DECISION & JUDGMENT

BARBARA JAFFE, Judge.

By notice of petition dated March 30, 2011, petitioner brings this Article 78 proceeding seeking an order directing respondent to dismiss notice of violation (NOV) 140-539-585 for failure to effect proper service of process, or in the alternative, directing respondent to grant him a hearing on the NOV. Respondent opposes.

Judicial review of an administrative agency's decision is limited to whether the decision "was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion, including abuse of discretion as to the measure or mode of penalty or discipline imposed." (CPLR 7803[3]). In reviewing an administrative agency's determination as to whether it is arbitrary and capricious, the test is whether the determination "is without sound basis in reason and . . . without regard to the facts." (Matter of Pell v Bd. of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 N.Y.2d 222, 231 [1974]; Matter of Kenton Assocs., Ltd. v Div. of Hous. & Community Renewal, 225 A.D.2d 349 [1st Dept 1996]).

I. APPLICATION OF 48 RCNY § 3-82

Title 48, chapter 3, section 83 of the Rules of the City of New York (48 RCNY § 3-83) governed vendors' requests for vacatur of defaults until April 4, 2010, when it was repealed and 48 RCNY § 3-82 was amended to include guidelines for such requests. (City Record, Mar. 5, 2010 at 506-07).

Here, petitioner's counsel asserts, "upon information and belief," that petitioner first requested a new hearing in the "beginning of 2009." (Ver. Pet.). Petitioner offers a copy of a request date stamped December 2, 2009 (id., Exh. B), a verification page reflecting that on June 8, 2010 his counsel sent a copy of the December 2 request to ECB via facsimile transmission (id., Exh. C), correspondence from ECB indicating that it received the June 8 facsimile (id., Exh. D), and a copy of a new request dated November 1, 2010 (id., Exh. E).

As petitioner offers no evidence that he made a request in early 2009, the recipient's name on the December 2 date stamp is illegible, and ECB denies having received these requests, absent any proof of service for the December 2 request, the earliest date on which he may be considered to have requested a new hearing is June 8, 2010. Accordingly, respondent's determination that 48 RCNY § 3-82 governs petitioner's request for vacatur of his default is neither arbitrary nor capricious.

II. REQUIREMENTS FOR VACATUR OF DEFAULT

Pursuant to 48 RCNY § 3-82, a vendor requesting a new hearing on an NOV more than 45 days after defaulting must, as pertinent here, demonstrate that "there is a reasonable basis to believe" that he never received the NOV because he was never properly served and that "a new hearing was requested within one year of the time [he] learned of the existence of the violation." (48 RCNY § 3-82[c][1][a]).

New York City Charter § 1049-a(d)(2)(a) provides, in pertinent part, that ECB must serve NOVs "in the same manner as is prescribed for service of process by article three of the [CPLR]. . . ." Pursuant to CPLR 308(1), personal service on an individual may be made by, inter alia, "delivering the summons within the state to the person to be served."

Here, respondent's affidavit of service reflects that New York City Police Officer Benny Lopez personally served petitioner with NOV 140-539-585 on February 26, 2004 at 9:04 p.m. at the intersection of 37th Street and Seventh Avenue in Manhattan. (Ver. Ans., Exh. A). However, as a second affidavit of service reflects that Lopez personally served petitioner with a different NOV on the same date at the same time at a different location, the intersection of 32nd Street and Seventh Avenue. (Id., Exh. B). Therefore, as Lopez could not have been in two places at the same time, petitioner has demonstrated that there exists a reasonable basis to believe that he never received NOV 140-539-585.

As respondent's denial of petitioner's request was based solely on its conclusion that its record reflects petitioner's receipt of the NOV (id., Exh. E), it is arbitrary and capricious. Absent any indication that respondent considered whether petitioner established that he requested a new hearing within one year of learning that the NOV existed, and absent any argument by respondent as to same, whether he did so is beyond my the scope of my review.

Accordingly, it is hereby

ORDERED and ADJUDGED, that the petition is granted to the extent that the matter is remanded to respondent for a review of petitioner's request for a new hearing on NOV 140-539-585 consistent with this decision and judgment within 30 days of service of same with notice of entry.