City of New York v. Martinez

• Docket Number: Index No. 452410/2022,Motion Seq. No. 001
• Decision Date: 18 May 2023
• Citation: 2023 NY Slip Op 31715 (U)
• Parties: CITY OF NEW YORK Plaintiff, v. JOSELYN L. MARTINEZ, Defendant
• Court: New York Supreme Court

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2023 NY Slip Op 31715(U)

CITY OF NEW YORK Plaintiff,
v.
JOSELYN L. MARTINEZ, Defendant

Index No. 452410/2022, Motion Seq. No. 001

Supreme Court, New York County

May 18, 2023

Unpublished Opinion

MOTION DATE 02/16/2023

PRESENT: HON. JOHN J. KELLEY, Justice

DECISION + ORDER ON MOTION

JOHN J. KELLEY, J.S.C.

The following e-filed documents, listed by NYSCEF document number (Motion 001) 13, 14, 15, 16, 17, 18, 19, 20 were read on this motion to/for JUDGMENT - DEFAULT.

In this action to enforce five administrative penalties imposed upon the defendant by the New York City Office of Administrative Trials and Hearings (OATH), the plaintiff moves pursuant to CPLR 3215 for leave to enter a default judgment in the principal sum of $350,000.00 against the defendant. The defendant does not oppose the motion. The motion is granted.

The defendant, Joselyn L. Martinez, owns residential real property located at 1316 Clay Avenue, Bronx, New York 10456. Upon inspection of the property, an inspector employed by the New York City Department of Buildings (DOB) concluded that the property had been issued a certificate of occupancy permitting the defendant to maintain a two-family dwelling, but that she had illegally converted it to an eight-unit, single-room occupancy dwelling, and maintained that illegal use over a period of time. On June 30, 2021, the DOB issued five separate notices of violation (NOVs) to the defendant, numbered 035577441J, 035577440H, 035577443N, 035577444P, and 035577439K, alleging that she violated Administrative Code of the City of New York (Ad Code) §§ 28-210.1 by illegally converting a two-family dwelling into premises with three or more additional dwelling units than permitted by the applicable certificate of occupancy, and thereafter maintaining and occupying the premises. The DOB inspector apparently issued

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a separate violation with respect to each of five of the six additional units. The NOVs each specified the items and appliances that had been discovered in each unit that made that unit a separate dwelling. The NOVs also informed the defendant that she was obligated to restore the property to its prior legal condition, and discontinue the illegal occupancies.

The DOB properly served the defendant with the NOVs pursuant to New York City Charter § 1049-a(d)(2)(a)(i), (ii), and (b), after which OATH scheduled a hearing on the NOVs for October 8, 2021. The defendant did not appear at that hearing. Pursuant to New York City Charter §1049-a(d)(1)(d), the defendant's failure to appear "shall be deemed, for all purposes, to be an admission of liability and shall be grounds for rendering default decision and order imposing a penalty in the maximum amount prescribed under law for the violation charged." An OATH administrative law judge (ALJ) found that the DOB made a prima facie showing that the defendant committed the violations described in the five NOVs, applied the default provisions of the City Charter, and imposed a penalty upon the defendant in the sum of $70,000.00 for each of the five NOVs, for a total of $350,000.00. In accordance with 48 RCNY 6-17(c)(3), the New York City Environmental Control Board (ECB) adopted the decision rendered by the OATH ALJ.

The defendant's time to pursue an administrative appeal of the hearing decision expired, (see 48 RCNY 6-19[c]), thereby rendering the ECB's October 8, 2021 determination the final determination in the matter, and causing the defendant to forfeit her opportunity to exhaust her administrative remedies, which is a condition precedent to any CPLR article 78 challenge to an adverse ECB/OATH determination. The City now seeks to enforce the penalty, as authorized by New York City Charter § 396, which requires that "[a]ll actions and proceedings for the recovery of penalties for the violation of any law shall be brought in the name of the city of New York and not in that of any agency, except where otherwise provided by law." Hence, the City is the proper party plaintiff in this action (cf. New York City Charter § 1049-a[d][3] [apart from an administrative order imposing a civil penalty, "(t)he environmental control board may apply to a

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court of competent jurisdiction for enforcement of any other decision or order issued by such board"] [emphasis added]).

Where a plaintiff moves for leave to enter a default judgment, it must submit proof that the summons and complaint properly was served upon the defaulting defendant, proof of the defendant's default, and proof of the facts constituting the claim (see CPLR 3215[f]; Woodson v Mendon Leasing Corp., 100 N.Y.2d 62, 70-71 [2003]; Gray v Doyle, 170 A.D.3d 969, 971 [2d Dept 2019]; Rivera v Correction Officer L. Banks, 135 A.D.3d 621 [1st Dept 2016]; Atlantic Cas. Ins. Co. v RJNJ Services, Inc. 89 A.D.3d 649 [2d Dept 2011]; Allstate Ins. Co. v Austin, 48 A.D.3d 720, 720 [2d Dept 2008]; see also Manhattan Telecom. Corp. v H &A Locksmith, Inc., 21 N.Y.3d 200 [2013]).

The service effectuated upon the defendant, as set forth in the relevant affidavit of service, was proper, and sufficient to obtain jurisdiction over her pursuant to the "affix and mail" provisions of CPLR 308(4) (see Greenwood Realty Co. v Katz, 187 A.D.3d 1153, 1154 [2d Dept 2020]). Since that affidavit of...