Opinion
2011-03-29
In the Matter of GOLDEN'S BRIDGE FIRE DISTRICT, appellant, v. WESTCHESTER COUNTY DEPARTMENT OF HEALTH/BOARD OF HEALTH, respondent.
Covey, Roberts, Corliss & Carmody–Roberts, Katonah, N.Y. (George Hunter Roberts of counsel), for appellant. Robert F. Meehan, County Attorney, White Plains, N.Y. (Thomas G. Gardiner, Sr., of counsel), for respondent.
Covey, Roberts, Corliss & Carmody–Roberts, Katonah, N.Y. (George Hunter Roberts of counsel), for appellant. Robert F. Meehan, County Attorney, White Plains, N.Y. (Thomas G. Gardiner, Sr., of counsel), for respondent.
In a proceeding pursuant to CPLR article 78 to review a determination of the Westchester County Department of Health/Board of Health dated April 16, 2009, which, based on a stipulation entered into between the parties before a hearing officer, inter alia, found that the petitioner violated the Public Health Law and assessed a civil monetary penalty in the sum of $4,700, the petitioner appeals from an order and judgment (one paper) of the Supreme Court, Westchester County (Lorenzo, J.), entered March 1, 2010, which, inter alia, granted those branches of the respondent's motion which were pursuant to CPLR 3211(a)(1), (7), and (8) and 7804(f) to dismiss the proceeding, and dismissed the proceeding.
ORDERED that the order and judgment is affirmed, with costs.
The service of the notice of petition and petition upon the respondent's records access officer did not constitute proper service under either CPLR 311(a)(4) or 312. Accordingly, the service in this case was ineffective to acquire personal jurisdiction over the respondent ( see Matter of Randazzo v. Neufeld, 277 A.D.2d 387, 388, 716 N.Y.S.2d 593;Matter of J & G Cent. Auto Collision v. Zoning Bd. of Appeals of Inc. Vil. of Val. Stream, 210 A.D.2d 407, 620 N.Y.S.2d 104;Matter of Perreten v. Westchester County Bd. of Health, 146 A.D.2d 779, 779–780, 537 N.Y.S.2d 260;Matter of Heinisch v. Goehringer, 121 A.D.2d 721, 503 N.Y.S.2d 901;Matter of Franz v. Board of Educ. of Elwood Union Free School Dist., 112 A.D.2d 934, 492 N.Y.S.2d 452; but see Matter of Long Is. Teen Challenge, Inc. v. Town of Coeymans, 57 A.D.3d 1344, 869 N.Y.S.2d 704 ;Matter of De Russo v. City of Albany Bd. of Zoning Appeals, 147 A.D.2d 836, 537 N.Y.S.2d 933).
The parties' remaining contentions are without merit, are improperly raised for the first time on appeal, or have been rendered academic in light of our determination.