Check Whether DOB Violation Was Properly 'Served' on You
When the city’s Department of Buildings (DOB) hits you with a violation, it must first deliver a violation notice to you. There are some strict rules the DOB must follow in this delivery, which is legally known as “service” of the notice. Sometimes, though, the DOB makes mistakes and doesn’t follow the service rules. You can use the DOB’s failure to follow these rules to get the violation dismissed by the Environmental Control Board (ECB), the agency that hears cases involving these violations—and avoid an expensive fine.
The DOB’s service rules are complicated. There are a number of different ways the DOB may serve a violation notice, but there are two basic rules you should know about.
First, each violation notice must name a “respondent.” This is the person or entity responsible for answering the violation. The respondent is supposed to be a person or entity with control over the building (e.g., the building owner, managing agent, or the tenant in control of the particular space where the violation occurred).
Second, after the DOB serves the violation notice, it must file proof with the ECB of how the notice was served. This proof must be in the form of “affidavit of service.” This is a sworn document signed by the DOB officer who served the papers, detailing when, how, and on whom the violation notice was served.
The following are five common service mistakes made by the DOB that resulted in dismissal of the violation against the owner. If one of these mistakes applies to a DOB violation notice you get, you can contest the violation at a hearing before the ECB.
How to Discover Improper Service
The DOB isn’t going to tell you that it made a mistake in serving you with the violation notice. So it will be up to you to discover any mistake.
To do this, you’ll want to see the DOB’s original affidavit of service or proof of delivery. When you appear before an administrative law judge (ALJ) at the ECB hearing, the first thing you should do is ask for that affidavit, which should be attached to the back of the copy of the violation notice in the case file. Check to see how the DOB claims to have served the violation notice and decide if you have a basis for claiming that service wasn’t proper.
For example, if the affidavit says that the DOB handed the violation notice to your employee, John Smith, and you don’t employ anyone by that name, you’d have a basis for claiming service was improper.
Ask for Delay
If, after examining the DOB’s affidavit, you think you have a valid claim of improper service, ask the ALJ to delay the hearing in your case until a later date or an “adjournment”—say, for two weeks. That way, you’ll have time to investigate your claim further and gather proof to submit to the ALJ. Also, you may want to get other people to testify at the hearing, such as a building employee.
When you ask for the delay, explain why you want it. Also, if you want to bring someone with you as a witness on the delay date, state that and who the person is. For example, you might say something like this:
Judge, I’ve just examined the affidavit of service. I believe service was improper and would like an opportunity to prepare a defense to the violation on that basis. I would like to bring my managing agent, Jane Doe, as a witness. I request a two-week adjournment of this case.
The ALJ will usually grant a reasonable delay if you claim service was improper. But it’s important to note that the DOB will also have a chance to return on the new date with witnesses of its own—for example, the person who served the violation notice.
Five Common DOB Mistakes
Mistake #1: Notice wasn’t properly affixed to building after personal delivery was attempted. Personal delivery means being handed a copy of the notice. Another way that service may be performed is by conspicuous place or “affix and mail” service. With this method, the notice is usually taped to a door or structure in a conspicuous place. In addition to affixing the papers to the building, the DOB must mail additional copies of the notices to you.
In one case, the DOB issued violation notices in connection with the conversion of medical offices in the building basement to dwelling space. The notices were delivered to the owner by “affix and mail” service after personal delivery was attempted. The ECB revoked the fine because the notices were slipped between the front door and storm door of the building. According to the ECB, this wasn’t proper delivery. The papers must be affixed to the building by tape or other device that ensures that they adhere to the structure. The violations were dismissed without addressing the merits [Hsiau: ECB App. Nos. 42690-1, Feb. 2009].
Mistake #2: Notice handed to independent contractor, not employee. Legally, the DOB may serve a violation notice by handing it to a person employed at the building where the violation occurred. New York City Charter Section 1404(d)(2) permits delivery of a violation notice to a person employed by the owner at the building. But delivery must be to an actual employee of the owner and not an independent contractor.
The ECB has interpreted the word “employee” to exclude people working at your building as independent contractors [B.D. Realty, Inc.: ECB App. No. 23275, April 1997]. These are people who aren’t on your normal payroll and whom you hire to do a specific task at your building. For example, an outside plumber or carpenter would fall into this category. If the DOB hands the violation notice to an independent contractor, you should be able to get the violation dismissed.
