In the Matter of Frank Mestecky, Appellant,v.City of New York, et al., Respondents.

Brief

N.Y.October 18, 2017

To 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. 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: October 24, 2016 i TABLE OF CONTENTS PRELIMINARY STATEMENT ...........................................................................................1 QUESTIONS PRESENTED FOR REVIEW BY THIS COURT .............................5 STATEMENT OF JURISDICTION ........................................................................ 7 STATEMENT OF FACTS ........................................................................................ 8 A. Procedural History .................................................................................... 8 1. NOVs before Administrative Law Judge Anthony Mini ................... 8 2. NOVs before Administrative Law Judge Carolynn Terrell- Nieves ........................................................................................................... 10 3. Refusal to Grant New Hearings ........................................................... 12 4. Transfer to the Appellate Division ....................................................... 15 B. Factual Account ......................................................................................... 15 LEGAL ARGUMENT ............................................................................................... 18 POINT I ................................................................................................................. 18 I. THE FIRST DEPARTMENT ERRED AS A MATTER OF LAW IN DETERMINING THAT SERVICE WAS PROPERLY EFFECTUATED SINCE THE NEW YORK CITY CHARTER CANNOT BE INTERPRETED AS AUTHORIZING SUBSTITUTE SERVICE AFTER ONLY ONE ATTEMPT AT SERVICE AS SUCH AN INTERPRETATION IS CONTRARY TO FUNDAMENTAL NOTIONS OF DUE PROCESS. .................................................................................. 18 A. The affidavits of service on their face demonstrate that Respondents made a single attempt at service at the premises. ............................................................................................ 18 B. The clear language of New York City Charter § 1049- ii a(d)(2) requires a reasonable attempt to serve a person in such premises upon whom service may be made as provided for by Article Three of the CPLR. ................................. 23 C. The legislative history of the amendments to §1049- a(d)(2) of the New York City Charter indicate that multiple attempts at service were contemplated in the amendment and are required. ......................................................... 25 POINT II ................................................................................................................. 28 THE FIRST DEPARTMENT ERRED AS A MATTER OF LAW IN HOLDING THAT THE ECB DECISIONS WERE SUPPORTED BY SUBSTANTIAL EVIDENCE AS A REVIEW OF THE RECORD REVEALS THAT IN EACH INSTANCE, SERVICE OF THE NOVS WAS DEFECTIVE. ...................................................................................... 28 A. In each instance, the ECB failed to make a “Reasonable Attempt” to serve Petitioner with the NOVs. ................................................................. 28 1. NOV 1, 2 and 3 before Administrative Law Judge Anthony Mini ......................................................................................................... 28 2. NOVs 4, 5, 6, and 7 before Administrative Law Judge Carolynn Terrell-Nieves ............................................................................. 30 i. NOV 4 ........................................................................................... 30 ii. NOV 5, NOV 6, and NOV 7 ........................................................... 31 3. NOV 8 and 9 Subject to the March 4, 2014 Decisions ....................... 32 B. For each of the NOV’s, ECB submit unauthenticated computer screenshots without a witness to testify as to the meaning if the data in the screenshots. ................................................................................... 34 C. Since the affidavits of mailing were not produced at the administrative hearings, they should not have been considered by the First Department and they are unreliable. ........................................... 37 iii D. The record as a whole does not support a finding of proper service. ............................................................................................................. 39 E. The record is devoid of any evidence establishing that Petitioner- Appellant’s challenge as to the service of the two NOVs dismissed is time-barred. .................................................................................................. 43 CONCLUSION ........................................................................................................... 48 iv TABLE OF AUTHORITIES Cases Brooklyn Hgts. Realty Co. v Gliwa, 92 AD2d 602 [2d Dept 1983] ............................................................................... 22 Dolan v. Linnen, 195 Misc. 2d 298 (NYC Civ. Ct. Richmond County 2003) ................................. 23 Hynes v Buchbinder, 147 AD2d 371 [1st Dept 1989] ............................................................................ 22 Martine Assocs. LLC v. Minck, 785 N.Y.S.2d 648 (Sup. Ct., App. Term, 2d Dep’t 2004).................................... 22 Gallo v City of New York, 36 Misc 3d 1204(A) [Sup Ct 2012] ......................................................... 22, 23, 37 Feldman v New York State Teachers' Retirement Sys., 14 AD3d 769 [3d Dept 2005] ............................................................................... 44 First Horizon Home Loans v. New York City Environmental Control Board, 118 A.D.3d 875 (2d Dep’t 2014).................................................................. passim Eight Assoc. v Hynes, 102 AD2d 746, [1st Dept 1984] .......................................................................... 22 Hochhauser v Bungeroth, 179 AD2d 431 [1st Dept 1992] ............................................................................ 22 Johnson v Waters, 291 AD2d 481 [2d Dept 2002] ............................................................................. 22 Joseph L. Balkan, Inc. v City of New York, 41 AD3d 136 [1st Dept 2007] .............................................................................. 44 Kelly v Safir, 96 NY2d 32 [2001] ............................................................................................... 37 Ki Hyung Chung v. New York City Environmental. Control Bd., 2012 N.Y. Misc. LEXIS 2332 (N.Y. Misc. 2012) ............................................... 46 Matos v Knibbs, 186 AD2d 725 [2d Dept 1992] ............................................................................. 22 New Amber Auto Serv., Inc. v New York City Envtl. Control Bd., 163 Misc 2d 113 [Sup Ct 1994] .................................................................... 41, 42 Oparaji v. City of New York, 2011 WL 6738696, 2011 N.Y. Slip Op 33265(U) (Sup. Ct. Queens County 2011) ........................................................................................................ 22, 23, 37 Parent Teacher Ass'n of P.S. 124M v Bd. of Educ. of City School Dist. of City of New York, 138 AD2d 108 [1st Dept 1988] ............................................................................ 44 v Realty Assoc, s. v. New York City Environmental. Control Bd., 275 A.D.2d 284 (1st Dep’t 2000) ..................................................................................................................... 19 Rocco v Kelly, 20 AD3d 364 [1st Dept 2005] .............................................................................. 44 Schulder v. New York City Environmental Control Bd., 2010 WL 5553300 ................................................................................................ 22 State v Mappa, 78 AD3d 926 [2d Dept 2010] ............................................................................... 22 Stewart v Volkswagen of Am., Inc., 81 NY2d 203 [1993] ............................................................................................. 18 Taxraja Mgt., LLC v City of New York Envtl. Control Bd., 33 Misc 3d 1225(A) [Sup Ct 2011] ...................................................................... 47 Wilner v Beddoe, 102 AD3d 582 [1st Dept 2013] ..................................................................... 23, 37 Statutes NY RP ACT & PRO § 735 [McKinney] ................................................................. 22 Rules CPLR 306(c) ............................................................................................................ 25 CPLR 308 .................................................................................................... 15, 24, 25 CPLR 308(4) ..................................................................................................... 22, 25 CPLR 7803 ............................................................................................................... 40 CPLR § 217 .............................................................................................................. 44 CPLR §5602 ............................................................................................................... 7 Regulations 48 RCNY § 3-71 ...................................................................................................... 40 48 RCNY § 3-74 ............................................................................................... 