The following papers numbered 1 - 9 read on this application by the petitioner for an order vacating the decision of the respondent Environmental Control Board of the City of New York, which denied petitioner's request for a new hearing with respect to certain violations and directing the respondent to give petitioner a new hearing; and cross motion by respondent for an order dismissing the proceeding.

Upon the foregoing papers and following a Conference held on May 18, 2016, at which [*2]the counsel for the respondent appeared but counsel for petitioner did not, it is ordered that this application by petitioner and cross motion by respondent are decided as follows:

At the outset, the court notes that this proceeding was reassigned to this Part pursuant to a directive of the Honorable Jeremy S. Weinstein, Administrative Judge, on January 21, 2016.

On August 2, 2014, respondent issued violation numbers 034973369M and 034973368K to petitioner as a result of its failure to file a Certificate of Correction with the Department of Buildings for two previous violations. A hearing was scheduled before the respondent for September 16, 2014. Petitioner failed to appear at the September 16 hearing and requested a new hearing with respect to the violations. On October 29, 2014, respondent granted petitioner's request for a new hearing, which was scheduled for December 23, 2014. In a Decision and Order dated December 29, 2014, respondent noted that petitioner did not appear at the December 23, 2014 hearing and directed petitioner to pay a fine of $4,000.00. The Decision and Order permitted petitioner to pay a reduced amount of $830.00 and fix the problem shown on the violation within 30 days. Petitioner thereafter filed another request for a new hearing. In an order dated February 17, 2015, respondent denied this request, stating that under its rules, only one request for a new hearing may be granted after failing to appear. Respondent noted that it already granted a prior request for a new hearing, and petitioner failed to appear on the new date.

In the instant application, petitioner seeks to vacate the respondent's February 17, 2015 decision denying its request for a new hearing. Petitioner avers that he appeared at respondent's facility in Jamaica, Queens on December 23, 2014, but the hearings regarding the subject violations were never called. Petitioner further asserts that four other violations involving the petitioner and the same property were heard on the same day. Petitioner and respondent both submit as exhibits four Notices of Appearance for December 23, 2014, which indicate that petitioner appeared on that date with respect to four other violations. Respondent cross moves to dismiss the petition on the ground that it is barred by the Statute of Limitations. Petitioner never submitted any opposition to the cross motion.

In an order dated April 5, 2016, this court set this matter down for a conference to address the issue as to why the violations which are the subject of the instant proceeding were never called on December 23, 2014, even though petitioner was present at respondent's facility in Jamaica and addressed four different violations on that date. As noted above, counsel for the respondent appeared in court for the conference, but neither petitioner nor his counsel appeared although notice of the conference was sent to both counsel.

With respect to respondent's cross motion to dismiss the proceeding on Statute of Limitations grounds, it is well settled that a proceeding against a body or officer must be commenced within four months after the determination to be reviewed becomes final and binding upon the petitioner. (CPLR 217[1]; Matter of Yarbough v Franco, 95 NY2d 342, 346 [2000]; Matter of Parpis Food Distribs., Inc. v Wetzler, 202 AD2d 873, 875 [2d Dept 1994].) A determination becomes "final and binding" when the agency reached a definitive position on the issue that inflicts actual, concrete injury. (Matter of Romeo v Long Is. R.R. Co., 136 AD3d 926, 926 [2d Dept 2016].) In addition, "the injury inflicted may not be prevented or significantly ameliorated by further administrative action..." (Matter of Best Payphones, Inc. v Dept. Of Info. Tech. & Telecom. of the City of NY, 5 NY3d 30, 34 [2005].)

Here, respondent issued its determination denying the petitioner's request for a new [*3]hearing on February 17, 2015, and the order was mailed on that date. The instant proceeding was not commenced by petitioner until November 13, 2015, almost five months after the Statute of Limitations expired. Thus, the proceeding was not timely commenced.

Notwithstanding this determination, the court is obligated to express its concerns over the practices of the respondent in scheduling its hearings in these types of matters. A review of this case demonstrates that the respondent fails to provide the public with a clear list or calendar of the cases that are scheduled before it on a particular day. Indeed, at the conference, counsel for the respondent furnished a Notice of Appearance ticket and explained that at the hearing, the appearing party (the petitioner herein) must list all the violations that they are challenging on that day. If the party fails to set forth a particular violation on the ticket, that violation will not be discussed, and a decision will be issued and be based upon the failure to answer the ticket. This is apparently what occurred in this case. The petitioner was present and included some violations but not others on his ticket. However, the February 17, 2015 decision noted that petitioner failed to appear on the hearing date of December 23, 2014.

The Environmental Control Board (ECB) is an administrative agency consolidated under the Office of Administrative Trials and hearings (OATH) pursuant to Local Law Number 35. The notes applicable to Upper Hierarchy of Chapter 3, Title 48 of the Rules of the City of New York state that the fundamental purpose of the ECB's procedural rules is to ensure that proceedings are conducted clearly, concisely and unambiguously. (48 RCNY § 3-31.) A daily calendar listing the names of the parties and the respective violation numbers would help ECB fulfill its procedural purpose.

OATH states that it uses calendars to organize their trials and conferences. (48 RCNY § 1-28.) Although OATH acknowledges that the ECB's rules and procedures are distinct from its own, OATH's rules and procedures should serve as a model for ECB, and ECB should organize its hearings on a public calendar. A calendar will make the hearing process more "easily understood and will guide its users from pre hearing matters through adjudication to the appellate process in a simple, unambiguous matter." (48 RCNY § 3-31). In addition, a calendar that details all of ECB's scheduled hearings would not only lessen the responsibility of those who have hearings, but would also be of aid to those who do not have hearings, such as the members of the public who simply want to observe.

The respondent has a responsibility to make the public aware of all of the cases that are scheduled on a certain date. Respondent failed to adhere to this responsibility. It seems unjust to this court that the petitioner was deprived of a right to a hearing on these two violations even though he was present and filled out a Notice of Appearance ticket. Clearly, if petitioner was already challenging four violations at that time, he most certainly would have challenged the other two if given the opportunity. This court urges the respondent to modify its procedures regarding its hearings in the interest of justice and allow all parties, many of whom appear before it without counsel, to have a fair opportunity to be heard.

Although the court is not satisfied that petitioner had a full and fair opportunity to challenge the two violations that are the subject of this proceeding, in view of the fact that this court afforded the petitioner a full and fair opportunity to appear at a conference on May 18, 2016 and petitioner failed to do so, this court is constrained to dismiss the proceeding on the ground that the Statute of Limitations has expired, and petitioner failed to appear in this court.

Accordingly, the application by petitioner is denied.

The cross motion by respondent for an order dismissing the proceeding is granted, and the proceeding is dismissed.

A copy of this order is being faxed on this date to both sides.