Matter of 38-12 Realty LLC v New York City Envtl. Control Bd.
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Matter of 38-12 Realty LLC v New York City Envtl. Control Bd. 2013 NY Slip Op 30188(U) January 24, 2013 Sup Ct, New York County Docket Number: 103929/12 Judge: Alexander W. Hunter Jr 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] [* 2] c Index No.: I03929/12 Petitioner, Decision a i d Judgincnt For a Judgnicnt Pursuant to Article 78 of the Civil Practice Law and Rulcs, -againstNew Y ork City Environmental Control Hoard, Kespondent. I hcapplication by petitioner for an ordcr, pursuant to Article 78 of tlic CPLR, annullhg and vacating respondcnt s denial of petitioncr s request for a new hearing date with respect to 4N violatioil number 500-437-1 and granting petitioner a new hearing datc, is granted. Pctitioner is a New York State limited I iability corporation that owns the property located at 38-1 2 32 Street, Queens, NY 1 1.101( subSjectpremises ). Respondent is the Ncw York City Environmental Control Board ( ECB ), which has authority pursuant to the New York City Cliarter ( City Charter ) to adjudicate thc Notices of Violation ( NOV )issued by various city agencics. On November 16, 201 1 , respondent inspected thc subject prcinises for asbestos and issued an Asbestos Inspcction Kcport ( report ). The report listed petitioner s address as 38I2 32 Strcct, Queens, NY I 1104. On or about Novembcr 17,201 1 , rcspondent issucd NOV nuniber 500-437-14N, to petitioncr for h u r violations ofthe New York City Administrative Code ( Administrative Code ) undcr the Air Pollution Control Code scctioiis involving asbestos removal, with a scheduled hearing date ol F ebruary 24,2012. The subjcct NOV listed the samc address for petitioner as tlic address indicated on the report. The only difference betwcen the addrcss on the report and the subjcct NOV and the addrcss of the sub*jcctpreniiscs, is the last digit of the zip codc. N o such address exists with a 1 1 104 zip code. Pctitioner did not appear on February 24,201 2, and a deFailt judgment in the amount of $52,000.00 was entered against petitioner for the subject NOV. Petitioner alleges that it lirst y becamc aware ol the violation and subsequcnt default on J ~ l 3 1,2012 through thc results of a title scarch. Petitioncr submittcd a form rcyuest for a ncw hearing to vacate the default, dated August 20,20 I 2, on the grounds that petitioner did not receive the ticket (notice of violation) because the issuing agency did not scrve the ticket correctly. The f o m lists petitioner s addrcss [* 3] c as 20-1 0 38th Avenue, Long Island C ity, N Y 1 1 10 I and also gives tlic address of petitioner s 201 attorney. Rcspondciit denied tlic rcquest in a letter datcd Augii~t30, 2, because our records show that the ticket was propcrl y served so that [peti tioiler] should have received notice. Rcspondent attaches Lour versions 01 denial lcttcr that was niailcd to petitioner: two the addressed to the subject premises, onc addrcssed to petitioner, and one addressed to petitioner s attorney. Pctitioner claims it was nevcr served with the subjcct NOV, and alleges that service by a mailing to the address ol tlic sukject premises would have been iimpossiblc because the building located at the sub+jcct premiscs was deniolished on or about Octobcr 3 1 , 201 1. Respondent attaclics a web printout of an approved New York City Department of Buildings application for the subjccl premises, dated Novcmber 5 , 2012, whicli indicates that the application was approved on Aiig~ist15, 201 1 , and that FULL demolition will begin on 12/05/201 1. The application lists the location i nforination and gives addresses and other contact information lix thc applicant of record and filing representative. The New York City Dcpartment of Enviroiiinental Protection ( DEI ) served the subject NOV on petitioner by a mailing to the sLib,jcct prcmises on January 11, 2012, but the envclope was returned to respondent on o r about January 17, 201 2, with the marking RETURN TO S KNDER NO SIJC1-I NUMBER