Colopedo Corp. v. N.Y. Envtl. Control Bd.
| Decision Date | 26 June 2013 |
| Docket Number | Index No. 16639/ 2012,Motion Seq. No. 1 |
| Citation | 2013 NY Slip Op 31810 |
| Parties | Application of COLOPEDO CORP., Petitioner, For a Judgment Pursuant to CPLR Article 78 v. THE CITY OF NEW YORK ENVIRONMENTAL CONTROL BOARD, Respondent. |
| Court | New York Supreme Court |
Short Form Order/Judgment
Present: HONORABLE AUGUSTUS C. AGATE
Justice
The following papers numbered 1 to 8 read on this Article 78 proceeding by petitioner Colopedo Corp. for a judgment annulling the determination of respondent City of New York Environmental Control Board (ECB), which denied its request to vacate defaults in appearing and default judgments.
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¦ ¦Papers ¦
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¦Notice of Petition-Verified Petition-Exhibits¦1-4 ¦
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¦Verified Answer-Exhibits-Affidavit of Service¦5-7 ¦
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¦Verified Reply ¦8 ¦
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¦Memorandum of Law ¦ ¦
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Upon the foregoing papers the petition is determined as follows:
In January 2004, Colopedo Corp. purchased real property improved by a one-two family home, located 23-34 Sound Street, Astoria, New York, 11105. Petitioner maintains an office at 19 Hill Lane, Glen Head, New York, 11545, and does not occupy the Astoria property.
The New York City Department of Sanitation (DOS) issued seven Notices of Violation (NOV) to Colopedo Corp. between July 30, 2007 and July 24, 2010 for violations of the Administrative Code at the Astoria property. All of the violations pertained toconditions on the exterior of the property.
A DOS supervisor issued NOV 10 on July 30, 2007 to Colopedo Corp., at 2334 Sound St., Queens, New York, 11105, for a violation of Section 16-118(2)(a) of the Administrative Code of the City of New York (Administrative Code) for a dirty sidewalk. The NOV states that alternative service was used; that the mail-in penalty was $100.00, and the maximum penalty was $300.00; and a hearing date of September 10, 2007 was provided.
The DOS supervisor's affidavit of service states that alternative service was made pursuant to City Charter § 1404(d)(2),1 and the following boxes were checked: "At the time indicated on the front of this Notice of Violation...having attempted entry to the premises, I found the premises locked and no one responded to any bells, knocks or calls; ..Therefore, I affixed a copy of the herein Notice of Violation to the door of the premises at the time indicated above." The alternative service mailing date is blank, and the stamp of the notary public appears in said space. The affidavit of service is stamped "824052 Au-8 07" and an affidavit of mailing dated August 9, 2007 states, in pertinent part, that on August 9, 2007, copies of the NOVs with stamped numbers 823399 to 8245448 were mailed to each respondent at the address of the premises where the violation occurred.
Colopedo Corp. did not appear at the September 10, 2007 hearing and the ECB issued a default order and imposed a penalty of $300.00.
On February 2, 2010, a DOS supervisor issued NOV 83 to Colopedo Corp. for a dirty area at the Astoria property, in violation of Administrative Code §16-118(2)(a). The NOV states that notice was also sent to Colopedo Co., at 3097 Steinway St 203, LIC, NY, 11103. The NOV states that alternative service was used; that the mail-in penalty was $100.00, and the maximum penalty was $300.00; and a hearing date of March 11, 2010 was provided.
The DOS supervisor's affidavit of service states that alternative service was made pursuant to NYC Charter § 1049-a(d)(2), and the following boxes were checked: "At the time indicated on the front of this Notice of Violation...having attempted entry to the premises, I found the premises locked and no one responded to any bells, knocks or calls; ..Therefore, I affixed a copy of the herein Notice of Violation to the door of the premises at the time indicated above." The affidavit of service is stamped "254224 Feb 16 10" and anaffidavit of mailing dated February 17, 2010 states, in pertinent part, that on February 17, 2010 copies of the NOVs with stamped numbers 253952 to 255106 were mailed to each respondent at the address of the premises where the violation occurred, and to the additional addresses indicated on the NOV.
Colopedo Corp. did not appear at the March 11 , 2010 hearing and the ECB issued a default order and imposed a penalty of $300.00.
