Matter of DJW Mgt. LLC v New York City Envtl. Control Bd.

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Matter of DJW Mgt. LLC v New York City Envtl. Control Bd. 2013 NY Slip Op 32093(U) September 4, 2013 Sup Ct, New York County Docket Number: 112085/11 Judge: Paul Wooten Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] SCANNED ON 91912013 SUPREME COURT OF THE STATE OF NEW YORK PRESENT: - NEW YQRK COUNTY HON. PAUL WOOTEN PART 7 Justice In the Matter of the Application of DJW MANAGEMENT LLC, Petitioner, 112085/11 INDEX NO. -against- MOTION SEQ. NO. 001 For a Judgment Pursuant to the Provisions of Article 78 of the New York Civil Practice Law and Rules, NEW YORK CITY ENVIRONMENTAL CONTROL BOARD, Respondent. SEP 0 9 2013 couNn CLERKs OFFICE NFW YORK The following papers, numbered 1to 4 were read on this motion by petitioner for an order and judgment pursuant to Article 78 of the Civil Practice Law and Rules reversing, annulling and setting asids the decision and finding of the Environmental Control Board (ECB). PAPERS NUMBERED Notice of Motion/ Order to Show Cause - Affidavits - Exhibits ... Answering Affidavits - Exhibits (Memo) Replying Affidavits (Reply Memo) Cross-Motion: Yes No In this Article 78 proceeding, DJW Management, LLC (DJW or petitioner) seeks an order, reversing, annulling and setting aside the June 27, 201 1 default judgment and fine of the Environmental Control Board (ECB) and the August 24, 201 1 decision denying petitioner s application to vacate default judgment against DJW on the notice of violation (NOV) number 034908856M (NOV at issue) and directing the ECB to hold a hearing on the NOV at issue. The ECB levied the maximum fine of $6,000.00 against DJW on default regarding the NOV at issue. The ECB submits papers in opposition to the herein motion and ct-oss-moves to dismiss, pursuant to CPLR 321 1(a), alleging that the action was brought improperly because the petitioner was listed as H. Ted Hu, (Hu), that Hu lacked standing to file on behalf DJW, and on the basis that DJW must be represented by counsel, pursuant to CPLR 321 (a). Thereafter, Hu Page 1 of 7 [* 2] retained counsel and the ECB withdrew its cross-motion pursuant to a So-Ordered Stipulation dated August 8, 2012, wherein DJW was substituted in this proceeding in place of Hu. BACKGROUND n or about May 13, 201 1, the New York City Department of Buildings (DOB) allegedly NOVs, numbered 034908856M and 034900857Y, simultaneously against JDW s welling located at 2736 Pitkin Avenue, Brooklyn, New York. The DO6 cited two violations of different Building Codes due to an alleged illegal basement on the premises. ECB hat copies of the NOV s were subsequently mailed to the petitioner on June 7, 201 1, which set a hearing date of June 27, 2011 for both NOV s at 10:30 a.m., at the ECB office Floor, 33 Schermerhorn Street, 1lth Brooklyn, New York, 11201 (Brooklyn ECB ubsequently, on June 27, 201 1 petitioner appeared to contest NOV 034900857Y. At ~ / petitioner conceded service for this NOV, alleging that it was left on the front gate of he building premises, and petitioner found it timely. The ECB allowed petitioner to adjourn, uently go forward on NOV 034900857Y. Consistent with ECB Administrative Rules, permitted to represent DJW before the ECB. He alleged that on NOV 034900857Y, the plaint was filed by a non-paying tenant alleging that the basement had been legal for cite). ECB Administrative Law Judge (ALJ) Aubreys Lees, by decision hand ted August 25,2012, dismissed NOV 034900857Y. In her decision ALJ Lees r. Athanios [DOB S counsel] stated that after reviewing the HPD records, he would iss the NOV as the records indicate that respondent [DJW] was not in violation. I The ECB holds hearings to adjudicate whether persons or entities should be held responsible for violating local laws, rules and regulations that concern pollution and other quality of life issues in New k City (Matter of Winer v Beddoe, 33 Misc3d 900 [2011 NY Slip Op 212761 [Sup Ct, New York County I], citing NY City Charter fj 1049-a[d]). The DOB is one of the 13 New York City agencies that are issue violations, and the NY City Charter authorizes the ECB to adjudicate these issued Page2of 7 [* 3] find that the NOV does not set forth a prime facie case. I credit petitioner s evidence and grant motion to dismiss the violation (see ECB order dated August 24, 201 1, but hand etime during his defense of NOV 034900857Y, petitioner learned that the ECB it on June 27, 201 1, and assessed the maximum fine of $6,000.00 with regards to the ssue. In accordance with ECB rules, petitioner moved to vacate the default in a form tion dated August 17, 201 1. By letter dated August 24, 201 1, the ECB denied the appli to vacate the default in a one line statement, without any rationale. The herein Article 78 petition ensued. Petitioner denies proper service of the NOV at issue. Specifically, petitioner asserts that he NOV at issue listed the wrong party name, JDW Management LLC, not the proper party Management, LLC (see Petition, page 2, section 2; ECB exhibit C). Petitioner he did not receive notice because the NOV at issue was not properly served on him. Petitioner also proffers that the ECB improperly and wrongly denied his application to vacate the default determination. In support, petitioner asserts that the default determination should be the maximum fine lifted because he has an excusable reason for his non- e on June 27, 201 1. Specifically, petitioner maintains that he was present at the and date at the Brooklyn ECB office, and he appeared and responded to NOV but that he did not respond to the NOV at issue because he had not received any is NOV. Petitioner also proffers that he has a meritorious defense to the NOV at / t he asserts the same defenses as he asserted as to NOV 034900857Y, which the d and subsequently dismissed. Although the hearing from the NOV at issue was same day, time, and location, petitioner alleges that it had no notice of same and the ly issued a default against