Opinion
No. 20792/2011.
2012-06-14
In the matter of The Application of Robert BRIGLIO, Petitioner, v. The CITY OF NEW YORK & The New York City Environmental Control Board, Respondents.
Aiello & Cannick, by Jennifer Arditi, Esq., Maspeth, for the Petitioner. Michael A. Cardozo, Corporation Counsel of the City of New York, by Akiva Reich, Esq., Special Assistant Corporation Counsel Awaiting Admission, New York, for the Respondents.
Aiello & Cannick, by Jennifer Arditi, Esq., Maspeth, for the Petitioner. Michael A. Cardozo, Corporation Counsel of the City of New York, by Akiva Reich, Esq., Special Assistant Corporation Counsel Awaiting Admission, New York, for the Respondents.
CHARLES J. MARKEY, J.
The following papers numbered 1 to 9 read on this Article 78 proceeding by petitioner Robert Briglio for a judgment annulling the determination of respondents City of New York and the New York City Environmental Control Board (“ECB”), which denied his request to vacate a default judgment. Respondents cross move for an order dismissing the petition on the grounds of statute of limitations, pursuant to CPLR 3211(a)(5).
+----------------------------------------------------------------+ ¦Papers Numbered ¦ ¦ +------------------------------------------------------------+---¦ ¦Notice of Petiton–Verified Petition–Affidavit–Exhibits (A–I)¦1–4¦ +------------------------------------------------------------+---¦ ¦Affidavits of Service ¦5–6¦ +------------------------------------------------------------+---¦ ¦Notice of Cross Motion–affidavit–Exhibits (A–M) ¦7–9¦ +----------------------------------------------------------------+
On April 30, 2010, the New York City Department of Buildings (“DOB”) issued a notice of violation (“NOV”) to Robert Briglio (“Briglio”), at 54–41 65th Place, Maspeth, in Queens County, New York, stating that the issuing officer observed at 53–89 63rd Street in Queens the “VIOLATION OF PARKING REGULATIONS IN RESIDENTIAL DISTRICT–NOTED FRONT PARKING PAD BEING USED AS DEAD STORAGE OBSERVED BROWN MINI VAN MODEL MARK III CHEVROLET STORED AT FRONT PARKING PAD AND NO STATE PLATED COMPACTED WITH COMBUSTIBLE DEBRIS AND HAZARDOUS MATERIAL” in a violation of “B283” of “ZR–25–41,” a Class 1 violation.
The stated remedy was to “CONFORM TO PARKING REGULATIONS.” The NOV set forth a hearing date of June 29, 2010, and did not provide a date for curing the violation.
The affidavit of service recites that the alternative method of service, pursuant to New York City Charter section 1049–e(d)(2) was utilized, and that the NOV was “posted at 1st fl entry” of “53–89 63 St Queens, NY”, on May 5, 2010, “after a reasonable attempt to effectuate service upon the respondent or upon other person whom service may be made was unsuccessful.” According to an affidavit of mailing, copies of the NOV were mailed to Mr. Briglio on May 28, 2010, at 54–41 65th Place, Maspeth, Queens County, New York, and 53–89 63rd St, Maspeth, New York, and to Lourdes Briglio at 53–89 63rd Street, Maspeth, Queens County, New York.
The DOB, in a notice dated May 26, 2010, and addressed to Mr. Briglio at 54–41 65th Place, Maspeth, New York, stated that changes had been made to the NOV, in order to provide that the cure date for filing a certificate of correction was June 14, 2010, and that this was a Class 2 violation. Said notice stated that the hearing date was June 29, 2010.
The New York City Environmental Control Board (“ECB”) issued a default decision and order dated July 6, 2010, addressed to Lourdes Briglio at the 63rd Street address. Said notice names Mr. Brigilo as the respondent and states that he failed to appear as directed on the date “specified above.” Said decision and order does not set forth the hearing date and only sets forth a default date of July 6, 2010.
The Administrative Law Judge found that Mr. Briglio “did cause or permit the violations(s) charged in said notice of violation” and ordered him to comply with the NOV and imposed a default penalty of $4,000.00. The July 6, 2010 default decision and order was mailed to Mr. Briglio on July 7, 2010, at the 65th Place and 63rd Street addresses. A copy was also mailed on July 7, 2010, to Lourdes Briglio at the 63rd Street address.
