In the Matter of Frank Mestecky, Appellant,v.City of New York, et al., Respondents.BriefN.Y.October 18, 2017 Reproduced on Recycled Paper APL-2016-00117 To be argued by: RICHARD DEARING 10 minutes requested Court of Appeals State of New York In the Matter of the Application of FRANK MESTECKY, For a Judgment Under Article 78 of the Civil Practice Law and Rules, Petitioner-Appellant, against CITY OF NEW YORK, ENVIRONMENTAL CONTROL BOARD, and DEPARTMENT OF BUILDINGS, Respondents-Respondents. BRIEF FOR RESPONDENTS RICHARD DEARING MICHAEL PASTOR of Counsel January 6, 2017 ZACHARY W. CARTER Corporation Counsel of the City of New York Attorney for Respondents 100 Church Street New York, New York 10007 Tel: 212-356-0838 or -2500 Fax: 212-356-0847 mpastor@law.nyc.gov TABLE OF CONTENTS Page i TABLE OF AUTHORITIES ....................................................... iv PRELIMINARY STATEMENT ................................................... 1 QUESTIONS PRESENTED ....................................................... 5 STATEMENT OF THE CASE .................................................... 5 A. Legal Framework .......................................................... 5 1. The City Charter contains special provisions for service of premises-related notices of violation by the affix-and-mail method. ....................................... 5 2. The City Charter originally required that notices of violation be served under CPLR or BCL provisions for the commencement of civil actions. ... 8 3. The Legislature thereafter adopted special service provisions for premises-related notices to fix problems that had resulted from using the CPLR’s rules for service of process. ........................ 10 B. The Service of NOVs for the Premises Here in Accordance with the Affix-and-Mail Method Set Forth in the City Charter ........................................... 15 1. A first Notice of Violation was issued and served in accordance with the city charter. ....................... 15 2. A second set of NOVs were served using the affix- and-mail method after an individual at the property refused to accept service .......................... 17 TABLE OF CONTENTS (cont’d) Page ii 3. A third and fourth set of notices of violation were served the following year using the affix-and-mail method, including mailings to an alternative address in the City’s records ................................... 17 C. The Present Proceedings ............................................ 19 1. ECB’s rejection of Mestecky’s challenges to a number of NOVs based on alleged improper service. ..................................................................... 19 2. ECB refused Mestecky’s requests to vacate his defaults tied to the third set of NOVs..................... 22 3. The First Department confirmed ECB’s decisions. 23 ARGUMENT ............................................................................. 25 POINT I ..................................................................................... 28 THE NOTICES OF VIOLATION WERE SERVED IN ACCORDANCE WITH THE CITY CHARTER ............... 28 A. The City Charter Requires “a Reasonable Attempt” at Personal Service at the Premises Before Use of the Affix-and-Mail Method for Premises-Related NOVs. .......................................................................... 28 1. The First Department correctly interpreted the plain language of the City Charter. ........................ 28 2. Service in this case was proper and exemplifies why the Legislature adopted a less onerous service standard for the City’s enforcement agencies. .................................................................. 34 TABLE OF CONTENTS (cont’d) Page iii 3. The Second Department’s apparent belief that the City’s enforcement agencies are subject to the requirements for commencing a civil action under the CPLR or BCL is mistaken. ............................... 37 B. The Charter does not Require Multiple Attempts at Personal Service at the Location. ............................... 40 C. Adopting Mestecky’s Interpretation of the City Charter Would Have a Profoundly Adverse Impact on the City’s Residents and Visitors .......................... 46 POINT II .................................................................................... 49 MESTECKY’S SUNDRY PROCEDURAL ARGUMENTS HAVE NO MERIT ................................... 49 POINT III .................................................................................. 52 MESTECKY’S CHALLENGE TO TWO REJECTIONS OF HIS REQUESTS TO VACATE DEFAULT JUDGMENTS WAS UNTIMELY .................................... 52 CONCLUSION .......................................................................... 55 CERTIFICATE OF COMPLIANCE .......................................... 56 TABLE OF AUTHORITIES Page(s) iv Cases Brooklyn Heights Realty Co. v. Glilwa, 459 N.Y.2d 793 (2d Dep’t 1983) ................................................. 45 Brown v. Wing, 93 N.Y.2d 517 (1999) ................................................................. 41 Carter v. State, 95 N.Y.2d 267 (2000) ................................................................. 52 De Milio v. Borghard, 55 N.Y.2d 216 (1982) ................................................................. 53 Eden v. Johnson, 117 A.D.3d 528 (1st Dep’t 2014) ................................................ 29 Edmead v. McGuire, 67 N.Y.2d 714 (1986) ................................................................. 52 First Horizon Home Loans v. N.Y.C. Envtl. Control Bd., 118 A.D.3d 875 (2d Dep’t 2014) ................................ 3, 37, 38, 40 Gordon v. Brown, 84 N.Y.2d 574 (1994) ................................................................. 51 People v. Tohom, 109 A.D.3d 253 (2d Dep’t 2013) ................................................. 42 Putnam Cos. v. Shah, 93 A.D.3d 1315 (4th Dep’t 2012) ............................................... 49 TABLE OF AUTHORITIES (cont’d) Page(s) v Statutes and Laws B.C.L. art. 3 ............................................................................ passim C.P.L.R. art. 3 ......................................................................... passim C.P.L.R. 308 ........................................................................ 28, 29 C.P.L.R. 309 .............................................................................. 29 C.P.L.R. 310 .............................................................................. 29 C.P.L.R. 311 .............................................................................. 29 L. 1975, ch. 329 ................................................................................ 9 L. 1997, ch. 569 .............................................................................. 14 N.Y.C. Admin. Code § 11-129 ..................................................... 8, 36 N.Y.C. Admin. Code § 27-2097 ......................................................... 8 N.Y.C. Admin. Code § 27-9097 ....................................................... 36 N.Y.C. Charter § 1049-a ......................................................... passim R.P.A.P.L. § 735........................................................................ 43, 44 Legislative History N.Y.L.S. Bill Jacket, L. 1975, ch. 329 .................................... 8, 9, 10 N.Y.L.S. Bill Jacket, L. 1997, ch. 569 ............................................ 15 TABLE OF AUTHORITIES (cont’d) Page(s) vi Other Authorities NYC v. Frantz Dextra, OATH Appeal No. 42698 (Apr. 21, 2005) .................................. 50 N.Y.C. Rules, Proposed Rule Defining Reasonable Attempt at Service, available at http://rules.cityofnewyork.us/content/rule-defining- reasonable-attempt-service ....................................................... 