This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 120
In the Matter of Frank Mestecky,
            Appellant,
        v.
City of New York, et al.,
            Respondents.




          Christopher F. Mestecky, for appellant.
          Max McCann, for respondents.




DiFIORE, Chief Judge:
          New York City Charter § 1049-a(d)(2) permits the use of
affix and mail service of Notices of Violation (NOVs) issued by
Department of Building (DOB) inspectors who discover building
code violations, but only after there has been "a reasonable
attempt" to deliver the notice "to a person in such premises upon


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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" (see NY City Charter § 1049-a[d][2][b]).     The
question presented is whether, prior to use of the affix and mail
procedure, the City Charter requires more than a single attempt
to personally serve the NOV at the premises.
            The Environmental Control Board (ECB), a division of
the City's Office of Administrative Trials and Hearings,
adjudicates certain violations of the New York City Charter and
Administrative Code, including violations of the building code.
Petitioner owns residential property on Union Turnpike in New
Hyde Park.    In the determinations challenged in this proceeding,
the ECB found that between October 2011 and June 2012, DOB
inspectors issued nine NOVs for code violations observed at the
property.    Each NOV identified the nature of the alleged
violation and contained a statement, made under penalty of
perjury, describing the inspector's unsuccessful effort to
personally serve the NOV at the premises.    For example, with
respect to three NOVs issued in December 2011, the inspector
explained "female occupants state [premises owner] does not live
there -- refused [to] accept service."    Three NOVs posted in June
2012 state: "No response to doorbell -- knocks at front storm
door -- waited 5 minutes."    In each instance, after a single
unsuccessful attempt at personal service, the inspector used the
"alternate service" procedure, affixing the NOV in a conspicuous


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place.   Additional documentary proof indicated that copies of the
NOVs were mailed to petitioner at the premises address and, for
NOVs issued after February 2012, at his home in Bayside, Queens.
          Petitioner's failure to appear on the hearing dates
directed on the NOVs resulted in administrative default judgments
imposing fines and penalties.    With respect to seven of the nine
NOVs, petitioner successfully moved to vacate the defaults.     At
two hearings consolidating challenges to those NOVs, petitioner
denied having received any of the NOVs and argued, among other
things, that they were not properly served because more than one
attempt at personal service is required prior to use of the
alternate affix and mail procedure authorized in New York City
Charter § 1049-a(d)(2)(a)(ii).    That argument was rejected by the
presiding Administrative Law Judges and the ECB sustained the
violations upon administrative appeal.   Petitioner's motions
before the ECB to open the two remaining administrative default
judgments were denied.   Petitioner commenced this CPLR article 78
proceeding challenging the ECB determinations with respect to all
nine NOVs, which was transferred to the Appellate Division.
          The Appellate Division confirmed the determinations,
denied the petition and dismissed the proceeding, concluding that
the agency properly interpreted New York City Charter § 1049-
a(d)(2)(b) to require only one attempt at personal service of an
NOV at the premises prior to resorting to the affix and mail
procedure and, thus, the seven NOVs that were reviewed in the


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administrative hearings were properly served (133 AD3d 431).
That court also held that petitioner's claims with respect to the
two administrative default judgments were time-barred due to his
failure to commence the CPLR article 78 proceeding within four
months of the ECB determinations denying his motions to vacate
those defaults.   The Appellate Division granted petitioner leave
to appeal to this Court, certifying the question of whether its
order was properly made.   We now affirm.
          In statutory interpretation cases, the Court's "primary
consideration 'is to ascertain and give effect to the intention
of the Legislature'" (Matter of DaimlerChrysler Corp. v Spitzer,
7 NY3d 653, 660 [2006], quoting Riley v County of Broome, 95 NY2d
455, 463 [2000]).   The statutory text is the clearest indicator
of legislative intent "and courts should construe unambiguous
language to give effect to its plain meaning" (id.).   When the
statutory language at issue is but one component in a larger
statutory scheme, it "must be analyzed in context and in a manner
that 'harmonizes the related provisions and renders them
compatible'" (Matter of M.B., 6 NY3d 437, 447 [2006] [internal
ellipses and brackets omitted]), quoting Matter of Tall Trees
Constr. Corp. v Zoning Bd. of Appeals of Town of Huntington, 97
NY2d 86, 91 [2001]).   "We have recognized that meaning and effect
should be given to every word of a statute" and that an
interpretation that renders words or clauses superfluous should
be rejected (Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 104


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[2001]).
           New York City Charter § 1049-a(d)(2)(a) begins with a
general provision requiring service of the NOV according to the
rules governing service of process in CPLR article 3 and Business
Corporation Law article 3.   This general provision is followed by
a series of exceptions permitting alternate service procedures in
specified circumstances.   One of the exceptions, relevant here,
addresses NOVs issued by the DOB, where service "may be made by
affixing such notice in a conspicuous place to the premises where
the violation occurred" (NY City Charter § 1049-a[d][2][a][ii]).
After being affixed to the premises, the NOV must be "mailed to
the respondent at the address of such premises" and the ECB must
also review its own files and those of the Department of Housing
Preservation and Development (HPD) and the Department of Finance
(DOF) to identify other addresses for the owner (or owner's
agent) to which the notice must also be mailed (id. § 1049-
a[d][2][b][i], [ii], [iii]).1   This affix and mail procedure may

