§ 384 — Commencement of proceedings; default judgments

§ 384. Commencement of proceedings; default judgments. a. The bureau\nshall conduct the proceedings authorized by local law in accordance with\nthis section and with rules promulgated by the director.\n b. Such proceedings shall be commenced by the service of notice of\nviolation. The notice of violation or copy thereof when filled in and\nserved shall constitute notice of the violation charged, and, if sworn\nto or affirmed, shall be prima facie evidence of the facts contained\ntherein. The notice of violation when sworn to or affirmed shall\nconstitute the testimony of the signator and, when filed with the bureau\nshall be admitted into evidence as such testimony at any hearing on the\nviolation charged. Every such notice of violation shall state whether\nthe facts set forth therein are known personally to the signator and if\nthe facts are not so known the notice of violation shall specifically\nidentify the source of knowledge of such facts. If the respondent\ndisputes the facts stated in the notice of violation, the administrative\nlaw judge, where appropriate may reject the signator's facts, accept\nfacts the respondent offers, or direct the signator's appearance.\n c. (1) The form and wording of notices of violation shall be\nprescribed by the director. The notice of violation shall contain\ninformation advising the person charged of the manner and the time in\nwhich such person may either admit or deny the violation charged in the\nnotice. Such notice of violation shall also contain a warning to advise\nthe person charged that failure to plead in the manner and time stated\nin the notice may result in a default decision and order being entered\nagainst such person. The original or a copy of the notice of violation\nshall be filed and retained by the bureau and shall be deemed a record\nkept in the ordinary course of business.\n (2) Every notice of violation shall identify the provision of law\ncharged and shall set forth the factual basis for the violation. Where a\nnotice of violation does not contain this information, it shall be\ndismissed at the request of the respondent or the administrative law\njudge may dismiss the notice of violation upon his or her own motion.\n d. Where a respondent has failed to plead within the time allowed by\ncontrolling law or, if there is no such controlling law, by the rules of\nthe bureau, or has failed to appear on a designated hearing date or a\nsubsequent date following an adjournment, such failure to plead or\nappear shall be deemed, for all purposes, to be an admission of\nliability and shall be grounds for rendering a default decision and\norder imposing a penalty up to the maximum amount prescribed under law\nfor the violation charged. A default decision and order may be opened\nwithin one year of its entry upon written application showing excusable\ndefault and a defense to the charge; a default decision and order may\nthereafter be opened in the discretion of the director only upon written\napplication showing excusable default, a defense to the charge, and good\ncause for the delay.\n e. Any final order of the bureau imposing a civil penalty, whether the\nadjudication was had by hearing or upon default or otherwise, shall\nconstitute a judgment rendered by the bureau against the respondent\nwhich may be entered in the city court or other equivalent court of the\nmunicipality or any other place provided for the entry of civil\njudgments within the state, and may be enforced against the respondent\nand his, her or its property without court proceedings in the same\nmanner as the enforcement of money judgments entered in civil actions;\nprovided however that no such judgment shall be entered which exceeds\nthe jurisdiction of such city court or other court.\n f. Notwithstanding the foregoing provision, before a judgment based\nupon a default may be so entered the bureau must have notified the\nrespondent by first class mail in such form as the director may require;\n(1) of the default decision and order and the penalty imposed; (2) that\na judgment may be entered in the city court or other equivalent court of\nthe municipality or any other place provided for the entry of civil\njudgments within the state of New York; and (3) that entry of such\njudgment may be avoided by requesting a stay of default for good cause\nshown and either requesting a hearing or entering a plea pursuant to the\nrules of the bureau within thirty days of the mailing of such notice.\n g. The bureau shall not enter any final decision or order unless the\nnotice of violation shall have been served in the same manner as is\nprescribed for service of process by article three of the civil practice\nlaw and rules or article three of the business corporation law, except\nthat:\n (1) service of a notice of violation may be made by delivering such\nnotice to a person employed by the respondent (A) to work on the\npremises the occupancy of which caused such violation, or (B) at the\npremises at which the respondent actually conducts the business the\noperation of which gave rise to the violation, or (C) at the site of the\nwork with respect to which the violation occurred, or (D) at the place\nat which the violation occurred;\n (2) service of a notice of violation may be made by certified mail,\nreturn receipt requested; and\n (3) a notice of violation of any code or ordinance relating to the\nprevention of noise pollution caused by an audible motor vehicle burglar\nalarm or relating to the parking, stopping or standing of a motor\nvehicle may be served upon the owner of such motor vehicle by affixing\nsuch notice to such vehicle in a conspicuous place.\n h. Proof of service made pursuant to this article shall be filed with\nthe bureau and, where service is made by certified mail pursuant to\nparagraph two of subdivision g of this section, shall include the return\nreceipt evidencing receipt of the notice served by mail. Service shall\nbe complete ten days after such filing.\n i. Where any final decision or order may not be entered and enforced\nas a judgment because the amount of civil penalty exceeds the\njurisdictional amount of the city court or other equivalent court of the\nmunicipality, with respect to actions and proceedings for the recovery\nof money, such decision or order may be enforced by the commencement of\nan action or proceeding for the recovery of such civil penalties in a\ncourt of competent jurisdiction by the municipality.\n j. Where service of a notice of violation is not made in a manner\nauthorized by law for the violation charged, it shall be dismissed at\nthe request of the respondent or the administrative law judge may\ndismiss the notice of violation upon his or her own motion.\n