In the Matter of Arif Bashir, doing business as Bell Contracting, respondent,
Environmental Control Board, appellant. Index No. 6485/12
Jeffrey D. Friedlander, Acting Corporation Counsel, New York, N.Y. (Pamela Seider Dolgow and Suzanne K. Colt of counsel), for appellant.
Richard Villar, Brooklyn, N.Y., for respondent.
MARK C. DILLON, J.P., THOMAS A. DICKERSON, LEONARD B. AUSTIN, SANDRA L. SGROI, JJ.
DECISION & ORDER
In a proceeding pursuant to CPLR article 78 to review a determination of the Environmental Control Board dated October 27, 2011, which denied the petitioner's application to vacate his default in appearing for a hearing in connection with a notice of violation issued to him, the Environmental Control Board appeals from an order of the Supreme Court, Kings County (Lewis, J.), dated September 7, 2012, which, in effect, denied its motion pursuant to CPLR 7804(f) and 3211(a)(5) to dismiss the petition as time-barred by the limitations period set forth in CPLR 217, and thereupon granted the petition to the extent of directing the Environmental Control Board to vacate the petitioner's default and conduct a new hearing in connection with the notice of violation.
ORDERED that on the Court's own motion, the notice of appeal is deemed to be an application for leave to appeal from the order, and leave to appeal is granted (see CPLR 5701[c]); and it is further,
ORDERED that the order is reversed, on the law, with costs, and the motion to dismiss the petition is granted.
As a preliminary matter, contrary to the petitioner's contention, the record reveals that he was properly served on May 7, 2011, with a notice of violation by an inspector employed by the New York City Department of Transportation (see NY City Charter § 1049-a[d][a]; Business Corporation Law § 306[b]; Matter of Wilner v Beddoe, 102 A.D.3d 582, 583; see also Capital Source v AKO Med., P.C., 110 A.D.3d 1026; Hidalgo v Cruiser Taxi Corp., 101 A.D.3d 950, 950; Wassertheil v Elburg, LLC, 94 A.D.3d 753, 753; Kolonkowski v Daily News, L.P., 94 A.D.3d 704, 705; Thas v Dayrich Trading, Inc., 78 A.D.3d 1163, 1164).
The notice of violation alleged that the petitioner violated Administrative Code of the City of NY § 19-121(a), and scheduled an adjudicatory hearing before the New York City Environmental Control Board (hereinafter the ECB) for August 4, 2011. The petitioner failed to appear before the ECB on that date and, in a determination dated August 9, 2011, the ECB issued an order, on default, finding that the petitioner had violated the provision of the Administrative Code that was charged in the notice of violation. On October 23, 2011, the petitioner requested that the ECB vacate his default in appearing, and schedule a new adjudicatory hearing. In a determination dated October 27, 2011, the ECB denied the petitioner's request.
With regard to the timeliness of this proceeding, CPLR 217 provides, insofar as relevant here, that, "[u]nless a shorter time is provided in the law authorizing the proceeding, a proceeding against a body or officer must be commenced within four months after the determination to be reviewed becomes final and binding upon the petitioner" (CPLR 217). " An administrative determination becomes final and binding'" within the meaning of CPLR 217(1) " when the petitioner seeking review has been aggrieved by it'" (Matter of Caslin v Nassau County Civ. Serv. Commn., 104 A.D.3d 684, 684, quoting Matter of Yarbough v Franco, 95 N.Y.2d 342, 346; see Matter of Carter v State of N.Y. Exec. Dept., Div. of Parole, 95 N.Y.2d 267, 270; Matter of Edmead v McGuire, 67 N.Y.2d 714, 716; Matter of Lubin v Board of Educ. of City of N.Y., 60 N.Y.2d 974, 976, cert denied 469 U.S. 823).
Here, contrary to the petitioner's contention, the ECB's determination dated October 27, 2011, denying his request to vacate his default in appearing at the adjudicatory hearing, and to schedule a new adjudicatory hearing, became final and binding upon him, and commenced the running of the limitations period set forth in CPLR 217(1), on October 27, 2011. Thus, the four-month limitations period set forth in CPLR 217(1) expired prior to the petitioner's commencement of this proceeding on March 26, 2012. The petitioner's subsequent requests for the vacatur of his default and to schedule a new adjudicatory hearing, which were made after the ECB's final and binding determination dated October 27, 2011, did not extend or toll the statutory period (see Matter of De Milio v Borghard, 55 N.Y.2d 216, 220; Matter of Kan.v New York City Envtl. Control Bd., 262 A.D.2d 135, 135).
The petitioner's remaining contentions are without merit.
Accordingly, the Supreme Court should have granted the ECB's motion pursuant to CPLR 7804(f) and 3211(a)(5) to dismiss the petition as time-barred by the ...