Tropp v. City of N.Y.

• Decision Date: 16 September 2020
• Docket Number: Index No. 16313/14,2016–13471
• Citation: 186 A.D.3d 1380,128 N.Y.S.3d 881 (Mem)
• Parties: In the Matter of Michael J. TROPP, etc., Respondent, v. CITY OF NEW YORK ENVIRONMENTAL CONTROL BOARD, et al., Appellants.
• Court: New York Supreme Court — Appellate Division

186 A.D.3d 1380

128 N.Y.S.3d 881 (Mem)

In the Matter of Michael J. TROPP, etc., Respondent,

v.CITY OF NEW YORK ENVIRONMENTAL CONTROL BOARD, et al., Appellants.

2016–13471

Index No. 16313/14

Supreme Court, Appellate Division, Second Department, New York.

Submitted—January 30, 2020

September 16, 2020

James E. Johnson, Corporation Counsel, New York, N.Y. (Devin Slack and Max O. McCann of counsel), for appellants.

Michael J. Tropp, Brooklyn, NY, respondent pro se.

REINALDO E. RIVERA, J.P., SHERI S. ROMAN, SYLVIA O. HINDS–RADIX, COLLEEN D. DUFFY, JJ.

DECISION & ORDER

In a proceeding pursuant to CPLR article 78, in effect, to review a determination of the New York City Environmental Control Board dated July 31, 2014, upholding a finding of an administrative law judge that the petitioner violated Administrative Code of the City of New York § 28–204.4, the New York City Environmental Control Board and the City of New York Department of Buildings appeal from a judgment of the Supreme Court, Kings County (Larry D. Martin, J.), dated June 20, 2016. The judgment granted the petition to dismiss notice of violation number 35054522Z for failure to properly serve the notice of violation upon the petitioner pursuant to New York City Charter § 1049–a(d)(2).

ORDERED that the judgment is reversed, on the law, with costs, the issues raised are deemed transferred to this Court pursuant to CPLR 7804(g), the determination is confirmed, the petition is denied, and the proceeding is dismissed.

The Department of Buildings (hereinafter the DOB) issued the petitioner a notice of violation (hereinafter the NOV) in connection with certain real property owned by him in Brooklyn. After a hearing before the New York City Environmental Control Board (hereinafter the Board), an administrative law judge (hereinafter the ALJ), inter alia, upheld the notice of violation and imposed a fine. The ALJ's determination was upheld on administrative appeal. Thereafter, the petitioner commenced this proceeding pursuant to CPLR article 78 to review the determination of the Board. The Supreme Court granted that branch of the petition which was to dismiss the NOV for lack of proper service. The Board and the DOB appeal.

Contrary to the conclusion of the Supreme Court, the Board and the DOB established that, prior to using affix and mail service pursuant to New York City Charter § 1049–a(d)(2), the DOB inspector made a reasonable attempt to deliver the notice of violation to a person in the subject premises upon whom service may be made as provided for by CPLR article 3 (see N.Y. City Charter § 1049–a[d][2][b]; Matter of Mestecky v. City of New York, 30 N.Y.3d 239, 242–246, 66 N.Y.S.3d 207, 88 N.E.3d 365 ; Matter of Carone v. New York City Envtl. Control Bd., 139 A.D.3d 402, 403, 31 N.Y.S.3d 473 ). Although the petitioner claimed that someone was home on the...