Matter of Laureiro v. New York City Department of Consumer Affairs
| Decision Date | 19 June 2007 |
| Docket Number | 2006-05048. |
| Citation | 41 A.D.3d 717,2007 NY Slip Op 05509,837 N.Y.S.2d 746 |
| Parties | In the Matter of PEDRO LAUREIRO, Respondent, v. NEW YORK CITY DEPARTMENT OF CONSUMER AFFAIRS et al., Appellants. |
| Court | New York Supreme Court — Appellate Division |
Ordered that the judgment is reversed, on the law, with costs, the determination is confirmed, the amended petition is denied, and the proceeding is dismissed.
The petitioner is a process server, licensed by the New York City Department of Consumer Affairs (hereinafter DCA). In response to a complaint filed against the petitioner alleging that he had filed a false affidavit of service in connection with a Westchester County matrimonial action, DCA requested a written explanation from the petitioner and issued a subpoena duces tecum, commanding him to appear before it and to bring copies of certain records. The petitioner's counsel responded with letters contesting DCA's jurisdiction over issues related to service of process occurring in Connecticut in connection with a Westchester County action. The petitioner failed to appear pursuant to the subpoena. DCA then sent the petitioner a notice of hearing which outlined the charges against him and directed him to appear and show cause why his license to serve process should not be revoked and monetary penalties imposed.
Prior to the hearing date, the petitioner commenced this CPLR article 78 proceeding seeking to prohibit DCA from conducting the hearing, based on its alleged lack of jurisdiction over the matter, among other challenges. The Supreme Court declined to issue a temporary restraining order and DCA rescheduled the hearing. The petitioner failed to appear at the hearing, and the Hearing Officer found him guilty, upon default, of all charges except those which were duplicative. The Hearing Officer revoked the petitioner's license, declared that he was unfit to hold a license from DCA for five years, and imposed fines totaling $2,200. The petitioner amended his petition to seek review of the DCA determination. The Supreme Court granted the amended petition and annulled the determination, finding it arbitrary and capricious in both the finding of guilt and the penalties imposed. This was error.
Generally, "one who objects to the act of an administrative agency must exhaust available administrative remedies before being permitted to litigate in a court of law" (Watergate II Apts. v Buffalo Sewer Auth., 46 NY2d 52, 57 [1978]; see Lehigh Portland Cement Co. v New York State Dept. of Envtl. Conservation, 87 NY2d 136, 140 [1995]; CPLR 7801 [1]).
6 RCNY 6-44, governing DCA hearings, provides, in part: "Where a default decision is rendered following an inquest, any party may, within 15 days from the date the party knew or should have known of the decision, file a written motion to vacate the decision with the Director of Adjudication."
The petitioner's failure to file such a motion bars judicial review of his claims, unless an exception to the exhaustion doctrine applies (see Matter of Moreno v New York County Dist. Attorney's Off., 38 AD3d 358 [2007]; Matter of Iacone v Building Dept. of Oyster Bay Cove Vil., 32 AD3d 1026 [2006]; Matter of Jamison v Tesler, 300 AD2d 194 [2002]; Matter of Martinez v Downstate Med. Ctr. of State Univ. of N.Y., 113 AD2d 753 [1985]). Exhaustion of administrative remedies is not required where an agency's action is challenged as either unconstitutional or wholly beyond its grant of power, when resort to an administrative remedy would be futile, or when its pursuit would cause irreparable injury (see Watergate II Apts. v Buffalo Sewer...
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