42 PRELIMINARY STATEMENT In this transferred article 78 proceeding, petitioner Frank Mestecky improperly seeks to transplant the CPLR’s requirements for service of process to commence a civil lawsuit into the dramatically different context of service of administrative notices of violation for premises-related infractions (such as Building Code, Fire Code, noise, and pollution violations). Decades ago, the State Legislature directly repudiated use of CPLR service-of-process requirements for the service of premises-related NOVs, and instead crafted a tailored regime, codified in the City Charter, specifically to govern service of such administrative notices. Contrary to Mestecky’s contentions, the service of the NOVs at issue here, concerning Building Code and other violations at a premises that he owns, complied fully with the Charter’s requirements. The First Department correctly rejected his legal arguments and claims of improper service. The City Charter’s dictates for the service of administrative NOVs are clear. The enforcing agency must first make “a reasonable attempt” to personally deliver the NOV to a suitable 2 person at the premises where the violation occurred. If that attempt at personal service is unsuccessful, the agency is authorized to serve by the affix-and-mail method, by (1) posting the NOV at the premises; (2) mailing a copy of the NOV to the premises; and (3) mailing a copy of the NOV to any alternate address listed for the owner of the premises in certain designated databases maintained by the City. These requirements strike a careful balance that creates reasonable and workable avenues for agencies to serve administrative notices of premises-related violations, while also protecting property owners’ interest in receiving notice and an opportunity to be heard, given that notices are posted on their premises, mailed to those premises, and mailed to other registered addresses. Mestecky nevertheless persists that the City Charter requires either personal service in accordance with laws applicable to commencing a civil action or multiple attempts at personal service. These contentions are belied by the law’s text, and the First Department was correct to reject them. The intent of the Legislature, as is made plain by the law it enacted to address 3 problems with service and accompanying legislative history, was not to impose those requirements on enforcement agencies in this context, but rather to craft a service framework tailored for the task at hand. Requiring inspectors to conduct costly “due diligence” searches or make multiple attempts at the same location for each violation contravenes this intent. For this same reason, the Second Department’s apparent adoption in another case of the same theory Mestecky now advances was incorrect. See First Horizon Home Loans v. N.Y.C. Environmental Control Bd., 118 A.D.3d 875 (2d Dep’t 2014). In that case, without any detailed analysis, the Second Department appeared to conclude that an inspector erred in not attempting to effectuate personal service in accordance with CPLR or Business Corporation Law requirements for commencing a civil lawsuit on a Texas bank that owned a property in Queens County, even though the Charter only requires an attempt at personal service at the property as a precondition for affix-and-mail service of administrative premises-related NOVs. Such a conclusion finds no support in the pertinent provisions of the City Charter and, if 4 adopted here, would thwart the Legislature’s intent to eliminate situations where inspectors are required to chase down absentee owners or those who refuse to accept service at the place of the violation. Although this appeal directly involves only one petitioner, it raises legal issues of great import to the City. The notices of violation issued by the Department of Buildings, the Sanitation Department, and the Fire Department using Charter service, such as those issued here, play a central role in the City’s enforcement of laws that keep residents safe from illegal housing, construction violations and piled-up refuse. Adopting Mestecky’s and the Second Department’s view of the law here would undermine these enforcement efforts, in contravention of the statutory text and to the detriment of the City’s residents. Fortunately, neither the law nor its legislative history supports Mestecky’s arguments. ECB’s determination was rational and fully supported by the law, as the First Department correctly held. 5 QUESTIONS PRESENTED 1. Did the First Department correctly reject Mestecky’s contention that inspectors must seek out other individuals at other locations to serve notices in accordance with the CPLR or that the Charter requires multiple attempts at personal service? 2. Is ECB’s determination that the notices of violation were properly mailed supported by substantial evidence in the record? 3. Are certain claims in the petition time barred when petitioner waited more than four months after ECB issued letters to him rejecting his request to vacate certain default judgments? STATEMENT OF THE CASE A. Legal Framework 1. The City Charter contains special provisions for service of premises-related notices of violation by the affix-and-mail method. ECB is the agency tasked with adjudicating alleged violations of certain provisions of the New York City Charter and the New York City Administrative Code, including those related to the prevention of fire (and danger to life and property therefrom); the construction, maintenance, use and safety of building 6 structures; and the cleanliness of the City’s streets. See N.Y. Charter § 1049-a(c). The City’s enforcement agencies issue hundreds of thousands of notices of violation each year that are returnable to ECB. The majority of those notices are issued by the City’s Department of Buildings, Fire Department, and Department of Sanitation. Notices of violation that fall under ECB’s jurisdiction may be served in the manner provided for by City Charter § 1049-a(d)(2). The Charter authorizes ECB to enter administrative orders imposing penalties of $25,000 or less as civil judgments, without further court action, so long as the pertinent notice of violation was served in accordance with City Charter § 1049-a(d)(2). See City Charter § 1049-a(d)(1)(g); (d)(2)(a). In general, section 1049- a(d)(2) permits agencies to serve notices of violation in accordance with the requirements for service of civil process set forth in Article 3 of the CPLR or Article 3 of the BCL. Id. § 1049-a(d)(2)(a). But the Charter also specifically authorizes notices issued as to premises by the Department of Buildings, the Fire Department, 7 and the Department of Sanitation to be served in accordance with alternative requirements. Id. § 1094-a(d)(2)(a)(ii). As to such premises-related notices of violation, the enforcing agencies must first make “a reasonable attempt” at personal service (a) at the premises where the violation occurred; and (b) on a person there who is suitable to receive service under the standard of the CPLR or the BCL. The standards of the CPLR and BCL are thus borrowed only to determine the class of persons who are suitable to receive personal service at the premises where the violation occurred in cases where personal service is effectuated. The Charter provides that, if the attempt at personal service is unsuccessful, the agency may effectuate service by the affix- and-mail method. To do so, the agency must (1) post a copy of the notice of violation at the premises; (2) mail a copy of the notice to the premises; and (3) mail a copy of the notice of violation to the owner of the premises, at the owner’s address or addresses, as 8 recorded in designated databases, such as property tax and landlord registries, that are maintained by the City.1 2. The City Charter originally required that notices of violation be served under CPLR or BCL provisions for the commencement of civil actions. Until the mid-1970s, ECB had few mechanisms to enforce against parties who violated the law, which was a particular problem in relation to air pollution. Over a three year span between 1971 and 1974, ECB levied over $3,000,000 in air pollution fines but was only able to collect $1,000,000, and sixty- five percent of those found to be polluting the City’s air continued to pollute after a violation had been issued to them. See NYLS’ Bill Jacket, Ch. 329 of the Laws of 1975 (“Ch. 329 Bill Jacket”), Memorandum in Support from the City of New York, at 1. ECB 1 The designated databases include records maintained by the Department of Finance for the purposes of assessment and collection of property taxes, as well as those maintained by the Department of Housing Preservation and Development with respect to certain owners who are required to register properties they are renting out. See City Charter § 1049-a(d)(2)(b)(i)-(ii); N.Y.C. Administrative Code § 11-129(b); N.Y.C. Administrative Code § 27- 2097. The City keeps a central database of all such addresses that city inspectors check to identify any additional address to which the notice of violation should be mailed. 