Court of Appeals October Session: Arguments of Interest for October 18, 2017

The Court of Appeals finishes up the October session arguments on Wednesday, October 18th with three cases on the calendar (the Court’s case summaries can found here).

First on the docket is a case asking whether one attempt at personal service of notices of violation on a property owner was enough of a reasonable attempt to effect personal service to allow the NYC Department of Building to use nail and mail service. A service issue case like this one is the height of procedural nerdery.

Next up, an insurance case where the insurer is trying to avoid paying a $7.3 million wrongful death judgment by arguing that its policy wasn’t issued or delivered in New York. Under the Insurance Law, a prevailing plaintiff can sue a responsible insurer to satisfy the unpaid portion of a judgment if the insurer’s policy was “issued or delivered in this state.” The courts below split on the issue, with Supreme Court saying the policy was issued here, and the Appellate Division holding that it wasn’t.

Finally, the Court will hear a FOIL case about whether all documents related to a sex offender’s wrongful conviction review are exempt from disclosure under the statute because they would reveal a confidential source, and whether the offender may obtain his entire case file and the grand jury minutes under CPL 190.25(4) to support his claim of actual innocence.

No. 120 Matter of Mestecky v City of New York

This is sufficiency of a service case. Exciting, I know. But here’s why it’s important. Service of a notice of violation or a complaint is how the defendant first finds out the allegations against it and gets an opportunity to respond. It’s a due process issue. Without proper service, defendants can be left unaware of claims that they are violating the law. And the burden is placed on the plaintiff, the person or entity claiming that the law has been violated, to make sure that the defendant gets the notice the law requires.

To ensure that happens, the CPLR generally provides certain ways that a plaintiff may serve the defendant. The best, and likely the hardest, way to serve is by personally delivering the notice of violation or the complaint to the defendant. The plaintiff can also deliver the complaint to someone at the defendant’s home or actual business, and then mailing a copy too. Only after making reasonable attempts at trying to serve using those means does the CPLR allow the plaintiff to nail the complaint to the door and mail a copy too. What’s a reasonable number and kind of attempts at service differs by the case, but generally attempts have to be made on different days and at different times.

The New York City Charter also allows the Department of Buildings to serve notices of zoning violations by nail and mail, but only if “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….” In Mestecky, the DOB tried to serve a property owner with notices of violation for doing construction work without building permits by knocking on the door of the rental property, ringing the doorbell, and then nailing the notices to the door when no one answered. DOB also mailed three of the seven notices of violation to the property owner’s home address. The owner challenged the service as insufficient under the Charter.

An ALJ held that the DOB’s one attempt at service was enough to allow it to resort to nail and mail service, and the notices of violation were affirmed.

The Appellate Division, First Department affirmed, holding that the NYC Charter service provisions did not impose the typical CPLR standards for service, but only required something less. Thus, the Court held, the DOB’s one attempt at service was sufficient to satisfy the “reasonable attempt” requirement before nail and mail service could be used, and dismissed the suit.

On appeal, Mestecky argues that the plain language of the NYC Charter imposes the CPLR requirements for multiple attempts at personal delivery before the plaintiff may resort to nail and mail service. His due process rights require no less, he argues.

The Appellate Division, First Department’s order can be found here.

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