The opinion
Susan Marsh Assoc. Inc. v City of New York
2025 NY Slip Op 30737(U)
March 5, 2025
Supreme Court, New York County
Docket Number: Index No. 154318/2024
Judge: Lyle E. Frank
Cases posted with a "30000" identifier, i.e., 2013 NY Slip
Op 30001(U), are republished from various New York
State and local government sources, including the New
York State Unified Court System's eCourts Service.
This opinion is uncorrected and not selected for official
publication.
INDEX NO. 154318/2024
NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 03/05/2025
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. LYLE E. FRANK PART 11M
Justice
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SUSAN MARSH ASSOCIATES INC,
MOTION DATE 05/13/2024
Petitioner,
MOTION SEQ. NO. 001
-v-
CITY OF NEW YORK, NEW YORK CITY OFFICE OF
ADMINISTRATIVE TRIALS AND HEARINGS, THE CITY OF
DECISION + ORDER ON
NEW YORK ENVIRONMENTAL CONTROL BOARD, NYC
DEPARTMENT OF BUILDINGS MOTION
Respondent.
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The following e-filed documents, listed by NYSCEF document number (Motion 001) 5, 6, 7, 8, 9, 10, 11,
12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23
were read on this motion to/for ARTICLE 78 (BODY OR OFFICER) .
Petitioner seeks an order annulling and vacating the Office of Administrative Trials and
Hearings (“OATH”) denials of petitioner’s motion to vacate default judgments and directing
respondents to grant a hearing on the merits of each alleged violation. Respondents oppose,
answer the petition and assert that OATH’s denials were reasonable, rational and in accordance
with the applicable law, warranting denial of the underlying petition. For the reasons set forth
below, the petition is denied.
Background
Petitioner is the owner of the property located at 480 Clinton Avenue, Brooklyn, New
York 11238 (the “Subject Property”). Between June 22, 2021, and May 23, 2022, petitioner was
issued four summonses for alleged violations at the subject property. The summonses set forth
hearing dates, petitioner failed to appear at such hearings, which resulted in default orders.
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NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 03/05/2025
On or about February 20, 2024, through February 29, 2024, petitioner requested to vacate
the default judgments and requested the reopening of the subject summonses. On or about March
12, 2024, through March 26, 2024, petitioner’s requests to vacate the default judgments and
reopen the summonses was denied. OATH’s denial of petitioner’s requests to vacate state that
petitioner did not establish a reasonable excuse for its failure to appear, and its argument that it
did not receive notice or the summons, is contradicted by the agency records that establish proper
service.
Applicable Law
Article 78 review is permitted, where a determination was made that “was arbitrary and
capricious or an abuse of discretion, including abuse of discretion as to the measure or mode of
penalty or discipline imposed….” CPLR §7803(3).
“Arbitrary” for the purpose of the statute is interpreted as “when it is without sound basis
in reason and is taken without regard to the facts.” Pell v Board of Ed. of Union Free School
Dist. No. of the Towns of Scarsdale and Mamaroneck, Westchester Cty. 34 NY2d 222, 231
[1974].
A court can overturn an administrative action only if the record illuminates there was no
rational basis for the decision. Id. “Rationality is what is reviewed under both the substantial
evidence rule and the arbitrary and capricious standard.” Id. If the court reviewing the
determination finds that “[the determination] is supported by facts or reasonable inferences that
can be drawn from the records and has a rational basis in the law, it must be confirmed.”
American Telephone & Telegraph v State Tax Comm’n 61 NY2d 393, 400 [1984].
It is well established that the court should not disturb an administrative body’s
determination once it has been established that the decision is rational. See Matter of Sullivan
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Cnty. Harness Racing Ass’n, Inc. v. Glasser, 30 NY2d 269 [1972]; Presidents' Council of Trade
Waste Assns. v New York, 159 AD2d 428, 430 [1st Dept 1990].
Discussion
In support of its petition, petitioner contends that OATH applied the more lenient
standard, “reasonable circumstances” standard of 48 RCNY 621(b), instead of the “exceptional
circumstances” standard of 48 RCNY $ 6-21(f), that should have been applied. Petitioner
contends that although this standard is more lenient, and would be deemed more favorable, the
fact that the wrong standard was used establishes that OATH did not “even read or consider the
application […] properly” thus the instant application requires remand.
In its memorandum of law, respondents contend that the summonses and notices were
properly served, and OATH’s denials of petitioner’s applications were not arbitrary or
capricious. The issue of improper service of the summonses and notices were raised for the first
time by petitioner in reply. In reply, petitioner concedes that while three out of the four
summonses it seeks to contest, were served properly, OATH should have granted the vacatur
request despite the proper service.
The Court finds that petitioners have failed to establish that the underlying agency action,
denial of petitioner’s vacatur requests, lacked a rational basis or was arbitrary or capricious.
Contrary to petitioner’s assertions, the cases cited and relied upon do not stand for the
proposition that “where the wrong reason is stated but the right result determined” the only
recourse is remand. This contention has no legal support. Moreover, as the petition sought
vacatur of OATH’s denials of petitioner’s application based on the application of the “reasonable
excuse” standard versus the “exceptional circumstances” standard, the Court deems OATH’s
error, in favor of petitioner, harmless error. Accordingly, it is hereby
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NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 03/05/2025
ADJUDGED that the petition is denied.
3/5/2025
DATE LYLE E. FRANK, J.S.C.
CHECK ONE: X CASE DISPOSED NON-FINAL DISPOSITION
□ □
GRANTED X DENIED GRANTED IN PART OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
□
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE
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