Preview
FILED: QUEENS COUNTY CLERK 04/19/2023 02:14 AM INDEX NO. 701472/2023
NYSCEF DOC. NO. 61 RECEIVED NYSCEF: 04/19/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
Index # 701472/2023
ARB PARK INC.
Petitioner, REPLY AFFIRMATION IN
SUPPORT OF VERIFIED
– against - PETITION
THE NEW YORK STATE DEPARTMENT OF Hon. Judge Mojgan C. Lancman
TRANSPORTATION, the STATE OF NEW YORK, MR.
THOMAS C. PARISI, MS. KATHLEEN JOY, MS. Motion Seq. #001
NICOLE JONES, MR. RICHARD SZELES and MR.
LOUIS DELGIACCO. Reply Due: April 19, 2022
Respondents,
Return Date: April 26, 2023
REPLY AFFIRMATION IN SUPPORT OF VERIFIED PETITION
April 19, 2023
Vincent Miletti, Esq.
THE LAW OFFICES OF VINCENT MILETTI, ESQ.
10 Halletts Point # 1742
Astoria, New York 11102
609-353-6287 (Office)
609-554-7927 (Fax)
VMiletti@Milettilaw.com (Email)
Attorney for Petitioner
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TABLE OF AUTHORITIES
CASES PAGE
300 Gramatan Ave. Assoc. v. New York State Division of Human Rights, 45 N.Y.2d 176, 182- 18
83 (1978)
Asher v. Abbott Labs, 763 N.Y.S.2d 555, 556 (2003). 25
BHOD v. City of New York, 22 Misc. 3d 1136(A) (2009) 33
Binh v. Bagland USA, Inc., 286 A.D.2d 613, 730 N.Y.S.2d 317 (2001) 22
Cillo v. Resjefal Corp., 295 A.D.2d 257 (2002) 22
County of Nassau v. Canavan, 1 N.Y.3d 134, 139-40 (2003) 28
Duffy v Schenck, 73 Misc 2d 72, 73 (1973) 11
Empire City Bank, 18 N. Y., 200; See Happy v. Mosher, 48 N. Y., 313. 10
Georgian Motel Corp. v. New York State Liqour Auth., 206 A.D.2d 761) 32
Herald Co. v. Feurstein, 3 Misc. 3d 885, 890 (2004) 34
Kelly v Blum, 93 Misc 2d 896, 897 (1978) 20
Legal Aid Soc. v. New York State Dep't of Corr. & Cmty. Supervision, 962 N.Y.S.2d 773, 776 34
(2013)
Matter of Castracan v Colavita, 173 AD2d 924 (1991) 12
Matter of O'Brien v Pordum, 120 AD3d 993 (2014) 12
Matter of Posada v New York State Dept. of Health, 75 A.D.3d 880 (2010) 12
Matter of Town of Clarkstown v Howe, 206 AD2d 377, 377 8
Matter of Schachter v Sobol, 213 AD2d 551, 552 8
Matter of Russo v New York State Dept. of Motor Vehicles, 181 AD2d 774, 775 8
Matter of Grant v Senkowski, 95 NY2d 605, 609 8
Matter of Schanbarger v New York State Commr. of Social Servs. (99 AD2d 621, 622, lv 8
dismissed 62 NY2d 604)
Matter of Chem-Trol Pollution Servs. v Ingraham (supra) 8
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Matter of Pell v. Board of Education, 34 N.Y.2d 222, 231 (1974) 18
McCambridge v. McGuire, 62 N.Y.2d 563, 568 (1984) 17
Mook v. Homesafe America, Inc., 144 A.D.3d 1116 (2016) 24
Mupic Liqs. v NY State Liq. Auth., 212 AD2d 793 (1995) 27
Nespoli v. Doherty, 17 Misc. 3d 1117(A) (2007) 32
New York Times Co. v. City of New York Comm'n on Human Rights, 41 N.Y.2d 345 (1977) 17
Petronis v. State of New York, 170 Misc. 223; cf. Supplementary Practice Comment of Professor 11
Joseph M. McLaughlin, McKinney's Cons. Laws of N. Y., Book 7B, CPLR § 2214, 1972-1973
Prince v. City of New York, 108 A.D.3d 114 (2013) 28
Phillips v Town of Clifton Park Water Auth., 215 A.D.2d 924 (1995) 12
Pleasant Valley v. New York State Bd. of Real Prop. Srvs., 253 A.D.2d 8, 16 [1999] 33
Reaves v. Kessler, No. 654485/2015, 2017 N.Y. Misc. LEXIS 2257, 2017 WL 2482948 (2017) 25
Stork Restaurant v. Boland, 282 N.Y. 256 (1940) 18
S. M. Wolff Co. v. Tulkoff, 9 N.Y.2d 356 (1961). 24
Sylmark Holdings, Ltd. v. Silicone Zone Int'l Ltd., 5 Misc. 3d 285, 302 (2004) 33
Teresta v. City of New York, 304 N. Y. 440 11
Town of Pleasant Valley, 253 A.D.2d at 15 33
Troy v. Sobol, 216 A.D.2d 661 (1995) 8
United States v. Bajakajian, 524 U.S. 321, (2003) 29
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STATUTES PAGE
CPLR § 2106 1
CPLR § 7803 17
CPLR § 7804 6
CPLR § 7805 25
CPLR § 7804 (c) 7
CPLR § 78 8
CPLR § 205 (a)
9
CPLR § 2214, 1972-1973 11
CPLR § 7804(f) 12
CPLR § 7804 (g) 14
CPLR § 7804 (h) 14
CPLR § 7803(3) 27
CPLR § 7803(4) 18
CPLR § 2104 21
CPLR § 2201 24
CPLR § 3116 24
CPLR § 3116(a) 22
N.Y. Pub. Off. Law § 87(2) 33
N.Y. Pub. Off. L. § 89(3)(a) 34
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Vincent Miletti, Esq., an attorney duly admitted to practice law in the Federal Courts
located in the State of New York, pursuant to CPLR § 2106, affirms to the following under the
penalties of perjury:
1. I am an attorney duly admitted to practice law in the Supreme Court of the State of
New York, Queens County, and I am the owner of the Law Office of Vincent Miletti, Esq., and I
am the attorney for the named Plaintiff, ARB PARK, INC (“ARB” or “Plaintiff”). As such, I am
fully familiar with the facts and circumstances of this case. I make this affirmation based upon a
review of records maintained by Plaintiff, my discussions with Plaintiff, my personal knowledge,
and a file maintained in this law office.
2. I submit this Reply Affirmation in Further Support of Our Verified Petition
(“Reply”) seeking judgment (a) annulling the Final Order that was determined by the Respondent,
ruling that Petitioner would be required to pay a total of $197,000 within 120 days of the Final
Order; (b) annulling the Notice of Violation, dismissing it in its entirety, on the grounds that it was
arrived at by way of an arbitrary and capricious logic that was further in violation of the law; (c)
directing Respondent to either engage in discussions with Petitioner in order to facilitate future
permissible use or permit the Petitioner to bid on the Use Permit in the future; (d) granting
Petitioner reasonable attorney’s fees, all court costs, expenses, and disbursements incurred by
Petitioner in defending this action herein; and (e) granting Petitioner such other and further relief
as the Court may deem just and proper.
3. In opposition to ARB’s verified petition, the Respondent, the New York State
Department of Transportation ("DOT"), has submitted their "Verified Answer" (Answer, Doc. #
22), which appears to intentionally drive the reader into a convoluted set of facts which contradicts
itself between paragraphs. For instance, in ¶ 8, the DOT denies the past employment of Mr. Parisi.
However, in ¶ 15, he admits that he is "no longer" an employee of the DOT. Another example is ¶
22, where they refer to the emails between Ms. Jones and Mr. Bhally but still somehow dispute
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the text contained in those emails at ¶ 24. The DOT simply is unable to take a consistent position
because it is a pattern and practice at the DOT to simply muddy the base to make up for the fact
that they do not know what they are doing. By confusing all the underlying facts, they create a
situation where they could look to correct their past error in hindsight. They focus on the fine
minutia creating a scenario where unnecessary facts and assumptions are discussed and created to
reach their conclusion—what occurs is known as "Occam's Razor.1." When you have a situation
involving Occam's Razor, or in other words, where there are "multiple competing theories, the
simpler explanation is to be preferred."
