The following papers numbered 1 to 14 were read on this petition for an order pursuant to CPLR Article 78 reversing and setting aside the order of respondent, the City of New York Environmental Control Board (ECB), which denied Petitioner's application to vacate a default judgment and to schedule a new hearing as to certain violations against her real property; and the cross-motion of the respondent ECB for an order pursuant to CPLR 3211(a)(5) and 7804(f) dismissing the verified petition on the ground that the petitioner's claim is time barred:

Papers

Numbered

Notice of Article 78 Petition........................1 - 5

Respondent's Cross-Motion-Memorandum of Law..........6 - 10

Affirmation in Opposition to Cross-Motion...........11 - 14

_____________________________________________________________ ____ [*2]

Petitioner, Maria Katsimichas, commenced this Article 78 proceeding for an order pursuant to CPLR 7806 reviewing and annulling the determination of the Environmental Appeals Board of the City of New York (ECB) dated October 11, 2012. In its order, ECB denied the Petitioner's request to vacate a default judgment and for a new hearing after she failed to appear for a hearing regarding notices of violations and was assessed fines against her.

In the petition, counsel for the petitioner states that the petitioner learned in February 2010, while her home was undergoing renovations, that ECB violations had been issued against her property. These violations became judgments in October 2010 when petitioner or petitioner's representatives failed to appear for the hearing. Petitioner alleges that she had hired " A. International, Ltd.," an expediting and construction office for the purpose of legalizing her home from a two-family to a three-family dwelling. Petitioner alleges that she was never informed by A. International that the violations were issued. She states that her contractor failed to complete the job, failed to notify petitioner of the existence of the violations and failed to appear for the hearing, which led to a judgment on default. Petitioner states that she first learned of the ECB judgments against her property in February 2010 when she inquired into refinancing.

In September 2012 she hired counsel, The Law Offices of Perry Ian Tischler, P.C. who wrote to the respondent on September 27, 2012 seeking to vacate the default judgments and to issue an new hearing date. Petitioner also filed an application on September 25, 2012 seeking a new hearing and an order vacating the default stating she first learned of the violation in March 2010 and stating that she hired a company to clear the violations and they failed to do so and failed to appear for hearing date. In support of the petition she attached copy of an agreement with A. International Ltd., dated December 13, 2006, in which the contractor agreed to obtain approved plans, permits and certificates of occupancy to convert her home from a two-family to a three-family home.

In October 2012, the Board denied the request to vacate the default stating that it was not timely made. Petitioner states that the underlying findings of the board were arbitrary and capricious and that the refusal to vacate the default judgments severely prejudices the plaintiff who was fined a total of $44,000 where the default was not of her own doing. Petitioner states that she can establish through her testimony that she hired licensed parties to do certain construction work and that the violations were a result of their negligence.

In opposition, the respondent, prior to filing an answer to the petition, cross-moves to dismiss the petition as time-barred under the applicable four month statute of limitations. The facts as set forth by ECB are that plaintiff was issued three separate violations, one on April 17, 2009, one on September 21, 2009, and one on February 2, 2010 for performing certain construction work at her property without a permit. Petitioner was directed to appear at a hearing on June 16, 2009. On that date the petitioner appeared but the matter was adjourned to December 8, 2009. At petitioner's request the hearing was adjourned again to May 25, 2010 and then adjourned again to October 12, 2010. On October 12, 2010 petitioner or a representative failed to appear and the ECB issued a default order and imposed three separate default penalty amounts of [*3]$8,000, $12,000 and $24,000 respectively. Respondent contends that on October 18, 2010 ECB mailed copies of the default orders to petitioner at her home address together with instructions on how to request a new hearing.

On September 26, 2012, petitioner mailed a request for a new hearing stating claiming that A. International and engineer Paul Marino failed to appear at the hearing on October 12, 2010 to handle the existing violations on her behalf.

On October 11, 2012 and October 16, 2012 ECB denied the request for a new hearing with respect to all three notices of violation because the request was not received within 45 days of the issued hearing date, or within 30 days of the date the default order was mailed or was not received within one year from the date the petitioner learned of the default. The denials were purportedly mailed on October 11, 2012 and October 16, 2012.

