Opinion
No. 18452/2011.
2012-06-27
In the Matter of The Application of Paul GALLO, Petitioner, v. The CITY OF NEW YORK, Suzanne A. Beddoe in her capacity as Commissioner of the City of New York Environmental Control Board and The City of New York Environmental Control Board, Respondents.
Burstein & Rabinowitz, P.C., by Matthew Burstein, Esq., Forest Hills, for the Petitioner. Michael A. Cardozo, Esq., Corporation Counsel of the City of New York, by Gabriel Taussig, Ave Maria Brennan, and Jasmine M. Georges, Esqs., New York, for the Respondents.
Burstein & Rabinowitz, P.C., by Matthew Burstein, Esq., Forest Hills, for the Petitioner. Michael A. Cardozo, Esq., Corporation Counsel of the City of New York, by Gabriel Taussig, Ave Maria Brennan, and Jasmine M. Georges, Esqs., New York, for the Respondents.
CHARLES J. MARKEY, J.
This Court, in a recent opinion, Briglio v. City of New York, (2012 WL 2148907, 2012 N.Y. Slip Op 51052(U) [Sup Ct Queens County 2012] [decision by the undersigned] ), highlighted the questionable service of process and unreliable affidavits of service submitted by the City of New York in cases where homeowners are being given violations and assessed fines. After all, failure to notify someone of the existence of a proceeding is at the root of due process. The present proceeding underscores this Court's previously expressed concerns.
In this Article 78 proceeding by petitioner Paul Gallo (“Gallo”) for a judgment vacating seven orders issued by respondent City of New York Environmental Control Board (“ECB”), which denied his applications to vacate a default and conduct a hearing with respect to seven corresponding Notices of Violation issued by the New York City Department of Buildings (“DOB”).
Petitioner Gallo purchased improved real property known as 106–51 Ditmars Boulevard, in Queens County, New York on August 30, 2006. Petitioner alleges that this was an investment property, that he did not reside at said property, and that he resides at 47–39 158th Street, Flushing, in Queens County, New York. Petitioner alleges that the Ditmars Boulevard property is the subject of a foreclosure action, and that the New York City ECB is a party to that action.
In the foreclosure action OneWest Bank F.S.B. v. Gallo, Index No. 813/2008, in this Court, Justice Marguerite A. Grays, in an order dated April 11, 2012, and entered on April 16, 2012, vacated the judgment of foreclosure and sale entered on November 5, 2010, canceled the notice of pendency of record filed on January 10, 2008, and discontinued the foreclosure action on the motion of the plaintiff therein, as the Ditmars Boulevard property had been sold at a short sale.
On June 10, 2010, a New York City DOB inspector issued Notice of Violation (“NOV”) number 34858708Y to Gallo at 106–51 Ditmars Boulevard, in Queens County, stating that the inspector had observed the “FAILURE TO COMPLY WITH PARKING REGULATIONS IN A RESIDENTIAL DISTRICT. NOTED: GRAY CHEVY WITHOUT PLATES AND UNREGISTERED” in a violation of “B283” of “ZR–25–41,” a Class 2 violation. The stated remedy was to “COMPLY WITH PARKING REGULATIONS.” The NOV set forth a cure date of July 21, 2010, and a hearing date of August 3, 2010.
With respect to this NOV, the DOB inspector's affidavit of service recites that the alternative method of service known as “affix and mail” was utilized pursuant to New York City Charter section 1049–e(d)(2), and that the NOV was “POSTED AT FRONT” of “106–51 DITMARS BLVD (full address),” on June 11, 2010, “after a reasonable attempt to effectuate service upon the respondent or upon other person whom service may be made was unsuccessful.” The parties have not submitted an affidavit of mailing with respect to this NOV.
On July 12, 2010, a DOB inspector issued NOV number 34865138R to Gallo at 106–51 Ditmars Boulevard, in Queens County, stating that the inspector had observed the “VIOLATION OF PARKING REGULATIONS IN A RESIDENTIAL DISTRICT. NOTED: DEAD STORAGE OF GRAY CHEVOLET [ sic] IN REAR YARD. NO REGISTRATION, NO PLATES,” in a violation of “B283” of “ZR–25–41,” a Class 2 violation. The stated remedy was to “CONFORM TO PARKING REGULATIONS.” The NOV set forth a cure date of August 23, 2010 and a hearing date of August 31, 2010.