UNABLE TO FORWARD. Respondent attaches the affidavit of service for thc inailed NOV and a copy of the returned envelope. The envelope is addressed to: 38-12 32 Street Realty LLC, 38- 12 32 Street, Queens, N.Y. 11 104. I his is not petitioner s address atid refers to a nonexistent location. I IicCity ofNew York Asbestos Control Project served the subject NOV on pctitioiier by a mailing to the subject premises on January 18, 2012. Respondcnt attaches the daily affidavit of scrvice lbr the 2 19 NOVs served on January 18, 201 2, which lists petitioner s address as 38 12 32nd St, Long Island Cit, NY 1 1 101-2207. I<espondent does not state whether or not this niailing was returned. Servicc of the sub-jectNOV was also attcrnpted on the New York Secretary of State. Respoiidciit attaches the aftidavit of servicc, which shows that the person who delivcrcd the subject NOV had the affidavit of. servicc notarized but not signed. ICespondcnt attaches, in support of its answer, the DKP Asbestos Project Notifkation, received Novcmber 22,201 1 , which lists the address for tlic facility as the sub-jectpremises and the address for the building owner as the same except for giving 11 104 as the zip code. Thc form also gives the addresses for the appljcant, asbestos abatcment contractor, and third party monitor. llcspondcnt also attaclies copies of a Quarterly Statcnient of Account for activity through November 18,20 1 1 , a Notice of Property Value datcd January 15, 20 12, and a Propcrty lax Bill Quarterly Statement for activity through February 24, 2012, which all list the correct address of thc subject premises as the mailing address. 2 [* 4] Yetitioncr attaches a print out ol ttie entity information f ~ w 38-12 Realty I,LC:, currctit through November 16, 2012, lrom the Ncw York State llepartment of State, Division of Corporations website. The address listed for service is: 24-14 24th Avenue, Astoria, New York I 1 102. Petitioner also atlaches its Articles ol Organization, dated January 9, 2006, and the liling receipt for the hticles ol Orgaiiization, datcd Jaiiuary 11, 2006, both of which give the same address l b r scrvice as the entity inlomiation. l he New York City Kdes and Kegulatioiis ( City Rules ) set forth the rcquirements for a iiew hearing. A request for a new Ilearing receivcd niorc than 45 days fi-om the scheduled hearing date rriay bc grantcd if it is received within onc ycar ol the timc the party learned ofthe existence ofthe violation and there is a reasonable basis to belicve that the party did not receive the NOV bccause the party was nut properly served with thc violation under Article 3 oi llie C P I , k Articlc 3 ol*the 13iisincss C orpomtiou IJW. Section 1049-a of the City I- haru*ter, r a n y o other provision relating to scrvice of violations rcturriable to thc ECB contained in the Administrative Code or the City Rules. 48 RC NY (5 3 (82) (c) (1) (A). Each method of service listed is a permissible altcrnate method 01 service that is not mandated to the ciclusion of other pcmiissible inodes of service. Matter of Wilner v. Reddoe, 33 Misc 3d 900,903,201 1 NY Slip Op 21276 (Sup Ct, NY County, 201 1). [t should be iiotcd that Section 1049-a o f t h u City C harter is iiiapplicablc in the instant proceeding because it does not limit the permissible methods ol service for NOVs issued by the D6P. Nonetheless, respondent must serve the NOV in accordance with Scction 1049-a (d) (2) of thc C ity C hzrtcr in ordcr to docket the judgment for purposes of collecting the penalty imposed without applying to the court. l he Administrative Codc sets lbrth thc rules for servicc of papers by the Commissioner of the DEP. Petitioner falls uiider thc definition of a person. Scction 24-1 15 (b) of tlie Adm i nislrativc C ndc provides: Servicc of any written notice, order o r decision reyriirccl by this codc shall be inaclc on 21 purson: ( I ) Either by mailing the notice, ordcr o r decision directed to thc pcrsoii at his or hci*principal placc ol busincss: o r (2)Hy Icaviiig tlic notice, ordcr or dccision with tlic p a w