Robert Aiello, Esq., Mr. Briglio's attorney, in a letter dated August 2, 2010, requested that the ECB vacate the default judgment. Mr. Aiello stated that: Robert Briglio had not been living at the 63rd Street premises for years; he had been in and out of drug treatment programs since the death of his wife in 2007; and he has been living at another location with a relative since his release from a residential drug treatment program and does not always check his mail at the 63rd Street address. Mr. Aiello further stated that Mr. Briglio had removed the vehicle from the 63rd Street premises and stated that he had enclosed a Certificate of Correction which had been signed and notarized, as well as a “photograph of the property showing no van in the driveway.” He requested that Mr. Briglio be given an opportunity to cure the violation, with no penalty assessed.
Mr. Briglio, or Mr. Aiello, received a new hearing request form from the ECB. Mr. Aiello, in a letter dated August 16, 2010 and addressed to the ECB's Special Motion Part, enclosed a copy of the new hearing request form and requested that the default judgment be vacated for the reasons previously stated. Mr. Briglio submitted to the ECB a Certificate of Correction which containing his notarized affidavit, dated July 29, 2010, stating that he had personally complied with the NOV on July 8, 2010. He also submitted a photograph which showed that the van had been removed from the 63rd Street property. Mr. Briglio stated that his mailing address is 69–06 Grand Avenue, Maspeth, in Queens County, New York, which is the address of his attorney's law firm. On August 16, 2010, Mr. Aiello executed a notarized request for the new hearing, on an ECB form, and listed his Grand Avenue address. These forms were returned to the ECB on August 16, 2010.
Counsel for Mr. Briglio, in a letter dated January 7, 2011, and addressed to the ECB's Special Motion Part, stated that the “violation was issued to Lourdes Briglio, who owns the home. Lourdes Briglio passed away on June 12, 2007.” Counsel stated that: Robert Briglio was married to Lourdes Briglio, but that he had not lived at the house since before her death; Robert Briglio has been in and out of residential drug treatment programs since his wife's death in 2007; the house has no heat, gas, or electric service; and, finally, Mr. Briglio resides at another address and does not check his mail regularly.
Counsel also stated that: sometime in July, 2010, he learned of the default judgment while performing a property search; he requested the ECB vacate the default in his letter of August 2; he received a response directing him to make the request to vacate the default in the “Special Motions Part”; on August 16, 2010, he sent a letter, by certified mail, return receipt requested, to the Special Motions Part requesting that the default be vacated; and he received no response. Counsel stated, in addition, that: he performed another property search and that the default judgment is still recorded, and again requested that the default be vacated. Mr. Briglio again requested a new hearing on an ECB form, dated January 7, 2011, which contains his Grand Avenue address in Maspeth, Queens County.
The January 7, 2011 request included the following documents: copies of the default judgment; a Social Security death index search results with respect to Lourdes Briglio; a death certificate for Lourdes Briglio; copies of his letters dated August 2, 2010, and August 16, 2010; copies of the certified mail receipts including evidence of receipt by the Department of Buildings and the ECB; a computer printout from the DOB entitled “ECB Query by Location” showing a default against Robert Briglio; a notarized Certificate of Correction affidavit from Robert Briglio, dated July 29, 2010, in which he states he complied with the NOV, and checked the box for a “cure request”; and a photostatic copy of a photograph of the premises following the removal of the van.
Counsel for Mr. Briglio, in a letter dated May 12, 2011, and addressed to the ECB's Special Motion Part, recounted the prior attempts to vacate the default, referenced the prior correspondence, of August 2, 2010, August 16, 2010, and January 7, 2011, and stated that he had yet to receive a response from the ECB. He attached to this letter copies of all the prior correspondence that had been sent to the ECB and requested that the default be vacated, or, in the alternative, that the fine be reduced to a minimum amount.
