Matter of Oparaji v City of New York

 

          Petitioner sought an Article 78 proceeding in order to annul a final determination made by the New York City Environmental Control Board that affirmed five separate violations. 

          Respondents asserted that the ECB’s decision “was based upon substantial evidence in the administrative record and in all respects conforms with the applicable statutes, laws and regulations, and was a proper exercise of the ECB’s discretion, and was reasonable and rational and should be upheld by the courts.”

          Judicial review is limited to whether the decision was “arbitrary and capricious, that it exceeded ECB’s statutory authority or was made in violation of the Constitution or the laws of the State. 

          The respondent utilized the “affix and mail” service for all of the NOV’s.  New York City Charter Section 1049-a(2) (b) provides that an “affix and mail” option can only be resorted to after “a reasonable attempt has been made to deliver such notice to a person in such premises upon whom service may be made as provided for.”

          A “reasonable attempt” could be considered as at least two attempts at personal service, one during general working hours and once when a person who may work general working hours would be reasonably expected to be home. 

          Considering the ECB final determination, respondent’s ignored the requirement of a reasonable attempt to serve petitioner with NOV’s before choosing to “affix and mail” the NOV’s. 

          The Court found that the ECB failed to determine whether the serving officers made a reasonable attempt to service petitioner with the NOV’s prior to choosing the “affix and mail” secondary option.  The Court found that the ECB’s determination that the petitioner had been properly served and that the ECB had jurisdiction over him was arbitrary and capricious.  Therefore the request to annul the respondent’s determination was granted. 

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