If this situation applies to you, be prepared to submit evidence to help support your claim that the person to whom the notice was handed is an independent contractor, not an employee. For example, if you signed a separate contract with that person, submit a copy of the contract. Or you can submit a copy of your payroll records. If the person the DOB handed the violation notice to isn’t on your payroll, this will help show he or she isn’t your employee.
Mistake #3: Notice not handed to employee of “respondent.” If the DOB hands the violation notice to an employee, that person must be an employee of the “respondent” named on the violation notice. If not, you should be able to get the violation dismissed. If this is the case, you can submit payroll records or copies of the employee’s paycheck to show the employer’s identity.
In one case, the DOB issued violation notices to the owner for failing to maintain building walls in a safe condition. The DOB’s inspector cited vertical cracks in the exterior walls and found 90 percent of the roof removed. The ALJ ruled against the owner because the inspector stated that a woman appeared at the building stating that she was from the owner’s office. The owner appealed and won. It claimed that the only woman who worked for the owner was a secretary who was in the office at the time. The DOB’s inspector didn’t properly complete the violation delivery provisions on the notice form, and didn’t note any name or title of the individual served [Idlewood 228th St. LLC: ECB App. No. 1200174, June 2012].
In another case, notice was served to a superintendent’s son. The ECB ruled for the owner and revoked the fine. A violation notice can be served at the building upon a person employed by the owner. This notice was served on the super’s 12-year-old son, who wasn’t an employee [City of New York v. Eberhart: ECB App. No. 21043, April 1995].
Mistake #4: Violation notice not mailed to address listed on agency records. If the DOB serves the violation notice by handing it to an employee or affixing it to your building, it must also mail it to the respondent at the building’s address listed on the front of the violation notice. In addition, the DOB must check if the respondent is listed on other agency records—for example, HPD or DOF—at a different address from the one listed. If so, the DOB must also mail the violation notice to the respondent at that address. If there is more than one other address listed on the records of other agencies, the DOB need only mail it to one of the other addresses listed. If the DOB doesn’t take this additional step, you should be able to get the violation dismissed for improper service.
On the front of the notice of violation, the DOB will indicate if the violation notice was mailed and, if so, to what address or addresses. If the DOB mailed the violation notice only to the building address where the violation occurred and you’re listed at a different address on HPD, DOF, or DOB records, be prepared to back up your claim with copies of those records.
In one case, the ECB ruled that the DOB properly delivered a violation notice to the owner at the known address. The DOB left a copy of the violation at the building and mailed a second copy to the owner at the building. The owner claimed that he had another address, but this address didn’t appear in DOB, HPD, or DOF records. So the ECB ruled that the DOB wasn’t required to make an additional mailing [Golias: ECB App. No. 1401147, January 2015].
Also, the ECB has ruled that it doesn’t matter if the violation notice was delivered to a vacant building. In one case, the DOB issued a violation notice to an owner for not keeping a building’s sidewalk shed lit at night. The owner claimed that the violation notice was improperly delivered, because it was posted at and mailed to a vacant building. The ALJ fined the owner $2,000, finding that the notice was properly delivered by “nail and mail” service. The owner appealed and lost. Even if the building was vacant, that didn’t mean it should be unattended. The owner was responsible for maintaining the building, and someone representing the owner should be visiting the building where mail and postings could be picked up [101 E. 26th St.: ECB App. No. 32150, January 2000].
Mistake #5: Affidavit of service not filed with ECB. If the DOB doesn’t file the original affidavit of service or proof of delivery with the ECB, you should be able to get the violation dismissed for improper service. If you ask the ALJ for the affidavit, and the ALJ doesn’t have it, ask the ALJ to dismiss the violation on the spot—don’t ask for a delay as you would with the other DOB mistakes. The DOB may then ask for a delay itself to search for the affidavit of service and show that it was filed with the ECB. If it isn’t found, you should be able to get the violation dismissed.
It’s important to note when defending yourself at the ECB against a DOB violation, don’t rely solely on a claim that service was improper. Make sure to assert any other arguments you have to beat the violation. That way, if the ECB rules against you on the service issue, you still may be able to get the violation dismissed for another reason.