Counsel for ECB now cross-moves to dismiss the instant Article 78 petition pursuant to CPLR 217 because it was not commenced within four months of the time the agency determination was final and binding. Counsel contends that in order for the Article 78 proceeding to be timely it would have had to have been commenced by mid-February 2013 four months after the petitioner received ECB's denial letters and was aggrieved by the agency's final determination. However, ECB contends the petition is untimely as it was not commenced until September 25, 2013, seven months after the statute of limitations expired (citing Griffin v County of Westchester, 36 AD2d 831 [2d Dept. 1971] aff'd 29 NY2d 944 [1972]).

In opposition to the cross-motion, the petitioner submits an affidavit stating that she does not speak or read English and that she has been assessed thousands of dollars in default penalties which should not have occurred because she hired a contractor who was handling and appearing on her behalf with respect to the violations. She states that she has no recollection of receiving the Board's order denying her request to vacate the default judgments and because she is only fluent in Greek she would not have been able to understand it had she received it.

Counsel for petitioner states that he does not dspute that the petitioner received three violations all for not obtaining a work permit for the same job. He states that petitioner's contractor failed to appear for the hearing and thus a default judgment was entered. Counsel also states that after petitoner filed an application to vacate the default with a cover letter from her attorney of record that no notice of denial was sent to counsel as attorney of record. Counsel concedes that the instant Article 78 has been filed after the four month statute of limitations but that the court has the abilty to extend the time limit for good cause shown. Further, counsel asserts that the respondent has not provided affidavits of mailing of the denials to the petitioner and in addition there is no proof that it was mailed to counsel. Counsel claims that the cross-motion must be dismissed as there arere triable issues of fact as to if and when the denials were mailed and to whom they were sent.

Upon review and consideration of the petition and the respondent's cross-motion to [*4]dismiss the petition, this court finds that the cross-motion to dismiss the petition as time barred is denied.

Pursuant to CPLR 217(1):

" Unless a shorter time is provided in the law authorizing the proceeding, 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 or the person whom he represents in law or in fact..."

"A determination generally becomes binding when the aggrieved party is 'notified' " Matter of Silvestri v Hubert, 106 AD3d 924 [2d Dept. 2013] quoting Matter of Village of Westbury v Department of Transp. of State of NY, 75 NY2d 62 [1989]). "The burden rests on the party seeking to assert the statute of limitations as a defense to establish that the petitioner was provided notice of the determination more than four months before the proceeding was commenced" Matter of Silvestri v Hubert, supra quoting Matter of Bill's Towing Serv., Inc. v County of Nassau, 83 AD3d at 699; Matter of Working Families Party v Fisher, 109 AD3d 478 [2d Dept. 2013]). Here, both petitioner's counsel and petitioner claim that they did not receive a copy of the letter. The respondent has not provided an affidavit or any document which demonstrates that the denial letters were mailed. Although the letter states on its face "mailing date of this order: 10/11/2012," the letter is not signed by any individual and the respondent has not submitted an affidavit from a person with knowledge or any mail receipts or any other evidence as to who mailed the letter or any evidence of the practice and procedure regarding mailing and that such practice was followed.

Accordingly, as the respondent has failed to satisfy its burden of demonstrating that the petitioner was notified that her request to vacate the default judgment was denied, the statute of limitations was not properly triggered and did not begin to run and the cross-motion to dismiss he petition as time barred is denied (see Matter of Banos v Rhea, 111 AD3d 707 [2d Dept. 2013]).

Pursuant to CPLR 7804(f), the respondent shall have 20 days from service of a copy of this order with notice of entry to serve and file an answer to the petition and petitioner shall serve and file a reply within ten days after service of the answer (see Matter of Davis-Elliot v New York City Dept. Of Educ., 31 AD3d 266 [1st Dept. 2006]).

Dated: April 11, 2014

Long Island City, NY

[*5]______________________________

ROBERT J. MCDONALD

J.S.C.