The plaintiff, County of Suffolk, (hereafter “the County”) commenced this commercial small claims proceeding seeking to recover $800.00 from the defendants, Stanzoni Realty Corp. and Robert J. Stanzoni, (individually) for alleged violations of Sec. 290 of the Suffolk County Code involving “false alarm fee assessments”. Said statute allows the County to assess fees for violation of its provisions and establishes an administrative mechanism which authorizes the operators of alarm systems to request that the Police Commissioner reconsider, via correspondence only, any fine, within thirty days of the mail receipt of said fee demand. Sec. 290-9(D) in relevant part, states as follows: An alarm owner shall be given written notice by the Department of any fees chargeable by the department for false alarms under this section. (Emphasis added). An alarm owner shall pay all demanded fees within 30 calendar days of the date of the notice unless an alarm owner requests an appeal in accordance with §290-10 below. Failure of an alarm owner to pay a false alarm fee when due shall result in a late fee in the amount of $25 and $50 for amounts due and owing past 60 days… Department: The Suffolk County Police Department Alarm Owner: Any person, corporation, partnership or joint venture who or which owns, leases, rents, uses or makes available for use by his or its agents, employees, representatives or family any alarm system… False Alarm: An alarm signal activated by causes or events other than the commission or attempted commission of an unlawful act or emergency which the alarm system is designated to detect. An alarm signal activated by violent or unusual conditions of nature or other extraordinary circumstances not subject to the control of the alarm owner shall not constitute a false alarm. §290-10 Appeals: Any person or entity that receives a notice of false alarm fees or any other fines or fees due under this article may appeal such fines or fees by filing a notice of appeal in such form as provided by the Department, with the Commissioner, within 30 days of receipt of the notice. (Emphasis added). The Commissioner shall make a determination on the appeal with 60 days of receipt. All final written determinations of the Commissioner shall be appealable in accordance with Article 78 of the New York Civil Practice Law and Rules. The County’s case consisted of the testimony of Mrs. Donna Bellone, who is the manager of its false alarm management program. The crux of the manager’s testimony is that she had no personal knowledge as to mailing of notices and/or fee assessments in this particular case, but that the system which she oversaw created notices at the time of each false alarm as well as a summary of all outstanding occurrences with an overall bill. The manager testified that usually an alarm company would contact the “911 police operator” to inform them of an active burglar alarm. The 911 operator would input same into the false alarm computer program. Subordinates of the witness would undertake a review to verify addresses and/names of owners, but not necessarily whether the alarms were false. Thereafter the Suffolk County “mail service” (a unit ostensibly operating within the Department of Public Works),1 would mail the alarm owner a notice assessing a false alarm fee. In the case at bar, the County admitted into evidence (Plaintiff’s Exhibit No.1) an “Outstanding Invoice Summary” and a demand for payment of $800.00 dated April 15, 2019. Said document is uncertified but was accepted into evidence without objection from the defendant as a business record. It references false alarms on June 15, 2016, March 3, 2017 and August 10, 2017 and does not reference Mr. Stanzoni individually. The Court notes that the underlying original assessment notices were produced for the defendant to review for cross examination purposes; however these documents were not introduced into evidence. The pro se defendant raised the following affirmative defenses in response to the County’s case:2 (1) Mr. Stanzoni is not individually liable as the business which maintains the false alarm system, is a formal corporation. (2) Sec. 290 does not apply to him pursuant to its own terms, as the subject alarms were generated by real, not false alarms. (3) That the defendants did not “receive” the predicate fee assessments, and as such his time for administrative review never commenced running, making this action premature. (4) The County has not proven the defendant received a fee assessment. Standard of Proof/Review The “due process” standard of review in a commercial small claims proceeding is limited to a determination of whether “substantial justice” has…been done between the parties according to the rules and principles of substantive law (UDCA Secs. 1804 and 1807), Ross v. Friedman, 269 AD2d 584 (NYAD 2d Dept. 2000); Williams v. Roper, 269 AD2d 125 (NYAD 1st Dept. 2000); Fasano v. Fields, 64 Misc 3d 126(A) (2nd Dept App. Term 9th & 10th Dists 2019). The Court notes the different standard of review as the County correctly asserts that the small claims rules allow for hearsay statements and writings, and advances in support thereof UDCA Secs. 1804 and 1804(A) which provides the parties “shall not be bound by statutory provisions or rules of practice, procedure or pleading or evidence“. (Emphasis added). While patently clear, this statute has not been construed to unconditionally allow hearsay evidence; but to grant the Court discretion to apply the hearsay prohibition against statements which can not be cross-examined and which are inherently critical to the disposition of the dispute being adjudicated. See, Davis v. Town of Babylon, 39 Misc 3d 139(A) (2d Dept. App. Term 9th & 10th Dists. 2013); citing to Hickey v. T & E Service Station, 12 Misc 3d 133(A) (2d Dept. App. Term 2nd & 11th Dists. 2006). See also, Zelnik v. Bidermann Industries U.S.A., Inc,, 242 AD2d 227 (NYAD 1st Dept. 1997). It has long been held that despite UDCA Sec. 1804, “small claims judgments may not stand on hearsay alone.” Cocuzza v. Love My Dawg, 61 Misc 2d 134(A) (2d Dept. App. Term 9th & 10th Dists. 