9 was having difficulty enforcing against these polluters because its only option when such actors failed to pay was to turn cases over to the Corporation Counsel’s office for individual legal action. In 1975, the Legislature amended the City Charter to address this issue and to help the City confront its air pollution problem by authorizing ECB to enter administrative orders imposing penalties of $25,000 or less as civil judgments, without any further court action. Ch. 329 of the Laws of 1975, § 1. The City hailed the change as one that would increase deterrence for polluters, who had until then found it more convenient and economical to simply ignore violations rather than respond to them. Chapter 329 Bill Jacket, at 2. At the same time, the City noted that the rights of those receiving violations would not be lessened by the change because they could still challenge any NOV at a hearing or by means of a later Article 78 proceeding. Id. at 1. When adopting this new docketing power for ECB, the Legislature also decided to borrow the service requirements for the commencement of civil actions under Articles 3 of the CPLR 10 and the BCL. Ch. 329 of the Laws of 1975, § 1. The legislative history of the law is silent as to the decision to require City administrative agencies to conduct this type of service before ECB orders could be docketed as judgments. See generally Ch. 329 Bill Jacket. 3. The Legislature thereafter adopted special service provisions for premises- related notices to fix problems that had resulted from using the CPLR’s rules for service of process. Under the law enacted in 1975, city inspectors, such as those issuing violations for littering violations, were required to comply with the CPLR’s requirements for service of process whenever they spotted a violation at or adjacent to a property. This requirement proved immediately problematic. In some instances, a corporate owner would simply refuse to identify the appropriate person for service of the notice of violation (Record on Appeal [“R.”] 320). The problem became so entrenched that the Sanitation Department, for example, would have no recourse but to call in the Police Department to assist in compelling the identification of a person suitable for service (id.). 11 Using the CPLR service rules for the commencement of a civil action also proved to be a problem when owners were absent from the property where the enforcement officer observed the violation. In such cases, inspectors had to conduct a costly and time-consuming search (i.e., “due diligence”) for the appropriate person to serve. They also had to find the location of such a person, if such location existed, so that personal service could be attempted at that location. Difficulties with service and enforcement, in turn, led to the increasing problem of accumulated refuse and garbage on the City’s streets, sidewalks and properties (R.320). As a result, the City sought to address the issue through State legislation, with the Mayor himself writing to the Governor to stress the importance of the bill the City proposed as a solution (R.321). At the behest of the City, and just four years after first requiring service in accordance with the requirements for service of process under the CPLR or the BCL before ECB orders could be docketed, the Legislature passed amendments to the City Charter that for the first time created special provisions authorizing affix- 12 and-mail service for inspectors of the Department of Sanitation. The newly enacted provisions provided that this alternative method of service was only available for service on a person or corporation if “a reasonable attempt has been made to deliver such notice to a person in such premises upon whom service may be made as provided for by article three of the civil practice law and rules or article three of the business corporation law.” N.Y. City Charter § 1049-a(d)(2)(b). Thus, the Charter no longer incorporated the CPLR’s provisions governing service of civil process in their entirety for premises-related violations. Instead, the Charter now required only that the attempt at personal service to be made at the location of the violation must seek to effectuate service there on a person who would be suitable to receive service under the CPLR or the BCL. The standards of the CPLR and BCL were thus borrowed only to determine the class of persons who are suitable to receive personal service at the premises where the violation occurred in cases where personal service is effectuated. The legislative history of the bill made clear that the City wanted and 13 that the drafters intended that this new form of service would be relaxed, compared with the requirements for service of process to commence a civil lawsuit under the CPLR or the BCL (e.g., R.319- 320). Five years after the Legislature authorized this affix-and- mail service, it amended the provision to require that mailings be made not just to the subject address but to addresses kept on file with the Finance Department, HPD, and the enforcement agency issuing the violation (R.326). The memorandum in support of that bill explained that these added requirements with respect to notice were warranted to enhance the likelihood the respondents would receive actual notice (R.329-330). Thus, the Legislature paired the less onerous personal service requirements afforded the City’s agencies with additional mailing requirements meant to ensure that NOVs would reach property owners who were unwilling or unavailable to accept personal service at the property. The Legislature thereafter broadened the scope of the special provisions for affix-and-mail service to apply not just to the 14 Department of Sanitation, but also to the Fire Department and the Buildings Department, who had experienced similar problems with effectuating service of premises-related administrative violations in compliance with the manner required by the CPLR for the service of process to commence civil lawsuits. See Ch. 569 of the Laws of 1997. Those issues with service raised public safety concerns at buildings that were out of compliance with the Building Code or the Fire Code. In supporting a bill to authorize DOB and the FDNY to use affix-and-mail service, the Queens Borough President emphasized the overall problem with service by DOB or FDNY inspectors, with particular concerns raised by violations of the Building and Fire Codes by owners who created “illegal conversions” that house individuals in cramped and unsafe environments. In one instance cited by the Borough President, four individuals lost their lives when a fire started in a building that had been converted to house illegal units (R.332). The Borough President noted: “Unfortunately, it is extremely difficult to enforce the existing laws prohibiting illegal 15 conversions. In addition to the problem that the buildings inspectors have in attempting to gain access into these buildings, even when a violation has been determined to exist, it is often hard to locate the owner of the property in order to serve the notice of violation. This is especially true when the owner of record does not live on the premises” (R.333). The Assembly’s Memorandum in Support of the bill to rectify these service difficulties made the similar point: “it still remains difficult to take corrective action . . . [I]t is often hard to locate the owner of the property in order to serve the notice of violation, especially where the owner of record does not live on the premises.” NYLS Governor’s Bill Jacket, Ch. 569 of the Laws of 1997, at 10. B. The Service of NOVs for the Premises Here in Accordance with the Affix-and-Mail Method Set Forth in the City Charter 1. A first Notice of Violation was issued and served in accordance with the city charter. On October 27, 2011, an inspector found that there was construction work being conducted at Mestekcy’s building without a permit and witnessed an illegal side extension at the site. After 16 deciding to issue a notice of violation, the inspector attempted what the notice itself calls “Alternative Method/Charter Service” by knocking on the front door. The inspector then posted the violation on the door of the building (R.105). DOB also mailed a copy of the violation to the subject premises (R.77). When serving notices of violations, DOB inspectors also check to see if there are any other addresses on file of the Finance Department, HPD, or DOB. To carry this out, the inspectors check an automated system (called “AIMs”) that is populated with information such as recorded deeds and owner registration cards with the Finance Department, addresses filed by landlords who register with HPD, or when individuals apply for licenses with City agencies (R.75). With respect to the violation issued on this date, City records had no other address on file for the subject premises (id.). 