' 1-23 Service of the Petition.

Applicability

Because the rules of the City Personnel Director (appendix A to title 55, RCNY) apply to the Board of Education, those rules, not paragraph (b) this section, govern the means of service of a petition in an employee disciplinary case brought by the Board of Education. Bd. of Education v. Roman, OATH Index No. 1555/97 (Sept. 30, 1997).

Manner of Service

STANDARD

The Civil Practice Law and Rules does not apply to administrative proceedings, and therefore the CPLR does not govern service of the petition. Dep't of Buildings v. Owner, Occupants and Mortgagees of 845 Walton Avenue, Bronx, New York, OATH Index No. 234/95 (Jan. 19, 1995).

Service of the petition, like the content of the petition, is concerned primarily with fair notice. Dep't of Buildings v. Owner, Occupants and Mortgagees of 31 West 11th Street, Apartments 6A and 6B, New York, OATH Index No. 990/94 (Aug. 26, 1994).

ACTUAL NOTICE

Service of the petition provided respondent with actual notice of the proceeding since he appeared at the informal conference. Service of the notice of hearing sent to an address provided by respondent at the informal conference, was reasonably calculated to give respondent actual notice of the hearing where mail sent to respondent’s address of record had been returned undelivered. Dep’t of Homeless Services v. Harrison, OATH Index No. 396/98 (Dec. 19, 1997).

Service of the petition in administrative adjudication is for purposes of notice, not jurisdiction, and therefore, where the respondent receives actual notice of the petition, technical defects in service are disregarded. Dep't of Buildings v. Owner, Occupants and Mortgagees of 845 Walton Avenue, Bronx, New York, OATH Index No. 234/95 (Jan. 19, 1995).

Strict adherence to rules regulating service is not required when actual notice of the petition is given to the respondent. Bd. of Education v. Earl, OATH Index No. 494/95 (Nov. 28, 1994).

Actual notice of the petition waives technical defects in the manner of service. Dep't of Buildings v. Owner, Occupants and Mortgagees of 31 West 11th Street, Apartments 6A and 6B, New York, OATH Index No. 990/94 (Aug. 26, 1994).

Given actual notice of the petition, technical defects in service are not jurisdictional. Dep't of Buildings v. Bellman, OATH Index No. 1100/93 (Apr. 11, 1994).

Actual notice to the respondent of the petition and the trial date, which can be inferred from the respondent's attendance with her attorney at a pre-trial conference at which the trial date was fixed, waives the defects in the petitioner's proof of service. Human Resources Admin. v. Rice, OATH Index No. 455/93 (Mar. 1, 1993).

SERVICE ADEQUATE

Petitioner, following original default hearing, discovered additional address for respondent in agency files and moved to re-open. Administrative law judge allowed additional service of notice of petition and hearing and new hearing date. Agency provided proper proof of service on three addresses known for respondent. Upon failure of respondent to appear, administrative law judge was satisfied notice was proper and record was closed. Human Resources Admin. v. Pancham, OATH Index No. 965/00 (Mar. 21, 2000).

Service to respondent’s last known address was reasonably calculated to achieve actual notice and was legally sufficient, whether or not actual notice was achieved. Dep’t of Finance v. Stevens, OATH Index No. 1294/99 (Feb. 26, 1999).

Indication on personnel papers that respondent's absence was originally due to “incarceration” raised question of whether proper service of charges was made. Evidence showed that personal service on admitted relative of respondent at last known address was accomplished prior to hearing. Administrative law judge determined that service was sufficient to afford respondent opportunity to communicate with counsel or the agency prior to date of hearing. Human Resources Admin. v. Hartley, OATH Index No. 1829/99 (June 9, 1999).

Service of petition and notice of hearing by regular and certified mail to respondent’s last known addresses was reasonably calculated to give actual notice to respondent, even in the face of information showing the addresses might no longer be valid, where respondent did not satisfy its obligation to inform the contracting agency or the Comptroller that it was moving. Office of the Comptroller v. Goliath Allied Corp., OATH Index No. 1650/98 (July 10, 1998).

