In the Matter of Frank Mestecky, Appellant,v.City of New York, et al., Respondents.BriefN.Y.October 18, 2017To be Argued by: CHRISTOPHER F. MESTECKY (Time Requested: 30 Minutes) APL 2016-00117 New York County Clerk’s Index No. 100106/14 Court of Appeals of the State of New York In the Matter of the Application of FRANK MESTECKY, Petitioner-Appellant, For a Judgment under Article 78 of the Civil Practice Law and Rules – against – CITY OF NEW YORK, ENVIRONMENTAL CONTROL BOARD and DEPARTMENT OF BUILDINGS, Respondents-Respondents. REPLY BRIEF FOR PETITIONER-APPELLANT GUERCIO & GUERCIO LLP Attorneys for Petitioner-Appellant 77 Conklin Street Farmingdale, New York 11735 (516) 694-3000 F: (516) 694-4738 Dated Completed: January 23, 2017 i TABLE OF CONTENTS PRELIMINARY STATEMENT ............................................................................ 1 ARGUMENT ............................................................................................................ 2 POINT I - RESPONDENTS FAILED TO SERVE THE NOTICES OF VIOLATIONS IN ACCORDANCE WITH THE CITY CHARTER. ..... 2 A. The plain language of the City Charter and applicable legal precedent require service of the NOVs to comply with the service of process requirements of the CPLR as a condition precedent to resorting to alternative service. .......................................................... 2 B. There is no evidence in the record supporting the allegation that the inspectors properly followed the City Charter’s provision governing affix-and-mail service for the notices of violation. ......... 8 C. Respondents’ public policy argument cannot does not support this Court deviating from well-established legal precedent regarding service of process. ........................................................... 13 POINT II - RESPONDENTS’ PROCEDURAL DEFECTS ALONE WARRANT DISMISSAL OF THE NOVs................................................ 16 POINT III - PETITIONER-APPELLANT TIMELY COMMENCED THIS ARTICLE 78 PROCEEDING. ...................................................... 18 CONCLUSION ....................................................................................................... 19 ii TABLE OF AUTHORITIES Cases Bd. of Educ. v. New York State Pub. Empl. Relations Bd., 75 N.Y.2d 660, 668–69, 555 NYS2d 659, 669-70 [1990]……………………...14 City of New York v Lieutenants Benevolent Ass'n, 285 AD2d 329; 730 NYS2d 78 [1st Dept 2001] .................................................. 14 First Horizon Home Loans v New York City Envtl. Control Bd., 118 AD3d 875, 989 NYS2d 39 [2d Dept 2014] ............................................ 2, 3, 6 Gallo v City of New York, 36 Misc 3d 1204(A), 954 NYS2d 759 [Sup Ct 2012] ........................................6, 9 Sport Rock Intern., Inc. v Am. Cas. Co. of Reading, PA, 65 AD3d 12; 878 NYS2d 339 [1st Dept 2009] .................................................... 13 Zakrzewska v New School, 14 NY3d 469; 902 NYS2d 838 [2010] ................................................................ 13 Rules Civil Practice Law and Rules 308 ..................................................................... 3, 6, 7 Regulations 48 RCNY Section 3-74 ............................................................................................ 16 Statutes N.Y.C. Administrative Code § 27-9097 ........................................................... 11, 12 N.Y City Charter § 1040-a………………..………………………………..passim 1 PRELIMINARY STATEMENT This matter arises from a Petition to overturn the unjust and erroneous decisions of the Respondents-Respondents Environmental Control Board (“ECB” or “Respondents”) dated September 26, 2013 (r. 48-51), January 30, 2014 (R. 52- 55), March 4, 2014 (R. 56) and March 4, 2014 (R.57), which, collectively sustained notices of violations (“NOVs”) against Petitioner-Appellant Frank Mestecky (“Mestecky” or “Petitioner-Appellant”), and denied Petitioner- Appellant’s applications to vacate default judgments regarding two other NOVs. This Reply Brief is submitted in Response to the Brief of the Respondents dated January 6, 2016. Nothing contained in Respondents’ brief overcomes the merits of the arguments made in Petitioner-Appellant’s brief, which will not be repeated here. As analyzed more fully in Petitioner-Appellant’s brief, the decision of the Appellant Division First Department must be overturned because service of process of the Notices of Violation (“NOV(s)”) at issue in this matter was not effectuated in accordance with the City Charter, the decision of the ECB was not supported by the record of evidence, and the decisions of the ECB Administrative Law Judges (“ALJ(s)”) and the ECB Appeals Board’s finding to the contrary were made in error. Moreover, Petitioner-Appellant’s claims are timely. 