4. The reality is we do not need to muddy the facts or create unnecessary theories to
get to the simple conclusion that was desired in the Verified Petition (See Verified Petition ¶ 1)—
while we argued that the Notice of Violation (“NOV”) was on its face improper, on grounds that
it (i) failed to name the proper party, (ii) failed to satisfy the necessary elements of the statute
required to enforce the violation, (iii) was precluded by the temporary easement on the lot as a
result of the acts of the DOT, (iv) failed to permit the proper party on the location, AARDWOLF
PARKING, LLC, the ability to cure the alleged violation, (v) was used as a tool by the DOT to
improperly block the Respondent from curing the alleged violation; and (vi) should have been
already moot as the DOT was estopped from enforcing the NOV as to AARDWOLF PARKING,
LLC, as it continues to ignore Aardwolf’s Parking, LLC’s existence at the Premise, the even more
egregious point here is that the DOT's unilateral rescission of the Settlement Agreement, which
was made in open Court on May 17, 2022 (“Settlement Agreement”), bargained and negotiated
for between the Parties, with consideration paid in the amount of $130,000, memorialized in a
contemporaneous writing provided by the Administrative Law Judge ("ALJ"), Ms. Alicia
1
See Occam's Razor, Encyclopedia [**37] Britannica, http://www.britannica.com/topic/Occams-razor (last visited
April 9, 2023), see Oxford English Dictionary (3d ed. 2004) "[t]he principle that in explaining anything, no more
assumptions should be made than are necessary."
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McNally, on May 17, 2022, was illegal, improper, arbitrary, and capricious and should be rejected
by this Court and immediately dismissed.
5. Taking this a step further, in pursuit of the DOT’s efforts to be simply the most
unhinged agency in New York State, knowing full well that we are engaged in a full dispute
concerning the NOV issued in 2022, the DOT now submits a new Notice of Violation which
essentially looks to seek damages for the same exact dates in question as the Notice of Violation
originally issued on April 1, 2022.
6. On or about March 3, 2023, the Petitioner received a new Notice of Order & Fine,
No. 2023-001, dated February 27, 2023, in which the DOT is looking to recover the same exact
damages that they are looking for from the previous Notice of Order & Fine, No. 2022-0004, dated
April 1, 2022. See Bhally Aff. ¶ 79, EXHIBIT U. Once you consider Index # 909524-21, which is
yet another matter in which the DOT looks to recover on these properties, you realize that the DOT
simply just moves completely arbitrarily with no logic, no reason, and nothing other than simply
to overwhelm their targets using the legal system as a sword and nothing more.
7. For all of the reasons discussed in the Verified Petition (NYSCEF Doc # 1) and the
Reply below, the Prayer for relief in the Verified Petition, as well as the Proposed Order (NYSCEF
Doc. # 29) in which the Petitioner asks this Court for an Order (a) annulling the Final Order that
was determined by the Respondent, that ruled, Petitioner would be required to pay a total of
$197,000 within 120 days of the Final Order; (b) annulling the original NOV, dismissing it in its
entirety, on the grounds that it was arrived at by way of an arbitrary and capricious logic that was
further in violation of the law; (c) directing Respondent to engage in discussions with Petitioner in
order to facilitate future permissible use; (d) granting Petitioner reasonable attorney’s fees, all court
costs, expenses, and disbursements incurred by Petitioner in defending this action herein; and (e)
granting Petitioner such other and further relief as the Court may deem just and proper.
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8. The relevant facts are set forth herein and in the accompanying Affidavit of Abdul
Bhally (“Bhally Aff.”), sworn to on March 11, 2023 (NYSCEF Doc # 27), the underlying Verified
Petition (NYSCEF Doc # 1), the underlying Memorandum of Law (NYSCEF Doc # 26), the
underlying Affirmation of Vincent Miletti (NYSCEF #28), the underlying Counter Certification
of Record (NYSCEF Doc # 30), the Proposed Order (NYSCEF Doc # 29), along with all other
accompanying affidavits and exhibits (NYSCEF Doc(s) #31 - #56) to the aforementioned
documents, all of which are incorporated by reference herein. Note that references to Exhibits are
to those Exhibits submitted with the Petitioners’ Verified Petition and Motion to Strike unless
otherwise stated.
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ARGUMENT IN REPLY
POINT I – SERVICE WAS PROPER & IN ACCORDANCE WITH CPLR § 7804
a) Underlying Facts As It Relates To Service.
9. In the Verified Answer (“Answer”), ¶ 104, the DOT contends that we failed to serve
the Attorney General.
10. First and foremost, there is nothing new about this matter for the Attorney General.
This was originally served on the Attorney General as part of a case captioned ARB Park, Inc. v.
The State of New York, et al., Claim # 137908 ("Underlying Proceeding"). See EXHIBIT 1 herein,
which is a copy of the Affidavit of Service on the Attorney General’s Office dated July 1, 2022.
Just to make sure this was in the hands of the Attorney General's Office, this was preceded by even
sending the letter by certified mail, return receipt requested on June 24, 2022. See EXHIBIT 2.
11. On July 21, 2022, we filed a Verified Complaint as part of the Underlying
Proceeding. EXHIBIT 4 is a copy of the Verified Complaint and the Confirmation Notice. The
Verified Complaint is almost the exact same document, with the exception of the Appeal to the
Final Order dated December 23, 2022 (“Final Order”).
(Screenshot of the Verified Complaint filed as part of the Underlying Proceeding)
12. The Verified Complaint was then served on July 22, 2022, both by email to Ms.
Nicole M. Procida, Esq. at the Attorney General's Office and then by way of Certified Mail,
Signature Confirmation. See EXHIBIT 3.
13. Ms. Nicole Procida, Esq. from the Attorney General's Office, entered her
appearance on August 8, 2022.
14. Ms. Ellen Mendelson, Esq. from the Attorney General's Office, entered her
appearance on September 14, 2022.
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15. On November 30, 2022, Ms. Mendelson specifically argued the facts as they are
raised in this Petition in her Affirmation in Support of the Defendants Motion to Dismiss, See
EXHIBIT 5. Again, the only new information in the attached Verified Petition concerning the
Final Order from December 23, 2022.
16. After the DOT rendered their Final Order dated December 23, 2022, I immediately
filed an appeal on December 30, 2022. See EXHIBIT 6 for a copy of the appeal package. A copy
of this was sent to the Attorney General's Office via Certified Mail, while Return Receipt was
Requested on December 30, 2022.
17. According to the USPS website, this was delivered on January 5, 2023.
(Proof of Delivery of Appeal to Final Order)
18. On January 3, 2023, I was contacted by the NYS Court of Claims and advised that
this should be refiled separately as its own matter.
19. On January 20, 2023, I filed this Verified Petition after fixing the language to
convert it for filing in the Supreme Court of New York, Queens County.
b) Under CPLR § 7804, While Service On The Agency Is Critical, Service on the
Attorney General Is Secondary, And Statute of Tolled Once Agency Is Served.
20. Pursuant to CPLR § 7804 (c), while we contend that the Attorney General was
properly put on notice of this matter long even prior to this filing, a plain reading of the statute
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teaches us that the Attorney General is not the primary focus, but rather is only in addition to the
direct adverse party:
(c) Time for service of notice of petition and answer. Unless the court grants an
order to show cause to be served in lieu of a notice of petition at a time and in a
manner specified therein, a notice of petition, together with the petition and
affidavits specified in the notice, shall be served on any adverse party at least
twenty days (20) before the time at which the petition is noticed to be heard.
An answer and supporting affidavits, if any, shall be served at least five days before
such time. A reply, together with supporting affidavits, if any, shall be served at
least one day before such time. In the case of a proceeding pursuant to this article
against a state body or officers, or against members of a state body or officers whose
terms have expired as authorized by subdivision (b) of section 7802 of this chapter,
commenced either by order to show cause or notice of petition, in addition to the
service thereof provided in this section, the order to show cause or notice of
petition must be served upon the attorney general by delivery of such order or
notice to an assistant attorney general at an office of the attorney general in the
county in which venue of the proceeding is designated, or if there is no office of
the attorney general within such county, at the office of the attorney general nearest
such county. In the case of a proceeding pursuant to this article against members of
bodies of governmental subdivisions whose terms have expired as authorized by
subdivision (b) of section 7802 of this chapter, the order to show cause or notice of
petition must be served upon such governmental subdivision in accordance with
section 311 of this chapter.
21. Thus, a plain reading of the text of the statute teaches us that service is primarily
effective against the adverse party, which for all purposes is the Department of Transportation.
The Attorney General is simply "in addition to” – and as such, while we argue that the Attorney
General was served and put on notice a long time ago, even if there was an issue, it should still not
result in a dismissal, but rather, a non-fatal error that can be easily cured.
22. Courts have also read the statute in the same fashion. Courts have interpreted the
text of CPLR § 7804 (c) to treat service on the Attorney General as secondary, or otherwise, "in
addition to," as opposed to primary service which is to be made against the agency.