17 2. A second set of NOVs were served using the affix-and-mail method after an individual at the property refused to accept service On December 13, 2011, an inspector issued notices of violation to Mestecky for failure to comply with a Commissioner’s order (R.109, 114, 119). The inspector attempted personal service by knocking on the door. A female occupant answered the door, informed the inspector that Mestecky did not live there, and refused to accept service of the notices of violation (R.110, 115, 120). The inspector posted the notices on the door, and they were automatically mailed to the subject premises (R.109-123). A check of the AIMs database indicated that the subject premises was the only address on file for the property (R.76). 3. A third and fourth set of notices of violation were served the following year using the affix-and-mail method, including mailings to an alternative address in the City’s records In April 2012, an inspector again found work being conducted at the site without a permit, including an extension of the apartment (R.124, 131). The inspector rang the doorbell and after no one responded, the NOV was posted on the door and mailed to the premises (R.124-137). In addition, DOB did a check of the AIMs database and found an address in Bayside, Queens on file for the subject premises (R.77). 2 The notices of violation were also mailed to that address in accordance with City Charter requirements (R.130, 137). A few months later, an inspector issued three notices of violation to petitioner for failing to comply with a Commissioner's order (R.89, 94, 99). The inspector got no response after knocking on the door and posted the NOVs thereafter. The NOVs were also mailed automatically to the subject premises. They were also mailed to the additional address on file in AIMs (i.e., the Bayside address). 2 This address was - 203rd Street, Bayside, New York, where Mestecky claims he has resided continuously since on or about June 2011 (Appellant's Brief, at 15). 18 19 C. The Present Proceedings 1. ECB’s rejection of Mestecky’s challenges to a number of NOVs based on alleged improper service. On July, 4, 2013, an administrative law judge held a hearing on default judgments that been entered after petitioner failed to appear for a hearing tied to the fourth set of violations issued in June of 2012. Mestecky argued at that hearing that service was inadequate because only one attempt at personal service had been made and that the notices were not sent to the secondary address on file with City (R.79). The administrative law judge rejected these arguments and found that the NOVs had been served in accordance with § 1049-a of the City Charter, including that the notices had been mailed to Mestecky’s address in Bayside (id.). On appeal to the ECB, Mestecky argued that more than one attempt at personal service was required (R.259-260). Mestecky also argued that DOB was required to make an attempt at personal service not at the premises with the violation but at his other address (id.). He also claimed that the evidence of the mailings to him were inadequate In upholding the NOVs, the 20 Board concluded that the inspector satisfied the Charter when he made an attempt to serve at the premises and then used the “affix-and-mail” method of service (R.260). The Board also found no basis to conclude the multiple attempts at personal service are required under the City Charter (id.). The Board further rejected Mestecky’s arguments relating to mailing. The Board found that there is no requirement that records of mailings be authenticated in the course of the hearing. Instead, the Board found that that ALJ was entitled to take official notice of the printout from the City’s AIMs database specifying that the notices had been mailed. All of those AIMS print-outs showed that the notices had been mailed to the subject premises and to the address that petitioner concedes is his permanent residence (e.g., R.130, 137).3 On September 10, 2013, a different ALJ conducted a hearing on other default judgments tied to the first and second set of 3 The Board ruled that a few notices of violations not subject to the instant appeal should be dismissed because the written description as to service was illegible (R.261). 21 violations that had been issued in 2011. Both petitioner and DOB made all the same legal arguments as those that were made in the first hearing (R.82). The ALJ again upheld the NOVs. The ALJ found that a reasonable attempt had been made to serve the NOVs at the premises and that DOB established mailing to the subject premises (id.). The ALJ also found that DOB was not required to mail the notices to an alternative address because DOB was unaware of that address at the time (id.). On appeal, the Board again rejected petitioner’s claim that two attempts at personal service are required or that service must be attempted at any location other than the property. The Board concluded: “[U]nder Charter Section 1049-a(d)(2), a reasonable attempt must be made to deliver an NOV to a person in the premises where the violation occurred upon whom service may be made. [DOB] was therefore not required to effectuate service personal service on [petitioner] at a location other than the place of occurrence” (R.54). The Board determined that when an inspector knocked on the premises or spoke to someone who answered but refused to accept service, the inspector had made 22 the required reasonable attempt at personal service at the location (R.54). Mestecky further argued that the NOVs should be annulled because they had not been sent to his home in Bayside. However, DOB proffered tax bills from June and November 2011, around the time that these NOVs were issued, that contained only the subject premises address (R.55). This, in turn, meant that at the time of the filing, the address of the subject premises was the only one on file with the City. Mestecky countered with a tax bill for the following year in February 2012, after the NOVs were issued. But the Board based its decision on the address on file at the time of the violation issuance, not one that might have been on file at a later point.4 2. ECB refused Mestecky’s requests to vacate his defaults tied to the third set of NOVs On or about June 12, 2013, Mestecky requested that ECB vacate default judgments with respect to the third set of violations 4 Notably, for the NOVs issued after February 2012, all were sent to this alternative address. 23 after petitioner had failed to appear at the appointed time for a hearing (R.80). On July 7, 2013, ECB mailed a letter to Mestecky rejecting his claim that he had not received the notices of violation and refusing to vacate the default judgment (R.286-287). An affidavit of service accompanying those letters indicates that the letters were mailed both to the subject premises and to petitioner’s alternative address in Bayside that he had placed on file with the City by the time of the third set of violations (R.288-289). 3. The First Department confirmed ECB’s decisions. On April 10, 2014, Mestekcy filed a petition challenging all of the NOVs in the present appeal. He claimed that at least two attempts at personal service are required under the City Charter. He also argued that “since [he] does not reside at the [subject premises],” DOB was required to make an attempt at personal service at Mestecky’s Bayside property (R.43). Mestecky also sought reversal of ECB’s decision to not grant him a vacatur of the default judgment because ECB concluded that service on him of the underlying NOVs had been proper (R.43). Supreme Court, sua 24 sponte, ordered that the matter be transferred to the First Department (R.4). Before the First Department, Mestecky again advanced the same arguments he had made all along and advances now. The First Department rejected them all. The Court concluded that DOB inspectors had complied with alternative service requirements by affixing and mailing the NOVs after making one attempt at personal service at the premises where the violation occurred (R.397). The Court found that the reference to CPLR Article 3 in the City Charter’s affix- and-mail provision “merely prescribes the class of individuals whom respondents must try to personally serve, and does not import the ‘due diligence’ requirement of CPLR article 3” (id.). The