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In Re Tri-Rail Construction, Inc v. Environmental Control Board of the City of New York

New York Supreme and/or Appellate Courts Appellate Division, First Department


March 7, 2013

IN RE TRI-RAIL CONSTRUCTION, INC., PETITIONER-RESPONDENT,
v.
ENVIRONMENTAL CONTROL BOARD OF THE CITY OF NEW YORK, ETC.,
RESPONDENT-APPELLANT.

Matter of Tri-Rail Constr., Inc. v Environmental Control Bd. of the City of N.Y.

Decided on March 7, 2013

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Andrias, J.P., Friedman, Acosta, Freedman, Clark, JJ.

Order, Supreme Court, New York County (Donna M. Mills, J.), entered December 9, 2011, which, insofar as appealed from as limited by the briefs, granted the petition to set aside respondent's denial of petitioner's requests to vacate defaults on 17 notices of violation, and granted hearings on the violations, unanimously reversed, on the facts, without costs, the petition denied, and the proceeding brought pursuant to CPLR article 78 dismissed.

Contrary to Supreme Court's finding that the limitations period had not elapsed because the denial letters were sent to addresses that were not petitioner's address, the evidence in the record establishes that the subject letters were, in fact, all mailed to, among other places, petitioner's correct address, thereby triggering the 4 month statute of limitations (see CPLR 217[1]; and see Matter of Carter v State of N.Y., Exec. Dept., Div. of Parole, 95 NY2d 267, 270 [2000]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 7, 2013

CLERK

20130307

© 1992-2013 VersusLaw Inc.



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