City of New York v. Martinez

1

2023 NY Slip Op 31715(U)

CITY OF NEW YORK Plaintiff, v. JOSELYN L. MARTINEZ, Defendant

Index No. 452410/2022, Motion Seq. No. 001

Supreme Court, New York County

May 18, 2023

Unpublished Opinion

MOTION DATE 02/16/2023

PRESENT: HON. JOHN J. KELLEY, Justice

DECISION + ORDER ON MOTION

JOHN J. KELLEY, J.S.C.

The following e-filed documents, listed by NYSCEF document number (Motion 001) 13, 14, 15, 16, 17, 18, 19, 20 were read on this motion to/for JUDGMENT - DEFAULT.

In this action to enforce five administrative penalties imposed upon the defendant by the New York City Office of Administrative Trials and Hearings (OATH), the plaintiff moves pursuant to CPLR 3215 for leave to enter a default judgment in the principal sum of $350,000.00 against the defendant. The defendant does not oppose the motion. The motion is granted.

The defendant, Joselyn L. Martinez, owns residential real property located at 1316 Clay Avenue, Bronx, New York 10456. Upon inspection of the property, an inspector employed by the New York City Department of Buildings (DOB) concluded that the property had been issued a certificate of occupancy permitting the defendant to maintain a two-family dwelling but that she had illegally converted it to an eight-unit single-room occupancy dwelling, and maintained that illegal use over a period of time. On June 30, 2021, the DOB issued five separate notices of violation (NOVs) to the defendant numbered 035577441J, 035577440H, 035577443N, 035577444P, and 035577439K, alleging that she violated Administrative Code of the City of New York (Ad Code) §§ 28-210.1 by illegally converting a two-family dwelling into premises with three or more additional dwelling units than permitted by the applicable certificate of occupancy, and thereafter maintaining and occupying the premises. The DOB inspector apparently issued a separate violation with respect to each of five of the six additional units. The NOVs each specified the items and appliances that had been discovered in each unit that made that unit a separate dwelling. The NOVs also informed the defendant that she was obligated to restore the property to its prior legal condition, and discontinue the illegal occupancies.

The DOB properly served the defendant with the NOVs pursuant to New York City Charter § 1049-a(d)(2)(a)(i), (ii), and (b), after which OATH scheduled a hearing on the NOVs for October 8, 2021. The defendant did not appear at that hearing. Pursuant to New York City Charter §1049-a(d)(1)(d), the defendant's failure to appear "shall be deemed, for all purposes, to be an admission of liability and shall be grounds for rendering default decision and order imposing a penalty in the maximum amount prescribed under law for the violation charged." An OATH administrative law judge (ALJ) found that the DOB made a prima facie showing that the defendant committed the violations described in the five NOVs, applied the default provisions of the City Charter, and imposed a penalty upon the defendant in the sum of $70,000.00 for each of the five NOVs, for a total of $350,000.00. In accordance with 48 RCNY 6-17(c)(3), the New York City Environmental Control Board (ECB) adopted the decision rendered by the OATH ALJ.

The defendant's time to pursue an administrative appeal of the hearing decision expired, (see 48 RCNY 6-19[c]), thereby rendering the ECB's October 8, 2021 determination the final determination in the matter, and causing the defendant to forfeit her opportunity to exhaust her administrative remedies, which is a condition precedent to any CPLR article 78 challenge to an adverse ECB/OATH determination. The City now seeks to enforce the penalty, as authorized by New York City Charter § 396, which requires that "[a]ll actions and proceedings for the recovery of penalties for the violation of any law shall be brought in the name of the city of New York and not in that of any agency, except where otherwise provided by law." Hence, the City is the proper party plaintiff in this action (cf. New York City Charter § 1049-a[d][3] [apart from an administrative order imposing a civil penalty, "(t)he environmental control board may apply to a court of competent jurisdiction for enforcement of any other decision or order issued by such board"] [emphasis added]).

Where a plaintiff moves for leave to enter a default judgment, it must submit proof that the summons and complaint properly was served upon the defaulting defendant, proof of the defendant's default, and proof of the facts constituting the claim (see CPLR 3215[f]; Woodson v Mendon Leasing Corp., 100 N.Y.2d 62, 70-71 [2003]; Gray v Doyle, 170 A.D.3d 969, 971 [2d Dept 2019]; Rivera v Correction Officer L. Banks, 135 A.D.3d 621 [1st Dept 2016]; Atlantic Cas. Ins. Co. v RJNJ Services, Inc. 89 A.D.3d 649 [2d Dept 2011]; Allstate Ins. Co. v Austin, 48 A.D.3d 720, 720 [2d Dept 2008]; see also Manhattan Telecom. Corp. v H &A Locksmith, Inc., 21 N.Y.3d 200 [2013]).

