Chapter I - Subchapter C

§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), aff'd, BSA No. 165-94-A, reprinted in 80 Bulletin of Bd. of Stds. and Apps. 193 (May 4, 1995), aff'd sub nom. Hiesiger v. City of New York, NYLJ, Nov. 6, 1996, at 26, col. 1 (Sup. Ct. N.Y. Co.).

ACTUAL NOTICE

Driver had actual notice of his license suspension when his Lyft and Uber accounts were suspended. Taxi & Limousine Comm’n v. Fermin De La Cruz, OATH Index No. 3576/23 (July 5, 2023), adopted, Comm’r Dec. (July 6, 2023).

Although the agency failed to establish that respondent signed the acknowledgment of charges upon receipt in the presence of a supervisor who also signs as a witness, as required by the agency’s rules, respondent had actual knowledge of the charges which was sufficient to defeat his challenge to service. Dep’t of Correction v. Frederique, OATH Index Nos. 1361/22 & 1237/22 (Mar. 15, 2023), adopted, Comm’r Dec. (Apr. 12, 2023).

Rejecting argument that case should be dismissed due to defective service of notice where respondent was served by email, rather than regular and certified mail, because respondent had actual notice of the proceeding and the evidence suggested respondent did not even live at the address on record. Taxi & Limousine Comm’n v. Jimenez-Revolta, OATH Index No.1974/20 (May 19, 2020), adopted, Comm’r Dec. (June 12, 2020).

Respondent had actual notice of the proceeding where the hearing was previously adjourned, at his request, to accommodate his schedule and he participated in the selection of the new date. Dep't of Health & Mental Hygiene v. Omar, OATH Index No. 398/15 (Nov. 17, 2014).

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), aff'd, BSA No. 165-94-A, reprinted in 80 Bulletin of Bd. of Stds. and Apps. 193 (May 4, 1995), aff'd sub nom. Hiesiger v. City of New York, NYLJ, Nov. 6, 1996, at 26, col. 1 (Sup. Ct. N.Y. Co.).

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), aff'd, BSA Nos. 105-94-A, 106-94-A, reprinted in 80 Bulletin of Bd. of Stds. and Apps. 346, 348 (July 6, 1995).

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

ALJ found that two emergency leave complaints were timely served on respondent. Each complaint had a signature in the space below “complainant’s signature” and identified a superintendent as the complainant and server of the charges, but the spaces allotted for witnesses were blank. Although petitioner’s proof would have been stronger if other witnesses signed the documents, the ALJ found that the evidence sufficed to show that the superintendent served both complaints and respondent’s vague and unconvincing testimony did not rebut petitioner’s evidence. Dep’t of Sanitation v. Patsakos, OATH Index No. 272/24 (Apr. 11, 2024), modified on penalty, Comm’r Dec. (July 23, 2024).

ALJ found that service was reasonably calculated to achieve actual notice to respondent of the charges and the hearing where respondent was served notice of the charges by personal service and petitioner mailed the notice of trial, the charges, and instructions on how to access the videoconference to respondent by first class and certified mail to his address of record. Dep’t of Social Services (Human Resources Admin.) v. Nelson, OATH Index No. 970/24 (Dec. 22, 2023).

Service by regular and certified mail adequate even if certified mail was returned as unclaimed. Dep’t of Health & Mental Hygiene v. Psaroudis, OATH Index No. 0054/15 (Nov. 7, 2014).

Absence of signed certified mail receipts does not make service inadequate. Dep’t of Buildings v. Hussein, OATH Index No. 2338/23 (Oct. 24, 2023), adopted, Comm’r Dec. (Nov. 14, 2023).

Serving respondent by certified and regular mail at addresses listed on payroll records was sufficient to establish that they were served as required by statute and the Comptroller’s regulations, and that service was effectuated in a manner calculated to give them actual notice of the proceeding. Office of the Comptroller v. Beam Construction, Inc. & Fabijanowski, OATH Index No. 1444/19 (May 31, 2019), adopted, Comptroller’s Dec. (June 13, 2019); Office of the Comptroller v. Heights Elevator Corp.and Frank Maini, OATH Index No. 2387/17 (Jan. 9, 2018).

Attempt to serve respondent at his last known address was reasonably calculated to give notice of the charges, even though the Postal Service stamped the first class mail as “Attempted – Not Known” and the certified mail as “Vacant” and returnable to the agency. Respondent’s denial of receipt was also unavailing where agency established that it mailed the charges pursuant to regular mailing practice and respondent raised no argument or presented no proof that routine office practice was not followed or was so careless that it would be unreasonable to believe that notice was mailed. Dep’t of Correction v. Lopez, OATH Index No. 2365/18, mem. dec. (Sept. 25, 2018).

Service of OATH petition and notice of hearing by first-class mail and certified mail to the licensee’s address of record was service “reasonably calculated to give notice” in satisfaction of subsection (b) of this section and due process. Cheema v. NYC Taxi & Limousine Comm’n, 2011 NY Slip Op 31890U, 2011 N.Y. Misc. LEXIS 3418 (Sup. Ct. N.Y. Co. 2011), aff’g, Taxi & Limousine Comm’n v. Cheema, OATH Index No. 1664/11 (Feb. 22, 2011), adopted, Comm’r Dec. (Mar. 11, 2011).