With respect to this NOV, the DOB inspector's affidavit of service recites that the alternative method of service known as “affix and mail” was utilized pursuant to New York City Charter section 1049–e(d)(2), and that the NOV was “POSTED AT FRONT” of “106–51 DITMARS BLVD (full address),” on July 12, 2010, “after a reasonable attempt to effectuate service upon the respondent or upon other person whom service may be made was unsuccessful.” The DOB's affidavit of mailing recites that on July 28, 2010, a copy of NOV number 34865138R was mailed to Gallo at the Ditmars Boulevard address.
Gallo did not appear at either the August 3, 2010 hearing or the August 31, 2010 hearing, and the ECB imposed a fine of $4,000.00 for each NOV.
On February 11, 2011, a DOB inspector issued NOV number 34894519N to Gallo at 106–51 Ditmars Boulevard, in Queens County, stating that the inspector had observed the “FAILURE TO COMPLY WITH THE COMMISSIONER'S ORDER TO FILE A CERTIFICATE OF CORRECTION WITH THE DEPT. OF BUILDINGS FOR NOTICE OF VIOLATION No. 34865138r. STATUS: NO COMPLIANCE RECORDED”, in a violation of “B263” of “28–204.4” a Class 2 violation. The stated remedy was to “FILE CERTIFICATE OF CORRECTION.” The NOV did not set forth a cure date, and set forth a hearing date of March 29, 2011.
With respect to this NOV, the DOB inspector's affidavit of service recites that the alternative method of service known as “affix and mail” was utilized pursuant to New York City Charter section 1049–e(d)(2), and that “No one authorized to accept viol. Posted at front” of “106–51 DITMARS BLVD., Queens, NY” on February 11, 2011, “after a reasonable attempt to effectuate service upon the respondent or upon other person whom service may be made was unsuccessful.”
On February 11, 2011, a DOB inspector issued NOV number 34894516H to Gallo at 106–51 Ditmars Boulevard, in Queens County, stating that the occupancy at the time of inspection was “BLDG. PARTIALLY SEALED” and that the inspector had observed the “FAILURE TO MAINTAIN BUILDING IN CODE COMPLIANT MANNER. 2ND FLOOR–BROKEN GLASS IN WINDOWS/LEADER PIPE/WIRES LOOSE & HANGING AT FRONT. CRACKS/SPALLING EXTERIOR WALLS IN VARIOUS LOCATIONS. DEFECTIVE/BROKEN CEILING AT REAR AND DEBRIS FOUND WITH GRAFFITI ON THE WALLS & MISSING RAILINGS EVIDENT. LEADER PIPE NOT CONNECTED TO ROOF GUTTER/MISSING SECTION & HANGING AT REAR,” in violation of “B202” of “28–301.1” a Class 2 violation. The stated remedy was to “MAKE APPROPRIATE REPAIRS/REMOVE DEFECTS AND MAINTAIN BUILDING FORTHWITH”. The NOV set forth a cure date of March 29, 2011, and a hearing date of March 29, 2011.
With respect to this NOV, the DOB inspector's affidavit of service recites that the alternative method of service known as “affix and mail” was utilized pursuant to New York City Charter section 1049–e(d)(2), and that “NO ONE AUTHORIZED TO ACCEPT VIOLATION. POSTED AT FRONT” of “106–51 DITMARS BLVD., Queens, NY” on February 11, 2011, “after a reasonable attempt to effectuate service upon the respondent or upon other person whom service may be made was unsuccessful.”
On February 11, 2011, a DOB inspector issued NOV number 34894518L to Gallo at 106–51 Ditmars Boulevard, in Queens, New York, stating that the occupancy at the time of the inspection was “BLDG. PARTIALLY SEALED” and that the inspector had observed the “FAILURE TO COMPLY WITH THE COMMISSIONER'S ORDER TO FILE A CERTIFICATE OF CORRECTION WITH THE DEPT. OF BUILDINGS FOR NOTICE OF VIOLATION # 34858708Y STATUS: NO COMPLIANCE RECORDED,” in violation of “B263” of “28–204.2”, a Class 2 violation. The stated remedy was to “FILE CERTIFICATE OF CORRECTION.” The NOV did not set forth a cure date, and set forth a hearing date of March 29, 2011.
With respect to this NOV, the DOB inspector's affidavit of service recites that the alternative method of service known as “affix and mail” was utilized pursuant to New York City Charter section 1049–e(d)(2), and that “No one authorized to accept viol. Posted at Front” of “106–51 DITMARS BLVD., Queens, NY” on February 11, 2011, “after a reasonable attempt to effectuate service upon the respondent or upon other person whom service may be made was unsuccessful.”
