Rule Defining Reasonable Attempt at Service
Proposed Rules: Closed to Comments
Statement of Basis and Purpose of Proposed Rule
The Environmental Control Board (ECB) is proposing to amend section 48 RCNY 3-31(c) of its rules of procedure. The proposed rule clarifies that a single attempt at service of a notice of violation may be sufficient to constitute “a reasonable attempt” under Section 1049-a(d)(2)(b) of the New York City Charter (“Charter”). Section 1049-a does not contain a definition of “reasonable attempt,” but ECB decisions have long held that a single attempt is sufficient. However, recent court decisions have created some confusion as to the correct standard. Therefore, ECB is seeking to codify its decisions via rulemaking.
The Current Rule
ECB’s rules of procedure, as found in 48 RCNY 3-31(c), regulate the service of certain notices of violation (NOV). A person accused of violating a provision of the Charter or the City’s Administrative Code under ECB’s jurisdiction is known as a respondent.
Under Charter section 1049-a(d)(2)(a), an agency typically must serve a NOV to a respondent in the same manner as is prescribed by article three of the Civil Practice Law and Rules or article three of the Business Corporation Law. However, the Charter also includes a number of exceptions to this rule. Section 1049-a(d)(2)(a)(i) allows for service of a NOV by delivering the notice to a person employed by the respondent on or in connection with the premises where the violation occurred. Section 1049-a(d)(2)(a)(ii) allows for service of a NOV issued by the Department of Sanitation, the Department of Buildings, or the Fire Department by affixing such notice in a conspicuous place to the premises where the violation occurred.
Charter section 1049-a(d)(2)(b) provides that sections 1049-a(d)(2)(a)(i)-(ii) only apply after “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.” The Charter does not contain a definition of “reasonable attempt,” but ECB has long interpreted the language so that a single attempt could satisfy the requirement. ECB’s interpretation is based on the plain language of section 1049-a(d)(2)(b), which requires “a reasonable attempt” (emphasis added), and also the section’s legislative history. The State Legislature added section 1049-a(d)(2)(b) to the Charter with the intent that the new language would “eliminate the time-consuming, costly and often unrewarding process now entailed in identifying and locating the person responsible for the violation.” Governor’s Memorandum on Approval, Bill Jacket, L. 1979, ch. 623. The proposed rule ensures that the legislative intent behind the creation of section 1049-a(d)(2)(b) is codified in ECB’s rules of procedure.
ECB’s authority to implement this rule is found in section 1049-a of the New York City Charter.