The administrative law judge found service at a foreign address provided by respondent was sufficient to give respondent actual notice of the proceeding. Inasmuch as respondent reported that he would be residing at a foreign address, personal service at his local address was unnecessary. Dep’t of Environmental Protection v. Zaza, OATH Index No. 516/99 (Oct. 16, 1998).

Where an employee was required by the employer's rules of conduct to keep his current address on file with the employer, service of notice of employee disciplinary proceedings by mail to the employee's address of record was sufficient service pursuant to paragraph (b) of this section. Health and Hospitals Corp. (Jacobi Medical Center) v. Williams, OATH Index No. 282/97 (Oct. 30, 1996).

An inference that the respondent had actual notice of the petition and of the trial date was based on evidence that, in seeking to retain counsel, the respondent told two different attorneys of the trial date and time. Taxi and Limousine Comm'n v. Min, OATH Index No. 669/96 (Nov. 13, 1995).

In an employee disciplinary case, service of the petition by attempted personal service and certified mail to the respondent's last known address was adequate, where it appeared that the address was no longer the employee's residence, but the employing agency had no information regarding a new address. Dep't of Correction v. Echevarria, OATH Index No. 957/94 (May 19, 1994).

SERVICE INADEQUATE

Where the individual respondent is sole owner of the corporate respondent, and service of the petition was made by certified mail to the individual respondent's last known residence address in New York and to the corporate respondent's address on file with the petitioner, but the petitioner subsequently learned of the individual respondent's relocation to Florida, service of the petition was inadequate because it was not reasonably calculated under all of the circumstances to give the respondents actual notice of the petition. Taxi and Limousine Comm'n v. Larch Cab Corp., OATH Index No. 363/94 (Nov. 29, 1993).

Where the petitioner-employer had no record of the respondent-employee's apartment number, but made service of the petition by posting a copy on the door of the apartment building at the respondent's last known address and mailing copies to the same address, and the petitioner made no attempt to serve the respondent at his workplace, service of the petition was not reasonably calculated to give the respondent actual notice of the petition. Human Resources Admin. v. Garrido, OATH Index No. 213/94 (Sept. 14, 1993).

Evasion of Service

Respondent was properly served with the notice of hearing and charges when they were handed to her, even though she refused to sign an acknowledgment. Dep’t of Transportation v. Deloach, OATH Index No. 2287/00 (Oct. 18, 2000).

Where the statute of limitations on service of employee disciplinary charges expired the day before personal service was effected, but the respondent had intentionally evaded attempts at service of employee disciplinary charges during the three days before expiration of the statute of limitations, the respondent was estopped from asserting a statute of limitations defense. Bd. of Education v. Roman, OATH Index No. 1555/97 (Sept. 30, 1997).

Notices Required

TIME TO ANSWER

Notice of petition stating that the respondent may answer within the time provided by this section, rather than stating the date, could be improved, but is sufficient. Dep't of Buildings v. Owner, Occupants and Mortgagees of 31 West 11th Street, Apartments 6A and 6B, New York, OATH Index No. 990/94 (Aug. 26, 1994).

Although the better practice would be for the notice of petition to refer to section 1-24, and to state the deadline for submission of an answer, reference to this section was adequate. Dep't of Buildings v. 2837-39 Decatur Avenue, Bronx, New York, OATH Index No. 349/94 (Jan. 10, 1994).

AMENDED PETITION

The notices that must accompany service of the petition pursuant to paragraph (a) of this section are required for service of the original petition, but are not required for service of amendments to the petition. Transit Auth. v. Smallwood, OATH Index No. 442/96 (Aug. 8, 1997).

Proof of Service

WRITTEN PROOF REQUIRED

Under paragraph (b) and (c) of this rule, written proof of service must be maintained by the petitioner, and filed before trial. Also, where the petitioner's counsel has additional information that shows that the respondent received actual notice of the petition and trial, the better practice is for counsel to prepare an affidavit to relate that information. Bd. of Education v. Earl, OATH Index No. 494/95 (Nov. 28, 1994).