On February 11, 2011, a DOB inspector issued NOV number 34894517J to Gallo at 106–51 Ditmars Boulevard, in Queens, New York, stating that the occupancy at the time of inspection was “BLDG. PARTIALLY SEALED” and that the inspector had observed the “ILLEGAL USE IN A RESIDENTIAL DISTRICT. AT REARDEAD STORAGE OF 2 MOTOR VEHICLES WITH NO VISIBLE PLATES. 1–BLACK INFINITI 4 DOOR SEDAN WITH MISSING FRONT HOOD & BUMPER AND 1–CHEVROLET 4 DOOR SEDAN WITH MISSING TIRES & SIDEDOOR EVIDENTN/ [sic] GRAFFITI FOUND” in violation of “B205” of “ZR 22–00,” a Class 2 violation. The stated remedy was to “DISCONTINUE ILLEGAL USE/REMOVE VEHICLES W/O PLATES FROM RESIDENTIAL DISTRICT.” The NOV set forth a cure date of March 23, 2011, and a hearing date of March 29, 2011.
With respect to this NOV, the DOB inspector's affidavit of service recites that the alternative method of service known as “affix and mail” was utilized pursuant to New York City Charter section 1049–e(d)(2), and that “No one authorized to accept viol. Posted at Front” of “106–51 DITMARS BLVD., Queens, NY” on February 11, 2011, “after a reasonable attempt to effectuate service upon the respondent or upon other person whom service may be made was unsuccessful.”
The DOB's affidavit of mailing recites that on February 22, 2011, copies NOV numbers 34894516H, 34894517J, 34894518L, and 34894519N were mailed to Gallo at the Ditmars Boulevard address.
Gallo did not appear at the March 29, 2011 hearing and the ECB imposed a fine of $4,000.00 for each NOV.
On March 10, 2011 a DOB inspector issued NOV number 34880970K to Gallo at 106–51 Ditmars Boulevard, in Queens County, stating that the occupancy of the time of the inspection was “Vacant Dwelling” and that the inspector had observed the “Failure to comply with the commissioners [sic] order to file a certificate of correction with the Dept of Buildings; Noted Violation # 34865138R issued on 07/12/10. No certificate of correction was filed. *Noted condition has gotten worse” in violation of “B263” of “28–204.40,” a Class 2 violation. The stated remedy was to “File certificate of correction.” The NOV set forth a cure date of April 19, 2011, and a hearing date of April 26, 2011.
The DOB inspector's affidavit of service recites that the alternative method of service known as “affix and mail” was utilized pursuant to New York City Charter section 1049–e(d)(2), and that a copy of the NOV was “Posted to the Front Door (seal)” of “106–51 DITMARS BLVD., Queens, NY” on February 11, 2011, “after a reasonable attempt to effectuate service upon the respondent or upon other person whom service may be made was unsuccessful. The DOB's affidavit of mailing recites that on March 28, 2011, a copy of this NOV was mailed to Gallo at the Ditmars Boulevard address.
Gallo did not appear at the April 26, 2011 hearing, and the ECB imposed a fine of $4000.00 with respect to NOV number 34880970K.
On June 15, 2011, Gallo filed with the ECB seven separate requests to vacate his default in appearing at the hearings that correspond to NOV numbers 34858708Y, 334865138R, 34894519N, 343894516H, 34894518L, 34894517J, and 34880970K, using the ECB form. Each form requires the name of the respondent as written on the top of the ticket, the “RESPONDENT'S MAILING ADDRESS” and “YOUR MAILING ADDRESS(if different)”. On each form, Gallo provided the Ditmars Boulevard address as the respondent's mailing address, and provided his mailing address of 47–39 158th Street, Flushing, New York 11358” as “your mailing address,” and stated that the respondent first learned of the ticket on June 1,2011 when a title search was completed to sell the property to a new owner. Gallo requested a new hearing on the grounds that the NOVs were not served correctly. Gallo provided the ECB with a letter in which he stated the Ditmars Boulevard property “has been in foreclosure and unoccupied for 3 years”, and a copy of his driver's license bearing the 158th Street address.
The ECB, in separate identical orders with respect to NOV numbers 34858708Y, 34858708Y, 334865138R, 34894519N, 343894516H, 34894518L, 34894517J, and 34880970K, denied the requests to vacate Gallo's failure to appear at a hearing. Each order 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.”
