Reda v. Department of Health of City of New York

• Citation: 519 N.Y.S.2d 774,137 Misc.2d 61
• Parties: Frank REDA, Petitioner, v. DEPARTMENT OF HEALTH OF the CITY OF NEW YORK, Respondent.
• Decision Date: 11 September 1987
• Court: United States State Supreme Court (New York)

Page 774

519 N.Y.S.2d 774

137 Misc.2d 61

Frank REDA, Petitioner, v. DEPARTMENT OF HEALTH OF the CITY OF NEW YORK, Respondent.

Supreme Court, New York County.

Sept. 11, 1987.

Saverio Perri, Bronx, for petitioner.

Peter L. Zimroth, Corp. Counsel, New York City, for respondent.

JACQUELINE W. SILBERMANN, Justice:

Petitioner moves pursuant to Article 78 of the C.P.L.R. vacating the Order of the Commissioner of Health dated August 21, 1987 upon the ground inter alia that respondent had no jurisdiction over him and that the decision was in error.

The issues presented are most serious because the life of King, a dog is contingent upon the results.

King having bitten three persons within a period of twenty-four months with sufficient severity so that medical attention was required was taken to the A.S.P.C.A. shelter on July 19, 1987, the date of his last bite, where he remains to this date.

Only two arguments were urged by petitioner, King's owner, in an effort to vacate the Order of the Commissioner of Health. The first is the allegation that the Commissioner's order to show cause notifying petitioner of the hearing was improperly served. It is petitioner's contention that service was improperly made because the order to show cause was not served pursuant to C.P.L.R. § 308. Admittedly, three copies of the order to show cause were personally delivered at petitioner's residence to petitioner's father, who resides there. Petitioner argues since this is "substituted service" pursuant to C.P.L.R. § 308(2), copies of the order should also have been mailed. No allegation is made that petitioner did not receive the order to show cause from his father or that he did not have actual notice of the hearing. Indeed petitioner appeared represented by his attorney at the hearing at the proper place, date and time.

Petitioner's argument that the C.P.L.R.'s sections with regard to service must be followed in an administrative proceeding is without merit. In an administrative proceeding the standard for service is whether the notice under all the circumstances is reasonably calculated to make the parties aware of the proceeding so that they have an opportunity to be heard. (Matter of Infante v. Donohue, 42 Misc.2d 727, 249 N.Y.S.2d 100 (Sup.Ct. Albany Co., 1964)). The Supreme Court of the United States stated:

"An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." (Mullane v. Central Hanover Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950)).

As with all administrative tribunals, the one that heard this matter derives its jurisdiction and powers from the statute which created it. (See Foy v. Schechter, 1 N.Y.2d 604, 154 N.Y.S.2d 927, 136 N.E.2d 883).

Section 7.05 of the Health Code provides for service of a finding of violation as follows:

"Service of the finding of violation may be made personally upon the person alleged to have committed the violation, the permittee or registrant, upon the person who was required to hold the permit or to register, upon a member of the partnership or other group concerned, upon an officer of the corporation, upon a managing or general agent or upon any other person of suitable age and discretion. Service may also be made by certified or registered mail addressed to any person upon whom personal service could be made at the address of the alleged violator, or the address of the permittee listed in the permit issued by the Board or the Commissioner (or application therefor), to the...