Vataksi v. Envtl. Control Bd.
| Decision Date | 19 June 2013 |
| Citation | 967 N.Y.S.2d 415,2013 N.Y. Slip Op. 04614,107 A.D.3d 905 |
| Parties | In the Matter of Mehmet VATAKSI, respondent, v. ENVIRONMENTAL CONTROL BOARD, appellant. |
| Court | New York Supreme Court — Appellate Division |
OPINION TEXT STARTS HERE
Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Kristin M. Helmersand Michael J. Pastor of counsel), for appellant.
PETER B. SKELOS, J.P., THOMAS A. DICKERSON, LEONARD B. AUSTIN, and JEFFREY A. COHEN, JJ.
In a proceeding pursuant to CPLR article 78 to review determinations of the Environmental Control Board dated November 7, 2011, which denied the petitioner's applications dated November 3, 2011, to vacate his defaults entered on notices of violation issued to him and to dismiss the notices of violation, the Environmental Control Board appeals, as limited by its brief, from so much of an order of the Supreme Court, Richmond County (Fusco, J.), dated March 14, 2012, as granted the petition to the extent of vacating the petitioner's defaults as to the notices of violation numbered 158252409, 158257698, 161220162, 41271260X, 41292565J, 41272597X, 41273161J, 173789230, 41260851Y, and 041223933P, and directed new hearings on those notices of violation.
ORDERED that on the Court's own motion, the notice of appeal is deemed to be an application for leave to appeal, and leave to appeal is granted ( seeCPLR 5701[c] ); and it is further,
ORDERED that the order is modified, on the law, by deleting the provisions thereof which granted the petition to the extent of vacating the petitioner's defaults as to the notices of violation numbered 158252409, 158257698, 161220162, 41271260X, 41292565J, 41272597X, 173789230, 41260851Y, and 041223933P, and directed new hearings on those notices of violation, and substituting therefor a provision denying so much of the petition as sought to vacate the petitioner's defaults as to those notices of violation; as so modified, the order is affirmed insofar as appealed from, with costs to the appellant.
The Supreme Court erred in granting so much of the petition as sought to vacate the petitioner's defaults as to the notices of violation numbered 41271260X and 41292565J. The petitioner failed to exhaust his administrative remedies with respect to these notices of violation, and there is no basis in the record to conclude that any exception to the exhaustion of administrative remedies requirement would apply ( see Matter of Sirju–Kar Corp. v. City of New York, 64 A.D.3d 716, 717, 883 N.Y.S.2d 569;see generally Watergate II Apts. v. Buffalo Sewer Auth., 46 N.Y.2d 52, 57, 412 N.Y.S.2d 821, 385 N.E.2d 560;NYCTL 2009–A Trust v. Tsafatinos, 101 A.D.3d 1092, 1093, 956 N.Y.S.2d 571;Matter of Nazir v. Charge & Ride, Inc., 95 A.D.3d 1215, 1216, 945 N.Y.S.2d 179;Matter of Laureiro v. New York City Dept. of Consumer Affairs, 41 A.D.3d 717, 719, 837 N.Y.S.2d 746).
With regard to the remaining notices of violation at issue, the determination of the Environmental Control Board (hereinafter the ECB) under review here, including, inter alia, the denial of the...
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