In the Matter of the Application of 985 AMSTERDAM AVENUE HOUSING DEVELOPMENT FUND CORPORATION, Petitioner, for a Judgment Pursuant to Article 78 of the CPLR
Suzanne A. BEDDOE, as Chief Administrative Law Judge at the Office of Administrative Trials and Hearings, N.Y.C. Environmental Control Board, N.Y.C. Office of Administrative Trials and Hearings, and Helaine Balsam, as Legal Director of the Environmental Control Board, Respondents.
[976 N.Y.S.2d 757] Jiyoung Cha Esq., Mallin, Schwartz & Cha, P.C., New York, for Petitioner.
Pamela A. Koplik, Rachel K. Moston, Assistant Corporation Counsels, New York, for Respondents.
LUCY BILLINGS, J.
Petitioner seeks to vacate three default judgments issued by respondent New York City Environmental Control Board (ECB), imposing fines for three New York City Department of Buildings violations issued to petitioner, N.Y.C. Charter § 1049-a(d)(1)(d), and to reverse respondents' denial of petitioner's request to vacate the default judgments. Petitioner claims respondents' service of their notices of violation and hearing, of the default judgments, and of their determination denying petitioner's request to vacate the default judgments was deficient and that the fines imposed were arbitrary. After oral argument, based on respondents' administrative record and regulations and on New York City Charter § 1049-a(d), the court grants the petition and remands the proceeding to respondents for a new hearing for the reasons explained below. C.P.L.R. § 7803(3) and (4).
I. THE UNDISPUTED ADMINISTRATIVE PROCEEDINGS
The Department of Buildings (DOB) issued the violations July 28, 2011, against petitioner's residential cooperative building. Violation # 34923721R was for a lack of fire stopping in the boiler room wall, to be corrected by installing the fire stopping. Violation # 34923722Z was for prohibited locks on bedroom doors in two apartments, to be corrected by removing the prohibited locks. Violation # 34923723K was for a lack of smoke detectors in specified apartments and hallways, to be corrected by installing the smoke detectors. The notices of each of the violations informed petitioner of a hearing on the violation scheduled September 15, 2011.
[976 N.Y.S.2d 758] Petitioner mailed certificates of correction for the three violation to DOB September 8, 2011. Since petitioner did not dispute the violations when they were issued and subsequently submitted the certificates of correction, petitioner assumed it was unnecessary to appear at the hearing to resolve the violations.
DOB disapproved petitioner's certificates of correction however, because they lacked a sworn explanation of how the violations were corrected. By the time petitioner received the disapprovals, it already had failed to appear at the hearing September 15, 2011, but it resubmitted certificates of correction October 5, 2011, which DOB approved October 18 and 21, 2011.
Petitioner never received any notices that it had defaulted regarding the violations, either that it had defaulted in appearing for the hearing on the violations scheduled September 15, 2011, or that a default judgment had been issued. After petitioner received bills in November 2011 for the fines imposed for the violations, $5,000 for # 34923721R, $2,500 for # 34923722Z, and $8,000 for # 34923723K, petitioner, through its managing agent, submitted a request to respondents November 30, 2011, to vacate the default judgments and reschedule the hearing.
ECB denied this request because: " You did not include information or documents you were asked to provide or the documents you provided did not prove your claim." V. Pet. Ex. G; V. Answer Ex. E. ECB's form " Request for a New Hearing After a Failure to Appear," which petitioner submitted, states: " REASON FOR WHICH A NEW HEARING SHOULD BE GRANTED: YOU MUST CHECK ONE OF THE REASONS LISTED BELOW.... IF NO REASON IS CHECKED, YOUR REQUEST WILL BE DENIED." V. Pet. Ex. F at 2; V. Answer Ex. D at 2. Petitioner failed to indicate one of the reasons listed.
The only reason listed that conceivably may have applied to petitioner's circumstances, however, was: " It is more than 45 days from the missed hearing date, but it is less than 30 days from the mailing date of the default order." V. Pet. Ex. F at 2; V. Answer Ex. D at 2. Respondents' administrative record includes an affidavit that a default order related to each violation was mailed to petitioner September 20, 2011, as part of a bulk mailing of default orders to many destinations, automatically generated through respondents' database. Petitioner, however, attests that it never received any such order. Tellingly consistent with petitioner's nonreceipt, no copy of a default order or judgment that was mailed is included in respondents' administrative record or anywhere else in the record. Because petitioner did not know when any default order was mailed, this listed reason would not be understood to apply to petitioner's circumstances.
Another reason listed on ECB's form " Request for a New Hearing After a Failure to Appear" was that petitioner " did not receive the ticket (notice of violation) because the issuing agency did not serve the ticket correctly." V. Pet. Ex. F at 2; V. Answer Ex. D at 2. Although petitioner claims that DOB's service of the Notice of Violation and Hearing (NOV) for # 34923723K, regarding a lack of smoke detectors, was deficient, petitioner did receive the NOV, so this listed reason would not be understood to apply to petitioner's circumstances either.
Petitioner did not, however, receive ECB's denials of petitioner's request for a new hearing on the violations, because ECB addressed its three denials, one for each violation, to petitioner in the care of its managing agent at 799 Broadway, New [976 N.Y.S.2d 759] York, N.Y. 10003. Petitioner's address was 985 Amsterdam Avenue, New York, N.Y. 10025. Its managing agent's address was 80 East 11th Street, New York, N.Y. 10003.
Since neither petitioner nor its managing agent received any response to petitioner's request for a new hearing, the managing agent submitted another request March 5, 2012. This request fully explained why petitioner failed to appear at the originally scheduled hearing, why the agent failed to include one of the listed reasons in the first request for a new hearing, and that ...