23. As the Appellate Division has held, where such proceeding is commenced against
a State body or officer, “in addition to the service … provided in this section, the order to show
cause or notice of petition must be served upon the Attorney General.” Notably, the statute does
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not authorize service to be made solely upon the Attorney General in lieu of service upon an
adverse party or even as the primary party.
24. Indeed, service of papers upon the Attorney General has been found secondary to
that over a State official named as a respondent in a CPLR § 78 proceeding (see, Matter of
Schachter v Sobol, 213 AD2d 551, 552; Matter of Town of Clarkstown v Howe, 206 AD2d 377,
377; Matter of Russo v New York State Dept. of Motor Vehicles, 181 AD2d 774, 775).
25. In this instance, there should be no objection that the proceedings were timely
commenced (see, CPLR 1101 [f]; Matter of Grant v Senkowski, 95 NY2d 605, 609) and
Petitioner, as the party who initiated the proceedings, has consistently been serving both the
Attorney General as well as the DOT.
26. On January 3, 2023, the Court of Claims suggested that this should be filed in a
different forum and returned what was originally a filing within the Court of Claims. This sort of
technicality should not be fatal, and rather, the correction as made (see CPLR 2001) should simply
be one of a mere technicality, and the Court should disregard this in the interest of justice.
27. Additionally, the party to be properly served here was the Department of
Transportation, which there is no dispute. In the Courts of New York, when a State Agency is
properly served, or in the instance of the City, the Commissioner, service on the Attorney General
is properly tolled.
28. In Troy v. Sobol, 216 A.D.2d 661 (1995), the Court held that service upon the
Commissioner tolled the statute of limitations. This is particularly the case when late service on
the attorney general does not in any manner impede the defense of the action by the state.
29. In a related setting, the Court in Matter of Schanbarger v New York State Commr.
of Social Servs. (99 AD2d 621, 622, lv dismissed 62 NY2d 604), citing to Matter of Chem-Trol
Pollution Servs. v Ingraham (supra), held that failure to serve the Attorney General was not a
ground for dismissal of the proceeding where the underlying Agency was properly and timely
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served, and was to be considered a timely commencement for purposes of a later recommencement
of the proceeding under CPLR § 205 (a).
30. What makes this matter even more silly is that the Attorney General was on full
notice for months. This was achieved through numerous communications and several underlying
proceedings involving the Attorney General's Office with this very Petitioner, all of which were
placed on the public record and delivered with signature confirmation, which implies that, as a
matter of fact, the Attorney General was on complete notice of the matter.
31. The Court should simply follow the reasoning espoused in the Matter of Chem-Trol
Pollution Servs. v Ingraham (supra), which held that CPLR § 7804 (c), in its current iteration, is
not intended to impede Petitioners, who had timely served the parties in interest. The entire purpose
of the statute was simply to ensure that the State Agency responds to the matter at hand.
32. Keep in mind that the DOT, at all times, was represented by attorneys both for the
DOT and the Attorney General’s Office. The Attorney General’s Office has been involved in this
matter since at least August 2022, when Ms. Procedia, Esq. made her appearance on behalf of the
DOT and OAG.
33. While we contend service was effective, even if it is considered to be ineffective
elsewhere, the fact is that service on the OAG, whether it was late or even lack thereof, did not in
any manner impede the defense of this particular filing and, therefore, the intention and purposes
of the statute are still maintained.
34. In this case, the OAG argues that the Court lacks jurisdiction over the proceedings
because the OAG at the Albany Office was not served—while we contend this is incorrect—either
way, it is simply not fatal—and particularly because the defense of the DOT was not impeded or
prejudiced in any manner at all.
35. The record discloses that the Attorney General was served on numerous occasions,
had a continuous dialogue with Petitioner’s Counsel, and was fully appraised of all facts
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concerning this matter. At best, this failure is a harmless error as to a technicality in the statute.
However, it is not fatal and does not require a dismissal of the petition, which may simply be
remedied going forward.
c) Regardless, As The Attorney General’s Office Has Been On Notice of These Claims
Since At Least August 2022, They Have Been On Notice & Able To Mount A Defense.
36. The purpose and object of all service of process, including to State Agencies, is “to
give notice to the party on whom service is made, that he may be aware of and may resist what is
sought of him, and it is a general rule that any service must be deemed sufficient which renders it
reasonably probable that the party proceeded against will be apprised of what is going on against
him, and have an opportunity to defend.” In re Empire City Bank, 18 N. Y., 200; See Happy v.
Mosher, 48 N. Y., 313.
37. This common sense rule has been adopted, and wherever service by means other
than personal delivery has been held ineffectual, it has been because the circumstances were such
as to show that (a) the defendant did not come into actual possession of the papers, (b) that the
defendants' attention was not drawn to their character, or (c) that a defendant willfully ignored
them and refused to ascertain their nature for the purpose of evading service. See In re Barbara,
14 Misc 2d 223 (1958).
d) Considering The Level Of Involvement, Any Argument Looking To Evade Service
Should Be Waived By The Respondent.
38. In this case, this has been a hotly debated matter, with motions filed back and forth
over multiple forums. In fact, if you do just a brief background into this matter, you'll find that the
DOT is actually looking to recover for the same piece of property over multiple forums and, in
each case, seeking a windfall as to the damages.
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39. In the particular circumstances herein, even if service were ineffective on the OAG,
pursuant to the statute, regardless, any alleged failure to serve the Attorney General as
jurisdictional would rather be a mere technical defect, which should be considered waived.
40. The OAG did not enter this matter solely for the purposes of objecting to
jurisdiction but instead makes the same arguments they have made in the same forums as identified
above. In this case, there has been no prejudice, the OAG had suffered no detriment in being able
to defend the DOT, and the OAG’s motion to dismiss the Verified Petition for purposes of
improper service should be denied. See Teresta v. City of New York, 304 N. Y. 440; Petronis v.
State of New York, 170 Misc. 223; cf. Supplementary Practice Comment of Professor Joseph M.
McLaughlin, McKinney's Cons. Laws of N. Y., Book 7B, CPLR § 2214, 1972-1973 Supplement,
See Duffy v Schenck, 73 Misc 2d 72, 73 (1973).
41. In this instance, it is clear that the DOT was not only represented by its own Counsel
in Mr. Thomas Parisi, Esq., then Mr. Louis DelGiacco, Esq. and now by Ms. Carrie Costanzo, Esq.
but also 3 separate representatives from the OAG, Ms. Nicole M. Procida, Esq., Ms. Amanda R.
Stern, Esq. and Ms. Ellen Mendelson, Esq. That means you had 6 separate attorneys representing
the DOT over 5 separate actions, and now suddenly, we have a problem with Service, and they
cannot defend themselves?
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42. This should not be controversial, but any alleged failure to serve the Attorney
General would be, at most, a technical defect that should be disregarded (See CPLR 2001; see also
Duffy v Schenck, 73 Misc 2d 72; See Matter of Castracan v Colavita, 173 AD2d 924 (1991); See
Matter of O'Brien v Pordum, 120 AD3d 993 (2014)
e) Public Policy Favors Resolution On The Merits, Not Technicalities.
43. In New York, including issues involving Agencies, a strong public policy favors
resolution on the merits. See Matter of Posada v New York State Dept. of Health, 75 A.D.3d 880
(2010).
44. Even when the time limits to respond to pleadings and documents are long expired,
the Court has always desired resolution on the merits. See Posada. ("Although the Answer was
indisputably served well after the statutory time limit had expired, CPLR § 7804(f), there was no
suggestion that the delay was purposeful or resulted from any absence of intent to contest the
proceedings. Further, the surgeon did not establish that he was entitled to the relief he sought or
that any prejudice resulted from the delay. Matter of Posada v New York State Dept. of Health, 75
A.D.3d 880, 907 N.Y.S.2d 322, 2010 N.Y. App. Div. LEXIS 6207 (N.Y. App. Div. 3d Dep't), app.
denied, 15 N.Y.3d 712, 912 N.Y.S.2d 576, 938 N.E.2d 1011, 2010 N.Y. LEXIS 3022 (N.Y. 2010).
45. Here, there is no delay, no prejudice on the Attorney General’s Office, and the
Attorney General had a full opportunity to respond and defend the DOT. See Phillips v Town of
Clifton Park Water Auth., 215 A.D.2d 924 (1995).
POINT II – AS TO PROPER PARTIES, THE PARTIES WERE PROPER AS THEY ALL
WERE INVOLVED IN THE DETERMINATION.
a) Each of the Named Individuals Participated In The Final Determination, This Should
Be Revisited In Discovery; Dismissal Is Premature At This Time.
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46. At ¶ 112 of the Verified Answer, the Respondent teaches us that a party who did
not render the challenged determination is an improper party to an Article 78 proceeding, citing to
Matter of La Russo v. Neuringer, 105 A.D.3d 743 (2013).
