Posted on February 16, 2012 by Kevin Sheerin

ECB Incorrectly Serves Business NOVs, Matter Remanded to ECB

Taxraja Management, LLC v. The City of New York Environmental Control Board

 

          Petitioner, Taxraja Management, LLC brought about these Article 78 proceedings that looked to vacate sixteen default judgments by NYC ECB, Respondent. 

          Petitioner claimed that he never received the sixteen NOVs.  Once he received a notice of collection he contacted ECB and was advised to file “a request to vacate” in response to the NOVs.  Petitioner followed this advice and it was denied by the ECB who claimed service was completed.  Petitioner claims that the ECB did not properly serve the NOVs by “certified mail, return receipt requested, as required by Section 1049-a of the City Charter, or in accordance with Article 3 of the CPLR.”  Petitioner claims that ECB violated his right to due process, cross examination, presentation of evidence, and his right to a fair hearing.

          The ECB failed to supply a sufficient affidavit of service.  The affidavit of service only included one of the NOV numbers and not the remaining 15.   Therefore, it was determined that Respondent’s did not comply with the City Charter 1049-a.  

          New York City Charter 1049-a(d) (1) (h) mandates that the ECB send notice of default by “first class mail before a judgment can be docketed in the Civil Court of the City of New York.”  The “actual notice of default” supplied by Respondents was not included in the administrative record.  Therefore, “the court is unable to determine whether the petitioner was properly served with a notice of default with respect to each of the sixteen NOVs.” 

          Petition was granted, the ECB’s denial of requests for a new hearing were vacated and remanded to ECB for further proceedings. 

 

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Posted on February 1, 2012 by Kevin Sheerin

NOV's Improperly Served by ECB

Matter of 49 Warren Realty, LLC v City of New York

 

          Petitioners, the former and present owners of the subject premises, sought a CPLR Article 78 proceeding against respondents, City of New York, City of New York Office of Administrative Trials and Hearings, The City of New York Environmental Control Board and Carolyn Klein for (1) to vacate ECB violations against Petitioners (2) grant a hearing on the merits and/or (3) dismiss the violations for failure to state a cause of action and to obtain jurisdiction over petitioners.  Respondent’s cross-moved for an order pursuant to CPLR 3211(a) (5) on the grounds that it is time-barred by the SOL. 

          This case dealt with fifteen separate Notice of Violations issued by the ECB concerning the subject premises which was owned by three separate owners.  The responsibility of the Court is to “determine whether ECB acted arbitrarily and capriciously or abused its discretion when it denied Petitioner’s request to vacate said default judgments.”  The Court had to determine two questions, whether a “NOV issued to a previous owner is enforceable as to the actual owner of the premises.”  As well, “whether the ECB provided proper notice of the NOV’s to the Petitioners.” 

          The NOV was not issued to the actual owner of the subject premise, therefore the NOV “can only be enforced against the entity to whom the NOV was issued.  It is not enforceable against a subsequent owner.”  Therefore it was arbitrary and capricious and an abuse of discretion for the ECB to “deny Petitioner’s request to vacate the default judgment.” 

          Respondent’s argued that the Article 78 proceedings were brought about after the 4 month SOL period.  Respondent’s never submitted affidavits of service for the denial letters in question.  “An affidavit, as opposed to an affirmation, is required by a party to support the Cross-Motion.”  Respondent’s Cross Motion must be dismissed since Respondent’s failed to provide a valid affidavit of service to Petitioner, it can not be proved that Petitioner did not file a Article 78 within the SOL. 

 

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