Court went on: “This interpretation of the City Charter is supported by the statutory language as a whole, and by the legislative history showing a legislative intent to make service under section 1049-a(d)(2) of the City Charter less onerous than service under CPLR article 3” (id.). The Court also rejected petitioner’s request that it import the “reasonable application” 25 standard for personal service under the RPAPL, which had been interpreted by some courts to require two attempts at personal service (R.398). Finally, the First Department found petitioner’s challenges to ECB’s decisions in refusing to vacate default judgments as to two of the NOVs issued to him were time-barred (R.398). ARGUMENT The two central conclusions of the First Department were sound, and Mestecky makes no persuasive case for why they should not be confirmed here. First, the Charter clearly sets forth the requirements for service of an administrative notice of a premises-related violation. Contrary to petitioner’s contentions, inspectors seeking to serve such administrative violations are not required to conduct personal service as would be required by the CPLR or the BCL to serve process to commence a civil action before they may affix and mail a premises-related NOV. Instead, they must make a reasonable attempt at personal service on a person appropriate for service under the CPLR or the BCL, but still only at the premises where the violation occurs. 26 Mestecky’s contrary theory–that inspectors must conduct a “due diligence” search to effect personal service on the owner of the premises, wherever the owner may be found, before they may use the affix-and-mail method to serve an NOV—runs contrary to both the City Charter’s plain text and its legislative history. The First Department correctly so held. Second, the Charter is likewise clear that one reasonable attempt at personal service on a suitable person at the premises where the violation has occurred will satisfy the precondition to use of the affix-and-mail method for service of an administrative premises-related NOV. The City Charter does not require that inspectors go to the location of the violation on multiple occasions to try to effect personal service of the NOV. Mestecky’s attempt to import case law construing a different service requirement under a different statutory regime was unavailing before the First Department and remains so now. The rule Mestecky asks this Court to adopt, and the one the Second Department has unfortunately appeared to adopt at least implicitly, would create results that the Legislature expressly 27 sought to avoid. Specifically, in lieu of efficiently but fairly deterring those with Building, Fire, or Sanitation Code violations to clean up their act, inspectors would be tied down on costly and onerous chases to find absentee owners or those who refuse to accept personal service. The First Department correctly reviewed both the law’s text and its purpose in confirming that the law must be read to avoid this result. This Court should do the same not just for the sake of affirming the NOVs here but for ensuring that the City’s overall enforcement processes do not become impeded by inapposite service requirements that the law simply does not require. 28 POINT I THE NOTICES OF VIOLATION WERE SERVED IN ACCORDANCE WITH THE CITY CHARTER A. The City Charter Requires “a Reasonable Attempt” at Personal Service at the Premises Before Use of the Affix-and-Mail Method for Premises-Related NOVs. 1. The First Department correctly interpreted the plain language of the City Charter. Mestecky’s appeal hinges, in part, on his claim that DOB was required to make service in accordance with the requirements of CPLR § 308 for the service of a summons and complaint to commence a civil action. This is incorrect and derives from a flawed reading of the cross-reference to the CPLR in the City Charter § 1049-a. The First Department correctly rejected it. The Charter provision requires that, before using the affix- and-mail method, the agency must first make “a reasonable attempt” to deliver the notice “to a person in such premises upon whom service may be made as provided for by article three of the [CPLR] or article three of the [BCL].” Id., § 1049-a(d)(2)(b). The provision requires an attempt at delivery of the notice (a) “in such 29 premises,” i.e., at the location of the violation; and (b) to a person upon whom service may be made under the CPLR or the BCL. The requirements of the CPLR or BCL are therefore incorporated only insofar as they prescribe the set of persons who are eligible to receive delivery of the NOV at the premises where the violation occurred. 5 The City Charter does not require other provisions of the CPLR or BCL regarding service of the papers commencing civil lawsuits to be followed in the service of administrative notices of violation by the Department of Buildings and other designated agencies. To the contrary, as shown above, the Legislature enacted the special provisions for affix-and-mail service of premises- related administrative NOVs precisely to make clear that those requirements for the commencement of civil lawsuit did not apply 5 What this means in practice is that if an inspector encounters a person at the place of the violation, there is some obligation to ensure that such person is eligible to receive service of the NOV. E.g., CPLR 308-311. For example, before nailing-and-mailing the NOV, the person upon whom the NOV was served would have to be a person of suitable age and discretion in accordance with the CPLR. See, e.g., Eden v. Johnson, 117 A.D.3d 528 (1st Dep’t 2014) (approving service of process when a server left a summons and complaint with the receptionist at a doctor’s office who conceded to being of a suitable age and discretion to receive service). 30 to this specialized administrative regime. It did so because serious problems had arisen under the former statute, which had previously made service of premises-related administrative notices subject to the same rules that the CPLR prescribes for service of a civil lawsuit. Confronted with that history, the Legislature reasonably decided to abandon the former service regime in favor of one that is tailored to the specific context of premises-related administrative NOVs. The present language in the City Charter requiring a reasonable attempt at personal service before using the affix-and-mail method is appropriately property-focused. It states unequivocally that an attempt must be made to personally serve a person “in such premises,” i.e., the property where the violation occurs. There is no requirement that an inspector make attempt to personally serve notice of the violation elsewhere, though the CPLR or BCL might well require such efforts before a person could institute a civil lawsuit against a defendant. And, indeed, the central purpose of the alternative method of service was to eliminate the need for such attempts at personal service at 31 other locations. The First Department’s interpretation of the CPLR cross-reference was clearly correct (R.397). The Legislature’s creation of a specialized service regime for administrative premises-related NOVs, different from the requirements for service of process to commence a civil lawsuit, makes good sense. Civil lawsuits may pertain to the acts of the defendant that are totally unconnected to any particular premises—they may arise from the defendant’s business dealings, car accidents, marital or family relationships, or any number of other things. Civil lawsuits also may result in unlimited monetary liability or property loss for the defendant pursuant to judicial action—they can involve millions in damages, for example. By contrast, the violations governed by the Charter provisions are connected to particular premises—the same location where personal service must be attempted, and where the notice of violation must thereafter be posted and mailed—and those violations may result in administrative proceedings culminating in a defined schedule of administrative fines. 