I have been fighting like a junk yard dog with the ECB over the last 6 or 8 months. Truthfully, I am offended to my core by the way the whole procedure jettisons justice for the pretense thereof. I have made it my mission to test their every procedure and force them to comply with basic concepts of due process.
I had a trial a few weeks back where I made an issue of the procedure of the inspector in regards to his methods of service of the violation.
The decision says it all, but in summary, it was my opinion that the service was bad because the process server did not know what kind of company the building owner was and therefore, I surmised, he could not have known who he could have tried to serve before resorting to alternative service.
Read the decision here:
The specific law says:
NY Code – Section 1049-A: Environmental control board
(2) (a) The environmental control board shall not enter any final decision or order pursuant to the provisions of paragraph one of this subdivision unless the notice of violation shall have been served in the same manner as is prescribed for service of process by article three of the civil practice law and rules or article three of the business corporation law, except that: (ii) service of a notice of violation of any provision of the charter or administrative code, the enforcement of which is the responsibility of the commissioner of sanitation, the commissioner of buildings or the commissioner of the fire department and over which the environmental control board has jurisdiction, may be made by affixing such notice in a conspicuous place to the premises where the violation occurred; and (b) Such notice may only be affixed or delivered pursuant to items (i) and (ii) of subparagraph (a) of this paragraph where a reasonable attempt has been made to deliver such notice to a person in such premises upon whom service may be made as provided for by article three of the civil practice law and rules or article three of the business corporation law. When a copy of such notice has been affixed or delivered, pursuant to items (i) and (ii) of subparagraph (a) of this paragraph, a copy shall be mailed to the respondent at the address of such premises. In addition to the foregoing mailing, if the respondent is neither the owner nor the managing agent nor the occupying tenant of such premises, then a copy of the notice shall also be mailed to the respondent at such respondent's last known residence or business address, and, if the respondent is the owner or agent of the building with respect to which such notice was issued and the identity of and an address for such person is contained in any of the files specified in items (i), (ii) and (iii) of this subparagraph, a copy of the notice shall also be mailed:
Section 311-A: Personal service on limited liability companies
(a) Service of process on any domestic or foreign limited liability company shall be made by delivering a copy personally to (i) any member of the limited liability company in this state, if the management of the limited liability company is vested in its members, (ii) any manager of the limited liability company in this state, if the management of the limited liability company is vested in one or more managers, (iii) to any other agent authorized by appointment to receive process, or (iv) to any other person designated by the limited liability company to receive process, in the manner provided by law for service of a summons as if such person was a defendant. Service of process upon a limited liability company may also be made pursuant to article three of the limited liability company law. You would think my point was obvious...right? Well, it wasn't. The Dept of Buildings attorney was actually laughing out loud at the argument. He was objecting over and over again at my line of questioning as well. I guess we now know who got the last laugh! Anyway, please read the decision and USE IT TO WIN YOUR OWN CASES. If you need my assistance or input on any such case please feel free to call or email me.