it. In opposition, ECB proffers that the petitioner was properly served with the NOV at issue Page3of 7 [* 4] accordance with NY City Charter §1049-a(h), and that copies of both NOV's were mailed to the petitioner on June 7 , 201 1, bearing the same hearing return date. ECB asserts that the order regarding the NOV at issue was allegedly mailed to the petitioner on July 5, 201 1 ffidavit of service, exhibit B) and the ECB's records did not support petitioner's claim ot sent notice of the default order. ECB also found that petitioner's application to vacate the default was untimely by six days, alleging that the deadline was August 11 201 1 because the request was not made within 45 days of the missed hearing date, or 30 days of the mailing of the default order (see ECB Memorandum of Law at 1): On these grounds ECB aintains that its determination to deny petitioner's request to vacate the default judgment must s it was reasonable, rational and consistent with the relevant laws. STANDARD ndard of review in this Article 78 proceeding is whether the ECB's determination iolation of lawful procedure, was affected by an error of law or was arbitrary and an abuse of discretion" (CPLR 7803[3]; see also Matter of Scherbyn v r Lakes Bd. of Coop. Educ. Sews., 77 NY2d 753, 758 [1991]). Furthermore, the als has held "that the interpretation given to a regulation by the agency which it and is responsible for its administration is entitled to deference if that s not irrational or unreasonable" (Matter of Gaines v New York State Div. o f ommunity Renewal, 90 NY2d 545, 548-549 [I 9971; see also Matter of Pel/ v Board of ion Free School Dist. No. 7 of Towns of Scarsdale and Marnaroneck, Westchesfer Y2d 222, 231 [ I 9741; Matter of West Vi/.Assoc. v New York State Div. of Hous & enewal, 277 AD2d 111, 112 [Ist Dept 2OOOJ [a rational and reasonable determination of the DHCR within its area of expertise is entitled to deference by the courts]). As such, a court "may not overturn an agency's decision merely because it would have reached onclusion" (Matter of Sullivan County Harness Racing Assn. v Glasser, 30 NY2d Page 4 of 7 [* 5] 269, 278 [1972]; see also Matter of Verbalis v New York State Div. of Hous. & Community Re 1 AD3d 101 [Ist Dept 20031). ection 1049-a of the New York City Charter, the enabling legislation which underlies 3-82 (Rule 3-82), governing procedures for vacating defaults before ECB, requires J of matters overseen by the ECB be served in the same matter as is proscribed for f process by [CPLR article 31 or [Business Corporation Law article 31 (NY City Charter d][2][a]) (Matter of Wilner v Beddoe, 102 AD3d 582, 583 [ 1st Dept 20131). There are erated exceptions to this service provision, two of which relate to service of NOVs of er or Administrative Code provisions enforced by various departments, including as icable here, the DOB (id., see also NY City Charter § 1049-a[d][2][a][i]). Such NOVs may ed by delivery to a person employed by the respondent on or in connection with the here the violation occurred (NY City Charter 5 1049-a[d][2][a][i]), or by affixing ice in a conspicuous place to the premises where the violation occurred (NY City 049-a[d][2][a][ii]), coupled with the mailing of a copy of the NOV to the respondent ess of such premises (NY City Charter § 1049-a[d][2][b]). Even with respect to xceptions, however, such substituted service may not be effected unless a , ble attempt has been made to deliver such notice . . . as provided for by [CPLR article iness Corporation Law article 31 (NY City Charter 1049-a[d][2][b]). Business Law §§ 306 and 307 mandates, as pertinent here, that service of process be made delivery to the corporation s registered agent or to the secretary of state. DISCUSSION City Charter gives an applicant 30 days to move to open a default or any ECB NY City Charter 1049-a[d][l][hj). ECB proffers that service was effectuated by a York Issuing Officer, who states in the affidavit of service that the NOV at issue was etitioner using Alternative MethodKharter Service and that No responsible party Page5of 7 [* 6] or owner present. Violation posted on front door (see Verified Answer, exhibit A, p. 2) While the ECB found that petitioner did not fulfill the requirements of 48 RCNY § re was ample evidence in the record demonstrating that petitioner had an excusable reason for his non-appearance and a meritorious defense for the maximum fine regarding the NOV at issue. As such, the Court finds that there are significant factual issues with the case at ecifically, (1) whether the ECB named or served the correct party in the NOV; and (2) B properly effectuated the nail and mail requirements of the City Charter, first; (a) ly effectuating personal service on a responsible party, (see NY City Charter 91049and (ii); see also Matter of Wilner v Beddoe, 102 AD3d 582 [Ist Dept 2013]), and the proper attachment or nail procedure of the NOV. he Court is concerned that even though petitioner appeared at the Brooklyn ECB office to NOV 034900857Y, he was defaulted on the NOV at issue when both NOV s were or a hearing on the same date, time and location. Furthermore, the record does not indicate what efforts the DOB Issuing Officer made to personally serve petitioner pursuant to orporation Law 5 306 or 307. The failure to make any effort at personal service the New York City Charter s directive that a reasonable attempt at personal ade prior to resort to alternative means of service (Matter of Wilner v Beddoe, 102 AD3d 582, 583 [Ist Dept 20131,citing Matter of Oparaji v City of New York, 201 1 NY Slip Op Sup Ct, Queens County 201 I]). CONCLUSION r these reasons and upon the foregoing papers, it is, ORDERED that petitioner s Article 78 petition is granted; and it is further, ORDERED that the matter of the NOV at issue is remanded to the ECB for a new hearing; and it is further, ERED that petitioner shall serve a copy of this order,with notice of entry, upon the Page6of 7 [* 7]

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