47. Individual Respondent, Mr. Thomas Parisi, was Lead Counsel for the DOT during
the May 2022 Hearing, along with Ms. Kathleen Joy, serving as the Director of Right of Way.
During the proceedings, Mr. Parisi was replaced by Mr. Louis DelGiacco as Lead Counsel. At the
agency level, these were the 3 parties individually responsible for the Notice of Violation at issue
here. Once the matter went up for Appeal, the Final Order was rendered by Mr. Dustin Howard
("Howard").
48. Individual Respondents, Ms. Nicole Jones ("Jones"), as Real Estate Specialist and
Property Manager, and Mr. Richard Szeles (“Szeles”), as Real Estate Specialist and Property
Manager, were responsible for the underlying enforcement issues and named as responsible parties
due to their involvement in this matter.
49. While the Petitioner will admit and is willing to dismiss Individual Respondent
Jones and Szeles, based on the information currently in possession of the Petitioner, it is our
understanding that Mr. Parisi, Ms. Joy, and Mr. DelGiacco (who ultimately replaced Mr. Parisi)
were directly involved, in their capacities as employees of the DOT, in the rendering of the
determination in this matter and should not be dismissed at this time.
50. Should this matter continue into discovery, the Petitioner will readily dismiss Ms.
Jones and Mr. Szeles. At the same time, we will also seek to implead Mr. Howard as one of the
parties who rendered the challenged determination, specifically the Final Order, in which he
proudly expressed his individual contribution toward the determination, often referring to himself
in the first person in the Final Order.
POINT III – TRANSFER TO APPELLATE DIVISION IS PREMATURE, CPLR §
7804(g) REQUIRES PRELIMINARY MATTERS ADDRESSED AT MINIMUM.
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a) At this time, there is no “mandatory transfer” Appellate Division, as transfer at this
time would be premature, and there are questions to be addressed by the Supreme
Court at this time.
51. In the Verified Answer at ¶ 116, the Respondent contends that this matter requires
a mandatory transfer to the Appellate Division and introduces the statutory text at ¶ 117,
referencing CPLR § 7804 (g).
52. However, the clear text of the statute does not teach us that by the nature of its
filing, it must immediately go to the Appellate Division. As this is an issue of substantial
evidence, then CPLR § 7804 (h) is triggered, and the issues of fact, as well as those terminable
issues, including but not limited to lack of jurisdiction, the statute of limitations and res judicata,
shall be tried by a referee or by a justice of the Supreme Court and the verdict, report or decision
rendered after the trial shall be returned to, and the Order thereon made by the appellate division.
See CPLR § 7804 (h).
53. In fact, according to the 1990 Advisory Committee, CPLR § 7804 (g) was amended
to make clear that the Supreme Court was required to filter through matters and reach decisions
based on issues such as the First Defense, the Jurisdictional Issue, or the Second Defense, Proper
Parties, etc. before the Appellate Division should consider the substantial evidence question. This
sort of filtering of preliminary issues through the trial Courts is designed to provide relief for
already congested Appellate Division calendars.
54. Respondent is incorrect in their interpretation of CPLR § 7804 (g) as this is not a
matter that is solely limited to substantial evidence, but rather, as a result of the OAG’s specific
arguments and talking points, there must now be a determination, pursuant to CPLR § 7804 (h),
addressing issues that would result in a termination of the proceeding.
b) The Respondent cannot consistently apply their own standard in CPLR § 7804 as to
whether or not this Court should rule on the “Substantial Evidence” issues.
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55. It is ironic that in the Third Defense, we are told that issues of substantial evidence
are to be immediately transferred to the Appellate Division (Answer ¶ 117) and that the Supreme
Court has no substantive jurisdiction to address substantive legal issues or issues of substantial
evidence (Verified Answer ¶ 118), but in the same breath, tell us that the determination of Ms.
Howard that Petitioner violated Highway Law § 52 is supported by substantial evidence in the
record.
56. Somehow, according to the OAG, the questions of substantial evidence only
mandate transfer to the Appellate Division if the Petitioner raises the issue. Meanwhile, if the
Respondent raises the issue, it is ripe for determination by the Supreme Court. Certainly, someone
should advise the OAG that you can't have your cake and eat it too.
57. Contrary to the Respondents' narrative, the Petitioner, ARB Park, Inc., did not enter
the Premise to operate a park and fly lot. Quite the contrary, which is also fully known to the DOT,
the specific entity on the Premise functioning as a Parking Lot, is Aardwolf, as they signed a 10-
year sublease as a subtenant of Fleet Recovery Services, Inc. ("Fleet") (Bhally Aff. ¶ 9, ¶10). In
fact, the DOT knew full well that it was Aardwolf as subtenant as they specifically authorized
Aardwolf's right to use on March 28, 2018 (See EXHIBIT B).
58. Aardwolf also had 3 other necessary partners involved, including Mr. Usama M.
Raja, Mr. Asif S. Cheema, and Mr. Haider Khursid (Bhally Aff., ¶ 3, EXHIBIT A). By 2021, I was
terminated from my position as a partner of Aardwolf, which implied that the only necessary
partners to the company were Mr. Usama M. Raja, Mr. Asif S. Cheema, and Mr. Haider Khursid
(Bhally Aff., ¶ 26, EXHIBIT T).
59. Contrary to what the OAG discusses in their Answer, ¶ 129, the evidence in the file
also shows Aardwolf as operating the parking lot function. Actually, it has images as such, but the
DOT willfully ignores this for some unknown reason.
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60. Contrary to the OAG's discussions at ¶ 130 in the Answer, the Petitioner submitted
a tremendous amount of information in support of the notion that the NOV was asserted against
the incorrect party, and in fact, the DOT and Mr. Howard, personally, simply ignored the
presentation of the evidence at the August 30, 2022 hearing.
61. The Certification of Record (“Certification”) offered by Mr. Howard is incomplete
at best and just adds more fuel to the fire and our position that the DOT just simply ignores rules,
laws, and facts. On March 12, 2023, we moved for a Motion to Strike, requesting that the
Certification be stricken based on the grounds that it was scandalously filed and resulted in
substantial prejudice suffered by the Petitioner.
62. Mr. Howard failed in his obligations under the statute, particularly § 306(2) & (4)
respectively, to admit all evidence in possession of the agency and should be made as part of the record.
Furthermore, as the record was clear on its face, it should have been incorporated and admitted by
reference. Had Mr. Howard acted fairly and reasonably, he would have invoked § 306(4) and taken
judicial notice of the evidence submitted by the Petitioner, as the evidence came directly from the
DOT's internal records and emails, with no adulteration by the Petitioner.
63. For a more complete discussion concerning the proper actions taken by Mr. Howard,
as it concerns admissible evidence and proofs, we refer your attention to the Memorandum of Law in
Support of our Motion to Strike, filed on March 12, 2023 (NYSCEF # 26).