On March 7, 2010, a DOS supervisor issued NOV 451 to Colopedo Corp. for loose rubbish at the Astoria property, in violation of Administrative Code § 16-120(d). The NOV states that notice was also sent to Colopedo Co, at 3097 Steinway St, STE 203, LIC, NY, 11103. The NOV states that alternative service was used; that the mail-in penalty was $100.00, and the maximum penalty was $300.00; and a hearing date of April 8, 2010 was provided.
The DOS supervisor's affidavit of service states that alternative service was made pursuant to NYC Charter § 1049-a(d)(2), and the following boxes were checked: "At the time indicated on the front of this Notice of Violation...having attempted entry to the premises, I found the premises locked and no one responded to any bells, knocks or calls; ..Therefore, I affixed a copy of the herein Notice of Violation to the door of the premises at the time indicated above." The affidavit of service is stamped "263897 Mar 12 10" and an affidavit of mailing dated March 15, 2010 states, in pertinent part, that on March 15, 2010 copies of the NOVs with stamped numbers 263560 to 264125 were mailed to each respondent at the address of the premises where the violation occurred, and to the additional addresses indicated on the NOV.
Colopedo Corp. did not appear at the April 8, 2010 hearing and the ECB issued a default order and imposed a penalty of $300.00.
On March 16, 2010, a DOS supervisor issued NOV 051 to Colopedo Corp. for having a dirty area at the Astoria property, in violation of Administrative Code §16-118(2)(a). The NOV states that notice was also sent to Colopedo Co, at 3097 Steinway St, STE 203, LIC, NY, 11103. The NOV states that alternative service was used; that the mail-in penalty was $100.00, and the maximum penalty was $300.00; and a hearing date of April 26, 2010 was provided.
No affidavit of service has been submitted in connection with NOV 051, although an affidavit of mailing dated March 24, 2010 has been submitted.
Colopedo Corp. did not appear at the April 26, 2010 hearing and the ECB issued a default order and imposed a penalty of $300.00.
On March 25, 2010, a DOS Police Officer issued NOV 5Y to Colopedo Corp. for having a dirty area at the Astoria premises in violation of Administrative Code §16-118(2)(a). The NOV states that the mail-in penalty was $100.00, and the maximum penalty was $300.00, and set forth a hearing date of April 26, 2010.
The Officer's affirmation of service states that alternative service per NYC Charter §1409-a(d)(2) was used, and the following boxes were checked: An affidavit of mailing dated March 30, 2010 states, in pertinent part, that on March 15, 2010 copies of the NOVs "summarized by violation number on the attached sheet (Batch 100329002 to 100329015) were mailed to each respondent at the address of the premises where the violation occurred, and to the additional addresses indicated on the NOV. The attached sheet lists NOV 5Y and Colopedo's mailing address at the subject property and at the Stienway Street address.
Colopedo Corp. did not appear at the April 26, 2010 hearing and the ECB issued a default order and imposed a penalty of $300.00.
NOV 0161160432 (NOV 32) and NOV 0177709840 (NOV 40):
A DOS inspector issued NOV 32 on July 25, 2008 and NOV 40 on July 24, 2010. Although Colopedo Corp.'s applications to vacate its default, and grant a new hearing as to these NOVs were initially denied by the ECB on April 11, 2012, the ECB has now granted a new hearing as to said NOVs.
Colopedo Corp. asserts that it was unaware of these violations until 2012. On March 7, 2012, petitioner received a letter from a debt collection agency retained by respondent with respect to NOV 32 and NOV 40. On March 29, 2012, petitioner received a letter from a different debt collection agency retained by respondent with respect to NOV 83. On April 5, 2012, petitioner conducted a website search on discovered NOV 10, NOV 451, NOV 5Y were also outstanding. on March 25, 2010. In April 2012, Colopedo Corp. seven separate requests to vacate the default as to each of these NOVs, in which it stated that it had not appeared at the hearing dates set forth in each NOV, as it did not receive notice of the NOV because the issuing agency did not serve the ticket correctly. In each instance, petitioner filled out the requisite form, and submitted copies of the NOVs, evidence of its corporatestatus, and other documents pertaining to each NOV.
The ECB, in a form order bearing a mailing date of April 11, 2012, denied the request to vacate NOV 32, stating that "You did not include information or documents...
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