2 ARGUMENT POINT I RESPONDENTS FAILED TO SERVE THE NOTICES OF VIOLATIONS IN ACCORDANCE WITH THE CITY CHARTER. Petitioner-Appellant respectfully refers this Court to his Brief dated October 24, 2016 for a full discussion as to Respondents’ failure to comply with the service requirements of the City Charter. A. The plain language of the City Charter and applicable legal precedent require service of the NOVs to comply with the service of process requirements of the CPLR as a condition precedent to resorting to alternative service. The Appellant Division First Department incorrectly held that the incorporation by reference in Section 1049-a of the City Charter to Article 3 of the CPLR is limited only to “the class of individuals whom respondents must try to personally serve, and does not import the ‘due diligence’ requirement of CPLR article 3.” (R. 397). As set forth more fully in Petitioner-Appellant’s Brief at pages 23–28, the plain language of the City Charter and applicable legal precedent require as a condition precedent to resorting to the use of substituted service, that service of the NOVs comply with the same requirements established for service of process under the CPLR. As the Second Department held in First Horizon Home Loans v New York 3 City Envtl. Control Bd., 118 AD3d 875, 989 NYS2d 39 [2d Dept 2014], the reasonable attempt at service required under Section 1049-a of the Charter must comport with the service requirements contained in Article 3 of the CPLR, including Civil Practice Law and Rules 308 which requires multiple reasonable attempts at service prior to the utilization of substitute affix-and-mail service. First Horizon Home Loans, 118 AD3d at 877, 989 NYS2d at 41. The Appellate Division First Department adopted an interpretation inconsistent with that of the Second Department by holding 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. (R. 92). The First Department incorrectly ruled that “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-(d)(2) of the City Charter less onerous than service under CPLR article 3.” (R. 92). The effect of the erroneous ruling of the First Department is that service of a notice of violation under the City Charter may be effectuated, thereby personally holding an individual liable for a $25,000.00 violation, merely by knocking on the door of a premise in which the Petitioner-Appellant did not reside, affixing the notice of violation to the door, and then mailing the notice to the same premise 4 where the Petitioner-Appellant did not reside. It is respectfully submitted that the First Department’s interpretation cannot be reconciled with the plain language and intent of the City Charter as described in its legislative history. Respondents argue that the plain language of the statute calls for a single attempt at service since the statute uses “the article ‘a’ and the singular form ‘attempt’.” See Brief for Respondents dated January 6, 2017 (hereinafter “Respondents’ Brief”) at pg. 41. Such interpretation however is without merit because the City Charter requires “a reasonable attempt” which is not synonymous with a “single attempt” or “an attempt.” Rather, the inclusion of the term “reasonable” in the statutory language requires more than simply going to a location and posting of the notice of violation to the door in order properly utilize an alternative method to personal service. Reasonable is defined as "[f]air, proper or moderate under the circumstances" (Black's Law Dictionary 1293 [8th ed 2004]). The use of the term “reasonable” is a therefore a clear statutory indication that the attempt made is a fact-specific inquiry, not a limitation to a single instance. Moreover, there is nothing in the statutory language which supports an interpretation that reference in the City Charter to the CPLR is merely a reference to the class of individuals to be served. 5 With regard to the legislative history, the First Department refers to Governor Carey’s 1979 memorandum as support for its finding that reference to CPLR, article 3 only relates to the class of persons to be served and that personal service under CPLR article 3 is not required prior utilizing the alternative method of service set forth in the City Charter. However, the First Department failed to address that Governor Carey’s memorandum specifically states that the alternative method would permit “service of notices of violations returnable before the New York City Environmental Control Board by affixing a copy of the notices to the premises where the violation occurred and by mailing another copy of the notice to the owner of the premises in instances where attempts to personally deliver the notices have been unsuccessful.” (R. 322) (emphasis added). Further clarifying the issue, in correspondence to Governor Carey urging him to sign the bill into law, Mayor Koch expressly states that “[t]his alternative method of service could be utilized only after an attempt at personal service had failed.” (R. 321) (emphasis added). Accordingly, the legislative history of the City Charter clearly contemplated multiple attempts as referenced by the plural reference to “attempts.” As outlined more fully in Petitioner-Appellant’s Brief at pages 25–27, the legislative history to the amendment to the City Charter makes clear the alternative method may only be utilized where attempts to personally serve a respondent have been unsuccessful (R.322). The Governor’s Memorandum submitted with the bill, 6 which is contradictory to the First Department’s finding, references