64. I'm more than happ
Preview
FILED: QUEENS COUNTY CLERK 04/19/2023 02:14 AM INDEX NO. 701472/2023 NYSCEF DOC. NO. 61 RECEIVED NYSCEF: 04/19/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS Index # 701472/2023 ARB PARK INC. Petitioner, REPLY AFFIRMATION IN SUPPORT OF VERIFIED – against - PETITION THE NEW YORK STATE DEPARTMENT OF Hon. Judge Mojgan C. Lancman TRANSPORTATION, the STATE OF NEW YORK, MR. THOMAS C. PARISI, MS. KATHLEEN JOY, MS. Motion Seq. #001 NICOLE JONES, MR. RICHARD SZELES and MR. LOUIS DELGIACCO. Reply Due: April 19, 2022 Respondents, Return Date: April 26, 2023 REPLY AFFIRMATION IN SUPPORT OF VERIFIED PETITION April 19, 2023 Vincent Miletti, Esq. THE LAW OFFICES OF VINCENT MILETTI, ESQ. 10 Halletts Point # 1742 Astoria, New York 11102 609-353-6287 (Office) 609-554-7927 (Fax) VMiletti@Milettilaw.com (Email) Attorney for Petitioner REPLY AFFIRMATION IN SUPPORT OF VERIFIED PETITION | Index # 701472/2023 1 of 41 FILED: QUEENS COUNTY CLERK 04/19/2023 02:14 AM INDEX NO. 701472/2023 NYSCEF DOC. NO. 61 RECEIVED NYSCEF: 04/19/2023 TABLE OF AUTHORITIES CASES PAGE 300 Gramatan Ave. Assoc. v. New York State Division of Human Rights, 45 N.Y.2d 176, 182- 18 83 (1978) Asher v. Abbott Labs, 763 N.Y.S.2d 555, 556 (2003). 25 BHOD v. City of New York, 22 Misc. 3d 1136(A) (2009) 33 Binh v. Bagland USA, Inc., 286 A.D.2d 613, 730 N.Y.S.2d 317 (2001) 22 Cillo v. Resjefal Corp., 295 A.D.2d 257 (2002) 22 County of Nassau v. Canavan, 1 N.Y.3d 134, 139-40 (2003) 28 Duffy v Schenck, 73 Misc 2d 72, 73 (1973) 11 Empire City Bank, 18 N. Y., 200; See Happy v. Mosher, 48 N. Y., 313. 10 Georgian Motel Corp. v. New York State Liqour Auth., 206 A.D.2d 761) 32 Herald Co. v. Feurstein, 3 Misc. 3d 885, 890 (2004) 34 Kelly v Blum, 93 Misc 2d 896, 897 (1978) 20 Legal Aid Soc. v. New York State Dep't of Corr. & Cmty. Supervision, 962 N.Y.S.2d 773, 776 34 (2013) Matter of Castracan v Colavita, 173 AD2d 924 (1991) 12 Matter of O'Brien v Pordum, 120 AD3d 993 (2014) 12 Matter of Posada v New York State Dept. of Health, 75 A.D.3d 880 (2010) 12 Matter of Town of Clarkstown v Howe, 206 AD2d 377, 377 8 Matter of Schachter v Sobol, 213 AD2d 551, 552 8 Matter of Russo v New York State Dept. of Motor Vehicles, 181 AD2d 774, 775 8 Matter of Grant v Senkowski, 95 NY2d 605, 609 8 Matter of Schanbarger v New York State Commr. of Social Servs. (99 AD2d 621, 622, lv 8 dismissed 62 NY2d 604) Matter of Chem-Trol Pollution Servs. v Ingraham (supra) 8 2 of 41 FILED: QUEENS COUNTY CLERK 04/19/2023 02:14 AM INDEX NO. 701472/2023 NYSCEF DOC. NO. 61 RECEIVED NYSCEF: 04/19/2023 Matter of Pell v. Board of Education, 34 N.Y.2d 222, 231 (1974) 18 McCambridge v. McGuire, 62 N.Y.2d 563, 568 (1984) 17 Mook v. Homesafe America, Inc., 144 A.D.3d 1116 (2016) 24 Mupic Liqs. v NY State Liq. Auth., 212 AD2d 793 (1995) 27 Nespoli v. Doherty, 17 Misc. 3d 1117(A) (2007) 32 New York Times Co. v. City of New York Comm'n on Human Rights, 41 N.Y.2d 345 (1977) 17 Petronis v. State of New York, 170 Misc. 223; cf. Supplementary Practice Comment of Professor 11 Joseph M. McLaughlin, McKinney's Cons. Laws of N. Y., Book 7B, CPLR § 2214, 1972-1973 Prince v. City of New York, 108 A.D.3d 114 (2013) 28 Phillips v Town of Clifton Park Water Auth., 215 A.D.2d 924 (1995) 12 Pleasant Valley v. New York State Bd. of Real Prop. Srvs., 253 A.D.2d 8, 16 [1999] 33 Reaves v. Kessler, No. 654485/2015, 2017 N.Y. Misc. LEXIS 2257, 2017 WL 2482948 (2017) 25 Stork Restaurant v. Boland, 282 N.Y. 256 (1940) 18 S. M. Wolff Co. v. Tulkoff, 9 N.Y.2d 356 (1961). 24 Sylmark Holdings, Ltd. v. Silicone Zone Int'l Ltd., 5 Misc. 3d 285, 302 (2004) 33 Teresta v. City of New York, 304 N. Y. 440 11 Town of Pleasant Valley, 253 A.D.2d at 15 33 Troy v. Sobol, 216 A.D.2d 661 (1995) 8 United States v. Bajakajian, 524 U.S. 321, (2003) 29 3 of 41 FILED: QUEENS COUNTY CLERK 04/19/2023 02:14 AM INDEX NO. 701472/2023 NYSCEF DOC. NO. 61 RECEIVED NYSCEF: 04/19/2023 STATUTES PAGE CPLR § 2106 1 CPLR § 7803 17 CPLR § 7804 6 CPLR § 7805 25 CPLR § 7804 (c) 7 CPLR § 78 8 CPLR § 205 (a) 9 CPLR § 2214, 1972-1973 11 CPLR § 7804(f) 12 CPLR § 7804 (g) 14 CPLR § 7804 (h) 14 CPLR § 7803(3) 27 CPLR § 7803(4) 18 CPLR § 2104 21 CPLR § 2201 24 CPLR § 3116 24 CPLR § 3116(a) 22 N.Y. Pub. Off. Law § 87(2) 33 N.Y. Pub. Off. L. § 89(3)(a) 34 4 of 41 FILED: QUEENS COUNTY CLERK 04/19/2023 02:14 AM INDEX NO. 701472/2023 NYSCEF DOC. NO. 61 RECEIVED NYSCEF: 04/19/2023 Vincent Miletti, Esq., an attorney duly admitted to practice law in the Federal Courts located in the State of New York, pursuant to CPLR § 2106, affirms to the following under the penalties of perjury: 1. I am an attorney duly admitted to practice law in the Supreme Court of the State of New York, Queens County, and I am the owner of the Law Office of Vincent Miletti, Esq., and I am the attorney for the named Plaintiff, ARB PARK, INC (“ARB” or “Plaintiff”). As such, I am fully familiar with the facts and circumstances of this case. I make this affirmation based upon a review of records maintained by Plaintiff, my discussions with Plaintiff, my personal knowledge, and a file maintained in this law office. 2. I submit this Reply Affirmation in Further Support of Our Verified Petition (“Reply”) seeking judgment (a) annulling the Final Order that was determined by the Respondent, ruling that Petitioner would be required to pay a total of $197,000 within 120 days of the Final Order; (b) annulling the Notice of Violation, dismissing it in its entirety, on the grounds that it was arrived at by way of an arbitrary and capricious logic that was further in violation of the law; (c) directing Respondent to either engage in discussions with Petitioner in order to facilitate future permissible use or permit the Petitioner to bid on the Use Permit in the future; (d) granting Petitioner reasonable attorney’s fees, all court costs, expenses, and disbursements incurred by Petitioner in defending this action herein; and (e) granting Petitioner such other and further relief as the Court may deem just and proper. 3. In opposition to ARB’s verified petition, the Respondent, the New York State Department of Transportation ("DOT"), has submitted their "Verified Answer" (Answer, Doc. # 22), which appears to intentionally drive the reader into a convoluted set of facts which contradicts itself between paragraphs. For instance, in ¶ 8, the DOT denies the past employment of Mr. Parisi. However, in ¶ 15, he admits that he is "no longer" an employee of the DOT. Another example is ¶ 22, where they refer to the emails between Ms. Jones and Mr. Bhally but still somehow dispute REPLY AFFIRMATION IN SUPPORT OF VERIFIED PETITION | Index # 701472/2023 5 of 41 FILED: QUEENS COUNTY CLERK 04/19/2023 02:14 AM INDEX NO. 701472/2023 NYSCEF DOC. NO. 61 RECEIVED NYSCEF: 04/19/2023 the text contained in those emails at ¶ 24. The DOT simply is unable to take a consistent position because it is a pattern and practice at the DOT to simply muddy the base to make up for the fact that they do not know what they are doing. By confusing all the underlying facts, they create a situation where they could look to correct their past error in hindsight. They focus on the fine minutia creating a scenario where unnecessary facts and assumptions are discussed and created to reach their conclusion—what occurs is known as "Occam's Razor.1." When you have a situation involving Occam's Razor, or in other words, where there are "multiple competing theories, the simpler explanation is to be preferred." 4. The reality is we do not need to muddy the facts or create unnecessary theories to get to the simple conclusion that was desired in the Verified Petition (See Verified Petition ¶ 1)— while we argued that the Notice of Violation (“NOV”) was on its face improper, on grounds that it (i) failed to name the proper party, (ii) failed to satisfy the necessary elements of the statute required to enforce the violation, (iii) was precluded by the temporary easement on the lot as a result of the acts of the DOT, (iv) failed to permit the proper party on the location, AARDWOLF PARKING, LLC, the ability to cure the alleged violation, (v) was used as a tool by the DOT to improperly block the Respondent from curing the alleged violation; and (vi) should have been already moot as the DOT was estopped from enforcing the NOV as to AARDWOLF PARKING, LLC, as it continues to ignore Aardwolf’s Parking, LLC’s existence at the Premise, the even more egregious point here is that the DOT's unilateral rescission of the Settlement Agreement, which was made in open Court on May 17, 2022 (“Settlement Agreement”), bargained and negotiated for between the Parties, with consideration paid in the amount of $130,000, memorialized in a contemporaneous writing provided by the Administrative Law Judge ("ALJ"), Ms. Alicia 1 See Occam's Razor, Encyclopedia [**37] Britannica, http://www.britannica.com/topic/Occams-razor (last visited April 9, 2023), see Oxford English Dictionary (3d ed. 2004) "[t]he principle that in explaining anything, no more assumptions should be made than are necessary." REPLY AFFIRMATION IN SUPPORT OF VERIFIED PETITION | Index # 701472/2023 6 of 41 FILED: QUEENS COUNTY CLERK 04/19/2023 02:14 AM INDEX NO. 701472/2023 NYSCEF DOC. NO. 61 RECEIVED NYSCEF: 04/19/2023 McNally, on May 17, 2022, was illegal, improper, arbitrary, and capricious and should be rejected by this Court and immediately dismissed. 