32 The Charter provision appropriately reflects both the administrative and premises-related character of the violations in question. The violations for which the Department of Buildings, Department of Sanitation, and the Fire Department issue notices of violation are, by their nature, predominantly tied to a property or building. Moreover, such violations are typically discovered by the direct observation of enforcement personnel at the site or location in question. In such situations, it makes sense from a policy perspective to require an attempt at personal service at the location of the violation, after which the notice may be served by posting at the location, mailing to the location, and mailing to the address for the owner shown in the City’s databases. Mestecky’s proposed approach—which would require costly searches for absentee corporate or individual owners in order to effectuate personal service on them—ignores this basic reality and flouts the plain language of the Charter. The City Charter provisions enacted by the Legislature also provide ample protection to the interests of property owners in receiving notice and an opportunity to be heard as to premises- 33 related infractions. In addition to requiring the attempt at personal service at the premises, the City Charter requires that affix-and-mail service be effectuated by affixing the notice of violation to the door (or a “conspicuous place”) at the premises and mailing a copy of the notice to the premises. The City’s agencies are also required to search the address tied to the premises in a City database that is populated by records from other agencies, including the City’s Finance Department. This means if an owner has a different address for property tax purposes, the notice of violation will be mailed there as well. The regime appropriately recognizes the ability and responsibility of absentee or corporate property owners to make arrangements for someone trustworthy to monitor the property and the mail received there for possible notices of violations, and also to ensure that their registered addresses for tax and other purposes are kept up to date. 34 2. Service in this case was proper and exemplifies why the Legislature adopted a less onerous service standard for the City’s enforcement agencies. As the First Department held, the NOVs here were served in accordance with the requirements of the City Charter. After identifying violations of the Building Code at petitioner’s property (including a failure to abide by earlier orders), DOB inspectors attempted to serve Mestecky using the affix-and-mail method under the City Charter. It is clear that they comported with the City Charter in doing so. Before using the affix-and-mail method for the notices of violations petitioner challenges here, inspectors made a reasonable attempt at personal service at the property. In certain instances, no individual responded to a knock or a ring of the doorbell. Thus, the inspector found no person at the property suitable for service under the CPLR or the BCL (i.e., of suitable age and discretion, etc.). In another instance, a female occupant opened the door, but she refused service. Once these attempts were completed, the inspector then affixed a notice of violation to petitioner’s property. 35 Thereafter, DOB went on to fulfill all other requirements of the Charter with respect to mailing. The NOVs were mailed to the subject premises, and a search was conducted in AIMs for alternative addresses held by the Finance Department, HPD, or DOB. With respect to the 2011 NOVs, no alternative addresses were found. Petitioner himself concedes that it was not until around February 2012 that the City had on file another address (where petitioner claims to reside). Thereafter, any NOV issued to petitioner was mailed to that address as well. It is clear from this record that not only did DOB fully comply with the City Charter, but that this is the quintessential case for which the Charter’s special provisions governing service of premises-related administrative notices were originally enacted. Here, Mestecky conceded that he did not live at the address with the violations and that he had not authorized anyone there to accept service of process for him. Locating Mestecky and effecting personal service on him at another location would have been time- consuming, costly, and ineffective. Indeed, for the earlier violations, there was no other address on file for Mestecky, which 36 would have made finding another place to serve him especially difficult. These points are driven home by considering that efforts to effect personal service on the premises owner wherever he, she, or it may be found would need be multiplied by the tens of thousands of premises-related NOVs served per year at locations throughout the City. This, indeed, is why the Legislature enacted the affix-and-mail provisions for service of premises-related NOVs in the first place. The Charter does not merely require a reasonable attempt at personal service. Nor does the Charter require only that the NOV be posted at the premises and mailed to those premises. Rather, the Charter also provides that the City make an extra mailing of the notice to addresses the City has on file. But those provisions depend upon owners following their legal obligation to register with HPD as landlords, see N.Y.C. Administrative Code § 27-9097, and notify the Finance Department if they want tax bills sent to an alternative address. See N.Y.C. Administrative Code § 11- 129(b). 37 Here, although Mestecky claims to have moved out of the subject premises in June of 2011, he apparently did not update his tax or other records with the Finance Department until the following year. Thus, to the extent mailings in 2011 were not made to Mestecky’s new home address, he has only himself to blame. After the City’s databases were updated, the mailings were made to his alternative address. Either way, while the Charter requires these additional mailings, no further attempts at personal service at another location are required. 3. The Second Department’s apparent belief that the City’s enforcement agencies are subject to the requirements for commencing a civil action under the CPLR or BCL is mistaken. In support of his position, Mestecky cites a Second Department decision that can be read to stand for the proposition that the City Charter requires premises-related NOVs to be served just like a summons and complaint in a civil lawsuit must be served under the CPLR or BCL. First Horizon Home Loans v. N.Y.C. Environmental Control Bd., 118 A.D.3d 875 (2d Dep’t 2014). In that case, a Texas bank owned via foreclosure a property 38 in Queens County. An inspector made an attempt at personal service at the property and thereafter used the affix-and-mail method of service. Thus, the NOVs were posted at the premises and also mailed to those premises. Because the AIMs database showed no alternative address for the property, the NOV was not mailed to any other address. With little analysis, the Second Department concluded that “the Board failed to adduce any evidence to show that, prior to purportedly serving the notice of violation pursuant to a method of substituted service enumerated in the New York City Charter, the DOB had made reasonable attempts to serve the notice of violation upon the petitioner as provided for by the applicable provisions of CPLR article 3 or Business Corporation Law article 3.” Id. at 875 (emphasis added). For all of the reasons we have just discussed, to the extent that the Second Department in First Horizon imported all service requirements for service of civil process under the CPLR and BCL into the Charter’s regime for service of premises-related administrative NOVs, the decision is incorrect. The Charter does 39 not require the service of premises-related NOVs to conform to the general requirements for service of process to commence a civil lawsuit under the CPLR and, indeed, the alternative method of service was enacted into law by the Legislature to require something less than is required to commence a civil lawsuit under the CPLR. As discussed above, the cross-reference to Article 3 of the CPLR and the BCL comes directly after the requirement that an attempt be made “in such premises,” not at any other location that a respondent might be located. All that is required is that when a reasonable attempt at personal service is made at the location, if individuals are present, an inspector must attempt to serve someone who is suitable to receive service at that location. The Second Department erred in holding that personal service is required at any other location. The Second Department’s decision is not only contrary to the statutory text but would frustrate the core purpose of the Charter provisions. The affix-and-mail provisions of the Charter aim to avoid situations where City agencies are chasing down thousands 40 of non-present owners to try