a requirement that attempts to personally deliver the NOV be unsuccessful before Section 1049- a’s alternative affix-and-mail method may be used. (R. 322) (emphasis added). As outlined at length in Petitioner-Appellant’s Brief at pages 22–23, New York courts have consistently held that the amendment requires multiple attempts at service before the alternative affix-and-mail method of service under Section 1049-a of the Charter may be used. See First Horizon Home Loans, 118 AD3d at 877, 989 NYS2d at 41; Gallo v City of New York, 36 Misc 3d 1204(A), 954 NYS2d 759 [Sup Ct 2012]. This interpretation, consistent with decisions of the Appellate Division Second Department, harmonizes the expressed intention of the legislature to make service under section 1049-(d)(2) of the City Charter less onerous than service under CPLR article 3 while still requiring multiple attempts at service prior to resorting to alternatives service. Pursuant to Civil Practice Law and Rules 308, personal service upon natural persons may be effectuated by: 1) delivery to the person to be served; 2) delivery to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served followed by a mailing; 3) delivering to the agent for service of the person to be served; 7 4) where service under 1 and 2 cannot be made with due diligence, by affixing the summons to the door of either the actual place of business, dwelling place or usual place of abode followed by a mailing; and 5) in such a manner as the court, upon motion without notice, directs, if service is impracticable under paragraphs 1, 2 and 4. See CPLR 308. The amendments to the City Charter accomplished the legislative purpose of making service less onerous than under Article 3 of CPLR, by providing an alternative to the requirement that the Environmental Control Board file a motion to a court under 308(5) to serve a notice of violation upon an individual who cannot be located. Rather, after a reasonable attempt at personal service under Civil Practice Law and Rules 308 and without application to a court, the Environmental Control Board is permitted under the City Charter to serve the NOV at the premises of the occurrence followed by appropriate mailings. The interpretation of the Second Department is, therefore, wholly consistent with the legislative history, as established by the correspondence from Mayor Koch which states: our enforcement personnel spend a good deal of time in trying to locate and identify the person responsible for these violations. Bill 6854-B would enable us to affix a notice of violation to the premises, with a copy of the notice to be mailed to the address. This alternative method of service could be utilized only after an attempt at personal service had failed. (R. 321) The statutory language and legislative history of the amendments to the City 8 Charter make clear that multiple attempts at personal service are required prior to utilizing the affix and mail alternative method of service at the premises. Accordingly, all notices of violations at issue in this matter must be dismissed because multiple attempts at personal service were, admittedly, not made. B. There is no evidence in the record supporting the allegation that the inspectors properly followed the City Charter’s provision governing affix-and-mail service for the notices of violation. Even assuming arguendo that personal service upon Petitioner-Appellant had been attempted or the City Charter permits alternative service after a single “reasonable attempt” at service at the premises, there is still no evidence in the record to support a finding that Respondents made a “reasonable attempt” at service at the premises or mailed the NOVs in accordance with the substitute service requirements. The only evidence of service submitted during the administrative hearing were the affidavits of service of the NOVs and the AIMS computer printouts of the alleged mailings performed. Not a single witness testified on Respondents’ behalf as to the “reasonable attempt” at service and the actual meaning of the data contained in the AIMS computer printouts. Although counsel for Respondents sets forth an inaccurate account of the manner in which certain violations were purportedly served, this recitation of the facts by counsel is not based upon the testimony of a single witness to the events 9 and therefore has no evidentiary value. Counsel’s inaccurate factual account demonstrates why Respondents’ decision to rely solely upon affidavits of service and mailings was incorrect as a matter of law since they denied Petitioner- Appellant the opportunity to cross examine the DOB Inspector to develop a factual basis for the alleged “reasonable attempt” at service of NOVs. For example, counsel for Respondents states that: On October 27, 2011, an inspector found that there was construction work being conducted at petitioner’s building without a permit and witnessed an illegal side extension at the site. After 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 (105). DOB also mailed a copy of the violation to the subject premises (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 (75). With