| Matter of Mestecky v City of New York |
| 2015 NY Slip Op 08077 [133 AD3d 431] |
| November 5, 2015 |
| Appellate Division, First Department |
[*1]
| In the Matter of Frank Mestecky,Petitioner, v City of New York et al., Respondents. |
Guercio & Guercio LLP, Farmingdale (Christopher F. Mestecky of counsel), forpetitioner.
Zachary W. Carter, Corporation Counsel, New York (Michael Pastor of counsel), forrespondents.
Determinations of respondent Environmental Control Board (ECB), dated September26, 2013, January 30, 2014, March 4, 2014, and March 4, 2014, which, collectively,sustained seven notices of violation (NOVs) against petitioner, and denied petitioner'sapplications to vacate default judgments regarding two other NOVs, unanimouslyconfirmed, the petition denied, and the proceeding brought pursuant to CPLR article 78(transferred to this Court by order of Supreme Court [Cynthia S. Kern, J.], entered June16, 2014), dismissed, without costs.
Respondents' determinations are supported by substantial evidence, are not affectedby an error of law, and are not arbitrary and capricious (see CPLR 7803 [3], [4]).As to each of the nine NOVs at issue here, an inspector from respondent Department ofBuildings made one attempt at personally serving the NOV at the premises where theviolation occurred, before availing himself of the "affix and mail" method of serviceprescribed in New York City Charter § 1049-a (d) (2) (b). We find that theinspector's one attempt at personal service satisfies the "reasonable attempt" requirementset forth in section 1049-a (d) (2) (b).
The reference to CPLR article 3 in the City Charter's affix and mail provision merelyprescribes the class of individuals whom respondents must try to personally serve, anddoes not import the "due diligence" requirement of CPLR article 3 (see Matter ofGallo v City of New York, 36 Misc 3d 1204[A], 2012 NY Slip Op 51188[U], *8[Sup Ct, Queens County 2012]). This interpretation of the City Charter is supported bythe statutory language as a whole, and by the legislative history showing a legislativeintent to make service under section 1049-a (d) (2) of the City Charter less onerous thanservice under CPLR article 3 (see id.; see also Governor's Memapproving L 1979, ch 623, 1979 McKinney's Session Laws of NY at 1816-1817).
Petitioner's reliance on this Court's decision in Matter of Wilner v Beddoe (102 AD3d 582 [1st Dept2013]) is misplaced because, in that case, the respondents made no attempt to personallyserve three of the four petitioners (id. at 584). We also reject petitioner's relianceon case law interpreting the "reasonable application" standard set forth in RPAPL 735(see e.g. Eight Assoc. v Hynes, 102 AD2d 746 [1st Dept 1984], affd 65NY2d 739 [1985]). That provision serves a very different purpose, in a different context,from the City Charter provision at issue in this case.
We agree with respondents that petitioner's article 78 challenges to ECB's decisionsdenying his motions to vacate default judgments as to two of the NOVs at issue aretime-barred under the applicable four-month statute of limitations (see CPLR 217[1]; see also Matter of Rocco vKelly, 20 AD3d 364, 365-366 [1st Dept 2005]).
We have considered petitioner's remaining arguments regarding alleged proceduraldefects and find them unavailing. Concur—Tom, J.P., Friedman, Andrias, Gischeand Kapnick, JJ.