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In re Application of 321-3 West 47th Street Associates LP

Supreme Court, New York

April 2, 2013

In the Matter of the Application of 321-3 WEST 47th STREET ASSOCIATES, LP, : Petitioner,
v.
THE ENVIRONMENTAL CONTROL BOARD OF THE CITY OF NEW YORK, Respondent Index No. 102493/12

Unpublished Opinion

Order Denying Request for a New Hearing After Failure to Appear (Vacating a Default)

HON. DONNA M. MILLS, JSC.:

Petitioner, 321-3 West 47th Street Associates, LP, brings this proceeding, pursuant to CPLR article 78 proceeding, to set aside an Order Denying the Request for a New Hearing After a Failure to Appear (Vacating a Default), dated February 24, 2012, of respondent The Environmental Control Board of the City of New York ("ECB").

Respondent cross-moves to dismiss the petition.

BACKGROUND

Petitioner is a domestic limited partnership with its principal place of business in New York. Petitioner owns a building located at 323 West 47th Street, New York, New York (the "subject premises"). Statements from the New York City Department of Finance lists petitioner's address as "c/o Big Apple Management, P.O. Box 20213, Greeley Sq. Station, New York, New York, 10001" (see Not of Petition, Exh 9). In addition, petitioner is registered with the New York City Department of Housing Preservation and Development ("HPD") using the address "c/o Big Apple Management, 347 fifth Avenue, New York" (see Not of Petition, Exh 8) .

On October 11, 2011, a New York City Department of Buildings ("DOB") Inspector issued Notice of Violation ("NOV") number 34924010P ("NOV 10P") to petitioner for occupying apartments 3B and 4B in the subject premises contrary to the existing certificate of occupancy, in violation of §28-118.3.2 of the New York City Building Code (Administrative Code of the City of NY ["Administrative Code"] §28-118.3.2). Specifically, the DOB Inspector noted that apartments 3B and 4B in the subject premises were occupied as a transient hotel.

DOB reportedly also issued eight other NOVs, specifically NOVs 34924911R ("NOV 11R"), 34924012Z ("NOV 12Z"), 34924013K ("NOV 13K"), 34924014M ("NOV 14M"), 34924015Y ("NOV 15Y"), 34924016X ("NOV 16X"), 34924017H ("NOV 17H"), and 34924018J ("NOV 18J"), to petitioner on the same day.

The Affidavits of Service for the NOV 10P state that the process server used alternate method of service, pursuant to NY City Charter §1049-a(d)(2), after a reasonable attempt to effectuate service upon the property owner or responsible party proved unsuccessful (Not of Cross Mot, Exh B). Specifically, the Affidavits of Service state that the process server (1) posted a copy of NOV 10s on the front entry door of the subject premises on October 11, 2012, and (2) mailed copies to petitioner at the subject premises and at 163 West 2 3rd Street, New York, NY, purportedly petitioner's last known address (id.).

However, petitioner denies receiving NOV 10P, and asserts that the address to which NOV 10P was mailed is incorrect. In fact, By Decision and Order, dated December 8, 2011, after a hearing, ECB dismissed for improper service seven other violations that had been mailed to petitioner at 163 West 23rdStreet, New York, NY (Dec & Order, Not of Cross Mot, Exh 3). Petitioner further states that on November 14, 2011, it retrieved the other eight violations that had been allegedly affixed to the subject premises, but: that it never received any of the violations by mail.

The eight NOVs, as well as NOV 10P, directed petitioner to appear at a hearing at ECB on December 1, 2011, at 8:30 A.M., to answer and defend the allegations therein. Petitioner appeared for the scheduled hearing on eight of the violations, but failed to appear for NOV 10P. On December 6, 2011, ECB issued a default order against petitioner for NOV 10P and imposed a default penalty of $12, 000.

On February 22, 2012, petitioner requested a new hearing, essentially asserting that it did not receive the posting or mailing for NOV 10P (see Not of Cross Mot, Exh D). By final determination, dated February 24, 2012, ECB denied petitioner's request for a new hearing after a default on the ground that "[a.] request for a hearing after a failure to appear will only be granted if the failure to appear was for a reason listed in ECB's rules ... [and petitioner's] reason for not. appearing is not listed in ECB's rules" (Not of Cross Mot, Exh E). The letter also directed petitioner to pay the $12, 000 penalty (id.).

Petitioner paid the penalty by Check No. 1297, dated March :23, 2012 (Not of Cross Mot, Exh F), and commenced this CPLR article 7 8 proceeding. The petition seeks an order vacating and annulling, as arbitrary and capricious, ECB's determination, dated February 24, 2012, which denied petitioner's request for a new hearing after a default on NOV 10P. Petitioner also challenged service of the other: eight NOVs, but have since withdrawn ...


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