Upon reviewing Defendant's Order to Show Cause to Vacate the Default Judgment ("Motion #2"), Plaintiff's Affirmation in Opposition ("Opposition"), together with all supporting documents, Defendant's Motion #2 is decided as follows.

On September 13, 2019, Plaintiff commenced the instant action against Defendant seeking to enforce six decisions and orders of the New York City Environmental Control Board ("ECB") in the aggregate total amount of $3,600.

The six decisions and order of the ECB were in relation to unpaid penalties resulting from six (6) Notices of Violation ("NOV") that were issued to Defendant in connection with a property located at 59 Sherman Avenue, Staten Island, New York 10301 ("Subject Premises") for violation of NYCHC 151.02(a), alleging that at the time of inspection, the Subject Premises fostered "harborage conditions that encourage nesting of rats" (Plaintiff's Exhibit B). Summons #0800502753 ("Summons 753") was served on Defendant on May 21, 2014. Thereafter, on June [*2]25, 2014, Defendant transferred the Subject Premises, via deed to Iosif Khaimov ("Khaimov"), which was recorded at the Office of the Richmond County Clerk, almost eight years later, on May 6, 2022. The remaining Summons issued were as follows: Summons #0800929279 ("Summons 279") was issued on October 14, 2016; Summons #0801211144 ("Summons 144") was issued on November 18, 2017; Summons #0801263129 ("Summons 129") was issued on February 15, 2018; Summons #0801329257 ("Summons 257") was issued on May 16, 2018; Summons #0801448057 ("Summons 057") was issued on September 26, 2018. Defendant was directed in each Summons to attend a hearing at the New York City Office of Administrative Trials and Hearings ("OATH"). Defendant failed to appear in all OATH hearings, and administrative decisions was entered against Defendant in the amount of $600 for each NOV.

On November 17, 2023, Plaintiff's motion for default judgment was granted by the court in the total amount of $5,777.48. By an Order to Show Cause filed on May 2, 2024 ("Motion #2"), Defendant moved to vacate the default judgment pursuant to CPLR 5015(a)(4), to stay the enforcement of the default judgment, and to dismiss Plaintiff's Complaint with prejudice pursuant to CPLR 3211(a)(8). On August 26, 2024, a Briefing Schedule Order was issued by other court, instructing the parties to "address the impact of the 'auto-docketing' procedure of NYC Charter 1049-a on this action and motion, and whether the City would be permitted to enter and enforce the summons at issue as Civil Court judgments without the [sic] of commencing the action in any event". On September 30, 2024, Plaintiff filed its Opposition. On November 4, 2024, the Motion was assigned to this Court for a determination.

Defendant, on the grounds of lack of jurisdiction, moved to vacate the default judgment and to dismiss Plaintiff's Complaint.

Plaintiff contended in its Opposition that Defendant's Motion #2 should be denied as New York City Charter 1049-a ("City Charter 1049-a") granted Plaintiff the right to seek any unpaid monetary judgments that resulted from an OATH hearing or default in this Court, and as such that this Court did not lack jurisdiction over the instant action. Plaintiff also contended that although Defendant had produced a copy of a deed, reflecting the conveyance of the Subject Premises from Defendant to Khaimov in 2014, the deed was recorded in 2022, after the issuance of the majority of the NOVs. Thus, Plaintiff argued that Defendant remained liable for penalties resulting from the NOVs.

"Pursuant to CPLR 5015(a)(4), a default must be vacated once a movant demonstrates lack of jurisdiction" (see Mortgage Electronics Registration Systems, Inc. v Mercado, 194 AD3d 420, 421, 143 N.Y.S.3d 195 [1st Dept 2021]). A court may relieve a party from a default judgment where the judgment or order was rendered by a court that lacked the jurisdiction to do so (see CPLR 5015[a])[4]).

The preliminary issue is whether the administrative determinations of penalties are a valid debt owed by Defendant to Plaintiff that can be enforced as Civil Court judgments without the commencement of action.

Plaintiff contended that this Court has subject matter jurisdiction over the instant action and relied on the Affirmation of Plaintiff's counsel, which provided an explanation of the practice and procedures that the ECB follows, making references to the impact of the "auto-docketing" procedure of the City Charter 1049-a. The Affirmation stated that upon the issuance of a NOV by a Department of Buildings ("DOB") personnel, relevant information pertaining to the violation is entered into the Automated Information Management System ("AIMS"), which [*3]generates a "Hearing Notice" that is mailed to the address drawn from the records maintained by the Department of Finance and the New York City Department of Health and Mental Hygiene. Plaintiff argued that pursuant to City Charter 1049-a(d)(2)(b), AIMS "automatically generates a series of notices that are mailed to the defaulting respondent at the address set forth on the NOV", and that the AIMS entry is the "true record of the default and constitutes the 'default decision and order'" (See Opp.). As such "auto-docketing", Plaintiff argued, was an "ECB judgment debt [that] allow[ed] and authorize[d] ECB Summonses to be treated as judgments without further legal action, thus expediting the Department of Finance collection process" (id.).

