Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion: Papers Numbered Plaintiff’s Order to Show Cause with Accompanying Affirmations and Exhibits 1 Affirmation in Support of Defendant’s Cross-motion for Summary Judgment and in Opposition to Plaintiff’s Motion with Accompanying Affirmations and Exhibits 2 Plaintiff’s Affirmation in Opposition to Cross Motion and In Further Support of Motion with Accompanying Affidavits and Exhibits 3 Defendant City’s Affirmation in Further Support of Cross-Motion with Accompanying Affirmations and Exhibits 4 Plaintiff’s Memorandum of Law in Reply 5 DECISION/ORDER Plaintiff Bay Ridge Prince LLC (“BRP” or “plaintiff”) seeks an order, based on lack of proper service, vacating Notices of Violation (“NOVs”) that were issued between 2007 and 2015 by the New York City Department of Buildings (“DOB”) and the Fire Department of the City of New York (“FDNY”) for alleged violations at 315 93rd Street, Bay Ridge, Brooklyn (“subject property”). These NOVs were returnable before the NYC Environmental Control Board (“ECB”), a division of the City’s Office of Administrative Trials and Hearings (“OATH”) that adjudicates violations of the New York City Charter (“City Charter”) and Administrative Code, including violations of the Building Code and Fire Code. City Charter §1049-a. See, Mtr. of Mestecky v. City of New York, 30 N.Y.3d 239, 242 (2017). In addition, based on a multitude of issues addressed herein, plaintiff moves to vacate the judgments and executions premised upon the NOVs, and to enjoin the Sheriff from taking any other action to enforce the judgments, including selling the subject property. In addition, plaintiff requests that the City and Sheriff return to BRP any and all rent or proceeds collected from the Prince Hotel, which request is denied at the outset since plaintiff has not produced any evidence that such rent and proceeds were improperly taken. The City of New York (the “City” or “defendant”) cross-moves for dismissal of the petition on the grounds that plaintiff’s complaint should have been brought as an Article 78 proceeding, rather than a plenary action, and that it is time-barred under the four-month statute of limitations applicable to challenges to agency determinations. The City further argues that the controversy is not ripe for judicial review as plaintiff failed to exhaust its administrative remedies as it did not file administrative appeals over the subject NOVs at the time the instant action was brought. The City further argues that service of the NOVs, entry of the ECB judgment, and all of the executions were in compliance with the statutory and regulatory requirements. Plaintiff’s motion to vacate the NOVs is denied since the affidavits accompanying the NOVs establish that plaintiff was served properly. Each NOV described the nature of the alleged violation and contained a statement, made under penalty of perjury, describing the inspector’s unsuccessful effort to personally serve the NOVs at the subject premises. For example, with respect to NOV 035151759L, NOV 035151760Z and NOV 035151761K issued in April 2015, the inspector explained that “no responsible party to accept service per hotel check in desk.” In each instance, after a single unsuccessful attempt at personal service, the inspector affixed the NOVs in conspicuous locations at the subject premises, such as the front entry door. Employees of Fedcap Rehabilitation Services Inc., acting as agents for the DOB, subsequently mailed the hearing notices to Moses Fried, the agent registered with the HPD and DOF for BRP, and in some cases to “Dejesus,” listed as owner of DOB: 1) NOV 035151759L 2) NOV 035151760Z 3) NOV 035151761K 4) NOV 035151762M 5) NOV 035151764X 6) NOV 035151765H 7) NOV 035151766J 8) NOV 038228217Z 9) NOV 034951860P 10) NOV 034951861R 11) NOV 011327581Z 12) NOV 035029326R 13) NOV 035084495J 14) NOV 035084496L 15) NOV 035055387J 16) NOV 035055908X 17) NOV 035058974H 18) NOV 035042371M 19) NOV 038235275M 20) NOV 038236030Z 21) NOV 011410296R City Charter §1049-a(d)(2) permits the use of affix and mail service of NOVs issued by DOB inspectors who discover building code violations after there has been a reasonable attempt to personally deliver the notice to a person employed by the respondent, or in connection with the premises where the violation occurred. City Charter §1049-a(d)(2)(a)(1); Mestecky, supra, 30 N.Y.3d at 245; Mtr. of Tropp v. City of N.Y. Envtl. Control Bd., 186 A.D.3d 1378, 1379 (2d Dept. 2020) See also, Mtr. of Hoffman & Sons Realty, Inc. v. City of New York, 189 A.D.3d 833, 834 (2d Dept. 2020); City of New York v. Bay Ridge Prince, LLC, 168 A.D.3d 808, 810 (2d Dept. 2019). Accordingly, that branch of the motion which seeks to dismiss the NOVs listed above for failure to properly serve them upon plaintiff is denied. However, the judgments and executions premised upon these violations are vague. In particular, while the executions refer to certain enumerated, barely legible, docketed judgments following ECB hearings which were either held or defaulted upon, the evidence presented failed to set forth the actual hearing