IN RE: HENRY MYERS P & H (2025)

DECISION & ORDER

In a proceeding pursuant to CPLR article 78 to review a determination of the New York City Office of Administrative Trials and Hearings dated September 22, 2022, which denied the petitioner's motion to vacate its default in appearing at a hearing, the petitioner appeals from a judgment of the Supreme Court, Kings County (Gina Abadi, J.), dated March 15, 2023.  The judgment denied the petition and dismissed the proceeding.

ORDERED that the judgment is affirmed, with costs.

On December 19, 2019, the New York City Department of Buildings (hereinafter DOB) issued a summons to the petitioner for an alleged violation regarding unlocked gas service.  After several adjournments of a hearing on the summons before the New York City Office of Administrative Trials and Hearings (hereinafter OATH), on February 4, 2022, DOB presented a case, and the petitioner asked for an adjournment of the hearing to prepare a defense, which was granted to May 6, 2022.

The petitioner failed to appear at the hearing on May 6, 2022.  OATH granted the petitioner's motion to vacate its default in appearing at the hearing, and a new hearing date was scheduled for Monday, September 12, 2022.  According to the petitioner, on September 9, 2022, three calendar days before the September 12, 2022 hearing date, the petitioner requested a hearing by telephone, and the request was denied pursuant to 48 RCNY 6–24–a(a)(1), which provides:  “(a) No attorney or registered representative may appear by telephone, videoconference, or other similar remote means unless:  (1) No later than noon three (3) business days before the scheduled hearing date, the Tribunal receives from the attorney or registered representative a list of all scheduled summonses in the format required by and made available by the Tribunal.”  The petitioner did not appear at the hearing on September 12, 2022.

The petitioner moved to vacate its default in appearing at the hearing.  In a determination dated September 22, 2022, OATH denied the motion based upon 48 RCNY 6–21, which provides, in part:  “(e) Defaulting twice on the same summons.  (1) If, after a request for a new hearing has been previously granted, a Respondent defaults on the same summons, the second default shall not be eligible for a request for a new hearing.  The second default decision is the Tribunal's final determination and is not subject to review or appeal at the Tribunal.  Judicial review of the decision may be sought pursuant to Article 78 of the New York Civil Practice Law and Rules.  (2) Notwithstanding the forgoing, upon application, the Chief Administrative Law Judge or his or her designee may grant a new hearing after default upon a showing of exceptional circumstances and in order to avoid injustice.”  OATH determined that the petitioner failed to demonstrate exceptional circumstances for its failure to appear on September 12, 2022.

The petitioner commenced this proceeding pursuant to CPLR article 78 to review OATH's determination to deny the petitioner's motion to vacate its default.  As an excuse for its default, the petitioner asserted that its counsel witnessed the first airplane crash into the World Trade Center on September 11, 2001, and from that time has never scheduled anything between September 1 and September 15.  In a judgment dated March 15, 2023, the Supreme Court denied the petition and dismissed the proceeding.  The petitioner appeals.

Judicial review in this proceeding pursuant to CPLR article 78 is limited to whether there is a rational basis in the record for the determination and whether the determination was arbitrary and capricious (see Matter of Heintz v. Brown, 80 N.Y.2d 998, 1001, 592 N.Y.S.2d 652, 607 N.E.2d 799).  Here, OATH's determination to deny the petitioner's motion to vacate its default had a rational basis and was not arbitrary and capricious.  The petitioner was ruled in default for failure to follow proper procedures and failure to demonstrate exceptional circumstances for its failure to appear at the hearing on September 12, 2022.

The excuse for failure to appear at the hearing allegedly was trauma experienced by the petitioner's counsel some 21 years earlier, on September 11, 2001.  However, there was no corroborative evidence submitted of mental trauma, such as an affirmation from a psychologist.  As this Court noted in (Moore v. Moore, 216 A.D.3d 938, 939, 191 N.Y.S.3d 55), “[a]lthough a court has discretion to accept ill health of a litigant's attorney as an acceptable excuse for a default, a conclusory and unsubstantiated claim of ill health should be rejected” (citations omitted).

The petitioner's remaining contentions are without merit.

BARROS, J.P., BRATHWAITE NELSON, WARHIT and MCCORMACK, JJ., concur.