to serve NOVs for premises all over the City. Whether addressing landlords who illegally combine units or tenants who leave refuse outside a property, enforcement efforts had been hindered by requiring that inspectors locate a person for service at locations other than where the violation was found. The Legislature sought to fix this very problem by enacting the pertinent Charter provisions—a historical backdrop that the Second Department’s decision fails to acknowledge, let alone address. In short, while resort to a review of legislative history is not needed here because the Charter provisions are clear and unambiguous on their face, such history only further confirms the soundness of the First Department’s decision here and the error of the Second Department’s cursory analysis in First Horizon. B. The Charter does not Require Multiple Attempts at Personal Service at the Location. Mestecky alternatively argues that service in this case was insufficient because DOB inspectors did not make multiple attempts at personal service at the location where the violations 41 occurred. This argument, too, is contrary to the Charter’s plain text. Statutory analysis must, of course, begin with the text. If the words of the statute are clear and unequivocal, the matter is at an end and the court should “construe the legislatively chosen words so as to give effect to that Branch’s utterance.” Brown v. Wing, 93 N.Y.2d 517, 522 (1999). Here, the language of the statute authorizing affix-and-mail is unambiguous: “Such notice may only be affixed or delivered pursuant to [a mailing] . . . where a reasonable attempt has been made to deliver such notice to a person in such premises.” N.Y. City Charter § 1049-a(d)(2)(b) (emphasis added). By using the article “a” and the singular form “attempt,” the statute specifies that affix-and-mail service may be pursued after one reasonable attempt at personal service at the premises has been made and has proved unsuccessful. Thus, employing the ordinary meaning of the language as it appears in the statute, DOB met this burden in this case when it made a reasonable attempt to serve the NOV at the relevant premises. 42 The legislative history further confirms what the plain text of the statute already shows. In statutory interpretation, the intent of the legislature is paramount. See People v. Tohom, 109 A.D.3d 253, 263 (2d Dep’t 2013). Here, the legislative history unquestionably demonstrates that the authorization of affix-and- mail service was intended to make it less onerous for inspectors to enforce premises-related laws around the City. Requiring that inspectors make repeated visits to the locations of violations to try to effect personal service there would impede that legislative intent.6 Moreover, Mestecky’s position rests on a contradiction. Petitioner has conceded that he no longer lives at the subject premises and has not designated anyone to accept service there on his behalf. Thus, no matter how many attempts were made at the location, personal service could never have been effectuated at the 6 Mestecky’s claim that ECB considered a proposal to amend the City Charter is wrong (App. Br., at 27). Instead, ECB merely undertook rule-making to clarify beyond any doubt that one attempt at personal service constituted a “reasonable attempt” under the Charter. See Proposed Rule Defining Reasonable Attempt at Service, Statement of Basis and Purpose (available at http://rules.cityofnewyork.us/content/rule-defining-reasonable-attempt- service). 43 premises. This makes plain the incoherence of petitioner’s position and further shows why the Charter’s plain text sensibly does not mandate more than one reasonable attempt to personally serve a notice at the subject premises. Rather than interpreting the actual text of the Charter, petitioner instead asks this court to import case law construing an entirely different provision of the Real Property Actions and Proceedings Law that governs service of process by private parties to commence a civil suit to recover possession of real property. As the First Department correctly held, this argument fails because the text, context, history, and purpose of the RPAPL provision are dramatically different from the text, context, history, and purpose of the Charter provision governing service of premises-related NOVs. First, the provision on which petitioner relies, RPAPL § 735, contains different language from City Charter § 1049-a, and the State legislature should be presumed to have chosen that different language consciously. Under RPAPL § 735, a landlord cannot utilize the affix-and-mail method if “upon reasonable application,” 44 the landlord is able to enter the premises and serve the petition upon a suitable person within it. RPAPL § 735(1). The phrase “upon reasonable application” is akin to the phrase “upon reasonable diligence,” and some courts have construed the phrase to require more than one attempt to make personal service. But unlike the “upon reasonable application” language in RPAPL § 735(1), the Charter provision at issue here mandates “a reasonable attempt” at personal service. The language thus refers to a concrete act—an attempt at personal service—and does not refer to a standard of diligence. And, again, the phrase “a reasonable attempt,” with the use of article “a” at the outset and the singular form “attempt,” leaves no doubt that one reasonable attempt at personal service satisfies the statute. The language thus contrasts sharply with the provision of the RPAPL on which Mestecky relies. Unlike the phrase “a reasonable attempt” that appears in the City Charter, the phrase “upon reasonable application,” with no article and no reference to a concrete act, does not clearly and unambiguously specify that a single act is sufficient. 45 Second, the RPAPL provision cited by Mestecky serves a completely different purpose from the Charter provision at issue in this case. In RPAPL cases, a tenant in default runs the risk of being summarily evicted from his or her home via judicial process. Brooklyn Heights Realty Co. v. Glilwa, 459 N.Y.2d 793 (2d Dep’t 1983). In contrast, NOVs involve civil, monetary penalties that are authorized to be docketed administratively and do not implicate continued ownership or possession of the property where the violation has occurred. NOVs are issued in personam, City Charter § 1049-a(d), and thus do not in any manner burden the property related to the NOV. Given that RPAPL tenants thus have more at stake, the Legislature might reasonably have determined that a process server for the landlord who owns the very premises in question should be required to make multiple attempts at service there when it undertakes its “reasonable application” to effect personal service to commence a civil proceeding to recover possession of real property. But the same interest is not at stake here. And this matter involves not a landlord seeking to effect service at specific 46 premises that the landlord itself owns, but rather city agencies’ enforcement of laws for the benefit of the public, entailing service of hundreds of thousands of NOVs at legions of premises throughout the City per year. In light of these stark differences, the Legislature sensibly determined that “a reasonable attempt” at personal service is sufficient basis to thereafter pursue service by the affix-and-mail method prescribed in the Charter for administrative premises-related NOVs. The pertinent Charter provisions are clear and the Court should give full effect to them. One reasonable attempt at personal service is sufficient to support use of the affix-and-mail method in accordance with the Charter’s specifications. C. Adopting Mestecky’s Interpretation of the City Charter Would Have a Profoundly Adverse Impact on the City’s Residents and Visitors While this case concerns only one party, broad potential ramifications for the City are presented by Mestecky’s effort to rewrite the Charter requirements to require satisfaction of CPLR rules for service of civil process or to require multiple attempts to 47 effect personal service at premises where violations occur. Every year, the City’s enforcement agencies issue hundreds of thousands of notices of violation. Many of the laws that are enforced by the agencies in question pursuant to the issuance of notices of violation serve the purpose of keeping people safe from nuisances or other risks of harm. For example, as the State Legislature recognized in 1997, the Fire Department needs every tool at its disposal to combat the illegal conversion of spaces into configurations that allow more individuals to live in the space than is legally permitted, which puts inhabitants at serious risk in the event of a fire. Requiring CPLR, rather than affix-and-mail service, would make enforcing laws related to these illegal conversions exponentially more difficult and reduce deterrence for those considering illegally converting a space. The same is true for the Department of Buildings, whether it finds structural issues at a building, problems with a roof-mounted crane, or work being conducted without a permit. 