This opinion is uncorrected and subject to revision before

publication in the New York Reports.

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No. 120 

In the Matter of Frank Mestecky,

 Appellant,

 v.

City of New York, et al.,

 Respondents.

Christopher F. Mestecky, for appellant.

Max McCann, for respondents.

DiFIORE, Chief Judge:

New York City Charter § 1049-a(d)(2) permits the use of

affix and mail service of Notices of Violation (NOVs) issued by

Department of Building (DOB) inspectors who discover building

code violations, but only after there has been "a reasonable

attempt" to deliver the notice "to a person in such premises upon

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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" (see NY City Charter § 1049-a[d][2][b]). The

question presented is whether, prior to use of the affix and mail

procedure, the City Charter requires more than a single attempt

to personally serve the NOV at the premises. 

The Environmental Control Board (ECB), a division of

the City's Office of Administrative Trials and Hearings,

adjudicates certain violations of the New York City Charter and

Administrative Code, including violations of the building code. 

Petitioner owns residential property on Union Turnpike in New

Hyde Park. In the determinations challenged in this proceeding,

the ECB found that between October 2011 and June 2012, DOB

inspectors issued nine NOVs for code violations observed at the

property. Each NOV identified the nature of the alleged

violation and contained a statement, made under penalty of

perjury, describing the inspector's unsuccessful effort to

personally serve the NOV at the premises. For example, with

respect to three NOVs issued in December 2011, the inspector

explained "female occupants state [premises owner] does not live

there -- refused [to] accept service." Three NOVs posted in June

2012 state: "No response to doorbell -- knocks at front storm

door -- waited 5 minutes." In each instance, after a single

unsuccessful attempt at personal service, the inspector used the

"alternate service" procedure, affixing the NOV in a conspicuous

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place. Additional documentary proof indicated that copies of the

NOVs were mailed to petitioner at the premises address and, for

NOVs issued after February 2012, at his home in Bayside, Queens. 

Petitioner's failure to appear on the hearing dates

directed on the NOVs resulted in administrative default judgments

imposing fines and penalties. With respect to seven of the nine

NOVs, petitioner successfully moved to vacate the defaults. At

two hearings consolidating challenges to those NOVs, petitioner

denied having received any of the NOVs and argued, among other

things, that they were not properly served because more than one

attempt at personal service is required prior to use of the

alternate affix and mail procedure authorized in New York City

Charter § 1049-a(d)(2)(a)(ii). That argument was rejected by the

presiding Administrative Law Judges and the ECB sustained the

violations upon administrative appeal. Petitioner's motions

before the ECB to open the two remaining administrative default

judgments were denied. Petitioner commenced this CPLR article 78

proceeding challenging the ECB determinations with respect to all

nine NOVs, which was transferred to the Appellate Division.

The Appellate Division confirmed the determinations,

denied the petition and dismissed the proceeding, concluding that

the agency properly interpreted New York City Charter § 1049-

a(d)(2)(b) to require only one attempt at personal service of an

NOV at the premises prior to resorting to the affix and mail

procedure and, thus, the seven NOVs that were reviewed in the

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administrative hearings were properly served (133 AD3d 431). 

That court also held that petitioner's claims with respect to the

two administrative default judgments were time-barred due to his

failure to commence the CPLR article 78 proceeding within four

months of the ECB determinations denying his motions to vacate

those defaults. The Appellate Division granted petitioner leave

to appeal to this Court, certifying the question of whether its

order was properly made. We now affirm.

In statutory interpretation cases, the Court's "primary

consideration 'is to ascertain and give effect to the intention

of the Legislature'" (Matter of DaimlerChrysler Corp. v Spitzer,

7 NY3d 653, 660 [2006], quoting Riley v County of Broome, 95 NY2d

455, 463 [2000]). The statutory text is the clearest indicator

of legislative intent "and courts should construe unambiguous

language to give effect to its plain meaning" (id.). When the

statutory language at issue is but one component in a larger

statutory scheme, it "must be analyzed in context and in a manner

that 'harmonizes the related provisions and renders them

compatible'" (Matter of M.B., 6 NY3d 437, 447 [2006] [internal

ellipses and brackets omitted]), quoting Matter of Tall Trees

Constr. Corp. v Zoning Bd. of Appeals of Town of Huntington, 97

NY2d 86, 91 [2001]). "We have recognized that meaning and effect

should be given to every word of a statute" and that an

interpretation that renders words or clauses superfluous should

be rejected (Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 104

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[2001]).

New York City Charter § 1049-a(d)(2)(a) begins with a

general provision requiring service of the NOV according to the

rules governing service of process in CPLR article 3 and Business

Corporation Law article 3. This general provision is followed by

a series of exceptions permitting alternate service procedures in

specified circumstances. One of the exceptions, relevant here,

addresses NOVs issued by the DOB, where service "may be made by

affixing such notice in a conspicuous place to the premises where

the violation occurred" (NY City Charter § 1049-a[d][2][a][ii]). 

After being affixed to the premises, the NOV must be "mailed to

the respondent at the address of such premises" and the ECB must

also review its own files and those of the Department of Housing

Preservation and Development (HPD) and the Department of Finance

(DOF) to identify other addresses for the owner (or owner's

agent) to which the notice must also be mailed (id. § 1049-

a[d][2][b][i], [ii], [iii]).1 This affix and mail procedure may

1 These file review provisions appear to dovetail with other

requirements of New York City law, including New York City

Administrative Code § 27-2097, which requires certain nonresident owners of residential property -- such as petitioner --

to file a registration statement providing a current home and

business address within 10 days of vacating the property. 

