N.Y. General Municipal Law § 384: Commencement of proceedings; default judgments

§ 384. Commencement of proceedings; default judgments. a. The bureau

shall conduct the proceedings authorized by local law in accordance with

this section and with rules promulgated by the director.

b. Such proceedings shall be commenced by the service of notice of

violation. The notice of violation or copy thereof when filled in and

served shall constitute notice of the violation charged, and, if sworn

to or affirmed, shall be prima facie evidence of the facts contained

therein. The notice of violation when sworn to or affirmed shall

constitute the testimony of the signator and, when filed with the bureau

shall be admitted into evidence as such testimony at any hearing on the

violation charged. Every such notice of violation shall state whether

the facts set forth therein are known personally to the signator and if

the facts are not so known the notice of violation shall specifically

identify the source of knowledge of such facts. If the respondent

disputes the facts stated in the notice of violation, the administrative

law judge, where appropriate may reject the signator's facts, accept

facts the respondent offers, or direct the signator's appearance.

c. (1) The form and wording of notices of violation shall be

prescribed by the director. The notice of violation shall contain

information advising the person charged of the manner and the time in

which such person may either admit or deny the violation charged in the

notice. Such notice of violation shall also contain a warning to advise

the person charged that failure to plead in the manner and time stated

in the notice may result in a default decision and order being entered

against such person. The original or a copy of the notice of violation

shall be filed and retained by the bureau and shall be deemed a record

kept in the ordinary course of business.

(2) Every notice of violation shall identify the provision of law

charged and shall set forth the factual basis for the violation. Where a

notice of violation does not contain this information, it shall be

dismissed at the request of the respondent or the administrative law

judge may dismiss the notice of violation upon his or her own motion.

d. Where a respondent has failed to plead within the time allowed by

controlling law or, if there is no such controlling law, by the rules of

the bureau, or has failed to appear on a designated hearing date or a

subsequent date following an adjournment, such failure to plead or

appear shall be deemed, for all purposes, to be an admission of

liability and shall be grounds for rendering a default decision and

order imposing a penalty up to the maximum amount prescribed under law

for the violation charged. A default decision and order may be opened

within one year of its entry upon written application showing excusable

default and a defense to the charge; a default decision and order may

thereafter be opened in the discretion of the director only upon written

application showing excusable default, a defense to the charge, and good

cause for the delay.

e. Any final order of the bureau imposing a civil penalty, whether the

adjudication was had by hearing or upon default or otherwise, shall

constitute a judgment rendered by the bureau against the respondent

which may be entered in the city court or other equivalent court of the

municipality or any other place provided for the entry of civil

judgments within the state, and may be enforced against the respondent

and his, her or its property without court proceedings in the same

manner as the enforcement of money judgments entered in civil actions;

provided however that no such judgment shall be entered which exceeds

the jurisdiction of such city court or other court.

f. Notwithstanding the foregoing provision, before a judgment based

upon a default may be so entered the bureau must have notified the

respondent by first class mail in such form as the director may require;

(1) of the default decision and order and the penalty imposed; (2) that

a judgment may be entered in the city court or other equivalent court of

the municipality or any other place provided for the entry of civil

judgments within the state of New York; and (3) that entry of such

judgment may be avoided by requesting a stay of default for good cause

shown and either requesting a hearing or entering a plea pursuant to the

rules of the bureau within thirty days of the mailing of such notice.

g. The bureau shall not enter any final decision or order unless the

notice of violation shall have been served in the same manner as is

prescribed for service of process by article three of the civil practice

law and rules or article three of the business corporation law, except

that:

(1) service of a notice of violation may be made by delivering such

notice to a person employed by the respondent (A) to work on the

premises the occupancy of which caused such violation, or (B) at the

premises at which the respondent actually conducts the business the

operation of which gave rise to the violation, or (C) at the site of the

work with respect to which the violation occurred, or (D) at the place

at which the violation occurred;

(2) service of a notice of violation may be made by certified mail,

return receipt requested; and

(3) a notice of violation of any code or ordinance relating to the

prevention of noise pollution caused by an audible motor vehicle burglar

alarm or relating to the parking, stopping or standing of a motor

vehicle may be served upon the owner of such motor vehicle by affixing

such notice to such vehicle in a conspicuous place.

h. Proof of service made pursuant to this article shall be filed with

the bureau and, where service is made by certified mail pursuant to

paragraph two of subdivision g of this section, shall include the return

receipt evidencing receipt of the notice served by mail. Service shall

be complete ten days after such filing.

i. Where any final decision or order may not be entered and enforced

as a judgment because the amount of civil penalty exceeds the

jurisdictional amount of the city court or other equivalent court of the

municipality, with respect to actions and proceedings for the recovery

of money, such decision or order may be enforced by the commencement of

an action or proceeding for the recovery of such civil penalties in a

court of competent jurisdiction by the municipality.

j. Where service of a notice of violation is not made in a manner

authorized by law for the violation charged, it shall be dismissed at

the request of the respondent or the administrative law judge may

dismiss the notice of violation upon his or her own motion.