| Matter of Wilner v Beddoe |
| 2013 NY Slip Op 00415 [102 AD3d 582] |
| January 29, 2013 |
| Appellate Division, First Department |
| In the Matter of Rywa Wilner et al.,Appellants, v Suzanne A. Beddoe, Chief Administrative Law Judge, NYCEnvironmental Control Board, NYC Office of Administrative Trials and Hearings, et al.,Respondents. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York (Michael J. Pastor of counsel),for respondents.
Order and Judgment (one paper), Supreme Court, New York County (Judith J.Gische, J.), entered on or about September 19, 2011, which denied Wilner's, Gladys's,and Palazzdo's petitions seeking an order vacating their defaults before respondentEnvironmental Control Board (ECB), and granted Plan B Engineering's petition to theextent of remanding that matter to ECB for a determination of Plan B's application tovacate its default, unanimously modified, on the law, to grant Gladys's, Palazzdo's, andPlan B's petitions to the extent of vacating the default judgments against them, andotherwise affirmed, without costs.
Section 1049-a of the New York City Charter, the enabling legislation whichunderlies 48 RCNY 3-82 (Rule 3-82), governing procedures for vacating defaults beforeECB, requires that notices of violation (NOV) of matters overseen by ECB be "served inthe same manner as is prescribed for service of process by [CPLR article 3] or [BusinessCorporation Law article 3]" (NY City Charter § 1049-a [d] [2] [a]). Among fourenumerated exceptions to this provision are two relating to service of NOVs of CityCharter or Administrative Code provisions enforced by various departments, including,as pertinent here, the New York City Departments of Buildings and EnvironmentalProtection (see NY City Charter § 1049-a [d] [2] [a] [i]-[ii]). Such NOVsmay be served by delivery to "a person employed by the respondent on or in connectionwith the premises where the violation occurred" (NY City Charter § 1049-a [d] [2][a] [i]), or "by affixing such notice in a conspicuous place to the premises where theviolation occurred" (NY City Charter § 1049-a [d] [2] [a] [ii]), coupled withmailing of a copy of the NOV "to the respondent at the address of such premises" (NYCity Charter § 1049-a [d] [2] [b]). Even with respect to these two exceptions,however, such substituted service may not be effected unless "a reasonable attempt hasbeen made to deliver such notice . . . as provided for by [CPLR article 3] or[Business Corporation Law article 3]" (NY City Charter § 1049-a [d] [2] [b]).
CPLR article 3, in turn, establishes a regime of service upon, as pertinent here,natural persons, which permits substituted service, such as "nail and mail service," onlywhere service by personal delivery to either the respondent or a person of suitable ageand discretion "cannot be made with due diligence" (CPLR 308 [4]). BusinessCorporation Law article 3 similarly requires that service of [*2]process, as a rule, be made by personal delivery to thecorporation's registered agent or to the secretary of state (see BusinessCorporation Law §§ 306, 307).
Of the four petitioners here, the record indicates that efforts were made to personallyserve only Wilner. Gladys, Palazzdo, and Plan B were all served by alternative means ofaffixing copies of the NOVs at the premises, coupled with service by mail, but with noprior attempt at personal service. The failure to make any effort at personal service runsafoul of the New York City Charter's directive that a "reasonable attempt" at personalservice be made prior to resort to alternative means of service (see Matter of Oparajiv City of New York, 2011 NY Slip Op 33265[U] [Sup Ct, Queens County 2011]).
We have considered petitioners' remaining arguments, including their contention thatRule 3-82 is violative of their rights to due process, and find them unavailing.Concur—Andrias, J.P., Sweeny, DeGrasse, Freedman and Richter, JJ. [PriorCase History: 33 Misc 3d 900.]