respect to the violations issued on this date, City records had no other address on file for the subject premises (Id.). See Respondents’ Brief at pg. 15–16 (emphasis added) The factual account of Respondents’ counsel, however, is not supported by facts in the record and is inaccurate, as is demonstrated by the affidavit of service for NOV 10 034961814N, which merely provides that on October 27, 2011 at Union Turnpike, a City of New York Issuing Officer served the NOV utilizing Alternate method of service pursuant to New York City Charter Section 1049-a (d) (2) (Affix and Mail Service). The NOV does not reference ongoing construction but merely states on its face that it was being issued due to a “[f]ailure to comply with the commissioner’s order contained in Notice of Violation # 34929522K issued on 8/8/11…for work w/o permit, illegal side extension and plumbing @ cellar.” (R. 104). The partially preprinted affidavit response states that the building inspector knocked at the door and then posted on the front door. (R. 104–108). No reference is made in the affidavit of service or any documents in the record to “construction work being conducted” at the premises, as counsel for Respondents alleges. In fact, the purported illegal side extension at issue in this litigation was constructed over twenty years prior to any violation being issued by Respondents. Further, there is no admissible evidence in the record for counsel’s statements that “[w]hen 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.” Although counsel cites to Respondents’ verified answer (R. 75–77) to support the “practice” of Respondents in checking for other addresses on file, no evidence was produced or admitted into the administrative record that the relevant DOB inspector(s) actually checked for other addresses on file and caused a mailing of 11 the NOVs. Clearly, the inspector’s conduct in actually “check[ing] to see if there are any other addresses on file of the Finance Department, HPD, or DOB” would be pertinent in determining whether a “reasonable attempt” at personal service was made. Had the Hearing Officer directed the inspectors to be present at the hearing, testimony regarding the inspector’s “reasonable” efforts to locate Petitioner- Appellant’s address would have been subjected to cross examination which would be found in the record, thereby allowing the Hearing Officer to make a finding of fact as to the reasonableness of the efforts undertaken. Moreover, to the extent counsel for Respondents, for the first time at the appellate level, asserts that Respondents complied with the City Charter’s affix- and-mail service provisions because Petitioner-Appellant did not register or update records with HPD and/or the Department of Finance pursuant to Section 27-2097 of the NYC Administrative Code, Petitioner-Appellant notes that Respondents failed to raise this argument during the administrative hearing and in their verified answer (R. 58–87). Therefore, there is no evidence in the record that this issue was raised at the hearing. There is likewise no evidence in the record as to whether any family member of Petitioner-Appellant occupies the dwelling at issue. See NYC Admin. Code § 27-2097(b) (3). Finally, Respondents themselves acknowledge that Respondents have—and had—on file Petitioner-Appellant’s address at his Bayside Residence, a residence he owns (see R. 79 ¶ 87), which undercuts 12 Respondents’ reliance on Administrative Code § 27-2097 as excusing Respondents’ failure to serve Petitioner-Appellant in accordance with the City Charter. As detailed in Petitioner-Appellant’s Brief dated October 24, 2016 at pages 28– 37, the NOVs alone demonstrate that a reasonable attempt at service was not effectuated by Respondents. Further, the DOB’s computer records and affidavits of mailings, which were not produced during the hearings, demonstrate that Respondents failed to mail the NOVs to Petitioner-Appellant. See Petitioner-Appellant’s Brief at 37–39. Lastly and most significantly, Respondents have utterly failed to justify the failure of the Environmental Control Board to produce the inspectors who allegedly served the NOVs and the employees who allegedly mailed the NOVs. During both administrative hearings, Petitioner-Appellant personally appeared and stated that he was never served with any NOV. Over objection, affidavits of service from the inspectors and computer printouts were submitted, which did not establish the “reasonable attempt” at service or the mailings which were allegedly made. Petitioner-Appellant demanded that he be permitted the right to cross-examine the inspector who allegedly served the NOVs and the employee who allegedly mailed the NOVs but such request was refused by each Administrative Law Judge without justification. 