on October 3, 2006, Defendant having presented no new arguments or facts that [*2]would warrant the court's reconsideration of its initial decision.
A bench trial was eventually commenced on February 13, 2007, and, with adjournments, concluded on March 13, 2007. After trial the parties submitted post-trial memoranda which points will now be addressed.
Prior to discussing the post-trial memoranda, the court must first decide the People's evidentiary application to reconsider the court's denial to admit into evidence two letters written to the Department of Buildings by defense counsel on behalf of Defendant. At trial the People attempted to introduce the letters as part of the res gestae because the letters indicate Defendant's notice of the Department of Buildings order of closure and the first was dated two days after the first closure order was posted. Defendant, in its numerous motions, stated that it never had any notice of the proceedings and these letters contradict those assertions.
Upon reconsideration, the court reverses its earlier decision and agrees that the letters should be admitted into evidence as adoptive admissions of Defendant. DiCamillo v. City of New York, 245 AD2d 332, 665 NYS2d 97 (2d Dept. 1997) (letter from plaintiff's attorney is an admission by the plaintiff's agent receivable in evidence against the plaintiff for the truth of the matters asserted therein); Yannon v. RCA Corp., 100 AD2d 966, 475 NYS2d 107 (2d Dept. 1984) (affidavits of defendant's counsel constituted adoptive admissions by the defendant). The court believes that entering the letters as adoptive admissions is in line with current practice which does not favor res gestae as a hearsay exception.
Turning now to Defendant's post-trial arguments, the court finds that almost all points raised in the memorandum reiterate the jurisdictional arguments previously proffered and dismissed by the court. These jurisdictional assertions concern improper service of process and the impossibility of applying the Department of Building regulations to vacant land. People v. J & L Landscaping, op cit. Despite the court's prior rulings, the court believes that two specific items should be readdressed.
First, Defendant claims that the court erred in not permitting it to enter a certified document from the Department of State indicating that it had no record of being served in this matter on behalf of Defendant. This point is moot. As we stated in our original decision, and again in our denial of Defendant's motion to renew and reargue:
Once Defendant, by its attorney, appears to contest jurisdiction, the issue
of whether the corporation was properly served is rendered irrelevant.
People v. Benjamin Development Co., 155 Misc 2d 528, 589 NYS2d
144 (Queens County 1992). Once a defendant appears, any defects in the
service cannot be a jurisdictional bar to prosecution. Id. citing People v.
Sessa, 43 Misc 2d 24 (New York County 1964) and People v. Byfield,
131 Misc 2d 884 (New York County).
Second, Defendant argues that once the default judgment has been vacated the entire [*3]matter is erased from the court and the People must start the entire process again. In this Defendant is confusing the concept of vacating a default judgment with dismissing an action. When a default judgment is vacated, the defaulting defendant is merely granted the right, to which it is constitutionally entitled, to be heard in defense of the criminal charges that have been brought against it. People v. Sage Realty Corp., 155 Misc 2d 832, 590 NYS2d 660 (Crim. Ct. New York County 1992) (corporate defendant was convicted on default of violations of the Administrative Code): People v. Washington, 87 Misc 2d 103, 384 NYS2d 691 (Crim. Term Queens County 1976); People v. Hurt, 78 Misc 2d 43, 355 NYS2d 728 (Crim. Ct. Bronx County 1974). At that point a defendant may then challenge the underlying information, but the information, unless then found deficient, remains intact. See People v. Hoffman Floor Covering Corp., 179 Misc 2d 656, 686 NYS2d 651 (Crim. Ct. New York County 1999) (after vacating a default judgment on the part of a corporate criminal defendant the court then addressed the facial sufficiency of the accusatory instrument, which was found wanting).
At trial the Department of Buildings' inspector testified that he personally observed trucks bearing Defendant's name, materials and other commercial supplies at the subject property. The inspector photographed the premises with the aforementioned property and these photographs were introduced into evidence. This inspector is the one who physically posted the notice of order of closure on the gate of the fence.
At a second inspection one month later the inspector found additional trucks and supplies on the premises, photographs of which were also introduced into evidence. At this second inspection the witness observed that the notice of closure was missing and he posted a second notice on the premises' fence and padlocked the gate.
On a third visit to the property the inspector observed other vehicles, supplies and equipment on the property and that a new gate opening had been cut to permit entrance to the property (the padlock was still in place on the original entrance). Photographs of this inspection were also introduced into evidence.
At the conclusion of the People's case, defense rested without introducing any evidence.
Upon the testimony and evidence adduced at trial, the court finds Defendant guilty of violating sections 26-127.2 (j) and (k) of the Administrative Code and imposes a fine in the sum of $ 5,000 pursuant to section 80.10(1)(b) of the Penal Law.
This constitutes the decision and verdict of the court.
Dated: July 19, 2007
__________________________
EILEEN N. NADELSON, J.C.C.
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