In re Ariel Serv., Inc. v. New York City Envtl.

Full title: IN RE ARIEL SERVICES, INC., Petitioner, v. NEW YORK CITY ENVIRONMENTAL…

Court: Appellate Division of the Supreme Court of New York, First Department

Date published: Nov 1, 2011

89 A.D.3d 415 (N.Y. App. Div. 2011)

2011 N.Y. Slip Op. 7685

931 N.Y.S.2d 857

Opinion

5917 115599/10

11-01-2011

In re Ariel Services, Inc., Petitioner, v. New York City Environmental Control Board., et al., Respondents.

Kase & Druker, Garden City (Paula Schwartz Frome of counsel), for petitioner. Michael A. Cardozo, Corporation Counsel, New York (Julie Steiner of counsel), for respondents.

Gonzalez

, P.J., Tom, Sweeny, Renwick, JJ.

Kase & Druker, Garden City (Paula Schwartz Frome of counsel), for petitioner.

Michael A. Cardozo, Corporation Counsel, New York (Julie Steiner of counsel), for respondents.

Determination of respondent New York City Environmental Control Board (ECB) dated September 30, 2010, which, after an evidentiary hearing, found that petitioner violated 15 RCNY 1-51(g), 1-102(b), 1-102(d), and 1-102(f), and imposed civil penalties totaling $12,000, unanimously confirmed, the petition denied and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, New York County [Cynthia S. Kern, J.], entered April 13, 2011), dismissed, without costs.

Petitioner contends that it was denied due process because it did not receive a copy of respondent New York City Department of Environmental Protection's appeal from the Administrative Law Judge's decision that had been in petitioner's favor. This argument is unavailing since "a properly executed affidavit of service raises a presumption that a proper mailing occurred, and a mere denial of receipt is not enough to rebut this presumption" (Kihl v Pfeffer, 94 NY2d 118, 122 [1999]).

Contrary to petitioner's contention, ECB's determination was supported by substantial evidence. The agency's decision not to credit the testimony of petitioner and the building's superintendent that petitioner did not perform work in the building's boiler room on January 11, 2010 should not be disturbed (see Matter of Berenhaus v Ward, 70 NY2d 436, 443 [1987]).

The penalty imposed does not shock our sense of fairness, as the fines were imposed in accordance with 48 RCNY 3-101.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

CLERK