Ariel Services, Inc. v. New York City Environmental Control Board

Appellate Division of the Supreme Court of New York

Ariel Services, Inc. v. New York City Environmental Control Board

89 A.D.3d 415, 931 N.Y.2d 857

Appellate Division of the Supreme Court of the State of New York·Decided November 1, 2011·Published·Cited by 4 cases

Opinion

Petitioner contends that it was denied due process because it did not receive a copy of respondent New York City Department of Environmental Protection’s appeal from the Administrative Law Judge’s decision that had been in petitioner’s favor. This argument is unavailing since “a properly executed affidavit of service raises a presumption that a proper mailing occurred, and a mere denial of receipt is not enough to rebut this presumption” (Kihl v Pfeffer, 94 NY2d 118, 122 [1999]).

Contrary to petitioner’s contention, ECB’s determination was supported by substantial evidence. The agency’s decision not to credit the testimony of petitioner and the building’s superintendent that petitioner did not perform work in the building’s boiler room on January 11, 2010 should not be disturbed (see Matter of Berenhaus v Ward, 70 NY2d 436, 443 [1987]).

The penalty imposed does not shock our sense of fairness, as the fines were imposed in accordance with 48 RCNY 3-101. Concur — Gonzalez, PJ., Tom, Sweeny and Renwick, JJ.

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Petitioner contends that it was denied due process because it did not receive a copy of respondent New York City Department of Environmental Protection’s appeal from the Administrative Law Judge’s decision that had been in petitioner’s favor. This argument is unavailing since “a properly executed affidavit of service raises a presumption that a proper mailing occurred, and a mere denial of receipt is not enough to rebut this presumption” (Kihl v Pfeffer, 94 NY2d 118, 122 [1999]).

Contrary to petitioner’s contention, ECB’s determination was supported by substantial evidence. The agency’s decision not to credit the testimony of petitioner and the building’s superintendent that petitioner did not perform work in the building’s boiler room on January 11, 2010 should not be disturbed (see Matter of Berenhaus v Ward, 70 NY2d 436, 443 [1987]).

The penalty imposed does not shock our sense of fairness, as the fines were imposed in accordance with 48 RCNY 3-101. Concur — Gonzalez, PJ., Tom, Sweeny and Renwick, JJ.

Ariel Services, Inc. v. New York City Environmental Control Board, 89 A.D.3d 415, 931 N.Y.2d 857 (N.Y. Ct. App. 2011).

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Opinion

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