9075. IN RE RYWA WILNER pet-ap, v. SUZANNE A. BEDDOE, ETC. res-res — Cohen, Hochman & Allen, New York (Robert B. Hochman of counsel), for ap — Michael A. Cardozo, Corporation Counsel, New York (Michael J. Pastor of counsel), for res — Order and Judgment (one paper), Supreme Court, New York County (Judith J. Gische, J.), entered on or about September 19, 2011, which denied Wilner’s, Gladys’s, and Palazzdo’s petitions seeking an order vacating their defaults before respondent Environmental Control Board (ECB), and granted Plan B Engineering’s petition to the extent of remanding that matter to ECB for a determination of Plan B’s application to vacate its default, unanimously modified, on the law, to grant Gladys’s, Palazzdo’s, and Plan B’s petitions to the extent of vacating the default judgments against them, and otherwise affirmed, without costs.
Section 1049-a of the New York City Charter, the enabling legislation which underlies Section 3-82 of the Rules of the City of New York (Rule 3-82), governing procedures for vacating defaults before ECB, requires that notices of violation (NOV) of matters overseen by ECB be “served in the same manner as is prescribed for service of process by [CPLR Article 3] or [Business Corporation Law Article 3]” (NYC Charter §1049-a[d][2] [a]). Among four enumerated exceptions to this provision are two relating to service of NOVs of City Charter or Administrative Code provisions enforced by various departments, including, as pertinent here, the New York City Departments of Buildings and Environmental Protection (see NY City Charter §§1049-a[d][2][a] [i]-[ii]). Such NOVs may be served by delivery to “a person employed by the respondent or in connection with the premises where the violation occurred” (NY City Charter §1049-a[d] [2][a][i]), or “by affixing such notice in a conspicuous place to the premises where the violation occurred” (NY City Charter §1049-a[d][2][a][ii]), coupled with mailing of a copy of the NOV “to the respondent at the address of such premises” (NYC Charter §1049-a[d][2] [b]). Even with respect to these two exceptions, however, such substituted service may not be effected unless “a reasonable attempt has been made to deliver such notice… as provided for by [CPLR Article 3] or [Business Corporation Law Article 3]” (NY City Charter §1049-a[d][2][b]).
