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.