40, 41 Other Authorities Assembly Bill No. 6854 ........................................................................................... 26 New York City Charter §1049-a ............................................................................................................. passim 1 PRELIMINARY STATEMENT Notice and an opportunity to be heard are the fundamental elements of due process which requires, at a minimum, fair procedure. This matter arises from the determinations of 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. These decisions by the ECB were made despite the ECB failing to serve the NOVs upon Petitioner-Appellant. When Mr. Mestecky vacated the defaults and appeared at the hearing to challenge service, the ECB failed to produce any witness to testify regarding the “reasonable attempt” at service. By failing produce a witness and failing to produce any authenticated documents evidencing that process was proper, the ECB clearly violated Mr. Mestecky’s due process rights. Further, by submitting affidavits of service demonstrating that affix and mail service was utilized after visiting the premises on one occasion, the ECB violated the requirements of the New York City Charter for service of such notices. Petitioner-Appellant’s proceeding brought pursuant to CPLR Article 78 was transferred to the Appellate Division, First Department, by Honorable Cynthia S. 2 Kern by decision dated June 12, 2014 (R 3-4). By decision dated November 5, 2015, the Appellate Division, First Department dismissed Petitioner-Appellant’s Article 78 proceeding, holding that “Respondents’ determinations are supported by substantial evidence, are not affected by an error of law, and are not arbitrary and capricious.” (R 396-398). The First Department only addressed the issue of service under the City Charter and relied upon the affidavits of service submitted by ECB in holding: As to each of the nine NOVs at issue here, an inspector from respondent Department of Buildings (DOB) made one attempt at personally serving the NOV at the premises where the violation occurred, before availing himself of the ‘affix and mail’ method of service prescribed in New York City Charter § 1049-a(d)(2)(b). We find that the inspector’s one attempt at personal service satisfies that ‘reasonable attempt’ requirement set forth in section 1049-a(d)(2)(b). (R. 396-97) In rendering the November 2015 Decision, the First Department failed to address the merits of Petitioner-Appellant’s due process claim that he was denied a full and fair hearing to determine whether the ECB satisfied the process requirement to undertake a “reasonable attempt” at service. Rather, the First Department, relying solely upon an affidavit of service and unauthenticated documents, misinterpreted the New York City Charter as permitting “affix and mail” service to be undertaken at the same time as the failed “attempt” at service. The First Department declined to follow the persuasive authority from other courts, 3 including the Appellate Division, Second Department, which specifically held in First Horizon Home Loans v. New York City Environmental Control Board, 118 A.D.3d 875, 877 (2d Dep’t 2014), that “substituted service [by the ECB under the City Charter] may not be effected unless a reasonable attempt has been made to deliver such notice . . . as provided for by [CPLR Article 3] or [Business Corporation Law Article 3]”. This split of authority between the First and Second Department creates the untenable result that those areas of New York City within the First Department are held to a different standard of due process than those areas within the Second Department. Such a disparity requires reconciliation by this Court. In rendering the November 2015 Decision, the First Department also declined to specify any rationale for the Court’s determination that all of “petitioner’s remaining arguments regarding alleged procedural defects” are unavailing. (R. 396-98). Numerous lower level courts, including the Appellate Division, Second Department have determined that the service requirements under the City Charter are in contravention to the service requirements which were relied upon by the First Department in its November 2015 decision. Petitioner-Appellant respectfully submits that the Court of Appeals should reconcile this split in authority by reversing the November 2015 Decision in its entirety and adopting the standard set forth by the Second Department which 4 requires, at a minimum, more than one attempt at service upon a petitioner take place, the first being an attempt at personal service, and, at a minimum, another for the purpose of “affixing and mailing.” Further, this Court should dismiss the NOVs against Petitioner-Appellant based upon the failure of Respondents to meet their burden of proofing service and Respondents refusal to provide Mr. Mestecky with a full and fair hearing, including the right of cross examination of witnesses, to determine whether the ECB satisfied the requirement to undertake a “reasonable attempt” and the requirements for proper service. 5 QUESTIONS PRESENTED FOR REVIEW BY THIS COURT (1) “Was the order of [The First Department], which confirmed the determinations of [Respondents-Respondents] properly made?” This question should be answered in the negative. This question was raised and preserved in the decision of the Appellate Division, First Department. (R. 395). (2) Whether the ECB and First Department erred in determining that service was properly effectuated when they relied solely upon the affidavits of service, which on their face demonstrated that Respondents-Respondents made only one “attempt” at service at the premises of the violation and during the same attempt resorted to “the affix and mail” method of service? This question should be answered in the affirmative. This question was raised and preserved in the administrative hearing and in all appeals. (R. 27-57, 55-88, 140-197, 198-212 257-261, 262-269, 270-281, 282- 285, 292-304, 271-391, 396-398) (3) Whether the ECB and First Department erred in holding that the decisions of the ECB had a rational basis? This question should be answered in the affirmative. This question was raised and preserved in the administrative hearing and in all appeals. (R. 27-57, 55-88, 140-197, 198-212 257-261, 262-269, 270-281, 282- 6 285, 292-304, 271-391, 396-398) (4) Whether the ECB and First Department erred in holding that the ECB decisions were supported by substantial evidence in the record? This question should be answered in the affirmative. This question was raised and preserved in the administrative hearing and in all appeals. (R. 27-57, 55-88, 140-197, 198-212 257-261, 262-269, 270-281, 282- 285, 292-304, 271-391, 396-398) 7 STATEMENT OF JURISDICTION The Court of Appeals has jurisdiction over this appeal pursuant to the rules of this Court, and pursuant to CPLR §5602 in that the action originated in New York City Supreme Court, and the appeal is from an Order of the Appellate Division, First Department, which finally determined the action. The Appellate Division, First Department, by decision dated March 22, 2016 granted Petitioner- Appellant’s motion for leave to appeal to the Court of Appeals. (R. 395). Petitioner-Appellant Frank Mestecky, hereby appeals from the Order and Decision of the Appellate Division, First Department dated November 5, 2015, which sustained seven notices of violation against Mr. Mestecky, and denied Mr. Mestecky’s applications to vacate default judgments regarding two other notices of violations. (R 396-398). 8 STATEMENT OF FACTS A. Procedural History 1. NOVs before Administrative Law Judge Anthony Mini On or about June 21, 2012, Respondents allegedly issued Notice of Violations (“NOV”) 034981211M (“NOV 1”), 034981212Y (“NOV 2”), and 034981213X (“NOV 3”) against Mr. Mestecky related to Petitioner-Appellant’s rental property located at Union Turnpike, New Hyde Park, NY 11361. The affidavits of service for NOV 1, NOV 2 and NOV 3 all provide that on June 21, 2012 at 2:30 p.m. at Union Turnpike, a City of New York Issuing Officer served the NOVs utilizing “C. Alternate method of service pursuant to New York City Charter Section 1049-a(d)(2) (Affix and Mail Service).” (R. 89-90, 94-95, 99-100). Mr. Mestecky was never served with NOV 1, NOV 2 and NOV 3, and, as a result, he did not appear at Respondents’ office for the scheduled hearings. (R. 45- 46). Respondents held Mestecky to be in default on these NOVs and imposed default penalties and higher damages in place of the applicable fines. (R. 48-51). Thereafter, Mestecky moved to vacate NOV 1, NOV 2 and NOV 3 and Respondents scheduled a hearing on the matter. (R. 30). A hearing was held before Administrative Law Judge Anthony Mini on June 4, 2013 related to six NOVs, including NOV 1, NOV 2 and NOV 3, which are the subject of the instant proceeding. During the hearing, over objection, ALJ Mini 9 permitted counsel for the ECB, not a witness with knowledge and information, to provide testimony and to submit documents into evidence at the hearing. (R. 48-55, 153-54, 156-57, 158, 159, 160-162, 164-69, 174, 180, 183, 194, 143-97). Further, the ALJ refused Petitioner-Appellant’s request to compel the inspector who purportedly served the violations and the witness who mailed any violations to be present at the hearing (R. 153-54). By decision dated June 13, 2013, ALJ Mini upheld all of the NOVs. (R. 140-42). In accordance with Respondents’ rules