5. Taking this a step further, in pursuit of the DOT’s efforts to be simply the most unhinged agency in New York State, knowing full well that we are engaged in a full dispute concerning the NOV issued in 2022, the DOT now submits a new Notice of Violation which essentially looks to seek damages for the same exact dates in question as the Notice of Violation originally issued on April 1, 2022. 6. On or about March 3, 2023, the Petitioner received a new Notice of Order & Fine, No. 2023-001, dated February 27, 2023, in which the DOT is looking to recover the same exact damages that they are looking for from the previous Notice of Order & Fine, No. 2022-0004, dated April 1, 2022. See Bhally Aff. ¶ 79, EXHIBIT U. Once you consider Index # 909524-21, which is yet another matter in which the DOT looks to recover on these properties, you realize that the DOT simply just moves completely arbitrarily with no logic, no reason, and nothing other than simply to overwhelm their targets using the legal system as a sword and nothing more. 7. For all of the reasons discussed in the Verified Petition (NYSCEF Doc # 1) and the Reply below, the Prayer for relief in the Verified Petition, as well as the Proposed Order (NYSCEF Doc. # 29) in which the Petitioner asks this Court for an Order (a) annulling the Final Order that was determined by the Respondent, that ruled, Petitioner would be required to pay a total of $197,000 within 120 days of the Final Order; (b) annulling the original NOV, dismissing it in its entirety, on the grounds that it was arrived at by way of an arbitrary and capricious logic that was further in violation of the law; (c) directing Respondent to engage in discussions with Petitioner in order to facilitate future permissible use; (d) granting Petitioner reasonable attorney’s fees, all court costs, expenses, and disbursements incurred by Petitioner in defending this action herein; and (e) granting Petitioner such other and further relief as the Court may deem just and proper. REPLY AFFIRMATION IN SUPPORT OF VERIFIED PETITION | Index # 701472/2023 7 of 41 FILED: QUEENS COUNTY CLERK 04/19/2023 02:14 AM INDEX NO. 701472/2023 NYSCEF DOC. NO. 61 RECEIVED NYSCEF: 04/19/2023 8. The relevant facts are set forth herein and in the accompanying Affidavit of Abdul Bhally (“Bhally Aff.”), sworn to on March 11, 2023 (NYSCEF Doc # 27), the underlying Verified Petition (NYSCEF Doc # 1), the underlying Memorandum of Law (NYSCEF Doc # 26), the underlying Affirmation of Vincent Miletti (NYSCEF #28), the underlying Counter Certification of Record (NYSCEF Doc # 30), the Proposed Order (NYSCEF Doc # 29), along with all other accompanying affidavits and exhibits (NYSCEF Doc(s) #31 - #56) to the aforementioned documents, all of which are incorporated by reference herein. Note that references to Exhibits are to those Exhibits submitted with the Petitioners’ Verified Petition and Motion to Strike unless otherwise stated. REPLY AFFIRMATION IN SUPPORT OF VERIFIED PETITION | Index # 701472/2023 8 of 41 FILED: QUEENS COUNTY CLERK 04/19/2023 02:14 AM INDEX NO. 701472/2023 NYSCEF DOC. NO. 61 RECEIVED NYSCEF: 04/19/2023 ARGUMENT IN REPLY POINT I – SERVICE WAS PROPER & IN ACCORDANCE WITH CPLR § 7804 a) Underlying Facts As It Relates To Service. 9. In the Verified Answer (“Answer”), ¶ 104, the DOT contends that we failed to serve the Attorney General. 10. First and foremost, there is nothing new about this matter for the Attorney General. This was originally served on the Attorney General as part of a case captioned ARB Park, Inc. v. The State of New York, et al., Claim # 137908 ("Underlying Proceeding"). See EXHIBIT 1 herein, which is a copy of the Affidavit of Service on the Attorney General’s Office dated July 1, 2022. Just to make sure this was in the hands of the Attorney General's Office, this was preceded by even sending the letter by certified mail, return receipt requested on June 24, 2022. See EXHIBIT 2. 11. On July 21, 2022, we filed a Verified Complaint as part of the Underlying Proceeding. EXHIBIT 4 is a copy of the Verified Complaint and the Confirmation Notice. The Verified Complaint is almost the exact same document, with the exception of the Appeal to the Final Order dated December 23, 2022 (“Final Order”). (Screenshot of the Verified Complaint filed as part of the Underlying Proceeding) 12. The Verified Complaint was then served on July 22, 2022, both by email to Ms. Nicole M. Procida, Esq. at the Attorney General's Office and then by way of Certified Mail, Signature Confirmation. See EXHIBIT 3. 13. Ms. Nicole Procida, Esq. from the Attorney General's Office, entered her appearance on August 8, 2022. 14. Ms. Ellen Mendelson, Esq. from the Attorney General's Office, entered her appearance on September 14, 2022. REPLY AFFIRMATION IN SUPPORT OF VERIFIED PETITION | Index # 701472/2023 9 of 41 FILED: QUEENS COUNTY CLERK 04/19/2023 02:14 AM INDEX NO. 701472/2023 NYSCEF DOC. NO. 61 RECEIVED NYSCEF: 04/19/2023 15. On November 30, 2022, Ms. Mendelson specifically argued the facts as they are raised in this Petition in her Affirmation in Support of the Defendants Motion to Dismiss, See EXHIBIT 5. Again, the only new information in the attached Verified Petition concerning the Final Order from December 23, 2022. 16. After the DOT rendered their Final Order dated December 23, 2022, I immediately filed an appeal on December 30, 2022. See EXHIBIT 6 for a copy of the appeal package. A copy of this was sent to the Attorney General's Office via Certified Mail, while Return Receipt was Requested on December 30, 2022. 17. According to the USPS website, this was delivered on January 5, 2023. (Proof of Delivery of Appeal to Final Order) 18. On January 3, 2023, I was contacted by the NYS Court of Claims and advised that this should be refiled separately as its own matter. 19. On January 20, 2023, I filed this Verified Petition after fixing the language to convert it for filing in the Supreme Court of New York, Queens County. b) Under CPLR § 7804, While Service On The Agency Is Critical, Service on the Attorney General Is Secondary, And Statute of Tolled Once Agency Is Served. 20. Pursuant to CPLR § 7804 (c), while we contend that the Attorney General was properly put on notice of this matter long even prior to this filing, a plain reading of the statute REPLY AFFIRMATION IN SUPPORT OF VERIFIED PETITION | Index # 701472/2023 10 of 41 FILED: QUEENS COUNTY CLERK 04/19/2023 02:14 AM INDEX NO. 701472/2023 NYSCEF DOC. NO. 61 RECEIVED NYSCEF: 04/19/2023 teaches us that the Attorney General is not the primary focus, but rather is only in addition to the direct adverse party: (c) Time for service of notice of petition and answer. Unless the court grants an order to show cause to be served in lieu of a notice of petition at a time and in a manner specified therein, a notice of petition, together with the petition and affidavits specified in the notice, shall be served on any adverse party at least twenty days (20) before the time at which the petition is noticed to be heard. An answer and supporting affidavits, if any, shall be served at least five days before such time. A reply, together with supporting affidavits, if any, shall be served at least one day before such time. In the case of a proceeding pursuant to this article against a state body or officers, or against members of a state body or officers whose terms have expired as authorized by subdivision (b) of section 7802 of this chapter, commenced either by order to show cause or notice of petition, in addition to the service thereof provided in this section, the order to show cause or notice of petition must be served upon the attorney general by delivery of such order or notice to an assistant attorney general at an office of the attorney general in the county in which venue of the proceeding is designated, or if there is no office of the attorney general within such county, at the office of the attorney general nearest such county. In the case of a proceeding pursuant to this article against members of bodies of governmental subdivisions whose terms have expired as authorized by subdivision (b) of section 7802 of this chapter, the order to show cause or notice of petition must be served upon such governmental subdivision in accordance with section 311 of this chapter. 