New York City’s Environmental Control Board (ECB) is an administrative tribunal where hearing officers hear and decide violations issued by City agencies like the Department of Buildings, Sanitation Department, and Fire Department. The New York City Charter imposes complex requirements on how city inspectors may serve ECB violations, but because most ECB litigants do not raise service defenses, many city inspectors are lax in documenting their compliance with service rules. However, Adam Leitman Bailey, P.C. has substantial expertise in defending violations on based technical service issues, which has allowed the firm to frequently have ECB violations dismissed on the grounds of improper service.
Recently, Adam Leitman Bailey, P.C. represented a major corporation owning real estate throughout the city before the ECB on six separate violations on one day, and obtained dismissal of all six violations. The firm was able to show that each of the violations had to be dismissed because the city failed to comply with its own service and documentation requirements, saving the company more than $17,500 in potential penalties.
For three of the violations, the issuing inspectors had indicated on their affidavits of service that they had served the violations by posting them at the premises and serving additional copies by mail. However, the service affidavits failed to indicate that the inspectors had attempted to seek out a corporate officer or another person authorized to be served before resorting to service by posting. Adam Leitman Bailey, P.C. had previously obtained an ECB appeal decision for the client holding that where a city inspector did not specifically indicate on his or her service affidavit that he or she had sought out a corporate officer before posting the violation, the service was invalid. Under this appeal decision obtained by the firm, each of these three violations was dismissed.
For one of the violations, the issuing inspector said in his service affidavit that he had served a corporate official, but did not indicate who he had served. On a prior hearing date, the firm was able to convince the hearing officer to issue a rare discovery order, requiring the city to obtain and provide us with the name of the individual that was served. With this information, the firm was able to demonstrate the individual the inspector served was not authorized to receive service, and that the violation had to be dismissed.
For the remaining two violations, the issuing inspectors had posted the violations after indicating that nobody present would provide identification, service that earlier ECB appeal decisions had found to be valid. However, less than a month before the hearing, the ECB had quietly issued an appeal decision abrogating its prior holdings, and requiring that the issuing inspector indicates in the service affidavit that he or she sought out a corporate officer or other authorized recipient before serving by posting, even where nobody present would identify themselves. Because the firm’s research had located the very recent and obscure appeal decision, it was able to obtain dismissal of violations that would have previously been sustained.
Adam Leitman Bailey, P.C. defends ECB violations on all available substantive, procedural, and service grounds, and frequently has violations dismissed or penalties reduced where the firm shows that the client has complied with the applicable city regulations, either before or after the violation was issued. However, getting six out of six violations dismissed in a single day based on service grounds shows the importance of having a thorough knowledge of the ECB service requirements and the ability to exploit when the city fails to comply with its own service rules.
Joanna C. Peck and Courtney J. Lerias appeared on behalf of the ECB violation defense team at Adam Leitman Bailey, P.C.