and regulations, Petitioner-Appellant appealed the June 13, 2013 Decision and Order of Administrative Law Judge Anthony Mini related to six Notice of Violations, including the three NOVs which are subject of this matter, NOV 1, NOV 2 and NOV 3, to the ECB Appeals Board, under Appeal No: 1300691. (R. 198-212). In his appeal, Mr. Mestecky stated that the decision of ALJ Mini dated June 13, 2013 was arbitrary, capricious and contrary to law. Id. By decision dated September 26, 2013, the ECB Appeals Board denied Petitioner-Appellant’s appeal with regard to the June 13, 2013 decision of ALJ Anthony Mini related to NOV 1, NOV 2 and NOV 3. However, the ECB Appeals Board reversed ALJ Mini’s decision as to the three remaining NOVs, NOVs 35051049Z, 34972350H and 34972351J, and dismissed those NOVs. (R. 257-61). Petitioner-Appellant does not challenge the Appeals Board’s dismissal of NOVs 35051049Z, 34972350H and 34972351J. 10 The decision of the ECB Appeals Board dated September 26, 2013 related to NOV 1, NOV 2 and NOV 3was arbitrary, capricious and contrary to law. 2. NOVs before Administrative Law Judge Carolynn Terrell-Nieves On or about October 27, 2011, Respondents allegedly issued NOV 034961814N (“NOV 4”) against Frank Mestecky related to Petitioner-Appellant’s rental property located at Union Turnpike, New Hyde Park, NY 11361. The affidavit of service for NOV 4 provides that on October 27, 2011 at Union Turnpike, a City of New York Issuing Officer served the NOV utilizing “C. Alternate method of service pursuant to New York City Charter Section 1049-a(d)(2) (Affix and Mail Service)”. (R. 104-05). On or about December 13, 2011, Respondents allegedly issued NOVs 034962590H (“NOV 5”), 034962589K (“NOV 6”) and 034971066X (“NOV 7”) against Frank Mestecky related to Petitioner-Appellant’s rental property located at Union Turnpike, New Hyde Park, NY 11361. The affidavits of service for NOV 5, NOV 6, and NOV 7 provide that on December 13, 2011 at Union Turnpike, a City of New York Issuing Officer served the NOVs utilizing “C. Alternate method of service pursuant to New York City Charter Section 1049-a(d)(2) (Affix and Mail Service)”. (R. 109-10, 114-15, 119-20). Mestecky was never served with NOV 4, NOV 5, NOV 6 and NOV 7 and, as a result, he did not appear at Respondent’s office for the scheduled hearings. (R. 11 32). Respondents held Petitioner-Appellant to be in default on these NOVs and imposed default penalties and higher damages in place of the applicable fines. (R. 32). Thereafter, Mr. Mestecky moved to vacate NOV 4, NOV 5, NOV 6 and NOV 7, and Respondents scheduled a hearing on the matter. (R. 32). A hearing was held on September 10, 2013 before Administrative Law Carolynn Terrell-Nieves related to six NOVs, including NOV 4, NOV 5, NOV 6 and NOV 7, which are the subject of the instant proceeding. During the hearing, over objection, ALJ Terrell-Nieves permitted counsel for the ECB, not a witness with knowledge and information, to provide testimony and to submit documents into evidence at the hearing. Further, the ALJ refused Petitioner-Appellant’s request to compel the inspectors who purportedly served the violations and the witnesses who mailed any violations to be present at the hearing. No transcript of the hearing was produced to the Court despite an obligation of Respondents to produce same. (R. 82) ALJ Carolynn Terrell-Nieves, by decisions dated October 10, 2013 upheld the four NOVs at issue, NOV 4, NOV 5, NOV 6 and NOV 7 and dismissed the other two NOVs. (R. 262-69). In accordance with Respondents’ rules and regulations, Petitioner-Appellant appealed the decision of ALJ Carolynn Terrell-Nieves as to NOV 4, NOV 5, NOV 6 and NOV 7 to the ECB Appeals Board, under Appeal No: 1301185. (R. 270-81). Mr. 12 Mestecky stated that the decision of ALJ Carolynn Terrell-Nieves was arbitrary, capricious and contrary to law. During the appeal, the ECB Appeals Board did not review a copy of the transcript from the administrative hearing despite an obligation to do so. (R. 82) (Footnote 5 indicates that a copy of the transcript was not available at the time Respondents submitted the record at part of its answer eight months after the administrative hearing). By Decision dated January 30 2014, the ECB Appeals Board denied Petitioner-Appellant’s appeal. (R. 52-55). The decision of the ECB Appeals Board dated January 30, 2014 related to NOV 4, NOV 5, NOV 6 and NOV 7 was arbitrary, capricious and contrary to law. 3. Refusal to grant new hearings Respondents allegedly issued, on or about April 3, 2012, NOV 034971400M (“NOV 8”) and 034964527Y (“NOV 9”) against Frank Mestecky related to Petitioner-Appellant’s rental property located at Union Turnpike, New Hyde Park, NY 11361. (R. 131-32, 124-25). The affidavits of service for NOV 8 and NOV 9 provide that on April 3, 2012 at Union Turnpike, a City of New York Issuing Officer served the NOVs utilizing “C. Alternate method of service pursuant to New York City Charter Section 1049-a(d)(2) (Affix and Mail Service)”. (R. 131-32, 124- 25). Mestecky was never served with for NOV 8 and NOV 9, and, as a result, he did not appear at Respondents’ office for the scheduled hearings. (R. 33). 13 Respondents held Mestecky to be in default on these NOVs and imposed default penalties and higher damages in place of the applicable fines. (R. 33) On June 12, 2013, Petitioner-Appellant’s counsel, Christopher F. Mestecky, Esq., served motions to vacate all open default judgments against Petitioner. (R. 286-304). These motions to vacate pertained to all eight open default judgments discovered at the June 4, 2013 hearing date before ALJ Mini, including those related to NOV 8 and NOV 9. The six other open default judgments are discussed in Statement of Facts, Section A(2) above. The basis for Mr. Mestecky’s motions to vacate was that he was never served with any of the NOVs, including NOV 8 and NOV 9, because Mestecky does not reside at the location of the alleged violations, Union Turnpike, New Hyde Park, NY 11040. (R. 286-304). Following submission of Mestecky’s motions to vacate, Petitioner-Appellant was notified that his motion to vacate the six NOVs referenced in Section A (2) was granted and that a hearing was scheduled before ALJ Carolynn Terrell-Nieves on September 10, 2013. Neither Petitioner-Appellant nor Petitioner’s Counsel received correspondence as to Mr. Mestecky’s motion to vacate for NOV 8 and NOV 9. Respondents allege that a final decision denying Mr. Mestecky’s motions to vacate the NOVs was served on July 8, 2013. (R. 286-87). Such decision letters 14 were never served upon counsel for Petitioner-Appellant. (R. 286-87) nor were the letters served upon Mr. Mestecky. The letters dated July 8, 2013 demonstrate on their face that such letters were mailed to “MESTECKY FRANK, UNION TPKE, QUEENS, NY 11040-1460.” (R. 286-87). Since Petitioner-Appellant’s motions to vacate made clear that Mr. Mestecky does not reside at the Union Turnpike, New Hyde Park address, mailing a decision letter to the improper address does not effectuate proper service. At the hearing on September 10, 2013 before ALJ Terrell-Nieves, Petitioner- Appellant made an application to vacate all open default judgments. During this hearing, Respondents presented evidence related to NOV 8 and NOV 9. (R. 245, 252-54). ALJ Terrell-Nieves however did not issue a decision as to NOV 8 and NOV 9. (R. 262-81). Thereafter, Counsel for Petitioner-Appellant received the decision from the ECB Appeals Board on or about January 30, 2014 related to the NOVs upheld by ALJ Terrell-Nieves. At the time Counsel for Petitioner-Appellant had still not received correspondence as to Mr. Mestecky’s motion to vacate for NOV 8 and NOV 9 or a decision by ALJ Terrell-Nieves related to those NOVs. On February 22, 2014, Counsel for Petitioner-Appellant again served motions to vacate default judgments pertaining to for NOV 8 and NOV 9. (R. 305-318). On or about March 4, 2014, Respondents issued two decisions denying Mr. Mestecky’s request to vacate the default judgments related to for NOV 8 and NOV 9. 15 (R. 33). Petitioner-Appellant respectfully submits that the March 4, 2014 decisions of Respondents must be reversed since the record does not support their findings and their decisions are arbitrary, capricious and not supported by the law. 4. Transfer to the Appellate Division On January 24, 2014, Petitioner-Appellant timely commenced this Article 78 proceeding seeking review of determinations referenced herein. (R. 5-19). On April 10, 2014, Petitioner-Appellant timely filed an Amended Petition. (R. 27-44). Respondents opposed the Petition and submitted a verified answer and exhibits on May 14, 2014. (R. 58-340). By decision dated June 12, 2014, Judge Cynthia S. Kern transferred this matter to the Appellate Division. (R. 3-4). B. Factual Account In or about June 2011, Petitioner-Appellant Mr. Mestecky moved out of his residence at the New Hyde Park address. Thereafter, Tenants have resided at the New Hyde Park address from June 2011 to present. (R. 34). From in or about June 2011 to present, Mestecky has resided continuously at 203rd Street, Bayside, NY 11361 (“Bayside address” or “Bayside Residence”). (R. 34). Mr. Mestecky owns the property at 203rd Street, Bayside NY. Therefore, the Bayside address constitutes Mr. Mestecky’s dwelling or usual place of abode for the purpose of service of process pursuant to CPLR 308. 