| Matter of Ariel Servs., Inc. v New York City Envtl. ControlBd. |
| 2011 NY Slip Op 07685 [89 AD3d 415] |
| November 1, 2011 |
| Appellate Division, First Department |
| In the Matter of Ariel Services, Inc., Petitioner, v NewYork City Environmental Control Board et al., Respondents. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York (Julie Steiner of counsel), forrespondents.
Determination of respondent New York City Environmental Control Board (ECB) datedSeptember 30, 2010, which, after an evidentiary hearing, found that petitioner violated 15 RCNY1-51 (g) and 1-102 (b), (d) and (f), and imposed civil penalties totaling $12,000, unanimouslyconfirmed, the petition denied and the proceeding brought pursuant to CPLR article 78(transferred to this Court by order of the Supreme Court, New York County [Cynthia S. Kern, J.],entered April 13, 2011), dismissed, without costs.
Petitioner contends that it was denied due process because it did not receive a copy ofrespondent New York City Department of Environmental Protection's appeal from theAdministrative Law Judge's decision that had been in petitioner's favor. This argument isunavailing since "a properly executed affidavit of service raises a presumption that a propermailing occurred, and a mere denial of receipt is not enough to rebut this presumption" (Kihlv Pfeffer, 94 NY2d 118, 122 [1999]).
Contrary to petitioner's contention, ECB's determination was supported by substantialevidence. The agency's decision not to credit the testimony of petitioner and the building'ssuperintendent that petitioner did not perform work in the building's boiler room on January 11,2010 should not be disturbed (see Matter of Berenhaus v Ward, 70 NY2d 436, 443[1987]).
The penalty imposed does not shock our sense of fairness, as the fines were imposed inaccordance with 48 RCNY 3-101. Concur—Gonzalez, P.J., Tom, Sweeny and Renwick,JJ.