Articles

Cracking the nut at the Environmental Control Board

In Uncategorized on October 31, 2011 by bleakhouses

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:

https://docs.google.com/open?id=1e0wJhRRr4b4SPn_YiK5bDyQijoD85MNE3yzHPls46xjMcW939s15Il3LYT-d

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.


					
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