City Charter 1049-a(d)(3) provides that ECB "may apply to a court of competent jurisdiction for enforcement of any other decisions or order issued by [ECB]" (see also Matter of JT Tai & Co., Inc. v City of New York, 85 AD3d 433, 434-435, 925 NYS2d 434 [1st Dept 2011]). Pursuant to City Charter 1049-a(d)(1)(g), ECB may enforce civil penalty orders of up to $25,000 by entering the order as a judgment "in the civil court of the city of New York or any other place provided for the entry of civil judgments within the state", which "may be enforced without court proceedings in the same manner as the enforcement of money judgments entered in civil actions". Accordingly, City Charter 1049-a permits Plaintiff to elect to commence court proceedings like the action herein to enter judgments to enforce ECB decisions and orders. As such, this Court has subject matter jurisdiction to enter judgment with respect to the enforcement of such decisions.

However, the question of whether the Court has personal jurisdiction over Defendant remains. City Charter 1049-a(d)(2) requires that the notices of violation of matters overseen by ECB be "served in the same manner as is prescribed for service of process by [CPLR Article 3] or [Business Corporation Law Article 3]" (see NY City Charter 1049-a[d][2][a]). The statute sets forth four exemptions to this provision, two of which regard service of NOVs of City Charter of Administrative Code provisions enforced by various departments, including the DOB, which is relevant to the instant action (see City Charter 1049-a[d][2][a][i]-[iv]). Such NOVs may be served either by delivery "to a person employed by the respondent or in connection with the premises where the violation occurred" (see NY City Charter 1049-a[d][2][a][i]) or "by affixing such notice in a conspicuous place to the premises where the violation occurred" (see NY City Charter 1049-a[d][2][a][ii], together with mailing a copy of the NOV "to the respondent at the address of such premises" (see NY City Charter 1049-a[d][2][b]) (see Matter of Wilner v Beddoe, 102 AD3d 582, 584, 958 NYS2d 388 [1st Dept 2013]). "Even with respect to these two exceptions, however, such substituted service may not be effected unless "a reasonable attempt has been made to deliver such notice as provided for by [CPLR Article 3] or [Business Corporation Law Article 3]" (id.; NY City Charter 1049-a[d][2][b]). What constitutes such "reasonable attempt" of service upon a natural person, such as Defendant, is stipulated in CPLR Article 3. Pursuant to CPLR Article 3, substituted service, such as "nail and mail service", is permitted only in circumstances where service by personal delivery to either the respondent or a person of suitable age and discretion "cannot be made with due diligence" (see CPLR 308[4]).

"The incontestable starting proposition in cases of this kind is that once jurisdiction and service of process are questioned, plaintiffs have the burden of proving satisfaction of statutory due process prerequisites" (see Stewart v Volkswagen of Am., 81 NY2d 203, 207 [1993], citing Lamarr v Klein, 35 AD2d 248, affd 30 NY2d 757 [1st Dept 1970]). "The burden of establishing the propriety of services rests upon the party asserting jurisdiction" (see Matter of 72A Realty Assocs. v New York City Envtl. Control Bd., 275 AD2d 284, 285-286, 713 NYS2d 26 [1st Dept [*4]2000]). As such, the burden falls on Plaintiff to provide evidence that Plaintiff followed the required procedures as set forth in the City Charter 1049-a in connection with the instant action.

Plaintiff contended that ECB served all the underlying NOVs, Decisions and Orders, and Default Judgment in full compliance with City Charter 1049-a(d)(2), relying on the affirmation of Plaintiff's counsel, which stated that "by the time [Plaintiff] filed this action, Defendant had been notified of the NOVs by posting and two mailings of the NOV, and mailing of the Hearing Notice Defendant was mailed notice of the Defaulting Order, a dunning letter, and finally a Collection Notice, each in accordance with the City Charter and the policies of the ECB" (See Opp.). The Affidavit of Anayansi Cervera, a Supervisor in the Penalty Processing Unit for OATH, stated that Defendant was "served with notice of violation (NOV)" and "was directed to appear for a hearing at OATH" (Plaintiff's Exhibit C). Plaintiff, however, failed to submit any evidence of proper service of the NOVs. At present, the specific manner in which the NOVs were served, and the "reasonable attempts" made in relation to the delivery of such NOVs are uncertain. As such, the Court is unable to ascertain at this time whether proper service was effectuated on Defendant, and thus the question of whether personal jurisdiction had been obtained over Defendant remains. Accordingly, Defendant's Order to Show Cause to vacate the default judgment pursuant to CPLR 5015(a)(4) is granted.

For the same reasons, Defendant's motion to dismiss Plaintiff's Complaint pursuant to CPLR 3211(a)(8) is denied, as material issues of fact preclude dismissal at this stage.

Accordingly, it is

ORDERED that Defendant's Order to Show Cause to dismiss the matter is DENIED; and it is further

ORDERED that Defendant's Order to Show Cause to vacate the default judgment is GRANTED, and the clerk is directed to restore the action to the calendar on March 18, 2025 at 9:30am at Room 949 for conference provided all necessary court fees are paid.

This constitutes the DECISION and ORDER of the Court.