     1
       These file review provisions appear to dovetail with other
requirements of New York City law, including New York City
Administrative Code § 27-2097, which requires certain non-
resident owners of residential property -- such as petitioner --
to file a registration statement providing a current home and
business address within 10 days of vacating the property.
Although petitioner testified that he moved out of the Union
Turnpike residence in June or July 2011 and that it was occupied
by tenants, there is no indication in the record that, at the
time of his move or in the days or weeks that followed,
petitioner informed DOB, HPD or DOF that he had vacated the
residence or wished to receive premises-related correspondence at
a new address. Petitioner points to a property tax bill that DOF
mailed to him at his Bayside home more than six months later, in

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be used, however, only "where 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" (id. § 1049-a[d][2][b]).
          Citing Matter of First Horizon Home Loans v New York
City Envtl. Control Bd. (118 AD3d 875 [2d Dept 2014]),2
petitioner argues that, by referencing CPLR article 3, New York
City Charter § 1049-a(d)(2)(b) incorporates the CPLR 308(4)
restriction permitting affix and mail service only when personal
delivery (including delivery to a person of suitable age or
discretion) "cannot be made with due diligence."   Noting that
some courts in other contexts have interpreted "due diligence" as
requiring at least three delivery attempts at different times of
day (see e.g. State of New York v Mappa, 78 AD3d 926 [2d Dept
2010]; Johnson v Waters, 291 AD2d 481 [2d Dept 2002]; Matos v
Knibbs, 186 AD2d 725 [2d Dept 1992]; Hochhauser v Bungeroth, 179



February 2012. Evidence that DOF was aware of petitioner's new
address on that date is consistent with ECB's assertion that its
file reviews for NOVs issued in October and December 2011 showed
only the Union Turnpike address but subsequent file reviews for
NOVs issued after February 2012 showed a second address -- the
Bayside residence.

     2
       It is unclear whether First Horizon Home Loans supports
petitioner's argument as it does not reference the "due
diligence" requirement of CPLR article 3 and may be factually
inapposite. However, to the extent the case can be read for the
proposition urged by petitioner, it should not be followed.

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AD2d 431 [1st Dept 1992]), petitioner maintains that the
inspectors' efforts here -- one attempt to deliver the NOV to a
person at the premises -- were insufficient.
           This argument is belied by the structure of the
statute.   Because New York City Charter § 1049-a(d)(2) begins by
stating the general rule that CPLR article 3 service rules apply
"except" in certain enumerated circumstances, the contention that
section 1049-a(d)(2)(b) -- relating to an exception -- requires
strict adherence to CPLR article 3, including the due diligence
standard, is plainly incorrect.   To read the provision this way
would make the exception indistinguishable from the general rule,
thereby rendering it superfluous.    Considered in context, the
only reasonable conclusion is that the cross-reference to CPLR
article 3 and Business Corporation Law article 3 in the exception
was intended to import the provisions of those articles
clarifying the parties or entities who can accept service, such
as the clause permitting delivery to "a person of suitable age
and discretion" (see CPLR 308[2]).     Indeed, this is the most
natural reading of section 1049-a(d)(2)(b) given that the phrase
containing the statutory cross-references directly follows the
clause requiring "a reasonable attempt" to deliver the notice "to
a person in such premises upon whom service may be made."
           Further, the plain language of the relevant statute
speaks in the singular -- "[s]uch notice may only be affixed
. . . where a reasonable attempt has been made" at personal


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delivery -- indicating that only one attempt is required (NY City
Charter § 1049-a[d][2][b] [emphasis added]).   The legislative
history supports this interpretation.    As the Governor's approval
memorandum explains, the affix and mail procedure was added to
the predecessor statute in 1979 to "eliminate the time-consuming,
costly and often unrewarding process now entailed in identifying
and locating the person responsible for the violation"
(Governor's Mem approving L 1979, ch 623, 1979 NY Legis Ann at
366, amending former New York City Charter § 1404).    This point
was echoed by Mayor Koch, who noted that the alternate method of
service could be utilized after "an attempt" at personal service
(Letter of Mayor Koch, Bill Jacket, L 1979, ch 623).   In 1997,
when the affix and mail procedure was made applicable to building
and fire code violations, the legislative history indicates the
measure was needed because of the difficulty inspectors
encountered locating owners of violating properties in order to
serve the NOV, particularly nonresident owners such as petitioner
(see Letter of President of the Borough of Queens, Bill Jacket, L
1997, ch 569, at 9-10).   The relevant charter provisions have
been amended repeatedly over time to liberalize service rules to
address the chronic problem of violators avoiding service.     The
restrictive interpretation urged by petitioner is inconsistent
with this legislative history.
          Moreover, the alternate service procedure authorized by
the statute -- a single attempt to personally deliver the NOV,


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coupled with affixing the NOV to the property and mailing copies
to the owner at the premises and other addresses on file with
related City agencies -- is reasonably calculated to inform
owners of violations relating to their properties.         We therefore
agree with the ECB and the Appellate Division that New York City
Charter § 1049-a(d)(2)(b) permits use of affix and mail service
after a single reasonable attempt by a DOB inspector to
personally deliver the NOV at the premises.
            Finally, the Appellate Division properly concluded that
petitioner's challenge to the two administrative default
judgments is time-barred.     Several of petitioner's remaining
arguments -- such as his claim that the documentary proof of
mailing was deficient due to the absence of affidavits of mailing
-- were not timely raised at the hearing and his other
contentions lack merit.
            Accordingly, the Appellate Division judgment should be
affirmed, with costs, and the certified question not answered as
unnecessary.
*   *   *    *   *   *    *    *    *      *   *   *   *   *   *     *   *
Judgment affirmed, with costs, and certified question not
answered as unnecessary. Opinion by Chief Judge DiFiore.            Judges
Rivera, Stein, Fahey, Garcia, Wilson and Feinman concur.

Decided November 20, 2017




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