The ECB, in a letter dated July 19, 2011, informed Mr. Briglio's counsel that it had received counsel's letter of May 12, 2011, and stated that “[o]ur records show this request was already denied by the ECB's Special Motion Part. Your request for a new hearing is once again denied. Under ECB's rules, a denial of your request is a final agency action.' “ Counsel was advised that he could seek judicial review of the agency's decision in the Supreme Court.
Counsel for Mr. Briglio, in a letter dated July 26, 2011, requested that the ECB forward a copy of the decision of the Special Motion Part that was referred to in the agency's letter of July 19, 2011. The ECB thereafter provided counsel with a copy of an undated decision, addressed to Robert Briglio at the 63rd Street address, which states, in pertinent part, as follows:
“Your request for a new hearing date after you failed to appear on your scheduled hearing date is denied because:
& You did not include information or documents you were asked to provide
& or the documents you provided did not prove your claim.
You need to pay $4,000.00 now.
The determination also stated: “Mailing date of This Order: 09/07/2010.”
Petitioner Robert Briglio commenced this Article 78 proceeding on September 6, 2011, by filing the verified petition with the county clerk and paying the filing fee (CPLR 304). The verified petition alleges that respondents' refusal to vacate the default judgment was arbitrary, capricious and an abuse of discretion. The first cause of action alleges that petitioner's original request to vacate the default was received by the ECB within the requisite “45 days after the hearing date upon which respondent did not appear,” and, therefore, the request to vacate the default should have been granted, pursuant to RCNY section 3–82. Petitioner alleges that respondents' refusal to vacate the default was arbitrary and capricious and in violation of lawful procedure.
The second cause of action alleges that the denial of the default on the grounds of failure to include documentation was arbitrary and capricious, and in violation of lawful procedure, as the request for a new hearing was received within the applicable 45 day period.
The third cause of action alleges that the original violation was issued to Lourdes Briglio, who died in 2007, and that, although petitioner's counsel on numerous occasions informed the ECB of her death, respondents continued to issue violations to her and to mail violations addressed to her. It is also alleged that respondents had notice that petitioner no longer resided at that address, and that the default notice was addressed to Lourdes Briglio, despite the fact that the violation was in the name of the petitioner. It is alleged that as there is no proof that any documentation was addressed and mailed to petitioner, the failure to give any consideration for the petitioner's justified default in appearing at the hearing was arbitrary and capricious and a violation of lawful procedures.
The fourth cause of action alleges that the denial of petitioner's request to vacate the default did not allow for an adjudication on the merits, and that said adjudication was arbitrary and capricious and a violation of lawful procedures.
Mr. Briglio, in his affidavit in support of the petition states that: he first learned of the default judgment on August 2, 2010; the violation was issued for the 63rd Street premises and was sent in the name of Lourdes Briglio; he had not resided at the 63rd Street premises since 2004; his wife—who died in 2007—did not reside at the premises; upon receipt of the default notice he immediately corrected the condition and completed a Certificate of Correction which his attorney filed on his behalf; and he never received any notice or correspondence from the ECB in September 2010 denying his request to vacate the default.
Respondents, in their cross motion to dismiss the petition, assert that as petitioner did not commence the within proceeding within four months after the ECB's determination of September 7, 2010, the proceeding is now time barred. Respondents assert that the final ECB determination dated September 7, 2010, was mailed to petitioner on September 10, 2010.
A CPLR article 78 proceeding against a public “body or officer must be commenced within four months after the determination to be reviewed becomes final and binding” (CPLR 217(1)). An agency determination is final, triggering the statute of limitations, when the petitioner is aggrieved by the determination ( see, Matter of Biondo v. New York State Bd. of Parole, 60 N.Y.2d 832, 834 [1983];Matter of Martin v. Ronan, 44 N.Y.2d 374, 380–381 [1978] ). A petitioner is aggrieved once the agency has issued an unambiguously final decision that puts the petitioner on notice that all administrative appeals have been exhausted. If an agency has created ambiguity or uncertainty as to whether a final and binding decision has been issued, “ ‘the courts should resolve any ambiguity created by the public body against it in order to reach a determination on the merits and not deny a party his day in court’ “ (Carter v. State, 95 N.Y.2d 267, 270 [2000],quoting Mundy v. Nassau County Civ. Serv. Commn., 44 N.Y.2d 352, 358 [1978] [ quoting Matter of Castaways Motel v. Schuyler, 24 N.Y.2d 120, 126–127,adhered to on reargument, 25 N.Y.2d 692 [1969] ).