13 Since a determination of the reasonableness of the attempts at service was required, which is defined as [f]air, proper or moderate under the circumstances", and no witness was presented to testify as to what the inspectors actually did prior to utilizing affix and mail service, Respondents have not and cannot meet their burden of proof as to the issue of service. See Black's Law Dictionary 1293 [8th ed 2004]). Further, no witness was presented to testify as to the mailing which allegedly occurred. Consequently, all NOVs must be dismissed. C. Respondents’ public policy argument cannot does not support this Court deviating from well-established legal precedent regarding service of process. Counsel for Respondents falls back upon a public interest argument, arguing that a ruling in Petitioner-Appellant’s favor would hinder the City’s ability to serve other NOVs and enforce its buildings laws. See Respondents’ Brief at 46–52. These policy arguments are irrelevant where the Legislature and the courts have unequivocally established the law that controls the City’s efforts to enforce its buildings code and are more appropriately addressed to the Legislature than to the Court. See, e.g., Sport Rock Intern., Inc. v Am. Cas. Co. of Reading, PA, 65 AD3d 12, 28; 878 NYS2d 339, 352 [1st Dept 2009] (“Since this bench unanimously considers our resolution of the instant appeal to be required by settled law, we have no occasion to respond to…policy arguments.”); see also Zakrzewska v New School, 14 NY3d 469, 481; 902 NYS2d 838, 843 [2010] (“ultimately such 14 ‘considerations relevant to policy judgments [are] properly made by legislatures’”). As the Court of Appeals explained in a decision in which the City also argued that “policy” considerations should vitiate clear statutory rights in order to render the City’s duties less complicated: The Board next maintains that whether or not ascribable to any specific statute, the public stake in the integrity of school board employees is so compelling that public policy requires that the measures taken by the Board not be impaired by the process of negotiating with the employees whose integrity is in question. This open- ended “public policy” argument is more aptly denominated a “public interest” argument, for it is not based on statute, Constitution or even clear common-law principles—sources in which a public policy prohibition against a collective bargaining agreement might be found…. Issues of public concern, while unquestionably important, are not to be confused with the strong, unmistakable public policy that would—and then only rarely—require invalidation of a collective bargaining agreement. Bd. of Educ. v. New York State Pub. Empl. Relations Bd., 75 N.Y.2d 660, 668– 69, 555 NYS2d 659, 669-70 [1990]; see also City of New York v Lieutenants Benevolent Ass'n, 285 AD2d 329, 335; 730 NYS2d 78, 82 [1st Dept 2001] (applying and relying upon the same Collective bargaining rights as are afforded by statute Civil Service Law art. 14). The same rationale this Court applied in context of collective bargaining rights is even more applicable in the instant matter where fundamental due process rights of notice and an opportunity to be heard are 15 at stake. Simply put, in light of the clear statutory language and legislative history, there is no policy argument great enough to permit a $25,000.00 judgment to be levied against an individual without appropriate service being effectuated against such individual. Although Respondents argue that these NOVs may be served at the premises of the violation because the NOVs only impact the premises, such statement is factually and legally incorrect. As a legal matter, the NOVs at issue result in a judgment against an individual, not the premises. As such, the judgments levied attach to each and every piece of property owned by an individual. Further, although Respondents weakly argue that these NOVs are not as significant as proceedings under the real property law, such statements ignore the significant financial implications of the maximum fine for a NOV of $25,000.00. As this matter involves multiple NOVs and Petitioner-Appellant has been issued NOVs totaling in excess of $100,000.00, Petitioner-Appellant’s financial ability to maintain ownership in the property is at stake in this litigation. Even a small claims complaint where only $5,000.00 is at stake requires the due diligence of service under CPLR, article 3. Therefore, it is a significantly stronger policy argument that service in accordance with the due diligence requirements of the CPLR should be required where a $25,000.00 judgment is at stake. 16 The language and legislative history of the City Charter are clear and require multiple attempts at personal service prior to utilization of the alternative affix and- mail method of service. It is neither relevant nor compelling that the City finds it difficult to comply with the same and believes the public interest would be served by requiring something less than what the plain language of the Statute mandates. Therefore, the policy argument raised by the City must be rejected. POINT II RESPONDENTS’ PROCEDURAL DEFECTS ALONE WARRANT DISMISSAL OF THE NOVs. Petitioner-Appellant respectfully refers this Court to his Brief dated October 24, 2016 at pages 34–43, for a detailed discussion as to the procedural defects in the mailings of the various NOVs and the defects during the ECB hearings. It is important to note that Respondents’ brief did not address and