21. Thus, a plain reading of the text of the statute teaches us that service is primarily effective against the adverse party, which for all purposes is the Department of Transportation. The Attorney General is simply "in addition to” – and as such, while we argue that the Attorney General was served and put on notice a long time ago, even if there was an issue, it should still not result in a dismissal, but rather, a non-fatal error that can be easily cured. 22. Courts have also read the statute in the same fashion. Courts have interpreted the text of CPLR § 7804 (c) to treat service on the Attorney General as secondary, or otherwise, "in addition to," as opposed to primary service which is to be made against the agency. 23. As the Appellate Division has held, where such proceeding is commenced against a State body or officer, “in addition to the service … provided in this section, the order to show cause or notice of petition must be served upon the Attorney General.” Notably, the statute does REPLY AFFIRMATION IN SUPPORT OF VERIFIED PETITION | Index # 701472/2023 11 of 41 FILED: QUEENS COUNTY CLERK 04/19/2023 02:14 AM INDEX NO. 701472/2023 NYSCEF DOC. NO. 61 RECEIVED NYSCEF: 04/19/2023 not authorize service to be made solely upon the Attorney General in lieu of service upon an adverse party or even as the primary party. 24. Indeed, service of papers upon the Attorney General has been found secondary to that over a State official named as a respondent in a CPLR § 78 proceeding (see, Matter of Schachter v Sobol, 213 AD2d 551, 552; Matter of Town of Clarkstown v Howe, 206 AD2d 377, 377; Matter of Russo v New York State Dept. of Motor Vehicles, 181 AD2d 774, 775). 25. In this instance, there should be no objection that the proceedings were timely commenced (see, CPLR 1101 [f]; Matter of Grant v Senkowski, 95 NY2d 605, 609) and Petitioner, as the party who initiated the proceedings, has consistently been serving both the Attorney General as well as the DOT. 26. On January 3, 2023, the Court of Claims suggested that this should be filed in a different forum and returned what was originally a filing within the Court of Claims. This sort of technicality should not be fatal, and rather, the correction as made (see CPLR 2001) should simply be one of a mere technicality, and the Court should disregard this in the interest of justice. 27. Additionally, the party to be properly served here was the Department of Transportation, which there is no dispute. In the Courts of New York, when a State Agency is properly served, or in the instance of the City, the Commissioner, service on the Attorney General is properly tolled. 28. In Troy v. Sobol, 216 A.D.2d 661 (1995), the Court held that service upon the Commissioner tolled the statute of limitations. This is particularly the case when late service on the attorney general does not in any manner impede the defense of the action by the state. 29. In a related setting, the Court in Matter of Schanbarger v New York State Commr. of Social Servs. (99 AD2d 621, 622, lv dismissed 62 NY2d 604), citing to Matter of Chem-Trol Pollution Servs. v Ingraham (supra), held that failure to serve the Attorney General was not a ground for dismissal of the proceeding where the underlying Agency was properly and timely REPLY AFFIRMATION IN SUPPORT OF VERIFIED PETITION | Index # 701472/2023 12 of 41 FILED: QUEENS COUNTY CLERK 04/19/2023 02:14 AM INDEX NO. 701472/2023 NYSCEF DOC. NO. 61 RECEIVED NYSCEF: 04/19/2023 served, and was to be considered a timely commencement for purposes of a later recommencement of the proceeding under CPLR § 205 (a). 30. What makes this matter even more silly is that the Attorney General was on full notice for months. This was achieved through numerous communications and several underlying proceedings involving the Attorney General's Office with this very Petitioner, all of which were placed on the public record and delivered with signature confirmation, which implies that, as a matter of fact, the Attorney General was on complete notice of the matter. 31. The Court should simply follow the reasoning espoused in the Matter of Chem-Trol Pollution Servs. v Ingraham (supra), which held that CPLR § 7804 (c), in its current iteration, is not intended to impede Petitioners, who had timely served the parties in interest. The entire purpose of the statute was simply to ensure that the State Agency responds to the matter at hand. 32. Keep in mind that the DOT, at all times, was represented by attorneys both for the DOT and the Attorney General’s Office. The Attorney General’s Office has been involved in this matter since at least August 2022, when Ms. Procedia, Esq. made her appearance on behalf of the DOT and OAG. 33. While we contend service was effective, even if it is considered to be ineffective elsewhere, the fact is that service on the OAG, whether it was late or even lack thereof, did not in any manner impede the defense of this particular filing and, therefore, the intention and purposes of the statute are still maintained. 34. In this case, the OAG argues that the Court lacks jurisdiction over the proceedings because the OAG at the Albany Office was not served—while we contend this is incorrect—either way, it is simply not fatal—and particularly because the defense of the DOT was not impeded or prejudiced in any manner at all. 35. The record discloses that the Attorney General was served on numerous occasions, had a continuous dialogue with Petitioner’s Counsel, and was fully appraised of all facts REPLY AFFIRMATION IN SUPPORT OF VERIFIED PETITION | Index # 701472/2023 13 of 41 FILED: QUEENS COUNTY CLERK 04/19/2023 02:14 AM INDEX NO. 701472/2023 NYSCEF DOC. NO. 61 RECEIVED NYSCEF: 04/19/2023 concerning this matter. At best, this failure is a harmless error as to a technicality in the statute. However, it is not fatal and does not require a dismissal of the petition, which may simply be remedied going forward. c) Regardless, As The Attorney General’s Office Has Been On Notice of These Claims Since At Least August 2022, They Have Been On Notice & Able To Mount A Defense. 36. The purpose and object of all service of process, including to State Agencies, is “to give notice to the party on whom service is made, that he may be aware of and may resist what is sought of him, and it is a general rule that any service must be deemed sufficient which renders it reasonably probable that the party proceeded against will be apprised of what is going on against him, and have an opportunity to defend.” In re Empire City Bank, 18 N. Y., 200; See Happy v. Mosher, 48 N. Y., 313. 37. This common sense rule has been adopted, and wherever service by means other than personal delivery has been held ineffectual, it has been because the circumstances were such as to show that (a) the defendant did not come into actual possession of the papers, (b) that the defendants' attention was not drawn to their character, or (c) that a defendant willfully ignored them and refused to ascertain their nature for the purpose of evading service. See In re Barbara, 14 Misc 2d 223 (1958). d) Considering The Level Of Involvement, Any Argument Looking To Evade Service Should Be Waived By The Respondent. 38. In this case, this has been a hotly debated matter, with motions filed back and forth over multiple forums. In fact, if you do just a brief background into this matter, you'll find that the DOT is actually looking to recover for the same piece of property over multiple forums and, in each case, seeking a windfall as to the damages. REPLY AFFIRMATION IN SUPPORT OF VERIFIED PETITION | Index # 701472/2023 14 of 41 FILED: QUEENS COUNTY CLERK 04/19/2023 02:14 AM INDEX NO. 701472/2023 NYSCEF DOC. NO. 61 RECEIVED NYSCEF: 04/19/2023 39. In the particular circumstances herein, even if service were ineffective on the OAG, pursuant to the statute, regardless, any alleged failure to serve the Attorney General as jurisdictional would rather be a mere technical defect, which should be considered waived. 40. The OAG did not enter this matter solely for the purposes of objecting to jurisdiction but instead makes the same arguments they have made in the same forums as identified above. In this case, there has been no prejudice, the OAG had suffered no detriment in being able to defend the DOT, and the OAG’s motion to dismiss the Verified Petition for purposes of improper service should be denied. See Teresta v. City of New York, 304 N. Y. 440; Petronis v. State of New York, 170 Misc. 223; cf. Supplementary Practice Comment of Professor Joseph M. McLaughlin, McKinney's Cons. Laws of N. Y., Book 7B, CPLR § 2214, 1972-1973 Supplement, See Duffy v Schenck, 73 Misc 2d 72, 73 (1973). 