2025 NY Slip Op 30385(U)
N.Y. Sup. Ct., New York Cty.2025Background
- Petitioner CJK Real Estate LLC owns property at 169 East Broadway, New York, NY.
- DOB issued a violation in 2021 for improper electrical wiring; summonses and hearing notices were served using "Affix and Mail" procedures under the NYC Charter.
- Petitioner defaulted on two scheduled hearings, resulting in default orders; the first default was vacated, but after missing the rescheduled hearing, a second default order issued.
- Petitioner moved to vacate the second default, alleging improper service and non-receipt of the summons, and prior rectification of the underlying violation.
- OATH denied the second motion to vacate, finding no exceptional circumstances to excuse Petitioner's repeated nonappearance.
- Petitioner commenced this Article 78 proceeding seeking judicial review, arguing the agency's action was arbitrary and capricious due to allegedly improper service.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper Service of Summons | Service was improper & not received | Summons served per Charter; affidavits | Service complied with law; presumption not rebutted |
| Arbitrary/Capricious Denial of Vacatur | Denial was arbitrary as service was improper | Agency followed procedures, Petitioner failed to show excusable default | Agency acted rationally; denial upheld |
| Exceptional Circumstances for Vacatur | Non-receipt of notice justified default | No valid, compelling reason for default | No exceptional circumstances shown; relief denied |
| Apparent Authority of Attorney | Attorney not authorized for prior motion | Att'y represented entity's owner, evidence of representation | Argument not considered; no prejudice or error found |
Key Cases Cited
- Kent v. Lefkowitz, 27 N.Y.3d 499 (standard for Article 78 review of agency action)
- Save America's Clocks, Inc. v. City of N.Y., 33 N.Y.3d 198 (scope of judicial review on agency action)
- Partnership 92 LP v. N.Y.S. Div. of Haus. & Community Renewal, 46 A.D.3d 425 (judicial deference to agency determination)
- Pell v. Bd. of Educ. of Union Free Sch. Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester Cty., 34 N.Y.2d 222 (when courts may disturb agency action)
- Kihl v. Pfeffer, 94 N.Y.2d 118 (affidavit of service creates rebuttable presumption of proper mailing)