Matter of Tri-Rail Constr., Inc. v Environmental Control Bd. of the City of N.Y. (2013 NY Slip Op 01481)

Matter of Tri-Rail Constr., Inc. v Environmental Control Bd. of the City of N.Y.

2013 NY Slip Op 01481 [104 AD3d 445]

March 7, 2013

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, April 24, 2013

In the Matter of Tri-Rail Construction, Inc., Respondent,
v
Environmental Control Board of the City of New York, a Division of the Office of Administrative Trials and Hearings, Appellant.

—[*1] Michael A. Cardozo, Corporation Counsel, New York (Suzanne K. Colt of counsel), for appellant.

Rabinowitz & Galina, Mineola (Maxwell J. Rubin of counsel), for respondent.

Order, Supreme Court, New York County (Donna M. Mills, J.), entered December 9, 2011, which, insofar as appealed from as limited by the briefs, granted the petition to set aside respondent's denial of petitioner's requests to vacate defaults on 17 notices of violation, and granted hearings on the violations, unanimously reversed, on the facts, without costs, the petition denied, and the proceeding brought pursuant to CPLR article 78 dismissed.

Contrary to Supreme Court's finding that the limitations period had not elapsed because the denial letters were sent to addresses that were not petitioner's address, the evidence in the record establishes that the subject letters were, in fact, all mailed to, among other places, petitioner's correct address, thereby triggering the four-month statute of limitations (see CPLR 217 [1]; and see Matter of Carter v State of N.Y., Exec. Dept., Div. of Parole, 95 NY2d 267, 270 [2000]). Concur—Andrias, J.P., Friedman, Acosta, Freedman and Clark, JJ.