48 Many of the laws in question also directly affect the quality- of-life of City residents, millions of others who work here, and millions who come here as tourists. If persons violating those laws can avoid notices of violation and the fines that come with them because the City’s agencies are unable to serve them (or find the right person for service), the effect on the City’s quality of life would be palpable. For example, if the Department of Sanitation is unable to locate an appropriate person for service when an inspector finds a sidewalk covered in debris and refuse, it necessarily follows that the owner may lack the incentive to clean it up and may, in turn, not be deterred from littering in the future. All of these factors make adhering to the Charter’s plain text especially important here. Those who enacted the Charter provisions did not do so with the limited view of how the provisions would apply in one case. Rather, they adopted the provisions with an eye towards the City’s overall enforcement scheme and the intent to improve its functioning to ensure safety, health, and quality of life for the millions who live in and visit New York City. It is only the First Department’s correct reading of 49 the statute, and not petitioner’s proposed revision of it, that furthers this intention. POINT II MESTECKY’S SUNDRY PROCEDURAL ARGUMENTS HAVE NO MERIT In addition to his arguments on the overarching legal question, Mestecky makes a number of assertions with respect to alleged procedural defects in this process before ECB. None of them withstand scrutiny. First, Mestecky claims that ECB did not establish that the NOVs were mailed at all (App. Br., at 28-34). However, with respect to all NOVs, DOB produced screenshots of the “SVB1” screen indicating that mailings had been done automatically out of the AIMs system (e.g., 103). As explained in the supporting affirmation of the Helaine Balsam in support of ECB’s Answer, according to DOB’s standard operating procedure, any address in the SVB1 list gets a mailing of the notice (339). ECB acted soundly in taking official notice that a mailing had occurred where the address appeared on that screenshot. This makes petitioner’s 50 claim about a lack of an “X” on a different screenshot (SVB2) plainly irrelevant. Second, Mestecky’s description of and reliance upon ECB’s decision in NYC v. Frantz Dextra, OATH Appeal No. 42698 (April, 21 2005) is misplaced. Petitioner claims that this decision concluded that what appears on the SVB2 screenshot controls for purposes of mailing. In his brief, however, petitioner omits the portion of that decision wherein ECB explains that the SVB1 screen lists not only the address of the violation but any other address that comes up during an AIMS search. The SVB1 screenshots all conclusively establish that proper mailing occurred (R.399, ¶ 10). Again, Mestecky’s discussion of the SVB2 screen is a red herring because the mailings would have occurred automatically as shown in the SVB1 screen, regardless of what the SVB2 screenshot says. Finally, Mestecky’s contention that the ALJ hearings did not accord with Due Process because he was not permitted to cross- examine the inspector has no merit. This State’s courts have repeatedly held that the right to “cross-examine witnesses in an 51 administrative proceeding is a limited one.” Putnam Companies v. Shah, 93 A.D.3d 1315 (4th Dep’t 2012) (citing Gordon v. Brown, 84 N.Y.2d 574, 578 (1994)). When deciding whether to call a witness, ALJs must weigh the need for the testimony versus the burden of producing the witness. Here, the ALJs correctly concluded that an appearance was not necessary because Mestecky did not dispute what inspectors said they did to try to effectuate service but rather whether service effectuated was sufficient. Mestecky’s brief here on appeal confirms that the crux of his argument revolves solely around a legal interpretation. The ALJ was correct that an inspector would not have provided any relevant testimony on this point. 7 Mestecky has cited no case of this Court or any other court wherein the Court held that an agency must always produce a witness in cases such as this one, even when such a witness would 7 Mestecky’s claim that either Balsam or a person from ECB was required to actually testify in person at the administrative hearing as to this mailing procedure fails for precisely the same reason. The Balsam affidavit was more than sufficient to establish the mailing. And her testimony or any other testimony was not necessary because Mestecky admits he never would have received the mailings at the subject premises at which he no longer resided. 52 have no pertinent testimony to offer. There is no basis to disturb ECB’s determination on this basis or on account of any other procedural arguments made in Mestecky’s brief. POINT III MESTECKY’S CHALLENGE TO TWO REJECTIONS OF HIS REQUESTS TO VACATE DEFAULT JUDGMENTS WAS UNTIMELY Mestecky also seeks to contest the denial of two motions to vacate default judgments entered against him. But the lower courts correctly held that the claim is time-barred. The four- month statute of limitations under Article 78 begins to run when an aggrieved party is informed of the agency’s final decision. Edmead v. McGuire, 67 N.Y.2d 714, 716 (1986). A party is aggrieved once the agency issues an unambiguously final decision putting the party on notice that all administrative appeals have been exhausted. See Carter v. State, 95 N.Y.2d 267, 270 (2000). With regard to Mestecky’s requests to vacate his defaults, such notice was provided when ECB mailed the rejection of his request to the subject premises and to his alternative address (288-289). 53 The affidavit of service indicates that four letters were sent that day: one for each rejection letter to each address (289). On appeal, Mestecky claims that ECB had some obligation to also serve the letters on his counsel. However, the forms for requesting the lifting of the defaults ask that the applicant place down a mailing address, and petitioner listed only his Bayside address, to which the letters were sent. The form also has a blank space for a person filling out the form on behalf of another to add an additional address (R.290, 307). Mestecky’s failure to do that means that ECB would have been unaware of any other address to which the letters should have been served. As for new requests to vacate the default judgments in February 2014, those were merely in the nature of a reconsideration motion and cannot be deemed to have started the statute of limitations clock anew. See De Milio v. Borghard, 55 N.Y.2d 216, 220 (1982) (“Petitioner’s application for reconsideration of [an] administrative determination did not serve to extend the four-month limitations period.”). Mestecky had four months from the July 2013 letters in which to sue to challenge the 54 refusal to vacate the defaults relating to the two NOVs in question, and his petition with respect to these two NOVs is thus clearly barred. Finally, even if these claims were timely, ECB’s decision to refuse to vacate the defaults was rational because service of the subject NOVs had been proper, as shown above. 55 CONCLUSION This Court should affirm the First Department’s order. Dated: New York, NY January 6, 2016 RICHARD DEARING MICHAEL PASTOR of Counsel Respectfully submitted, ZACHARY W. CARTER Corporation Counsel of the City of New York Attorney for Respondents By: __________________________ RICHARD DEARING Assistant Corporation Counsel 100 Church Street New York, NY 10007 212-356-0838 mpastor@law.nyc.gov 56 CERTIFICATE OF COMPLIANCE I hereby certify that this brief was prepared using Microsoft Word 2010, and according to that software, it contains 10,293 words, not including the table of contents, the table of cases and authorities, the statement of questions presented, this certificate, and the cover. RICHARD DEARING