results, judgments, default judgments, or the county in which they have been entered. City Charter §1049-a(d)(1)(h) requires that before a judgment based upon a default may be entered, the ECB must have notified the respondent by first class mail: “(I) of the default decision and order and the penalty imposed; (ii) that a judgment will be entered in the civil court of the city of New York or any other place provided for the entry of civil judgments within the state of New York; and (iii) that entry of such judgment may be avoided by requesting a stay of default for good cause shown and either requesting a hearing or entering a plea pursuant to the rules of the board within thirty days of the mailing of such notice.” Defendant has not produced any evidence that this notice was mailed for any of the NOVs. Furthermore, the court cannot discern the date or exact location of the ECB hearings. Accordingly, the matter is remanded to the ECB for it to produce all the judgments upon which the executions are predicated, proof that default notices were mailed in connection with the NOVs, as well as the dates of the hearings on the NOVs, and ECB’s findings on each of the subject NOVs. The court cannot rule on that branch of the motion which seeks to vacate the judgments until the ECB provides all the information specified above. Furthermore, this court directs ECB to conduct a meaningful review of the amounts owed by BRP and what has been paid already and specify which NOVs were not paid. The records are unclear, and in some cases illegible. Pending the ECB’s review and definitive determination, that branch of plaintiff’s motion which seeks to temporarily enjoin the Sheriff from taking any other action regarding the executions or enforcement of the judgments, including sale of the subject property, is granted. Defendant’s cross motion for dismissal of the petition on the grounds that plaintiff’s complaint should have been brought as an Article 78 proceeding, not as a plenary action, and that it is time-barred under the four-month statute of limitations is denied. A petitioner who seeks article 78 review of a determination must commence the proceeding “within four months after the determination to be reviewed becomes final and binding upon the petitioner.” CPLR §217 (1). An administrative determination becomes “final and binding” upon “completeness (finality) of the determination and exhaustion of administrative remedies.” Walton v. New York State Dept. of Correctional Servs., 8 N.Y.3d 186, 194 (2007); Mtr. of Boyajian v. Village of Ardsley, Zoning Bd. of Appeals, 210 A.D.3d 1079, 1081 (2d Dept. 2022). The four-month limitations period only starts to run when the agency determination is “unambiguous,” its effect is certain, period only starts to run when the agency determination is “unambiguous,” its effect is certain, and the aggrieved party is notified. Edmead v. McGuire, 67 N.Y.2d 714, 716 (1985). See also, Mtr. of SUNCO Holding Corp. v. Town of Vestal, 204 A.D.3d 1143, 1144-1145 (3d Dept. 2022). An “administrative determination is not final for judicial review purposes if it rests upon an empty record.” Yarbough v. Franco, 95 N.Y.2d 342, 347 (2000); Mtr. of Hendricks v. New York City Housing Authority, 2009 NY Slip Op 30713(U), *12009 N.Y. Misc. LEXIS 4719, *7 (Sup. Ct. NY Co. 2009). In this case, since the executions refer to lists of barely eligible docketed judgments following ECB hearings on unknown dates, and since there is no way to discern the county in which the judgments were entered, the ECB’s determination rests upon a partially “empty record” and cannot be considered “definitive” or “unambiguous.” Therefore, plaintiff’s action could not have been brought as an article 78 proceeding, and the four month limitation period did not begin to run. The City’s argument that plaintiff is precluded from bringing this action for failure to exhaust administrative remedies similarly fails. In general, an individual aggrieved by an administrative determination must exhaust administrative remedies before seeking judicial review. Walton v. New York State Dept. of Correctional Servs., 8 N.Y.3d 186, 195 (2007); Mtr. of Courtenay v. Graziano, 173 A.D.3d 1016, 1019 (2d Dept. 2019). A party may appeal a decision of a Hearing Officer within 30 days of the decision, or within 35 days if the decision was mailed. 48 RCNY §6-19(a)(1)(I).1 See, Corsini v. City of New York, 2021 U.S. Dist. LEXIS 242280, *10-12 (E.D.N.Y. 2021) (Appeals Unit of the ECB “has the power to affirm, reverse, remand or modify the decision appealed from”). A party may not appeal a decision rendered on default. 48 RCNY §6-19(a)(2). In this case, the City has not presented the decisions of the ECB Hearing Officers following the hearings from which plaintiff could have appealed., and, as a matter of law, plaintiff could not have appealed the decisions rendered on default. Accordingly, defendant’s cross motion to dismiss the complaint on the grounds that plaintiff did not bring an article 78 proceeding and failed to exhaust administrative remedies is denied. This constitutes the decision and order of the court. Dated: March 31, 2023