Each determination stated that: “Mailing date of This Order: 06/20/2011.”
The ECB issued two copies of each order, which are separately addressed to Gallo at the Ditmars Boulevard address and to the 158th Street address.
Petitioner Gallo timely commenced the within Article 78 proceeding against the City of New York, Suzanne A. Beddoe the Chairperson of the ECB, (incorrectly sued herein as Commissioner of the ECB) and the City of New York ECB, and asserts that the denial of the requests to vacate his default in appearing at the hearings was arbitrary and capricious. Petitioner asserts that he presented an excusable default in that he did not receive the NOVs, and that his request for a hearing should have been granted. He alleges that he never received notice of the violations, as he neither lived at nor rented out the Ditmars Boulevard property, and that they were not forwarded to his 158th Street address. Petitioner further asserts that a hearing should be held on the NOVs so that he has an opportunity to be heard, and given due process under the law.
Respondents assert that its denials of petitioner's requests to vacate his default in appearing at the hearings are neither arbitrary nor capricious, nor an abuse of discretion, nor based on an error of law, or made in violation of lawful procedure. It is asserted that petitioner did not establish that he was not properly served with the NOVs, as petitioner merely asserted that he never received the NOVs. Respondents assert that this claim is wholly unconvincing based on the affidavits of service for the subject NOVs which establish that affix and mail service was utilized pursuant to City Charter section 1049–a(d)(2). Respondents say that, as noted in these affidavits of service for the subject NOVs, the DOB inspector affixed the notices on the front door of the Ditmars Boulevard premises and that this address is on file with the DOB, the Department of Finance, and Department of Housing Preservation and Development, as petitioner's mailing address. The NOVs were subsequently mailed to petitioner at the same address.
Petitioner did not provide the ECB with a copy of a New York City tax bill and/or multiple dwelling registration form(if applicable) for the subject premises in the year in which the NOVs were issued, as requested in the vacate forms filed by petitioner. Respondents further assert that petitioner listed both the Ditmars Boulevard address and the 158th Street address as his two mailing addresses on said forms. Respondents claim that petitioner thus failed to establish that he had another address on file with the City where he should have been served.
Respondents assert that petitioner's due process claims lack merit, as he had notice and an opportunity to be heard on each of the subject NOVs. Respondents allege that each NOV was properly served by affix and mail service, at the proper address and that petitioner failed to appear at the hearings. They contend that Gallo had an opportunity to vacate the default notices within 45 days of the defaulted hearings, but failed to act in a timely manner. Respondents assert that, had petitioner acted within the 45 day period, the vacate requests would have been granted, unless they were found to be in bad faith.
A court's function in an Article 78 proceeding is “to scrutinize the record and determine whether the decision of the administrative agency [in question] is supported by substantial evidence and not arbitrary and capricious” (Matter of Marsh v. Hanley, 50 A.D.2d 687, 687, 375 N.Y.S.2d 409 [3rd Dept.1975] ); see also, Arbuiso v. New York City Dept. of Bldgs., 64 A.D.3d 520, 522, 883 N.Y.S.2d 216 [1st Dept.2009], citing Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1, 34 N.Y.2d 222, 231 [1974] ).
The ECB Vacate Default Rule, set forth in Section 3–82 of the Rules of the City of New York, provides, in full as follows:
§ 3–82 Request for a New Hearing after a Failure to Appear (Vacating a Default).”
(a) A request by a respondent for a new hearing after the respondent did not appear must be made by application to the executive director or his or her designee. The request must be on a form prescribed by the executive director. The request must contain a current mailing address for the named respondent; it must explain how and when the respondent learned of the violation and it must be sworn or certified to under the penalties of perjury. If the request is not made by the named respondent, the request must explain the relationship between the respondent and the person making the request.
(b) A request for a new hearing, as described in subdivision (a) of this section, that is received within 45 days of the hearing date upon which the respondent did not appear, shall be granted unless such request is found to be made in bad faith. Such findings shall be made at the discretion of the executive director and shall include, but not be limited to, requesting only to admit the charge(s), repeatedly filing the same request or filing the same request in more than one borough at the same time.