16 The New York City Property Tax Bill for the New Hyde Park address indicates that Mr. Mestecky’s residence is 203rd Street, Bayside, NY. (R. 34, 138). Records from the ECB reveal that by at least as early as February 2012, the Department of Buildings and the Environmental Control Board were aware that Mestecky resided at 203rd Street, Bayside NY. (R. 34, 138). The Department of Buildings and ECB had access to records, which show that Mr. Mestecky owns the Bayside Residence. (R. 34, 138). All of the Notice of Violations which are the subject of the instant proceeding provide that such NOVs were purportedly “served” at Union Turnpike, New Hyde, NY 11040 by “affix and mail” service. (R. 34). NOV 1, NOV 2 and NOV 3 (before ALJ Mini) provide that such NOVs were purportedly “served” at Union Turnpike, New Hyde, NY 11040 by “affix and mail” service. The affidavits of service indicate that the NOVs were affixed during the initial unsuccessful attempt at service was made at the New Hyde Park address. The NOVs were affixed after the building inspector merely knocked or rang on the doorbell at the New Hyde Park address and then on the same visit, affixed the NOV. (R. 34, 89-90, 94-95, 99-100). With regard to NOV 4 (before ALJ Carolynn Terrell-Nieves), the affidavit of service provides that such NOV was purportedly “served” at Union Turnpike, New Hyde, NY 11040 by “affix and mail” service. The affidavit of 17 service indicates that the inspector knocked on the door and then posted the NOV on the front door, on the same visit. (R.35, 104-05). The affidavits of service for NOV 5, NOV 6, and NOV 7 (before ALJ Carolynn Terrell-Nieves) provide that such NOVs were purportedly “served” at Union Turnpike, New Hyde, NY 11040 by “affix and mail” service. The affidavits of service for NOV 5, NOV 6, and NOV 7 provide that a female occupant advised the Department of Buildings inspector that Respondents does not live there. Notwithstanding that the inspector had been advised that Mr. Mestecky did not reside at the New Hyde Park address, the inspector posted the NOV at the front door. (R. 34-5, 109-10, 114-15, 119-20). With regard to NOV 8 and NOV 9 (referenced in the two March 4, 2014 ECB decisions), the affidavits of service indicates that such NOVs were purportedly “served” at Union Turnpike, New Hyde, NY 11040 by “affix and mail” service. (R. 35, 131-32, 124-25). The affidavits of service for NOV 8 and NOV 9 provide that the inspector knocked/rang doorbell on the door and then posted the NOV on the front door, on the same visit. (R. 34-5, 109-10, 114-15, 119-20). Since Mr. Mestecky does not reside at the New Hyde Park address, and there is no evidence in the record of any effort being made to ascertain his residence or usual place of abode such NOVs could not be served at such address absent personal service. Since the Department of Buildings was aware that Petitioner- 18 Appellant resided at 203rd Street, Bayside, NY 11361, the ECB was required to serve the NOVs at the Bayside Address in order to serve papers at Mr. Mestecky’s residence or usual place of abode. (R. 35). LEGAL ARGUMENT POINT I THE FIRST DEPARTMENT ERRED AS A MATTER OF LAW IN DETERMINING THAT SERVICE WAS PROPERLY EFFECTUATED SINCE THE NEW YORK CITY CHARTER CANNOT BE INTERPRETED AS AUTHORIZING SUBSTITUTE SERVICE AFTER ONLY ONE ATTEMPT AT SERVICE AS SUCH AN INTERPRETATION IS CONTRARY TO FUNDAMENTAL NOTIONS OF DUE PROCESS. A. The affidavits of service on their face demonstrate that Respondents made a single attempt at service at the premises. Petitioner-Appellant respectfully submits that the First Department erred in holding that the reference to Article 3 of the CPLR in Section 1049-a of the City Charter is limited only to specifying the class of individuals whom respondents must personally serve. In that regard, the plain language of the Charter and applicable legal precedent require service of NOVs to comply with the same due process requirements established for service of process under the CPLR. This Court has previously stated that “[t]he incontestable starting proposition in cases of this kind is that once jurisdiction and service of process are questioned, [the party seeking to acquire jurisdiction has] the burden of proving satisfaction of statutory and due process prerequisites”. Stewart v Volkswagen of Am., Inc., 81 NY2d 203, 207 [1993]. The burden of establishing the propriety of service rests 19 upon the party asserting jurisdiction. See 72A Realty Assocs. v. New York City Environmental. Control Bd., 275 A.D.2d 284, 285–87 (1st Dep’t 2000). The ECB and First Department erred in holding that Respondents served the NOVs in accordance with New York City Charter §1049-a(d)(2)(a)(ii). New York City Charter § 1049-a(d)(2)(a)(ii) provides that: service of a notice of violation of any provision of the charter or administrative code, the enforcement of which is the responsibility of ... the commissioner of buildings ... and over which the environmental control board has jurisdiction, may be made by affixing such notice in a conspicuous place to the premises where the violation occurred.... Section 1049-a(d)(2)(b) further provides, in pertinent part, that: [s]uch notice may only be affixed or delivered pursuant to items (i) and (ii) of subparagraph (a) of this paragraph where 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. When a copy of such notice has been affixed or delivered, pursuant to items (i) and (ii) of subparagraph (a) of this paragraph, a copy shall be mailed to the Respondents at the address of such premises.... (emphasis added). After the November 2015 Decision, a split in authority has developed between the First and Second Departments over whether the “affix and mail” method of service prescribed in New York City Charter § 1049-a(d)(2)(b) may be utilized on the same singular “attempt” by the ECB to serve a NOV at the premises 20 of the NOVs rather than requiring a separate attempt to effectuate service on the individual over whom jurisdiction is sought. Compare November 2015 Decision, (R. 396-398) with First Horizon Home Loans v New York City Envtl. Control Bd., 118 AD3d 875, 877 [2d Dept 2014]. The Second Department’s seminal case in this regard is First Horizon Home Loans v New York City Envtl. Control Bd., 118 AD3d 875 [2d Dept 2014], supra. In First Horizon Home Loans, 118 AD3d 875, the Second Department affirmed the lower court decision to vacate a default judgment by the ECB against Petitioner First Horizon Home Loans. The Second Department reviewed the same substitute service exception addressed in the instant matter and held that that “substituted service [by the ECB under the City Charter] may not be effected unless a reasonable attempt has been made to deliver such notice . . . as provided for by [CPLR Article 3] or [Business Corporation Law Article 3]”. Id. at 877. The Second Department affirmed the decision to vacate since “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 Corporations Law article 3.” Id. at 877 (emphasis added). Accordingly, as correctly identified by the Second Department, a “reasonable 21 attempt” requires that multiple attempts be made to effectuate personal service, rather than merely one attempt to effectuate service at a specific location. In sharp contrast to the Second Department’s controlling authority, the First Department held in its November 2015 decision 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.” Therefore, the First Department held that “one attempt at personally serving the NOV at the premises where the violation occurred” is sufficient to resort to the substituted service provisions under the New York City Charter.” See November 2015 Decision, (R. 396-398) (emphasis added). Petitioner-Appellant respectfully submits that the decision of the Second Department in First Horizon Home Loans, 118 AD3d 875 is consistent with due process considerations and consistent with the language and legislative history for the New York City Charter. As stated by the Second Department, “[e]ven with respect to these two exceptions [under the City Charter], however, such substituted service may not be effected unless a reasonable attempt has been made to deliver such notice . . . as provided for by [CPLR Article 3] or [Business Corporation Law Article 3]”. First Horizon Home Loans, 118 AD3d at 877. "The failure to make any effort at personal service runs afoul of the New York City Charter's directive 22 that a reasonable attempt at personal service be made prior to resort to alternative means of service.” Id. For purposes of CPLR 308(4) regarding substituted service, courts generally have required at least three prior attempts at service, at different times of the day. See Hochhauser v Bungeroth, 179 AD2d 431 [1st Dept 1992]; see also State v Mappa, 78 AD3d 926 [2d Dept 2010]; Johnson v Waters, 291 AD2d 481 [2d Dept 2002]; Matos v Knibbs, 186 AD2d 725 [2d Dept 1992]. Further, even under the City Charter, courts have historically held that at least two attempts at personal service—one during normal working hours and one attempt when a person working normal business hours could reasonably be expected to be home—are required to satisfy the “reasonable application” standard. See Gallo v City of New York, 36 Misc 3d 1204(A) [Sup Ct 2012] (requiring at least two attempts at personal service under City Charter); Schulder v. New York City Environmental Control Bd., 2010 WL 5553300 (at least two attempts of personal service required); see also NY RP ACT & PRO § 735 [McKinney]; Martine Assocs. LLC v. Minck, 785 N.Y.S.2d 648 (Sup. Ct., App. Term, 2d Dep’t 2004) (citing Eight Assoc. v Hynes, 102 AD2d 