Improper Service Forces Judge to Dismiss Environmental Control Board Violation

By Adam Leitman Bailey

A property owner retained Adam Leitman Bailey, P.C. to defend an Environmental Control Board violation that alleged a failure to prevent unwarranted or unnecessary alarms at the subject premises. Using the defense of improper service, the Administrative Law Judge dismissed the violation against the property owner.

New York State law requires that a property owner have notice of any violations against it. Specifically, the law requires that an issuing officer first attempt personal service of a violation. An issuing officer can “nail and mail” a violation only after it has failed to achieve personal service. Such service is achieved by posting the violation to a conspicuous location and mailing it to the property owner.

Adam Leitman Bailey, P.C., initially defended the property owner on the basis that the issuing officer improperly served the notice of the violation according to New York State law. Specifically, Adam Leitman Bailey, P.C. alleged that the issuing officer did not make a reasonable attempt to personally serve the violation before it mailed service. In fact, the issuing officer only attempted personal service by visiting the premises on one occasion. Further, Adam Leitman Bailey, P.C. argued that the issuing officer failed to post the violation in an obvious enough location to put the property owner on notice of the violation.

The City of New York Petitioner in this proceeding rebutted by providing printouts of affidavits of service that confirmed the manner in which the issuing officer gave notice of the violation to the property owner. The Administrative Law Judge was persuaded by this evidence and determined that the issuing officer did, in fact, comply with New York State law.

Adam Leitman Bailey, P.C., however, artfully made a third procedural argument that successfully defended the property owner against this violation. It found compelling evidence of improper service when it argued that the subsequent mailing of the violation did not comply with the New York State law. The City of New York mailed the violation, after failing to obtain personal service, to the incorrect address. It merely relied on the address provided by the Department of Finance which was in error. A review of the City maps for the subject premises revealed that the address that Petitioner mailed the violation to did not even border the subject premises.

With no actual notice of the violation, the Environmental Control Board recognized the merit underlying this technical argument and dismissed the violation against the property owner.

Adam Leitman Bailey, P.C. appeared on behalf of Respondent.

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