Opinion
106851/2010.
February 14, 2011.
DECISION AND ORDER
In this proceeding pursuant to Article 78 of the Civil Practice Law and Rules (CPLR), petitioners Nayci Contracting Associates, LLC ("NCA") and Mehmet Nayci ("Mehmet") (collectively "petitioners") seek an order and judgment annulling the determination of respondent New York City Department of Consumer Affairs ("DCA"), which suspended petitioners' contractors' licenses, imposed fines and ordered petitioners to pay restitution to respondent Janet Ricevuto ("Ricevuto"), and directing respondents to dismiss all charges against petitioners and to reinstate their licenses, or, alternatively, petitioners seek an order, pursuant to CPLR § 7804 (g) transferring this proceeding to the Appellate Division, Respondent DCA cross moves for an order, pursuant to CPLR § 3211 (a) (5), dismissing the petition as time barred. For the reasons stated below, the cross motion is denied and the matter is transferred to the Appellate Division for disposition.
Background
NCA is licensed by DCA to conduct business as a Home Improvement Business Contractor ("HIC") under license number 1223436. Mehmet is the principal owner and President of NCA and is listed as a licensed salesperson ("HIS") under license number 1189877 (Pet. ¶ 6; Affirmation of Jacqueline Hui in Support of Cross Motion [Hui Affirm.], ¶ 14, Ex. "B"). On or about July 18, 2006, petitioners entered into a written contract to perform home improvement work on respondent Ricevuto's Brooklyn residence for the sum of $215,000. In the course of the renovation project, a dispute arose between petitioners and Ricevuto resulting in Ricevuto terminating the contract and filing a complaint with DCA (Pet. ¶ 7; Affirmation of Glenn J. Wurzel in Opposition to Cross Motion [Wurzel Affirm.], ¶¶ 5-8, Ex. "A").
In response to the complaint, DCA sent a notice of hearing to petitioners and Ricevuto in which it specified nineteen charges against petitioners for violating sections of the Rules of the City of New York and the New York City Administrative Code. Specifically, petitioners were charged "with failing to maintain the standards of integrity, honesty and fair dealing as HIC and HIS licensees, which included failing to complete work required in their contract with Ricevuto and completing that work in a skillful and competent manner" (Hui Affirm. ¶ 15, Ex. "B").
A hearing was held before Administrative Law Judge (ALJ) Mitchell B. Nisonoff over six days, commencing on January 26, 2009 and terminating on June 2, 2009 (Hui Affirm., ¶ 17), at which petitioners were represented by counsel and Ricevuto appeared pro se. Testimonial and documentary evidence were submitted. By decision and order dated August 28, 2009, ALJ Nisonoff found NCA guilty of 15 of the 19 charges, imposed a fine in the total sum of $3,900, and revoked its HIC license, effective immediately. Mehmet was found guilty of 14 of 18 charges against him, fined a total of $3,900 and had his HIS license revoked, effective immediately. Petitioners were also directed, jointly and severally, to pay Ricevuto the amount of $85,410.03 (the "Order") ( id. Ex. "D").
On or about September 25, 2009, petitioners filed an appeal of the Order seeking a stay of enforcement of the Order until a determination of their administrative appeal and a financial hardship waiver while the appeal was pending claiming they were not possessed of the means to satisfy the restitution awarded Ricevuto ( id. Ex. "E"). On or about December 23, 2009, DCA issued a determination denying petitioners' appeal ( id. Ex. "F") (the "Appeal Determination"). As evidenced by a certificate of mailing, a copy of the Appeal Determination was mailed to petitioners and Ricevuto that same date and emailed to their attorney ( id. at unnumbered page 3).
Petitioner then commenced this CPLR article 78 proceeding on May 25, 2010, by filing the Notice of Petition and Petition, seeking a judgment annulling and vacating DCA's Appeal Determination as "arbitrary, capricious, unreasonable, an abuse of discretion, made in violation of lawful procedure, unsupported by substantial evidence and contrary to law" (Petition, ¶ 11). Petitioners contend that the testimonial evidence at the hearing before the ALJ did not establish any violations and, in fact, established that the charges against them had no substance.
Respondent cross moves to dismiss the petition, pursuant to CPLR §§ 217 (1) and 3211 (a) (5), on the grounds that this Article 78 proceeding, which must be brought within four (4) months of the time a determination becomes final, is untimely. DCA contends that such four-month limitations period must be measured from the date the Appeal Determination was mailed on December 23, 2009, and such limitations period expired on April 23, 2010. DCA contends further that even adding five days for mailing of the Appeal Determination the instant proceeding would be untimely as the limitations period would have expired on April 28, 2010, i.e., prior to the commencement of this Article 78 proceeding on May 25, 2010 (Hui Affirm. ¶¶ 26-28).
