| Matter of First Horizon Home Loans v New York City Envtl.Control Bd. |
| 2014 NY Slip Op 04485 [118 AD3d 875] |
| June 18, 2014 |
| Appellate Division, Second Department |
[*1]
| In the Matter of First Horizon Home Loans,Respondent, v New York City Environmental Control Board,Appellant. |
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Kristin M. Helmers andMichael J. Pastor of counsel), for appellants.
Frenkel, Lambert, Weiss, Weissman & Gordon, LLP, Bay Shore, N.Y. (JosephBattista and Michelle D. Maccagnano of counsel), for respondent.
In a proceeding pursuant to CPLR article 78 to review certain determinations of theNew York City Environmental Control Board denying the petitioner's applications tovacate its default in appearing for hearings in connection with certain notices ofviolation, the New York City Environmental Control Board appeals from so much of anorder of the Supreme Court, Queens County (Weiss, J.), entered March 18, 2013, asgranted that branch of the petition which was to annul its determination dated March 1,2012, denying the petitioner's application to vacate the petitioner's default in appearingfor a hearing in connection with notice of violation number 34907811K, and thereuponremitted the matter to it for further proceedings on that notice of violation.
Ordered that on the Court's own motion, the notice of appeal from the order isdeemed to be an application for leave to appeal, and leave to appeal is granted(see CPLR 5701 [c]); and it is further,
Ordered that the order is affirmed insofar as appealed from; and it is further,
Ordered that one bill of costs is awarded to the petitioner.
The New York City Department of Buildings (hereinafter the DOB) issued notice ofviolation number 34907811K, which alleged that the petitioner, First Horizon HomeLoans (hereinafter Horizon)—a foreign corporation—continued theunlawful use of an apartment located on property that it owned. A hearing on the noticeof violation was scheduled to be held before the New York City Environmental ControlBoard (hereinafter the Board). When Horizon failed to appear at the hearing, the Boardfound Horizon in default, and imposed a penalty in the amount of $24,000.
Some months later, Horizon submitted a request for a new hearing. Horizoncontended that its default should be vacated because it had not received notice of thealleged violation, and that the method of service utilized by the DOB to serve the noticeof violation was [*2]improper. In a determination datedMarch 1, 2012, the Board denied Horizon's request, stating that its records showed thatthe DOB had properly served Horizon with the notice of violation pursuant to a methodof substituted service enumerated in and authorized by the New York City Charter.
Horizon subsequently commenced this proceeding pursuant to CPLR article 78 to,among other things, review the Board's refusal to vacate Horizon's default in appearing atthe hearing. The Supreme Court, inter alia, granted that branch of the petition,concluding, in effect, that the Board's determination was affected by an error of law, andwas arbitrary and capricious. The Board appeals from that portion of the order.
The New York City Charter provides that notices of violation issued in connectionwith matters overseen by the Board must be "served in the same manner as is prescribedfor service of process by [CPLR article 3] or [Business Corporation Law article 3]" (NYCity Charter § 1049-a [d] [2] [a]; see Matter of Wilner v Beddoe, 102 AD3d 582, 583[2013]). "Among four enumerated exceptions to this provision are two relating to serviceof [notices of violation] of City Charter or Administrative Code provisions enforced byvarious departments, including, as pertinent here, the New York City Department[ ] ofBuildings" (Matter of Wilner v Beddoe, 102 AD3d at 583, citing NY CityCharter § 1049-a [d] [2] [a] [i], [ii]). Such notices of violation may beserved by "delivering such notice to a person employed by the respondent on or inconnection with the premises where the violation occurred" (NY City Charter§ 1049-a [d] [2] [a] [i]), and may also be served "by affixing such notice ina conspicuous place to the premises where the violation occurred" (NY City Charter§ 1049-a [d] [2] [a] [ii]), coupled with mailing of a copy of the notice ofviolation "to the respondent at the address of such premises" (NY City Charter§ 1049-a [d] [2] [b]; see Matter of Wilner v Beddoe, 102 AD3d at583). "Even with respect to these two exceptions, however, such substituted service maynot be effected unless 'a reasonable attempt has been made to deliver such notice. . . as provided for by [CPLR article 3] or [Business Corporation Lawarticle 3]' " (Matter of Wilner v Beddoe, 102 AD3d at 583, quoting NYCity Charter § 1049-a [d] [2] [b]). "The failure to make any effort atpersonal service runs afoul of the New York City Charter's directive that a 'reasonableattempt' at personal service be made prior to resort to alternative means of service"(Matter of Wilner v Beddoe, 102 AD3d at 584).
Here, Horizon demonstrated that it did not receive the notice of violation. Further,the Board failed to adduce any evidence to show that, prior to purportedly serving thenotice of violation pursuant to a method of substituted service enumerated in the NewYork City Charter, the DOB had made reasonable attempts to serve the notice ofviolation upon the petitioner as provided for by the applicable provisions of CPLR article3 or Business Corporation Law article 3 (see NY City Charter§ 1049-a [d] [2] [b]; see also CPLR 311 [a] [1]; BusinessCorporation Law §§ 304 [a]; 305 [a]; cf. Capital Source v AKO Med.,P.C., 110 AD3d 1026, 1026 [2013]). Accordingly, the Supreme Court properlygranted that branch of the petition which was to vacate the Board's determinationdenying the petitioner's application to vacate its default in appearing at the hearing inconnection with notice violation of number 34907811K, and thereupon remitted thematter to the Board for further proceedings on that notice of violation. Rivera, J.P.,Balkin, Chambers and Miller, JJ., concur.