Although petitioner testified that he moved out of the Union

Turnpike residence in June or July 2011 and that it was occupied

by tenants, there is no indication in the record that, at the

time of his move or in the days or weeks that followed,

petitioner informed DOB, HPD or DOF that he had vacated the

residence or wished to receive premises-related correspondence at

a new address. Petitioner points to a property tax bill that DOF

mailed to him at his Bayside home more than six months later, in

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be used, however, only "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" (id. § 1049-a[d][2][b]). 

Citing Matter of First Horizon Home Loans v New York

City Envtl. Control Bd. (118 AD3d 875 [2d Dept 2014]),2

petitioner argues that, by referencing CPLR article 3, New York

City Charter § 1049-a(d)(2)(b) incorporates the CPLR 308(4)

restriction permitting affix and mail service only when personal

delivery (including delivery to a person of suitable age or

discretion) "cannot be made with due diligence." Noting that

some courts in other contexts have interpreted "due diligence" as

requiring at least three delivery attempts at different times of

day (see e.g. State of New York v Mappa, 78 AD3d 926 [2d Dept

2010]; Johnson v Waters, 291 AD2d 481 [2d Dept 2002]; Matos v

Knibbs, 186 AD2d 725 [2d Dept 1992]; Hochhauser v Bungeroth, 179

February 2012. Evidence that DOF was aware of petitioner's new

address on that date is consistent with ECB's assertion that its

file reviews for NOVs issued in October and December 2011 showed

only the Union Turnpike address but subsequent file reviews for

NOVs issued after February 2012 showed a second address -- the

Bayside residence. 

2 It is unclear whether First Horizon Home Loans supports

petitioner's argument as it does not reference the "due

diligence" requirement of CPLR article 3 and may be factually

inapposite. However, to the extent the case can be read for the

proposition urged by petitioner, it should not be followed.

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AD2d 431 [1st Dept 1992]), petitioner maintains that the

inspectors' efforts here -- one attempt to deliver the NOV to a

person at the premises -- were insufficient. 

This argument is belied by the structure of the

statute. Because New York City Charter § 1049-a(d)(2) begins by

stating the general rule that CPLR article 3 service rules apply

"except" in certain enumerated circumstances, the contention that

section 1049-a(d)(2)(b) -- relating to an exception -- requires

strict adherence to CPLR article 3, including the due diligence

standard, is plainly incorrect. To read the provision this way

would make the exception indistinguishable from the general rule,

thereby rendering it superfluous. Considered in context, the

only reasonable conclusion is that the cross-reference to CPLR

article 3 and Business Corporation Law article 3 in the exception

was intended to import the provisions of those articles

clarifying the parties or entities who can accept service, such

as the clause permitting delivery to "a person of suitable age

and discretion" (see CPLR 308[2]). Indeed, this is the most

natural reading of section 1049-a(d)(2)(b) given that the phrase

containing the statutory cross-references directly follows the

clause requiring "a reasonable attempt" to deliver the notice "to

a person in such premises upon whom service may be made."

Further, the plain language of the relevant statute

speaks in the singular -- "[s]uch notice may only be affixed 

. . . where a reasonable attempt has been made" at personal

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delivery -- indicating that only one attempt is required (NY City

Charter § 1049-a[d][2][b] [emphasis added]). The legislative

history supports this interpretation. As the Governor's approval

memorandum explains, the affix and mail procedure was added to

the predecessor statute in 1979 to "eliminate the time-consuming,

costly and often unrewarding process now entailed in identifying

and locating the person responsible for the violation"

(Governor's Mem approving L 1979, ch 623, 1979 NY Legis Ann at

366, amending former New York City Charter § 1404). This point

was echoed by Mayor Koch, who noted that the alternate method of

service could be utilized after "an attempt" at personal service

(Letter of Mayor Koch, Bill Jacket, L 1979, ch 623). In 1997,

when the affix and mail procedure was made applicable to building

and fire code violations, the legislative history indicates the

measure was needed because of the difficulty inspectors

encountered locating owners of violating properties in order to

serve the NOV, particularly nonresident owners such as petitioner

(see Letter of President of the Borough of Queens, Bill Jacket, L

1997, ch 569, at 9-10). The relevant charter provisions have

been amended repeatedly over time to liberalize service rules to

address the chronic problem of violators avoiding service. The

restrictive interpretation urged by petitioner is inconsistent

with this legislative history.

Moreover, the alternate service procedure authorized by

the statute -- a single attempt to personally deliver the NOV,

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coupled with affixing the NOV to the property and mailing copies

to the owner at the premises and other addresses on file with

related City agencies -- is reasonably calculated to inform

owners of violations relating to their properties. We therefore

agree with the ECB and the Appellate Division that New York City

Charter § 1049-a(d)(2)(b) permits use of affix and mail service

after a single reasonable attempt by a DOB inspector to

personally deliver the NOV at the premises. 

Finally, the Appellate Division properly concluded that

petitioner's challenge to the two administrative default

judgments is time-barred. Several of petitioner's remaining

arguments -- such as his claim that the documentary proof of

mailing was deficient due to the absence of affidavits of mailing

-- were not timely raised at the hearing and his other

contentions lack merit. 

Accordingly, the Appellate Division judgment should be

affirmed, with costs, and the certified question not answered as

unnecessary.

* * * * * * * * * * * * * * * * *

Judgment affirmed, with costs, and certified question not

answered as unnecessary. Opinion by Chief Judge DiFiore. Judges

Rivera, Stein, Fahey, Garcia, Wilson and Feinman concur.

Decided November 20, 2017

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