Phu Thanh Nguyen v City of New York

Civil Court of the City of New York, Bronx County

Decided on March 19, 2026

Index No. CV-010794-25/BX

Dawn Guglielmo, J.

Recitation, as required by CPLR 2219 (a), of the papers considered in review of this motion to dismiss (Motion Seq. 1):

Sequence No. 1 Doc. Nos.

Notice of Motion, and Affirmation in Support 1

Affirmation in Opposition 2

Upon the foregoing cited papers and due deliberation, the motion of defendant, City of New York (hereinafter "defendant"), seeking to dismiss plaintiff's action against them, pursuant to the New York City Civil Court Act 1002 (hereinafter "CCA") and CPLR 3211 (a) (2) for lack of subject matter jurisdiction, is hereby granted for the reasons discussed infra.

On November 17, 2025, Phu Thanh Nguyen (hereinafter "plaintiff") commenced the underlying action with the filing of a summons and complaint seeking a judgment against defendant in the amount of $16,280.00 based upon allegations that defendant was negligent and failed to provide proper services. On or about January 14, 2026, defendant filed the instant motion to dismiss plaintiff's complaint via the filing of a Notice of Motion and Affirmation in Support.

In the instant motion, defendant contends that plaintiff's complaint stems from two violations issued by the New York City Department of Buildings (hereinafter "DOB") and adjudicated before the Office of Administrative Trials and Hearings (hereinafter "OATH"). Defendant states, inter alia, that DOB served Summons 039111256Z against plaintiff on or about April 11, 2024 via mail; that plaintiff requested several adjournments on various grounds, which were granted by OATH, but that plaintiff failed to appear for the hearing at the final adjournment on January 10, 2025; and that on or about January 17, 2025, OATH issued a default decision and penalty against plaintiff in the amount of $6,250.00. Defendant also states that thereafter, [*2]plaintiff filed an untimely motion to vacate the default decision, which OATH denied on or about June 16, 2025. In support, defendant references Exhibits A through F. However, no such exhibits were annexed to the instant motion or present in the case file.

Defendant further contends that DOB served a second summons, Summons 039111252L, against plaintiff on or about April 11 2024 via mail, and directed plaintiff to appear at a hearing scheduled for June 21, 2024. Defendant also states that plaintiff requested two (2) adjournments, which were granted by OATH; that plaintiff's hearing was ultimately adjourned to June 12, 2025, but that plaintiff failed to appear at the June 12, 2025 hearing and, that on or about June 20, 2025, OATH issued a default decision and penalty against plaintiff in the amount of $12,500.00. Defendant also states that thereafter, plaintiff filed a motion to vacate the default decision with respect to this second summons, which OATH granted; and that plaintiff is scheduled for a new hearing on March 30, 2026. In support, defendant references Exhibits G through L. However, no such exhibits were annexed to the instant motion or present in the case file.

In opposition, plaintiff alleges that DOB failed to cooperate with an examination approval, and that defendant failed to effect service of the default decision associated with Summons 039111256Z on plaintiff within a reasonable time. Additionally, plaintiff seeks sanctions in the amount of $7,500.00 for DOB's failure to cooperate with the examination approval and plaintiff also requests that the Court waive the penalties associated with Summons 39111256Z and Summons 39111252L in the amount of $8,780.00 for defendant's failure to effect service. In support, plaintiff provides a copy of NYC DOB OATH/ECB Violation Details, which identifies plaintiff as respondent and states that violation 39111256Z holds a default status. Plaintiff also provides a blank NYC Buildings L2 Requests form, and a copy of a DOB NOW Incomplete/Objections/Appointments webpage belonging to account holder Bryan Espinoza.

The Office of Administrative Trials and Hearings (OATH) Hearings Division is a tribunal that conducts hearings on summonses issued by New York City enforcement agencies, including the Department of Buildings (DOB) for alleged violations of law or City rules (see Rules of the City of New York article 48 §6-02 [a]). Under the Rules of the City of New York article 48, the tribunal's denial of a respondent's motion to vacate a default judgment against them is final and any subsequent recourse must be sought via judicial review pursuant to CPLR article 78 (see Rules of the City of New York article 48 §6-21[j]). A proceeding being held under CPLR article 78 is considered a special proceeding, and "shall be brought in the supreme court in the county specified in subdivision (b) of section 506 ." (CPLR 7804 [a], [b]). Such proceedings may address questions related to whether a court or tribunal failed to perform a duty enjoined upon it by law, or whether a court or tribunal made a determination in violation of a lawful procedure (CPLR 7803 [1], [3]).

A civil court may rightfully grant a motion to dismiss for lack of subject matter jurisdiction where the underlying claim essentially seeks judicial review of an agency determination (see CPLR 3211 [a] [2]; see also Helgason v New York State Div. of Hous. and Community Renewal, 66 AD3d 490 [1st Dept 2009] [finding that the Court of Claims did not [*3]have subject matter jurisdiction over a claim that essentially sought judicial review of an administrative determination, despite the claim including a request for money damages] [internal citations omitted]; Commissiong v State of New York Div. Hous. Community Renewal, 197 AD3d 1031, 1031-1032 [1st Dept 2021] [finding that the Court of Claims properly dismissed a claim seeking damages for injuries arising out of defendant's negligence and breach of contract, where adjudication of those claims required review of defendant's underlying administrative determination] [internal citations omitted]).

Here, plaintiff's request for monetary relief in the amount of $16,280.00 against defendant is based on allegations that defendant made a determination in violation of lawful procedure and failed to perform a duty enjoined upon it by law. However, adjudication of plaintiff's claims requires completion of the outstanding administrative hearing and a review of defendant's administrative determinations. As the review of decisions issued by administrative tribunals fall squarely within the bounds of CPLR article 78, which is considered a special proceeding that "shall be brought in the supreme court " (CPLR 7804 [a], [b]), this Court lacks jurisdiction to determine plaintiff's claims in the instant action. Consequently, defendant's motion to dismiss must be granted.

Accordingly, it is hereby

ORDERED that the motion by defendant, CITY OF NEW YORK, seeking to dismiss plaintiff's complaint pursuant to CPLR 3211 (a) (2), is heretofore granted and this action is hereby dismissed in its entirety; And it is further

ORDERED that defendant shall serve a copy of this Order with Notice of Entry upon plaintiff within twenty (20) days of its entry.

This constitutes the Decision and Order of the Court.

Dated: March 19, 2026

Bronx, New York