746, , 7 [1st Dept 1984], affd, 65 NY2d 739 [1985]); Hynes v Buchbinder, 147 AD2d 371 [1st Dept 1989]; Brooklyn Hgts. Realty Co. v Gliwa, 92 AD2d 602 [2d Dept 1983]; Oparaji v. City of New York, 2011 WL 6738696, 2011 N.Y. Slip Op 33265(U) (Sup. Ct. Queens 23 County 2011); Dolan v. Linnen, 195 Misc. 2d 298 (NYC Civ. Ct. Richmond County 2003). Since the affidavits of service attached to the NOVs do not set forth any specifics as to what reasonable attempt at service was made prior to resorting to affix and mail service, the First Department erred as a matter of law in failing to dismiss the NOVs at issue herein. First Horizon Home Loans v New York City Envtl. Control Bd., 118 AD3d 875, 877 [2d Dept 2014], supra; Wilner v Beddoe, 102 AD3d 582, 583 [1st Dept 2013]; Gallo, 36 Misc 3d 1204(A); Oparaji v. City of New York, 2011 WL 6738696 (U) (Sup. Ct. 2011). B. The clear language of New York City Charter § 1049-a(d)(2) requires a reasonable attempt to serve a person in such premises upon whom service may be made as provided for by article three of the CPLR. In the November 2015 Decision, the First Department held that “the statutory language as a whole” supports a reading that reference to CPLR article 3 in the City Charter’s affix and mail provision “does not import the ‘due diligence’ requirement of CPLR article 3. (R. 397). This plain language interpretation, however, is in direct contravention to the language of the New York City Charter which specifically provides that a notice of violation may only be affixed “where 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 24 the business corporation law.” See New York City Charter § 1049-a(d)(2)(b).To the contrary, the plain language of the Charter requires a showing that a reasonable attempt was made which comports with CPLR 308, governing service upon a natural person. CPLR 308 states: Personal service upon a natural person shall be made by any of the following methods: 1. by delivering the summons within the state to the person to be served; or 2. by delivering the summons within the state 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 and by either mailing the summons to the person to be served at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business . . . within twenty days of each other . . . ; 3. where service under paragraphs one and two 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 within the state of the person to be served and by either mailing the summons to such person at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business . . . within twenty days of each other . . . 4. . . . in such manner as the court, upon motion without notice, directs, if service is impracticable under paragraphs one, two and four of this section. 5. For purposes of this section, "actual place of business" shall include any location that the defendant, through regular solicitation or advertisement, has held 25 out as its place of business. (emphasis added) The reasonable attempt at service therefore must comport with the service requirements contained in Article 3 of the CPLR, specifically, in this instance, CPLR 308. First Horizon Home Loans v New York City Envtl. Control Bd., 118 AD3d 875, 877 [2d Dept 2014], supra. Since CPLR 308(4) only permits affix and mail service where service upon the actual person or a person of suitable age and discretion “cannot be made with due diligence”, the reasonable attempt language in the City Charter requires the same showing of “due diligence” set forth in CPLR 308(4). Moreover, CPLR 306(c) clarifies that where service is made pursuant to CPLR 308(4), “proof of service shall also specify the dates, addresses and the times of attempted service pursuant to subdivisions one, two or three of such section.” Consequently, the plain language of New York City Charter § 1049- a(d)(2) makes clear that multiple attempts at service are required on multiple dates before the notice of violation, addressed to an owner, may be affixed to the place of the occurrence. C. The legislative history of the amendments to §1049-a(d)(2) of the New York City Charter indicate that multiple attempts at service were contemplated in the amendment and are required. In the November 2015 Decision, the First Department held that “the legislative history” supports the reading that reference to CPLR article 3 in the City Charter’s affix and mail provision “does not import the ‘due diligence’ requirement 26 of CPLR article 3. (R. 397). Such finding however is not supported by the legislative history of the Charter which reflects an understanding that multiple attempts are required prior to the utilization of the affix and mail provision. (R. 319-22). In its decision, the First Department cites Governor Carey’s memorandum recommending approval of an amendment to the City Charter as support of the proposition that there was a legislative intent to make the service requirements of the City Charter less onerous than service under CPLR article 3. (R. 397). Although the correspondence related to the amendment makes reference to “a reasonable attempt” and “an attempt,” the letters do not provide that “a single” attempt at service was contemplated prior to permitting affix and mail service. (R. 319-22).This position is simply not supported by the legislative history as the Governor’s Memorandum filed with Bill 6854-B, dated July 11, 1979 and signed by Governor Carey, approving the bill that amended the City Charter, indicates that multiple attempts at service are required. The Memorandum states: Assembly Bill No. 6854-B permits service of NOVs returnable before the New York City Environmental Control Board by affixing a copy of the notice 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 notice have been unsuccessful. This will eliminate the time- consuming, costly and often unrewarding process now entailed in identifying and locating the person responsible for the violation. 27 (R. 322 [emphasis added]). ECB has even acknowledged that multiple attempts at service are required under the City Charter as amended. On January 14, 2014, the ECB held a public hearing pertaining to a proposal to amend the City Charter to state that a “single attempt” at service constitutes a “a reasonable” attempt at service.1 The legislative history, as acknowledged by ECB’s attempt to further change the City Charter, makes clear that affix and mail at the premises is only permitted “in instances where attempts to personally deliver the notice have been unsuccessful.” (R. 322). ECB’s attempt to amend the Charter while at the same time simultaneously urging that the Charter already allows a single attempt is disingenuous. Judicial interpretation of the City Charter cannot be a substitute for complying with the process of amending the Charter. Accordingly, the First Department’s interpretation of the City Charter is misplaced and must be overruled. 1 See City of New York, Environmental Control Board, Notice of Public Hearing and Opportunity to Comment on Proposed Rule (Nov. 7, 2013), available at http://rules.cityofnewyork.us/sites/default/files/proposed rules pdf/ ecb proposed rule defining reasonable attempt at service 12 06 13.pdf. 28 POINT II THE FIRST DEPARTMENT ERRED AS A MATTER OF LAW IN HOLDING THAT THE ECB DECISIONS WERE SUPPORTED BY SUBSTANTIAL EVIDENCE AS A REVIEW OF THE RECORD REVEALS THAT IN EACH INSTANCE, SERVICE OF THE NOVS WAS DEFECTIVE. A. In each instance, the ECB failed to make a “Reasonable Attempt” to serve Petitioner with the NOVs. A review of the record clearly demonstrates that Respondents failed to introduce substantial evidence in support of the determinations made by the ECB. The First Department’s November 2015 decision merely provides that “we have considered petitioner’s remaining arguments regarding alleged procedural defects and find them unavailing.” (R. 398). By failing to review the remaining claims and evidence in the record, the First Department did not address Petitioner- Appellant’s primary assertion that he was found guilty of violations without having been provided with due process. The affidavits of service and proof of mailing for each NOV demonstrate the Respondents’ failure to establish that the ECB made a “reasonable attempt” to serve the Petitioner-Appellant. (R. 38-43). 1. NOV 1, 2 and 3 before Administrative Law Judge Anthony Mini The affidavits of service for NOV 1, NOV 2, and NOV 3 provide that on June 21, 2012 at 2:30 p.m. at Union Turnpike, a City of New York Issuing Officer served the NOVs utilizing “C. Alternate method of service pursuant to New York City 29 Charter Section 1049-a(d)(2) (Affix and Mail Service)”. The partially preprinted affidavit responses states: I made the following reasonable but unsuccessful attempt to effectuate service upon [Petitioner-Appellant] or upon any other person whom service may be made as follows: No response to doorbell-knocks at front storm door-waited 5 minutes. A true copy of the notice of violation was posted at the following conspicuous place on the premises where the violation occurred: Posted on Front door. (R. 89- 93, 94-98, 99-103). In support of service of NOV 1, NOV 2, and NOV 3, counsel for Respondents, without a witness to authenticate the documents, submitted SBV1 and SBV2 screens. (R. 89-93, 94-98, 99-103). Although the ECB determined that these screenshot images support a finding that the NOVs were subsequently mailed to Petitioner-Appellant at the New Hyde Park and the Bayside address, the data presented on the screens is not consistent with indications that a mailing was ever effectuated by Respondents. The SBV1 screen indicates that Respondents are aware of Petitioner’s Bayside address on record. However, the SBV2 screen has no indication under the headings on the SBV2 screen “Respondents? Send NOV? Mailing Date” that the mailing was ever made to such residence. The affidavits of service presented relative to NOV 1, NOV2, and NOV3, to the extent they are probative at all as they have never been authenticated, provide that substituted service was utilized in the first instance. The First Department’s reliance on such affidavits in holding that these three NOVs were properly served 30 is incorrect. The NOVs were never served, and therefore they should all be dismissed. 