(c) A request for a new hearing that is received more than 45 days from the date upon which the respondent did not appear must contain, in addition to the information stated in subdivision (a) of this section, appropriate supporting documentation. Such request may be granted and a hearing conducted only if the respondent establishes that a new hearing was requested within one year of the time the respondent learned of the existence of the violation, and that there is a reasonable basis to believe that the respondent (1) did not receive the notice of the violation because the respondent was
(A) not properly served with the violation under article three of the civil practice law and rules, article three of the business corporation law, section 1049–a of the New York City Charter or any other provision relating to service of violations returnable to the Environmental Control Board contained in the New York City Administrative Code or the Rules of the City of New York; or
(B) cited generically, for example, as “Owner” or “Agent,” on all copies of the notice of violation sought to be served on the respondent; or
(2) was an improper party when the notice of violation was issued. An improper party is a named respondent who is
(A) an individual who was deceased or legally incompetent on the hearing date upon which the respondent did not appear; or
(B) for a premises related violation, not the owner, agent, lessee, tenant, occupant or person in charge of or in control of the place of occurrence on the date of the offense.”
A decision to grant the request for a new hearing under this section shall not be considered a final decision on the issue of whether respondent was properly served or was a proper party on the date of offense.
(d) If a request for a new hearing is granted, the Environmental Control Board shall send a notice to the respondent at the respondent's address stated on the request for a new hearing. If the respondent is deceased or legally incompetent, a notice shall be sent to respondent's representative. Notice shall also be sent to the Petitioner. (e) No more than one request for a new hearing under this section may be granted with respect to any one notice of violation unless the notice of the new hearing date was not mailed pursuant to subdivision (d) of this section. If the respondent is unable to appear on the hearing date scheduled after a request for a new hearing is granted, respondent may request that the hearing be rescheduled one final time.
(f) Review of a denial of a request for a new hearing after a failure to appear may be sought pursuant to Article 78 of the New York Civil Practice Law and Rules.
Where, as here, the petitioner did not file its request for a new hearing within 45 days from the date of default, under the ECB Vacate Rule, even a bona fide excuse will be unavailing to vacate the default, unless the original notice of violation was improperly served or the defaulting party was not a proper party in the first instance ( see, Matter of Wilner v. Beddoe, 33 Misc.3d 900, 928 N.Y.S.2d 884 [Sup Ct New York County 2011] ).
The petitioner argues that due process requires that the defaults be vacated. The touchstones of procedural due process are notice and an opportunity to be heard (Prue v. Hunt, 78 N.Y.2d 364 [1991];Toolasprashad v. Kelly, 80 A.D.3d 530, 915 N.Y.S.2d 267 [1st Dept.], lv. to appeal dismissed,16 N.Y.3d 714 [2011] ). The constitutional requirements of procedural due process apply to proceedings before administrative agencies (Wolfe v. Kelly, 79 A.D.3d 406, 911 N.Y.S.2d 362 [1st Dept.2010], appeal dismissed,17 N.Y.3d 844 [2011] ). Procedural due process requirements must be met before any default is actually taken (In re Bouchard, 29 A.D.3d 79, 810 N.Y.S.2d 565 [3rd Dept.2006]; accord, Tupaz v. Clinton County, New York, 499 F Supp 2d 182 [NDNY 2007], aff'd, 541 F.3d 464 [2nd Cir.2008], cert. denied, 129 S.Ct. 1625 [2009];Jaouad v. City of New York, 4 F Supp 2d 311 [1998] ). The ECB Vacate Rule, thus, requires that a judgment be vacated where the notice of violation was not properly served.
Petitioner asserts that the NOVs were not properly served as he did not reside at the Ditmars Boulevard property and did not receive any of the notices at his 158th Street address. The New York Court of Appeals had stated that “[t]he incontestable starting proposition in cases of this kind is that once jurisdiction and service of process are questioned, plaintiffs have the burden of proving satisfaction of statutory and due process prerequisites” (Stewart v. Volkswagen of America, Inc., 81 N.Y.2d 203, 207 [1981],citing Lamarr v. Klein, 35 A.D.2d 248, 315 N.Y.S.2d 695 [1st Dept.1970], aff'd, 30 N.Y.2d 757 [1972] ). The burden of establishing the propriety of service rests upon the party asserting jurisdiction ( see, Matter of 72A Realty Assocs. v. New York City Envtl. Control Bd., 275 A.D.2d 284, 285–287, 713 N.Y.S.2d 26 [1st Dept.2000] ).
New York City Charter § 1049–a(d.)(2)(a)(ii) provides that
service of a notice of violation of any provision of the charter or administrative code, the enforcement of which is the responsibility of ... the commissioner of buildings ... and over which the environmental control board has jurisdiction, may be made by affixing such notice in a conspicuous place to the premises where the violation occurred....