Respondent Janet Ricevuto submits an affidavit in opposition to the petition. However, since it is addressed to the merits, rather than to the statute of limitations issue, the court will not consider it.
In opposition to the cross motion, petitioners submit an affirmation of their attorney, Glenn J. Wurzel, Esq., and affidavits of Ayhan Nayci (Ayhan"), a principal of Nayci and Mehmet's father, and Mehmet, respectively. Both Ayhan and Mehmet deny having received the Appeal Determination until the end of April 2010, when they received Ricevuto's motion for summary judgment in lieu of complaint in a Kings County action titled Ricevuto v Nayci (Index No. 9604/2010) ( see Ayhan Aff. ¶ 17; Mehmet Aff., ¶ 9). They then moved expeditiously to retain counsel and file this Article 78 proceeding. Ayhan and Mehmet also deny that the attorney who represented them in the administrative proceeding received the Appeal Determination (Ayhan Aff. ¶ 20; Mehmet Aff. ¶ 10). Since the limitations period does not commence to run until a petitioner receives notice of a final determination, petitioners argue that the court should find that such period commenced to run in April 2010 and that, therefore, this proceeding is timely. Petitioners contend that the certificate of mailing annexed to DCA's cross motion papers is defective and a nullity as it is not sworn or notarized.
Discussion
In the first instance, prior to considering whether the transfer of this proceeding to the Appellate Division is warranted, the court must address the question of whether the instant proceeding is time-barred by the applicable four-month statute of limitations. CPLR § 7804 (g) provides, in relevant part, that where a substantial evidence question is raised, "the court shall first dispose of such other objections as could terminate the proceeding, including but not limited to. . . . statute of limitation".
The general rule is that the statute of limitations for review of an agency determination runs from the date the determination "becomes final and binding upon the petitioner" (CPLR § 217), i.e. when petitioner received notice of the determination and was aggrieved by it ( see, Community Counseling Mediation Servs. v New York City Dept. of Health Mental Hygiene, 45 AD3d 315 [1st Dept 2007]; Triway Realty Corp. v City of New York, 218 AD2d 592 [1st Dept 592 [1st Dept 1995]). The party asserting the statute of limitations as a defense has the burden of establishing that the petitioner was provided with notice of the challenged determination more than four months prior to commencement of the Article 78 proceeding ( see Matter of Village of Westbury v Department of Transp., 75 NY2d 62, 73).
Here, the court finds that DCA has failed to sustain its burden of establishing by competent evidence that it provided proper notice to petitioners of the Appeal Determination thereby commencing the running of the clock for statute of limitations purposes. The only proof DCA has submitted is the unsworn certificate of mailing. While, generally, proof that an item was properly mailed gives rise to a rebuttable presumption that the item was received by the addressee ( see Dune Deck Owners Corp. v JJ P Assocs. Corp., 71 AD3d 1075, 1077 [2d Dept 2010]; New York Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2d Dept 2006]), here DCA has submitted no sworn affidavit from someone with actual knowledge as to the mailing of the Appeal Determination or evidence of its procedures or standard office practices for mailing notices of administrative determinations. Thus, the court finds that DCA has failed to establish proof of actual mailing at a time prior to April 2010 to show that the filing of this Article 78 proceeding was untimely ( see Matter of Ijbara v City of New York, 300 AD2d 251 [1st Dept 2002]).
Since the court's determination on the timeliness issue does not finally dispose of this proceeding and the petition raises a question as to whether DCA's determination is supported by substantial evidence, this proceeding must be transferred for disposition to the Appellate Division ( see CPLR § 7804 [g]).
Conclusion
Based upon the foregoing discussion, it is
ORDERED that respondent's cross motion to dismiss the petition as untimely is denied; and it is further
ORDERED this proceeding pursuant to Article 78 of the Civil Practice Law and Rules is hereby transferred to the Appellate Division, First Judicial Department, pursuant to CPLR § 7804 (g). Upon service by petitioners of a copy of this order with notice of entry upon the New York County Clerk, the Clerk is directed to deliver all papers filed in this proceeding to the Clerk of the Appellate Division, First Department.
This constitutes the decision and order of the court.