2. NOVs 4, 5, 6, and 7 before Administrative Law Judge Carolynn Terrell-Nieves i. NOV 4 The affidavit of service for NOV 4 provides that on October 27, 2011 at Union Turnpike, a City of New York Issuing Officer served the NOV utilizing an alternate method of service pursuant to New York City Charter Section 1049-a(d)(2) (Affix and Mail Service). The partially preprinted affidavit response states that the building inspector knocked at the door and then posted on the front door. (R. 104- 108). Petitioner-Appellant respectfully submits that the affidavit itself does not establish that any reasonable attempt at service was ever made. The affidavit merely states that the inspector knocked on the door and then posted on the front door. The affidavit does not indicate how long the inspector waited before posting or whether any attempt was made to ascertain whether Petitioner-Appellant was present. (R. 104-108). Furthermore, as with the other violations, the unauthenticated electronic records submitted by ECB without a witness do not contain notations indicating that the required mailing ever took place following the attempt at substituted service. In support of service of NOV 4, counsel for Respondents, without a witness 31 to authenticate the documents, submitted SBV1 and SBV2 screens. Although the ECB ruled that these screens support a finding that NOV 4 was subsequently mailed to Petitioner-Appellant at the New Hyde Park and the Bayside address, a review of the SBV1 and SBV2 screens demonstrates that no mailing was ever effectuated by Respondents. While the SBV1 screen indicates that Respondents have Petitioner- Appellant’s Bayside address on record, the SBV2 screen fails to establish that the NOV 4 was subsequently mailed to Petitioner-Appellant at either address on record. In fact, no markings whatsoever appear under the headings on the SBV2 screen “Respondents? Send NOV? Mailing Date”. (R. 104-108). ii. NOV 5, NOV 6, and NOV 7 The affidavits of service for NOV 5, NOV 6 and NOV 7 provide that such NOVs were purportedly “served” at Union Turnpike, New Hyde, NY 11040 by “affix and mail” service. The NOVs provide that a female occupant advised the Department of Buildings inspector that Petitioner did not live there. After being advised that Petitioner did not live at the New Hyde Park address, the inspector posted the NOV at the front door. (R. 109-123). The First Department’s determination that the NOVs were appropriately served is not supported by the record since the affidavits of service do not indicate any attempt to ascertain where Petitioner-Appellant resides. Rather the affidavit indicates that a tenant specifically advised that Petitioner-Appellant does not reside 32 at the location. The affidavit does not indicate whether the inspector asked the tenant if she was aware of where Petitioner-Appellant actually resided. (R. 109- 123). In that regard, if the Issuing Officer was aware that a tenant was residing at the premises, the Issuing Officer was obligated to attempt to ascertain the whereabouts of Petitioner so that Petitioner-Appellant could have actually been served with process. First Horizon Home Loans v New York City Envtl. Control Bd., 118 AD3d 875, 877 [2d Dept 2014]. As with the other NOVs, in support of service, counsel for Respondents, without a witness to authenticate the documents, submitted SBV1 and SBV2 screens. Although the ECB ruled that these screens support a finding that the NOVs were subsequently mailed to Petitioner-Appellant at the New Hyde Park and the Bayside address, a review of the SBV1 and SBV2 screens demonstrate that no mailing was ever effectuated by Respondents. While the SBV1 screen indicates that Respondents have Petitioner-Appellant’s Bayside address on record, the SBV2 screen fails to establish that the NOV was subsequently mailed to Petitioner-Appellant at either address on record. As with the other NOVs, no markings whatsoever appear under the headings on the SBV2 screen “Respondents? Send NOV? Mailing Date”. (R. 109- 123). 3. NOV 8 and 9 Subject to the March 4, 2014 Decisions The affidavits of service for NOV 8 and NOV 9 provide that the NOVs were 33 purportedly “served” at Union Turnpike, New Hyde, NY 11040 by “affix and mail” service. (R. 124-137). The ECB, by decisions dated March 4, 2014, refused to vacate default judgments on these NOVs for lack of service, holding that service was properly effectuated. The two March 4, 2014 decisions are not supported by the record since the affidavits of service submitted as evidence of purported service do not indicate any attempt was undertaken to ascertain where Petitioner –Appellant resides. (R. 56-7). Since Petitioner-Appellant does not reside at Union Turnpike, New Hyde Park, NY, merely appearing at Union Turnpike and then affixing the NOV at the place of occurrence does not satisfy the service requirements of the CPLR and the City Charter. An attempt of personal delivery or delivery to a person of suitable age and discretion to Petitioner-Appellant at the 203rd Street, Bayside, NY address was required prior to affixing the notice on the property. Further, even if Petitioner-Appellant resided at Union Turnpike, New Hyde Park, NY 11040, which he does not, one attempt at service at the residence does not satisfy the reasonable attempt requirement. At least two attempts at service were required. Since the affidavits of service on their face indicate that only one attempt was made, and the affidavits do not indicate that an attempt was made at Petitioner- Appellant’s residence at the Bayside address, such affidavits are prima facie 34 evidence of improper service. (R. 124-137). Furthermore, the evidence submitted demonstrates that no subsequent mailing was effectuated, thereby rendering the entire attempt at service ineffectual. Accordingly, the First Department’s decision to uphold such findings must be overturned. (R. 124-137). B. For each of the NOV’s, ECB submit unauthenticated computer screenshots without a witness to testify as to the meaning if the data in the screenshots. Although raised in the underlying Article 78 but not addressed by the First Department in its November 2015 Decision, the NOVs at issue must also be dismissed since Respondents also failed in meeting their burden of proof at the hearing in establishing that the notices were mailed to Petitioner-Appellant as required in order to properly effectuate “affix and mail” service. Importantly, at each hearing, respondents did not submit an affidavit of mailing or produce any witness who allegedly mailed the NOVs to Mr. Mestecky. Instead, printed screenshots from ECB records were presented without having been authenticated and without any witness who could testify as to the contents of the information contained on the screenshot. As a procedural matter, Petitioner-Appellant objects and has continuously objected to the incompleteness of the electronic (AIMS) records produced by Respondent with regard to each of the NOVs. (R. 89-103). In this regard, Respondent has not produced the complete AIMS printout for any NOV. See 35 NOV 1, NOV 2, NOV 3, NOV 4, NOV 5, NOV 6, NOV 7 with only Page 1 of 4 of the AIMS Printout (R.89-103, 104-108, 109-113, 114-118, 119-123) and NOV 8 and 9 with only Pages 1 and 2 of 4 of the AIMS Printout (R. 124-130 and 131- 137). For this reason alone, the screenshots should not have been considered by either the ECB or the First Department in reaching a determination on this matter. Notwithstanding that the screenshots were improperly admitted as evidence and are incomplete records, the data contained in the screenshots demonstrates ECB’s failure to properly effectuate service. The decision of ECB Appeals Board in NYC v. Dextra, Appeal No. 42698, (2005), stands for the proposition that notations on the SVB2 screen are meant to indicate proof of service. In Dextra, the Department of Buildings submitted the following SVB2 screen: DOF REAL SEND NOV? Mailing Date Mr. Frantz Dextra X 4/29/03 Pennsylvania Ave Freeport, NY 11520-1351 DOF OWN Mr. Frantz Dextra Pennsylvania Ave Freeport, NY 11520-1351 DOF RPAD Dextra, Frantz X 4/29/03 39TH Avenue Flushing, NY 11368-0000 HPD DATA X Dextra 39th Ave 36 Queens, NY 11368 The ECB Appeals Board noted that the first column of the SVB2 screen listed four addresses the Department of Buildings found for the owner of the premises, three of which were from DOF records and one of which was from HPD records. The ECB Appeals Board explained that the second and third columns, with the headings “SEND NOV?” and “MAILING DATE,” respectively, showed the entries made by the Department of Buildings after performing its required search. Three of these addresses were marked by the entry of an ‘X’ under the column labeled “SEND NOV?” As the ECB Appeals Board noted in its