The service effectuated upon the defendant, as set forth in the relevant affidavit of service, was proper, and sufficient to obtain jurisdiction over her pursuant to the "affix and mail" provisions of CPLR 308(4) (see Greenwood Realty Co. v Katz, 187 A.D.3d 1153, 1154 [2d Dept 2020]). Since that affidavit of service was filed on October 28, 2022, service under CPLR 308(4) was "completed" within the meaning of that statute on November 7, 2022, or 10 days subsequent to the filing of proof of service (see id.), and the defendant thus had 30 days from November 7, 2022 (see CPLR 320[a]), or until December 7, 2022, to answer, appear, or move with respect to the complaint. The affirmation of the plaintiff's counsel was sufficient to establish that the defendant did not appear, or answer or move with respect the complaint on or before that date, and has yet to appear, answer, or move. Counsel has thus established the defendant's default. In addition, New York City Charter § 1049-a(d)(1)(h) requires that

"before a judgment based upon a default [at the administrative level] may be so entered the board must have notified the respondent by first class mail in such form as the board may direct: (i) of the default decision and order and the penalty imposed; (ii) that a judgment will be entered in the civil court of the city of New York or any other place provided for the entry of civil judgments within the state of New York; and (iii) that entry of such judgment may be avoided by requesting a stay of default for good cause shown and either requesting a hearing or entering a plea pursuant to the rules of the board within thirty days of the mailing of such notice."

The plaintiff established that it served this additional notice on December 19, 2022. Moreover, on January 13, 2023, the plaintiff also served copies of its notice of motion and supporting papers upon the defendant.

With respect to the proof of the facts constituting the claim,

"CPLR 3215 does not contemplate that default judgments are to be rubber-stamped once jurisdiction and a failure to appear have been shown. Some proof of liability is also required to satisfy the court as to the prima facie validity of the uncontested cause of action (see, 4 Weinstein-Korn-Miller, NY Civ Prac paras. 3215.22-3215.27). The standard of proof is not stringent, amounting only to some firsthand confirmation of the facts"

(Joosten v Gale, 129 A.D.2d 531, 535 [1st Dept 1987]; see Martinez v Reiner, 104 A.D.3d 477, 478 [1st Dept 2013]; Beltre v Babu, 32 A.D.3d 722, 723 [1st Dept 2006]). Stated another way, while the "quantum of proof necessary to support an application for a default judgment is not exacting . . . some firsthand confirmation of the facts forming the basis of the claim must be proffered" (Guzetti v City of New York, 32 A.D.3d 234, 236 [1st Dept 2006]). In other words, the proof submitted must establish a prima facie case (see id.; Silberstein v Presbyterian Hosp., 95 A.D.2d 773 [2d Dept 1983]). "Where a valid cause of action is not stated, the party moving for judgment is not entitled to the requested relief, even on default" (Green v Dolphy Constr. Co., 187 A.D.2d 635, 636 [2d Dept 1992]; see Walley v Leatherstocking Healthcare, LLC, 79 A.D.3d 1236, 1238 [3d Dept 2010]). In moving for leave to enter a default judgment, the plaintiff must "state a viable cause of action" (Fappiano v City of New York, 5 A.D.3d 627, 628 [2d Dept 2004]). In evaluating whether the plaintiff has fulfilled this obligation, the defendant, as the defaulting party, is "deemed to have admitted all factual allegations contained in the complaint and all reasonable inferences that flow from them" (Woodson v Mendon Leasing Corp., 100 N.Y.2d 62, 71 [2003]). The court, however, must still reach the legal conclusion that those allegations establish a prima facie case (see Matter of Dyno v Rose, 260 A.D.2d 694, 698 [3d Dept 1999]).

Proof that the plaintiff has submitted "enough facts to enable [the] court to determine that a viable" cause of action exists (Woodson v Mendon Leasing Corp., 100 N.Y.2d at 71; see Gray v Doyle, 170 A.D.3d at 971) may be established by an affidavit of a party or someone with knowledge, authenticated documentary proof, or by complaint verified by the plaintiff that sufficiently details the facts and the basis for the...