Respondents have not provided any justification for the failure of the ECB Appeal Board to review the transcript of the hearing before ALJ Carolynn Terrell-Nieves pertaining to NOVs 4 through 7. (R. 82). Since there is an obligation of the appeals board under 48 RCNY Section 3-74 to review the transcript of each hearing and an Article 78 requires a review of the record from the lower proceeding, NOVs 4 through 7 must be dismissed based on the failure to produce the record of the proceeding. Further, although counsel for Respondents denies that a witness was required at hearing to testify regarding the AIMs systems printouts presented at the hearing, 17 Respondents cannot justify why the supporting affirmation of Helaine Balsam was submitted in support of ECB’s answer. See Respondents’ Brief at pg. 49. Petitioner- Appellant respectfully submits that the affirmation of Balsam and incomplete affidavits of mailing were presented in response to the Article 78 because further information regarding the mailing was needed to support the AIMs printouts. Since this evidence was not presented at the administrative hearing, it is improper to consider the affirmation and affidavits at the appellate level. Respondents have admitted by submitting such information in the Article 78, that additional evidence was necessary to establish that the mailings occurred. In light of the fact that Petitioner-Appellant denied receiving the NOVs at the hearing, the Administrative Law Judge erred in not requiring a witness to testify at the hearing regarding the mailings to produce admissible evidence which would contradict the Petitioner- Appellant’s own testimony. See Respondents’ Brief at pg 51 (stating that “[t]he Balsam affidavit was more than sufficient to establish the mailing”). In the absence of such evidence, it was improper to make a credibility determination as to the Petitioner-Appellant’s own testimony Based upon the forgoing, Petitioner –Appellant respectfully requests that all NOVs be dismissed. 18 POINT III PETITIONER-APPELLANT TIMELY COMMENCED THIS ARTICLE 78 PROCEEDING. Petitioner-Appellant respectfully refers this Court to his Brief dated October 24, 2016 at pages 43–48, for a detailed discussion as to the timeliness of this Article 78 proceeding. Significantly, although Respondents allege that the NOVs were sent to both the premises of the violation and the address listed on Petitioner-Appellant’s motion to vacate the defaults, Respondents have failed to address why the denial letters presented in this matter only list the Union Turnpike address, the premises of the violation, and not the address specifically listed on Petitioner-Appellant’s motion to vacate the defaults. (R. 286-287). Further, Counsel for Respondents attempts to dismiss Petitioner-Appellant’s argument that correspondence to counsel was required by arguing that the forms for requesting a lifting of the defaults were not appropriately filled out to indicate counsel’s address. While Respondents are correct that “[t]he form also has a blank space for a person filling out the form on behalf of another to add an additional address”, such form only required a second mailing address “if different” from respondent’s mailing address (R. 290, 307). Since Counsel and his Petitioner- Appellant father resided at the same address during the time period, no additional address was required as per the form. As Petitioner-Appellant was never served with a denial decision on July 8, 2013, and the only evidence in the record is the denial letter being sent to Petitioner-Appellant at the premises of the violation, Respondents claim of un- timeliness must fail. CONCLUSION It is respectfully requested that the decision of the Appellate Division, First Department, upholding the decisions of ALJ Mini, ALJ Terrell-Nieves and the ECB Appeals Board decisions dated September 26, 2013, January 30, 2014, March 4, 2014 and March 4, 2014, be overturned in all regards and that the NOV s be dismissed due to a lack of service, as well as such other and further relief as this Court deems just and proper. Dated: Farmingdale, NY January 23, 2017 By: GUERCIO & GUERCIO, LLP Attorneys for Petitioner-Appellant 77 Conklin Street Farmingdale, NY 11 73 5 (516) 694-3000 phone (516) 694-4 738 19 STECKY, ESQ. NEW YORK STATE COURT OF APPEALS CERTIFICATE OF COMPLIANCE I hereby certify pursuant to 22 NYCRR PART 500.1 (j) that the foregoing brief was prepared on a computer using Microsoft Word. Type. A proportionally spaced typeface was used, as follows: Name of typeface: Times New Roman Point size: 14 Line spacing: Double Word Count. The total number of words in this brief, inclusive of point headings and footnotes and exclusive of pages containing the table of contents, table of citations, proof of service, certificate of compliance, corporate disclosure statement, questions presented, statement of related cases, or any authorized addendum containing statutes, rules, regulations, etc., is 4,338 words. Dated: January 23, 2017 By: Christopher F. Mest ky Guercio & Guercio LLP Attorneys for Petitioner-Appellant 77 Conklin Street Farmingdale, New York, 11735 (516) 694-3000 20