Matter of Ariel Servs., Inc. v New York City Envtl. Control Bd.
2011 NY Slip Op 07685 [89 AD3d 415]
November 1, 2011
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, January 4th, 2012

In the Matter of Ariel Services, Inc., Petitioner,
New York City Environmental Control Board et al., Respondents.

[*1] Kase & Druker, Garden City (Paula Schwartz Frome of counsel), for petitioner.

Michael A. Cardozo, Corporation Counsel, New York (Julie Steiner of counsel), for respondents.

Determination of respondent New York City Environmental Control Board (ECB) dated September 30, 2010, which, after an evidentiary hearing, found that petitioner violated 15 RCNY 1-51 (g) and 1-102 (b), (d) and (f), and imposed civil penalties totaling $12,000, unanimously confirmed, the petition denied and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, New York County [Cynthia S. Kern, J.], entered April 13, 2011), dismissed, without costs.

Petitioner contends that it was denied due process because it did not receive a copy of respondent New York City Department of Environmental Protection's appeal from the Administrative Law Judge's decision that had been in petitioner's favor. This argument is unavailing since "a properly executed affidavit of service raises a presumption that a proper mailing occurred, and a mere denial of receipt is not enough to rebut this presumption" (Kihl v Pfeffer, 94 NY2d 118, 122 [1999]).

Contrary to petitioner's contention, ECB's determination was supported by substantial evidence. The agency's decision not to credit the testimony of petitioner and the building's superintendent that petitioner did not perform work in the building's boiler room on January 11, 2010 should not be disturbed (see Matter of Berenhaus v Ward, 70 NY2d 436, 443 [1987]).

The penalty imposed does not shock our sense of fairness, as the fines were imposed in accordance with 48 RCNY 3-101. Concur—Gonzalez, P.J., Tom, Sweeny and Renwick, JJ.