n , or it tho pcrson is not a n individual. with B inenibcr of 1l1cpartncrship o r group coticcrned, or wi tli an of iker or managing agent (31 the corporation, Petitioner s use of thc addrcss of the subject prcniises in the documents attached by respondent does not establish that this address was petitioner s principal place of business for purposes of thc Administrative Code. l ht:Adniinistrative Code does not definc principal placc of business. The First Department has held that the courts look to the certihate ol incorporation to determine a corporation s principal place 01 business for purposes of CPLR 503 (c), which concerns venue based on residence. Discolo v. River Gas & Wash Curp,, 41 AD3d 126,2007 NY Slip Op 3 [* 5] c 04712 (1st Dept 2007); see, .Job v. Subaru Leasing Corp., 30 AD3d 159,2006 NY Slip Op 04315 (1st Dept 2006); Johanson v. J.B. Hunt I ransp., Inc., 15 AD3d 268,2005 NY Slip Op 01138 (1st Dept 2005). It is not clear whcther the certificate of incorporation deteririities a corporation s principal plact: of business for piirposcs of scrvicc of a NOV. However, rcspondcnt \vas on iioticc that tlic btiilcting at the sub-jcct prcniiscs was scheduled for dcmolition bcginning Dccembcr 5 , 201 1 when it attcmptcd to serve llic NOV by mail in January 2012. ? tic record is i i o i clear on llic exact date llic huilcling wits de~nolislied, both parlies agrec that it but was dciiiolished in January 201 2. If respondciit was uncertain w11t ilicr the building w;is actually dcmolislied. it should haw lakcn prccautions b j mailirxg thc N O V to multiplc ;iddrcsxs, as cvidcntly was its practice with tlie dcni;il Ictier. It should bc notcd that the faulty aflidavil of servicc for tlie Secretary 01 State is irrclevant in the instant case. Respondent only needs to satisfy m e of the permissible mcthods of service, and Scction 24- 1 1 S (b) ol thc Adniinistrative Code does not rnandatc: servicc on the Secretary or Slate when scrvicc i s nrade 011 a pcrson, which is ckiiiicd to include entities such as limi ICJ1iabil i ty corporal ions. It is well settled that a detemiinrttion is arbitrary and capricious when it is made without Matter of Pel1 v. sound basis in reason and is generally taken witliout regard to the facts. Bd. of Educ. of [Inion Free School Dist. No. 1 of Towns of Scarsciale & Mamaroneck, Westchcster County, 34 NY2d 222,231 (1974). l+;venthough the court might have decided difliercnlly were it in the agcncy s position, the court may not upset the agency s determination in the absencc oi a finding, not supported by this record, that thc determination had no rational basis. Matter of Mid-State Mgt. Corp. v. New York Citv Conciliation & Appeals Ed., 112 AD2d 72,76 (1st Dept 1985). Therefore, this court s role is limited to whether or not respondent s dccision to deny petitioner s request Cor a new hearing was made without a rational basis. e, rhis cowl finds that, / w e d on thc record, respondent could not have rcasonably bclievcd that thc NOV was propcrly scrved. Respondent s first attcinpt at service was to a nonexistent addrcss and therc is no dispute that this service is not valid. Kespondent s second attcnipt at service was to a building that no longcr existed. Despite the docunienls rcspondent submits listing the address of the subject premises at various points in time, respondent was oii noticc that the building at thc subject premises was already dcrnolislied when it attempted in January 201 2 to scrve lhc NOV by a inailing to the demolished building. This proceeding should be remanded back to respondent to vacatc the delault for violation number 500-437-14N and to grant petitioner a new hearing date. [* 6] Accordingly, it is hereby, ADJIJDGEI), that tlic pctition is grantcd to thc cxtcnt of remanding the inattcr back to respondcnt to vacate petitioner s default with respect lo violation n u m bcr 500-437- 14N and grant petitioner s request for a ncw hcaring, with costs and disburscments to petitioner. Datcd: Jaiiirary 24, 201 3 ENTER: 5
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