Section 1049–a(d.)(2)(b) further provides, in pertinent part, that
[s]uch notice may only be affixed or delivered pursuant to items (i) and (ii) of subparagraph (a) of this paragraph where 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 by article three of the civil practice law and rules or article three of the business corporation law. When a copy of such notice has been affixed or delivered, pursuant to items (i) and (ii) of subparagraph (a) of this paragraph, a copy shall be mailed to the respondent at the address of such premises....
The City Charter's requirement that the issuing officer make a “reasonable attempt” to serve the NOV on a person who is amenable to service under Article 3 of the CPLR, provides for a lesser standard than that of “due diligence” as required under CPLR 308(4), before resort can be made to conspicuous service (“affix and mail”).
The City Charter thus permits in hand delivery, as well as delivery to a person of suitable age and discretion. Although the term “reasonable attempt” is not defined, RPAPL section 735 similarly requires that a process server make a “reasonable application” to effectuate service.
For purposes of CPLR 308[4], substituted service, the Appellate Division, Second Judicial Department, has generally required three prior attempts at service, at different times of the day ( see, State v. Mappa, 78 A.D.3d 926, 911 N.Y.S.2d 426 [2nd Dept.2010]; Johnson v. Waters, 291 A.D.2d 481, 738 N.Y.S.2d 369 [2nd Dept.2002]; Mattos v. Knibbs, 186 A.D.2d 725, 588 N.Y.S.2d 911 [2nd Dept.1992] ). Yet, as stated, for purposes of “reasonable application” under RPAPL section 735, three attempts are not needed; instead, at least two attempts at personal service, one during normal working hours and one attempt when a person working normal business hours could reasonably be expected to be home, are required to satisfy the “reasonable application” standard (RPAPL § 735[1]; Martine Assocs. LLC v. Minck, 5 Misc.3d 61, 785 N.Y.S.2d 648 [App T 2nd Dept.2004]; citing Eight Assocs. v. Hynes, 102 A.D.2d 746, 748, 476 N.Y.S.2d 881 [1st Dept.1984], aff'd, 65 N.Y.2d 739 [1985];Hynes v. Buchbinder, 147 A.D.2d 371, 537 N.Y.S.2d 537 [1st Dept.1989]; Brooklyn Heights Rlty. Co. v. Gliwa, 92 A.D.2d 602 [1983];Dolan v. Linnen, 195 Misc.2d 298, 753 N.Y.S.2d 682 [NYC Civ Ct Richmond County 2003]; Frederick A. Brown Trust v. Shawn Carr 216 Spring St., 33 Misc.3d 1205(A), 2011 WL 4790056, 2011 N.Y. Slip Op 51790(U) [Ossining Justice Ct.2011]; see also, Oparaji v. City of New York, 2011 WL 6738696, 2011 N.Y. Misc. Lexis 5982, 2011 N.Y. Slip Op 33265(U) [Sup Ct Queens County 2011] [Weiss, J.]; Matter of Schulder v. New York City Envtl. Control Bd., 2010 WL 5553300, 2010 N.Y. Misc. Lexis 6450, 2010 N.Y. Slip Op 33554(U) [2010] [Sup Ct Queens County 2010] [Weiss, J.] ).
Ordinarily, an affidavit of service is sufficient to establish service. Here, however, each affidavit of service recites that affix and mail service was made after a reasonable attempt at service was made. Respondents focus on the mailing of the NOVs to the Ditmars Boulevard address, and assert that the DOB was not required to serve Gallo at his 158 Street address. The DOB's affidavits of service, however, do not set forth any specifics as to what reasonable attempts at service were made prior to resorting to affix and mail service.
Although some affidavits of service state “no one available to accept the violation” the DOB inspector did not state what efforts were made to locate a person of suitable age and discretion at the Ditmars Boulevard premises.The ECB, in its denial of the requests to vacate, apparently did not consider whether the affidavits of service established that resort to the alternative service of affix and mail was proper, as well as whether such service was properly effectuated. The issue of lack of proper service was raised by petitioner in his requests to vacate the defaults, and he is entitled to contest service of the subject NOVs at a hearing before the ECB.
The petition, accordingly, is granted to the extent that the ECB's seven default judgments against the petitioner and its determinations mailed on June 20, 2011, denying the requests for a new hearing are vacated, and the matter is remanded to the ECB for further proceedings.
Settle judgment.