The Court of Appeals has identified two requirements for fixing the time when agency action is final and binding upon the petitioner. “First, the agency must have reached a definitive position on the issue that inflicts actual, concrete injury and second, the injury inflicted may not be prevented or significantly ameliorated by further administrative action or by steps available to the complaining party” ( Matter of Best Payphones, Inc. v. Department of Info. Tech. & Telecom. of City of NY, 5 NY3d 30, 34 [2005];see, Matter of Essex County v. Zagata, 91 N.Y.2d 447, 454 [1998];Matter of Agoglia v. Benepe, 84 AD3d 1072, 1076 [2nd Dept.2011]; Matter of Putnam v. City of Watertown, 213 A.D.2d 974 [4th Dept.1995] ).
Although the ECB refers to a final determination dated September 7, 2010, said order is not dated and sets forth only a “mailing date of The Order: 09/07/2010.” This undated determination constitutes a definitive and final agency action. Of course, “fundamental fairness requires that the aggrieved party be notified of the administrative determination before the statutory period in which to seek review commences” (Guirdanella v. New York State Div. of Hous. & Community Renewal, 165 A.D.2d 667, 668 [1990];see, Matter of Edmead v. McGuire, 67 N.Y.2d 714 [1986];Matter of Biondo v. New York State Bd. of Parole, 60 N.Y.2d 832 [1983];Matter of Richardson v. New York City Hous. Auth., 89 AD3d 1091, 1092 [2nd Dept.2011] ).
Respondents have submitted an affidavit of service dated January 20, 2012, containing the signatures of two individuals, who state that they are employees of FEDCAP Rehabilitation Service, Inc., acting as agents for the ECB and that, on September 7, 2010, they “printed out notices denying the request for a new hearing after a failure to appear for notice of violation number 34849818K from ECB's Automated Information Management Systems (“AIMS”) and on September 8, 2010, the next business day, we mailed said notices ... to the addresses set forth below being the addresses designated by the respondent for that purpose.” The affidavit of service states that the ECB's notice was mailed to the Bank of New York, “Briglio Lourdes” at the 63 St. address, “Aiello, Robert” at the Grand Avenue address, and “Briglio Robert” at the 63rd Street and 65th Place addresses. The affidavit of service was executed and notarized on January 20, 2012.
The respondents' affidavit of service is not a contemporaneous document, and appears to have been drafted in support of the within cross motion. The final order states that the date of mailing was September 7, 2010, while the affidavit of service states that the mailing was made on September 8, 2010. Respondents offer no explanation for this discrepancy.
Mr. Briglio, furthermore, in his August 16, 2010 request to vacate the default, provided the ECB with his mailing address of 69–06 Grand Avenue, Maspeth, New York, 11378, informed the agency that his wife Lourdes Briglio was deceased, and provided a copy of her death certificate. Despite having been provided with this information, the respondents obstinately rely upon ECB's affidavit of mailing alleging that the final notice was mailed to Lourdes Briglio, who died in 2007—and not to her Estate—and Mr. Briglio at his former addresses. No evidence exists that the final order was mailed in September, 2010, to Mr. Briglio at the address he provided, and he has denied receipt of the undated final ECB order in September, 2010. Service of the notice on Mr. Briglio's attorney alone is insufficient, as the attorney is not the aggrieved party.
Respondents have, therefore, failed to establish that Mr. Briglio was served with the final order, at the address he provided the ECB, in September, 2010. The statute of limitations, accordingly, had not expired prior to the commencement of this Article 78 proceeding.
Respondents' cross motion to dismiss the petition on the grounds of statute of limitations is thus denied. Respondents are directed to serve their answer, along with all supporting papers and to submit a copy of the administrative order. Petitioner thereafter shall have 10 days to serve any reply papers, and the parties shall re-notice this proceeding no later than 40 days after the service of a copy of this order together with notice of entry.
The foregoing constitutes the decision, opinion, and order of the Court.