Where mail is sent pursuant to regular mailing practice, there is a rebuttable presumption of delivery. To rebut the presumption there must be more than a claim of no receipt, there must be a showing that routine office practice was not followed or was so careless that it would be unreasonable to believe that notice was mailed. Party’s failure to claim registered mail does not make service improper where party did not rebut the presumption that the first-class mail was delivered to licensee’s undisputed address. Cheema v. NYC Taxi & Limousine Comm’n, 2011 NY Slip Op 31890U, 2011 N.Y. Misc. LEXIS 3418 (Sup. Ct. N.Y. Co. 2011), aff’g, Taxi & Limousine Comm’n v. Cheema, OATH Index No. 1664/11 (Feb. 22, 2011), adopted, Comm’r Dec. (Mar. 11, 2011).

Where respondent answered, appeared, and contested the matter on the merits, respondent waived any technical objections to service of the petition. Comm’n on Human Rights v. Vudu Lounge, OATH Index No. 233/12 (Dec. 16, 2011), adopted, Comm’n Dec. & Order (Mar. 22, 2012).

Attempted personal service of charges at respondent's home address held sufficient, even where agency employees may have been aware of respondent's temporary absence from residence due to an in-patient rehabilitation program. Fire Dep't v. Reinhard, OATH Index No. 647/05 (Oct. 21, 2004).

Owner and occupants were served either personally or by affixing the notice of petition at the premises. Each of the owners and occupants were further served by mailing a copy of the petition and notice of hearing to the premises. Mortgagor and mortgagee were served by mail at addresses of record. Service was found to be sufficient to establish the jurisdictional prerequisites for finding respondents in default. Dep't of Buildings v. Owners, Occupants and Mortgagees of 1410-1414 Vyse Avenue, Bronx, OATH Index No. 699/02 (June 20, 2002).

A letter informing respondent of the date, time and place of the hearing that was served at respondent's last known address of record established jurisdictional prerequisite for finding respondent in default. Dep't of Correction v. Bomani, OATH Index No. 1383/01 (July 20, 2001).

Upon respondent's failure to appear at the hearing, affidavits demonstrating that the required documents were sent by regular and certified mail to respondent's address of record and an unsuccessful attempt at personal service were reasonably calculated to achieve actual notice to respondent. Administration for Children's Services v. Esonwune, OATH Index No. 240/01 (Jan. 10, 2001).

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 & 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 & 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

When an employee refuses to sign the acknowledgment of service, the agency must attempt to leave the charges with the employee for service to be deemed proper. Although respondent was given the charges, and declined to sign an acknowledgment, service was not properly effectuated because the serving officer did not leave the charges in respondent’s “general vicinity.” Had the officer left the charges or told respondent that he had to keep the charges even if he did not want to sign for them, service would have been proper. Dep’t of Correction v. Joseph, OATH Index No. 196/12 (Apr. 5, 2012), modified on penalty, Comm’r Dec. (Aug. 7, 2013).

Serving respondents’ counsel with the amended charges prior to their being officially retained is not the best practice and service is technically defective. Dep’t of Correction v. Rathour, OATH Index Nos. 272/13, 273/13, 274/13, & 275/13 (Aug. 21, 2013).

Charges dismissed without prejudice when petitioner did not follow up its attempted personal service of the charges and notice of the hearing by registered mail. The ALJ required proof of service by registered mail and rejected petitioner's argument that returned mail gave constructive notice of respondent's change of address. Dep't of Transportation v. Salib, OATH Index No. 891/08 (Dec. 14, 2007).

Service of disciplinary charges found to be inadequate where, after employee refused to sign for receipt of charges, server withdrew papers and directed employee to report to office to pick them up, instead of leaving the set of papers with the employee. Dep't of Sanitation v. Yovino, OATH Index No. 992/04, mem. dec. (Aug. 11, 2004).

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 & Limousine Comm'n v. Larch Cab Corp., OATH Index No. 363/94, mem. dec. (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

Refusal to accept service did not bar a finding of personal service where investigator handed the notice to respondent, who reviewed the papers, but would not accept them. Dep't of Correction v. Johnson, OATH Index No. 1992/01 (Aug. 16, 2001).

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

OATH’s Rules

No prejudice to respondent where the petition did not fully comply with OATH’s Rules in that it did not advise respondent that OATH’s Rules were available on the internet. Dep’t of Environmental Protection v. Golden, OATH Index No. 1686/14 (June 27, 2014).

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), aff'd, BSA No. 165-94-A, reprinted in 80 Bulletin of Bd. of Stds. and Apps. 193 (May 4, 1995), aff'd sub nom. Hiesiger v. City of New York, NYLJ, Nov. 6, 1996, at 26, col. 1 (Sup. Ct. N.Y. Co.).

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).