NY Appellate Court Upholds “Nail and Mail” Service for Building and Zoning Violations

This post was authored by Amy Lavine, Esq.

Two recent cases from the New York Appellate Division, Second Department addressed the service of process requirements for building code and zoning violations. The property owner in these cases had been issued default violations after he failed to appear for hearings before the New York City Environmental Control Board, but he claimed that service of the violations was improper because the building inspector only made one attempt at personal service prior to using “affix and mail” service. Although the lower court ruled in the property owner’s favor, the Second Department reversed on appeal and declined to vacate the violations. As the court explained, while the appeal in this case was pending, the Court of Appeals held in Matter of Mestecky v City of New York that the New York City Charter only required “a single reasonable attempt by a DOB inspector to personally deliver the [notice of violation] at the premises.” Accordingly, the property owner’s claim that the building inspector was required to make multiple attempts at personal service should have been rejected.

Matter of Tropp v City of N.Y. Envtl. Control Bd., 2020 NY Slip Op 04951 (2d Dept 9/16/20).

In a separate decision the court also reversed the dismissal of another violation issued to the property owner. He had argued that “someone was home on the day of service and [he] would have heard the doorbell ring or a knock on the door” if personal service had been attempted. The administrative law judge did not credit this testimony and instead found that the building inspector made a reasonable attempt to deliver the notice of violation in person, and the lower court had no basis to ignore or disturb these credibility findings. The court also rejected the property owner’s claims that he was denied his right to confront and cross-examine the building inspector because the record showed that he agreed to proceed with the hearing without the building inspector present and he failed to make any request to adjourn the hearing until the building inspector could attend.

Matter of Tropp v City of N.Y. Envtl. Control Bd., 2020 NY Slip Op 04952 (2d Dept 9/16/20).