2018). Historically, it is a fundamental legal tenet that to receive a money judgment, the plaintiff must bear the burden of proving the allegations contained in his complaint by a preponderance of the evidence. See, J. Baranello & Sons v. Chase Manhattan Bank, 119 AD2d 550 (NYAD 2nd Dept. 1986), citing Whitlach v. Fidelity & Gas Co., 149 NY 45 (NY 1896); see also, Torem v. 564 Cent. Ave. Rest., Inc., 133 AD2d 25 (NYAD 1st Dept. 1987); see also, PJI 1:23, page 48. In the case at bar the County maintains the burden of proving, by the preponderance of the evidence, every prima facie element of its asserted cause of action. In this case, it must prove: that false alarm activations were reported to the County Police Department; that the defendant was assessed fees under Code Sec. 290-9 and was given and received mail notice from the Police Department of said assessments; that the County provided the administrative hearing request form; that the defendant did not timely request an administrative review by the Police Commissioner. Proving False Alarms The County conceded the record presented contains no non-hearsay proof as to whether the subject alarms were false. The Court will leave for another day the issue of whether the County can, via a municipal ordinance, shift the burden of proof to the defendant as to whether or not the alarm was “false” or “true”. The subject statute states many instances when an alarm is not false and therefore not assessable. The defendant asserts that many of the alarms (if not all) were not false. The County asserts that the issue is no longer reviewable as the defendant did not ask for an administrative review. Individual Liability The County’s complaint seeks judgment against both the corporation and Mr. Stanzoni individually. It argues that the statute’s definition of alarm system “user” is broad enough to allow for assessment of fees against officers/shareholders/owners of corporations. In this instance it is undisputed that Mr. Stanzoni operates his business in a legal formal corporate capacity. New York law allows the use of corporations to shield officers and shareholders from liability for corporate acts. See generally, We’re Assoc. v. Cohen et al, 103 AD2d 130, (NYAD 2d Dept. 1984), citing to Billy v. Consolidated Mach. Tool Co., 51 NY2d 152 (NY 1932). The County bears the burden of proving that Mr. Stanzoni was the “user” of the alarm and not his corporation. The only proof in the record, the “alarm fee summary” (Exhibit #1), references Stanzoni Realty Corp., only, as the fee assessee. As such, no individual liability is incurred. Presumption of Receipt of Mail The law of the “presumption of receipt” of mailed claims has been fully fleshed out in the Second Department’s Appellate Division. As a general rule of evidence, proof that an item was properly mailed gives rise to a rebutable presumption that the item was received by the addressee. Rodriguez v. Wing, 251 AD2d 335 (NYAD 2d Dept. 1998), citing to Rosa v. Board of Examiners, 143 AD2d 351 (NYAD 2d Dept. 1988). There exist two avenues to prove “mailing” which require either “personal knowledge” of the act of mailing or testimonial proof of a “standard practice and office procedure” designed to ensure that notice items are properly created and addressed and mailed via placement in the custody of the United States Mail.” See, NY Presbyterian Hospital v. Allstate Ins. Co., 29 AD3d 547 (NYAD 2d Dept.2006); Hospital for Joint Diseases v. Nationwide Mutual Insurance Co., 284 AD2d 374 (NYAD 2d Dept. 2001). As the testifying witness had no personal knowledge of the creation and mailing of the false alarm fee assessment, it is left to the County to prove its witness had knowledge of its standard practice and office procedure sufficient to convince the Court that its notices were properly mailed, so as to receive the benefit of the “presumption of receipt” of the mailed notices. However, the delegation of mailing (and possibly the creation of) the fee assessments to an unidentified public works employee is patently insufficient to reliably demonstrate that the notice made its way into possession of the U.S. Postal authorities. This is true, even if the Court deems the “County Mail Service” to be the “Police Department” as required by Sec. 290 (a)(d). A review of the afore-cited case law demonstrates that here, the County is not entitled to the benefit of the “presumption of Receipt” of its assessment notices. Absent the presumption, the County fails to establish its condition precedent to bring this action. See generally, NY Presbyterian Hosp. v. Allstate Ins. Co., supra. Receipt of Notice of Appeal It is also noted that the record does not establish that the County served a copy of its “notice of appeal” which must be in the form proscribed by the Police Department as noted in Sec. 290. Exhibit #1 gives no notice of the administrative review option available to the defendant. In point of fact, a bill “summary” is not the actual “fee assessment” document which was purportedly issued on three occasions and which started the running of the time clock for the administrative review process. The defendant testified he never received the actual fee assessments and the documents he did receive did not advise of the administrative appeal process or give a copy of the “approved” appeal form. Putting aside the issue of whether the statute requires that the defendant be given a copy of the appeal form, the statute is clear that the defendant’s time to request administrative review runs for 30 days after “receipt” of the fee assessment. As such, this action is premature as the County has not proven the “actual date” the defendant received the assessment. Even if given the presumption of mail delivery, the County needs to prove the actual delivery date to start the administrative review period. The record does not establish same. Accordingly, for the afore discussed reasons, the County’s complaint is dismissed. Dated: September 13, 2019