decision, “Petitioner’s entry of the ‘X’ under this column indicates Petitioner’s direction that a computer-generated copy of the NOV is to be printed out and mailed to the owner at the address so marked with the “X”. Column 3 purportedly lists the date on which the ‘X’ is entered by Petitioner.” NYC v. Dextra, Appeal No. 42698 (2005). The SBV2 screenshots presented at the hearings, over Petitioner-Appellant’s objection, regarding all NOVs issued against Petitioner-Appellant did not contain any “X” marking indicating that a mailing was made and do not contain any mailing date which would indicate the date on which a mailing was allegedly made. Therefore, even assuming that an unauthenticated screenshot can serve as evidence of a mailing, the SBV2 screenshots submitted actually indicate that no 37 mailing was effectuated. (R.89-137) Since the Respondents have failed to produce sufficient evidence to support a finding that it complied with the subsequent mailing requirement, the First Department erred as a matter of law in failing to dismiss the NOVs at issue herein. First Horizon Home Loans v New York City Envtl. Control Bd., 118 AD3d 875, 877 [2d Dept 2014], supra; Wilner v Beddoe, 102 AD3d 582, 583 [1st Dept 2013]; Gallo v City of New York, 36 Misc 3d 1204(A) [Sup Ct 2012]; Oparaji v. City of New York, 2011 WL 6738696 (U) (Sup. Ct. 2011). As the ECB has conceded that the absence of such notations on the SBV2 screen is an indicator that there is no record that the mailing took place, the First Department erred in declining to consider this evidence in making its decision. C. Since the affidavits of mailing were not produced at the administrative hearings, they should not have been considered by the First Department and they are unreliable. In reviewing an administrative determination, the First Department was limited to reviewing the “facts and record adduced before the agency.” Kelly v Safir, 96 NY2d 32, 39 [2001]. The affidavits of service related to the mailings were not produced at the hearings despite objections from Petitioner-Appellant’s counsel as to the inadequacy of the proof of mailing. Further, although Respondents have submitted an affirmation stating that the DOB computer records demonstrate evidence of subsequent mailings, as such witness was not produced at 38 the administrative hearing, it was improper for the First Department to review such Affirmation at the appellate level. (R. 337-40). Therefore, the First Department should not have reviewed the affidavits of mailings or Affirmations explaining documents supplied in this Article 78 proceeding as such materials went beyond the facts and record adduced before the agency. Moreover, upon information and belief, when the ECB mails NOVs, the ECB does not mail a copy of the actual NOV issued; rather, the ECB mails a “summary sheet” of the NOV. Significantly, missing from the purported “record” is the transcript from the hearing before ALJ Carolynn Terrell-Nieves. During this hearing, an ECB attorney stated words to the effect that the ECB only mails “summary sheets” of an NOV, not a duplicate copy of the NOV. Such a failure to mail an actual copy of the actual NOV is clearly in violation of the Charter and fails to comply with the minimal due process requirement that a copy of a paper served by an alternative method also be mailed. Even assuming arguendo that the First Department properly reviewed the mailing affidavits, which were not part of the record at the administrative hearing, such mailing affidavits demonstrate significant deficiencies in reliability. See Mailing Affidavits for NOV 1, NOV 2 and NOV 3 with the computer printout attached to the affidavit of service listing a report date of 7/03/12, while the affidavit of service indicates that two different employees effectuated service two 39 days later on 7/5/12 (R. 89-103) ; NOV 5 with the computer printout attached to the affidavit of service listing a report date of 11/19/11 to 11/21/11, while the affidavit of service indicates that two different employees effectuated service a day later on 11/22/11 (R. 104-108); NOV 6 with the computer printout attached to the affidavit of service listing a report date of 12/31/11 to 1/03/12, while the affidavit of service indicates that two different employees effectuated service on 1/4/12 (R. 109-113); NOV 7 with the computer printout attached to the affidavit of service listing a report date of 12/30/11, while the affidavit of service indicates that two different employees effectuated service on 1/3/12 (R. 119-123); NOV 8 with the computer printout attached to the affidavit of service listing a report date of 4/18/12, while the affidavit of service indicates that two different employees effectuated service on 4/19/12 (R. 131-137); NOV 9 with the computer printout attached to the affidavit of service listing a report date of 4/19/12, while the affidavit of service indicates that two different employees effectuated service on 4/20/12 (R. 124-130). Since the ECB did not meet its burden of proof as to the issue of service, all NOVs must be dismissed. D. The record as a whole does not support a finding of proper service. The evidence in admissible form presented on the record, taken as a whole, does not support a finding that the Notices of Violations were served upon 40 Petitioner-Appellant, Frank Mestecky. The determination of whether substantial evidence supports the agency's conclusion is to be made upon the record as a whole. See CPLR 7803, Practice Commentary, C7803:3 (McKinney 2008). The record in this case demonstrates that the decisions of the ALJs and of the ECB Appeals Board fail to satisfy the applicable substantial evidence criteria. In that regard, the ECB hearing process is a quasi-judicial procedure. The decisions of ALJ Mini and ALJ Carolynn Terrell- Nieves must be overturned since the ALJs failed to follow any rules of evidence. As a procedural matter, the four NOVs (NOV 4, NOV 5, NOV 6 and NOV 7) before ALJ Terrell-Nieves must be dismissed because Respondents have not submitted the transcript of the proceeding. Pursuant to 48 RCNY § 3-71, a party aggrieved by the hearing officer's decision and order may appeal to the ECB Appeals Board by filing a written exception or appeal. When exceptions are filed, the Appeals Board reviews the record and renders a determination in accordance with 48 RCNY § 3-74, which sets forth the following. in relevant part: (a) When exceptions have been filed with the tribunal, the board shall consider the entire matter on the basis of the record before it. The notice of violation, the transcript of the hearing and all briefs filed and exhibits received in evidence, together with the hearing officer's recommended decision and order, shall constitute the hearing record. (emphasis added). 41 During the appeal, the ECB Appeals Board did not review a copy of the transcript from the administrative hearing despite an obligation to do so. (R. 82) (Footnote 5 indicates that a copy of the transcript was not available at the time Respondents submitted the record as part of its answer eight months after the administrative hearing). Therefore, the decision of the Respondents must be dismissed as being arbitrary and capricious and not supported by evidence in the record due to a failure to comply with 48 RCNY § 3-74. Even if a complete record were submitted, such record would demonstrate that insufficient evidence was submitted to sustain Respondents decisions. Over objections, the ALJs in both matters permitted counsel for the ECB, not a witness with knowledge and information, to provide testimony and to submit documents into evidence at the hearing. (R. 48-55, 153-54, 156-57, 158, 159, 160-162, 164- 69, 174, 180, 183, 194, 143-97). Further, the ALJs refused Petitioner-Appellant’s request to compel the inspector who purportedly served the violations and the witness who mailed any violations to be present at the hearing (R. 153-54). “The due process clause of the Fourteenth Amendment to the United States Constitution affords one who is a party in an administrative hearing the opportunity to be heard with timely and adequate notice advising as to the reasons for the hearing, the opportunity to cross-examine witnesses and to call witnesses on its behalf, and the opportunity to present arguments and evidence.” See New 42 Amber Auto Serv., Inc. v New York City Envtl. Control Bd., 163 Misc 2d 113, 119 [Sup Ct 1994] (emphasis added). Although not addressed by the First Department in its decision, Petitioner- Appellant objected to an attorney for the ECB being permitted to testify and authenticate records for the ECB. The ALJs, nonetheless, permitted the ECB attorney to testify as a witness and permitted the attorney to enter documents into evidence, which neither had a certification nor were introduced through an employee or fact witness from the NYC agency which issued the violations. (R. 48-55, 143-97). The main issue at both hearings was service of the NOVs at issue here. Petitioner-Appellant demanded that the Department of Buildings produce the inspectors for cross-examination. Rather than making the issuing officer appear for the hearing, the ALJs permitted the hearing to proceed with the attorney for the ECB entering into evidence ECB records and testifying as to service of process in the matter. (R. 48-55, 143-97). Where lack of service of process is raised as a defense at the hearing, a petitioner has a constitutional right to cross-examine the issuing officer as to the reasonableness of his or her attempt at service. See New Amber Auto Service, Inc., 163 Misc 2d at 119. Before issuing a decision holding Petitioner-Appellant responsible for tens of thousands of dollars, Respondents should have been required to establish that service of the NOVs was effectuated. 43 As set forth above, the record for the instant matter—including testimony from Petitioner-Appellant, the only testifying witness—confirms that Petitioner- Appellant was not served with the NOVs at any point in time. (R. 178-79). The sole basis for the ALJs’ conclusions that Petitioner-Appellant was served were affidavits of service and unsworn and unauthenticated documents. Such conclusions are impermissible because Respondents failed to submit one piece of admissible evidence and failed to introduce one witness for testimony. (R. 48-55, 143-97). Accordingly, the First Department erred in holding that Respondents’ determinations were supported by substantial evidence. E. The record is devoid of any evidence establishing that Petitioner- Appellant’s challenge as to the service of the two NOVs dismissed is time-barred. The November 2015 Decision, without justification, provides that “petitioner’s article 78 challenges to ECB’s decisions denying his motions to vacate default judgments as to two of the NOVs at issue are time-barred under the applicable four-month statute of limitations.” (R. 398). Respondents’ determination, affirmed by the First Department, however as to NOV 8 and NOV 9 is misplaced because Respondents did not serve Petitioner-Appellant with the NOVs and because Respondents did not serve upon Petitioner-Petitioner the denial of his motion to vacate until March 4, 2014. The instant Article 78 proceeding was, therefore, timely. 44 Under the applicable statute of limitations, CPLR § 217, an “article 78 proceeding against a public body or officer must be commenced within four months after the determination to be reviewed becomes final and binding upon the petitioner.” Rocco v Kelly, 20 AD3d 364, 365–66 [1st Dept 2005] (internal quotation marks omitted). A determination is deemed final and binding and, therefore, reviewable under Article 78 when the determination has its impact upon the petitioner who is thereby aggrieved. Parent Teacher Ass'n of P.S. 124M v Bd. of Educ. of City School Dist. of City of New York, 138 AD2d 108 [1st Dept 1988]. The concept of impact requires certainty and the immediacy of harm. Id. Where the petitioner seeks review of a determination, the four-month statute begins after the determination to be reviewed becomes final and binding. Rocco v Kelly, 20 AD3d 364, 365–66 [1st Dept 2005], supra. The four-month period begins to run when the petitioner suffers concrete injury not amenable to further administrative review or corrective action. Joseph L. Balkan, Inc. v City of New York, 41 AD3d 136 [1st Dept 2007]. The burden of establishing the date an action became final and binding is on the administrative agency or public body that made the decision. Feldman v New York State Teachers' Retirement Sys., 14 AD3d 769 [3d Dept 2005]. On June 12, 2013, Petitioner-Appellant’s counsel, served motions to vacate all open default judgments against Petitioner-Appellant, Frank Mestecky. (R. 286- 45 304). These motions to vacate pertained to all open default judgments, including those related to NOV 8 and NOV 9. The basis for Petitioner-Appellant’s motion to vacate was that Petitioner-Appellant was never served with any of the NOVs, including NOV 8 and NOV 9 because Petitioner-Appellant does not reside at the location of the alleged violations, Union Turnpike, New Hyde Park, NY 11040. (R. 286-304). Respondents allege that a final decision denying Petitioner’s motion to vacate the NOVs was served on July 8, 2013. (R. 286-87). No final decision, however, could have been issued related to NOV 8 and NOV 9 because Petitioner was never served with such NOVs. New York City Charter § 1049-a(d)(2)(a) states as follows: The environmental control board shall not enter any final decisions or order pursuant to the provisions of paragraph one of this subdivision unless the notice of violation shall have been served in the same manner as is prescribed for service of process by article three of the civil practice law and rules or article three of the business corporation law…” (emphasis added). Therefore, in determining whether a decision was final, this Court was required to still review whether the NOV was ultimately served in accordance with the New York City Charter. Since the NOVs were never legally served upon Petitioner, as set forth more fully herein, this Court must dismiss NOV 8 and NOV 9. Furthermore, although Respondents allege that Petitioner was served with 46 decision letters dated July 8, 2013 related to NOV 8 and NOV 9, such decision letters were never served upon counsel for Petitioner-Appellant. (R. 286-87). The decision letters attached at Exhibit “S” to Respondents’ Answer demonstrate on their face that such letters were mailed to “MESTECKY FRANK, UNION TPKE, QUEENS, NY 11040-1460.” (R. 286-87). Since Petitioner- Appellant’s motion to vacate made clear that Petitioner-Appellant does not reside at the Union Turnpike, New Hyde Park address, mailing a decision letter to the improper address does not effectuate proper service. Furthermore, although the affidavits of service attached at Exhibit “S” to Respondents’ Answer provide that a “stay denial 3 letter” was also sent to 203rd Street, Bayside, NY, Respondents have failed to provide a copy of the letter which allegedly was sent to such address. Here, the only letters attached to Respondents’ papers indicate that they were sent to Union Turnpike, Queens, New York. (R. 286-304). As counsel for Petitioner-Appellant filed the motion to vacate the default judgments, Respondents were obligated to serve the denial of any motion upon Petitioner-Appellant’s counsel. Since Respondents have failed to offer any proof that the decisions purportedly sent on July 8, 2013 were served upon counsel for Petitioner-Appellant, Respondents have failed to meet their burden of proof that the instant Article 78 proceeding related to NOV 8 and NOV 9 is untimely. See Ki Hyung Chung v. New York City Environmental. Control Bd., 2012 N.Y. Misc. 47 LEXIS 2332 (N.Y. Misc. 2012) (denying the ECB’s motion to dismiss on timeliness grounds where ECB failed to meet its burden of proof that the denial letter was sent to Petitioner and Petitioner’s counsel); Taxraja Mgt., LLC v City of New York Envtl. Control Bd., 33 Misc 3d 1225(A) [Sup Ct 2011] (vacating default judgments after citing deficiencies in ECB affidavits of service). Rather, Petitioner-Appellant herein has submitted proof that Counsel for Petitioner-Appellant filed motions to vacate all open default judgments, including those related to NOV 8 and NOV 9 on June 12, 2013. (R. 286-304). Although Respondents granted Petitioner-Appellant’s motion and ordered a hearing on all other NOVs, Respondents never rescheduled the hearing for NOV 8 and NOV or issued a denial letter to Petitioner-Appellant or his Counsel. Consequently, Petitioner-Appellant, on February 22, 2014 again served motions to vacate default judgments pertaining to NOV 8 and NOV. (R. 305-318). By decision dated March 4, 2014, Respondents provided, for the first time, correspondence to Counsel for Petitioner-Appellant indicating that Petitioner-Appellant’s motions to vacate were being denied. (R. 305-318). Here, a review of the purported denial letters dated July 8, 2013 fail to demonstrate whether these letters were actually ever sent to anyone. As a procedural matter, the letters attached at Exhibit “S” to Respondents’ Answer are unsigned and fail to identify the specific ECB employee credited with these 48 decisions. Moreover, although the decision letters indicate the “mailing date of this order [as] 7/08/2013”, the purported affidavit of service attached at Exhibit “S” to Respondents’ Answer indicate a mailing date of “7/09/2013.” Significantly, the purported affidavit of service identifies the “[t]ype of decision and letter [as a] stay denial 3 letter.” Since Petitioner-Appellant’s motion sought to vacate a default judgment and did not seek a “stay”, significant credibility issues exist as to whether this unsigned document was ever sent by the ECB to anyone. (R. 305- 318). As Petitioner-Appellant was never served with a denial decision on July 8, 2013, Respondents claim of un-timeliness must fail. CONCLUSION Upon the arguments set forth above, the complete record from the administrative level, and upon the long line of cases pertaining to due process, the decision of the Appellate Division, First Department must be reversed, and decision entered in favor of Petitioner-Appellant dismissing all NOVs. 49 Dated: Farmingdale, New York October 24, 2016 Respectfully submitted, GUERCIO & GUERCIO, LLP ________________________________ By: CHRISTOPHER F. MESTECKY Attorneys for Petitioner-Appellant 77 Conklin Street Farmingdale, New York 11735 (516) 694-3000 To: Clerk Court of Appeals of the State of New York 20 Eagle Street Albany, NY 12207-1004 ZACHARY W. CARTER Corporation Counsel of the City of New York Attention: Michael Pastor, Esq. Attorney for Respondents CITY OF NEW YORK 100 Church Street New York, New York 10007 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 10,837 words. Dated: Farmingdale, New York October 24, 2016 Christopher F. Mestecky GUERCIO & GUERCIO LLP Attorneys for Petitioner-Appellant 77 Conklin Street Farmingdale, New York 11735 (516) 694-3000