41. In this instance, it is clear that the DOT was not only represented by its own Counsel in Mr. Thomas Parisi, Esq., then Mr. Louis DelGiacco, Esq. and now by Ms. Carrie Costanzo, Esq. but also 3 separate representatives from the OAG, Ms. Nicole M. Procida, Esq., Ms. Amanda R. Stern, Esq. and Ms. Ellen Mendelson, Esq. That means you had 6 separate attorneys representing the DOT over 5 separate actions, and now suddenly, we have a problem with Service, and they cannot defend themselves? REPLY AFFIRMATION IN SUPPORT OF VERIFIED PETITION | Index # 701472/2023 15 of 41 FILED: QUEENS COUNTY CLERK 04/19/2023 02:14 AM INDEX NO. 701472/2023 NYSCEF DOC. NO. 61 RECEIVED NYSCEF: 04/19/2023 42. This should not be controversial, but any alleged failure to serve the Attorney General would be, at most, a technical defect that should be disregarded (See CPLR 2001; see also Duffy v Schenck, 73 Misc 2d 72; See Matter of Castracan v Colavita, 173 AD2d 924 (1991); See Matter of O'Brien v Pordum, 120 AD3d 993 (2014) e) Public Policy Favors Resolution On The Merits, Not Technicalities. 43. In New York, including issues involving Agencies, a strong public policy favors resolution on the merits. See Matter of Posada v New York State Dept. of Health, 75 A.D.3d 880 (2010). 44. Even when the time limits to respond to pleadings and documents are long expired, the Court has always desired resolution on the merits. See Posada. ("Although the Answer was indisputably served well after the statutory time limit had expired, CPLR § 7804(f), there was no suggestion that the delay was purposeful or resulted from any absence of intent to contest the proceedings. Further, the surgeon did not establish that he was entitled to the relief he sought or that any prejudice resulted from the delay. Matter of Posada v New York State Dept. of Health, 75 A.D.3d 880, 907 N.Y.S.2d 322, 2010 N.Y. App. Div. LEXIS 6207 (N.Y. App. Div. 3d Dep't), app. denied, 15 N.Y.3d 712, 912 N.Y.S.2d 576, 938 N.E.2d 1011, 2010 N.Y. LEXIS 3022 (N.Y. 2010). 45. Here, there is no delay, no prejudice on the Attorney General’s Office, and the Attorney General had a full opportunity to respond and defend the DOT. See Phillips v Town of Clifton Park Water Auth., 215 A.D.2d 924 (1995). POINT II – AS TO PROPER PARTIES, THE PARTIES WERE PROPER AS THEY ALL WERE INVOLVED IN THE DETERMINATION. a) Each of the Named Individuals Participated In The Final Determination, This Should Be Revisited In Discovery; Dismissal Is Premature At This Time. REPLY AFFIRMATION IN SUPPORT OF VERIFIED PETITION | Index # 701472/2023 16 of 41 FILED: QUEENS COUNTY CLERK 04/19/2023 02:14 AM INDEX NO. 701472/2023 NYSCEF DOC. NO. 61 RECEIVED NYSCEF: 04/19/2023 46. At ¶ 112 of the Verified Answer, the Respondent teaches us that a party who did not render the challenged determination is an improper party to an Article 78 proceeding, citing to Matter of La Russo v. Neuringer, 105 A.D.3d 743 (2013). 47. Individual Respondent, Mr. Thomas Parisi, was Lead Counsel for the DOT during the May 2022 Hearing, along with Ms. Kathleen Joy, serving as the Director of Right of Way. During the proceedings, Mr. Parisi was replaced by Mr. Louis DelGiacco as Lead Counsel. At the agency level, these were the 3 parties individually responsible for the Notice of Violation at issue here. Once the matter went up for Appeal, the Final Order was rendered by Mr. Dustin Howard ("Howard"). 48. Individual Respondents, Ms. Nicole Jones ("Jones"), as Real Estate Specialist and Property Manager, and Mr. Richard Szeles (“Szeles”), as Real Estate Specialist and Property Manager, were responsible for the underlying enforcement issues and named as responsible parties due to their involvement in this matter. 49. While the Petitioner will admit and is willing to dismiss Individual Respondent Jones and Szeles, based on the information currently in possession of the Petitioner, it is our understanding that Mr. Parisi, Ms. Joy, and Mr. DelGiacco (who ultimately replaced Mr. Parisi) were directly involved, in their capacities as employees of the DOT, in the rendering of the determination in this matter and should not be dismissed at this time. 50. Should this matter continue into discovery, the Petitioner will readily dismiss Ms. Jones and Mr. Szeles. At the same time, we will also seek to implead Mr. Howard as one of the parties who rendered the challenged determination, specifically the Final Order, in which he proudly expressed his individual contribution toward the determination, often referring to himself in the first person in the Final Order. POINT III – TRANSFER TO APPELLATE DIVISION IS PREMATURE, CPLR § 7804(g) REQUIRES PRELIMINARY MATTERS ADDRESSED AT MINIMUM. REPLY AFFIRMATION IN SUPPORT OF VERIFIED PETITION | Index # 701472/2023 17 of 41 FILED: QUEENS COUNTY CLERK 04/19/2023 02:14 AM INDEX NO. 701472/2023 NYSCEF DOC. NO. 61 RECEIVED NYSCEF: 04/19/2023 a) At this time, there is no “mandatory transfer” Appellate Division, as transfer at this time would be premature, and there are questions to be addressed by the Supreme Court at this time. 51. In the Verified Answer at ¶ 116, the Respondent contends that this matter requires a mandatory transfer to the Appellate Division and introduces the statutory text at ¶ 117, referencing CPLR § 7804 (g). 52. However, the clear text of the statute does not teach us that by the nature of its filing, it must immediately go to the Appellate Division. As this is an issue of substantial evidence, then CPLR § 7804 (h) is triggered, and the issues of fact, as well as those terminable issues, including but not limited to lack of jurisdiction, the statute of limitations and res judicata, shall be tried by a referee or by a justice of the Supreme Court and the verdict, report or decision rendered after the trial shall be returned to, and the Order thereon made by the appellate division. See CPLR § 7804 (h). 53. In fact, according to the 1990 Advisory Committee, CPLR § 7804 (g) was amended to make clear that the Supreme Court was required to filter through matters and reach decisions based on issues such as the First Defense, the Jurisdictional Issue, or the Second Defense, Proper Parties, etc. before the Appellate Division should consider the substantial evidence question. This sort of filtering of preliminary issues through the trial Courts is designed to provide relief for already congested Appellate Division calendars. 54. Respondent is incorrect in their interpretation of CPLR § 7804 (g) as this is not a matter that is solely limited to substantial evidence, but rather, as a result of the OAG’s specific arguments and talking points, there must now be a determination, pursuant to CPLR § 7804 (h), addressing issues that would result in a termination of the proceeding. b) The Respondent cannot consistently apply their own standard in CPLR § 7804 as to whether or not this Court should rule on the “Substantial Evidence” issues. REPLY AFFIRMATION IN SUPPORT OF VERIFIED PETITION | Index # 701472/2023 18 of 41 FILED: QUEENS COUNTY CLERK 04/19/2023 02:14 AM INDEX NO. 701472/2023 NYSCEF DOC. NO. 61 RECEIVED NYSCEF: 04/19/2023 55. It is ironic that in the Third Defense, we are told that issues of substantial evidence are to be immediately transferred to the Appellate Division (Answer ¶ 117) and that the Supreme Court has no substantive jurisdiction to address substantive legal issues or issues of substantial evidence (Verified Answer ¶ 118), but in the same breath, tell us that the determination of Ms. Howard that Petitioner violated Highway Law § 52 is supported by substantial evidence in the record. 56. Somehow, according to the OAG, the questions of substantial evidence only mandate transfer to the Appellate Division if the Petitioner raises the issue. Meanwhile, if the Respondent raises the issue, it is ripe for determination by the Supreme Court. Certainly, someone should advise the OAG that you can't have your cake and eat it too. 57. Contrary to the Respondents' narrative, the Petitioner, ARB Park, Inc., did not enter the Premise to operate a park and fly lot. Quite the contrary, which is also fully known to the DOT, the specific entity on the Premise functioning as a Parking Lot, is Aardwolf, as they signed a 10- year sublease as a subtenant of Fleet Recovery Services, Inc. ("Fleet") (Bhally Aff. ¶ 9, ¶10). In fact, the DOT knew full well that it was Aardwolf as subtenant as they specifically authorized Aardwolf's right to use on March 28, 2018 (See EXHIBIT B). 58. Aardwolf also had 3 other necessary partners involved, including Mr. Usama M. Raja, Mr. Asif S. Cheema, and Mr. Haider Khursid (Bhally Aff., ¶ 3, EXHIBIT A). By 2021, I was terminated from my position as a partner of Aardwolf, which implied that the only necessary partners to the company were Mr. Usama M. Raja, Mr. Asif S. Cheema, and Mr. Haider Khursid (Bhally Aff., ¶ 26, EXHIBIT T). 59. Contrary to what the OAG discusses in their Answer, ¶ 129, the evidence in the file also shows Aardwolf as operating the parking lot function. Actually, it has images as such, but the DOT willfully ignores this for some unknown reason. REPLY AFFIRMATION IN SUPPORT OF VERIFIED PETITION | Index # 701472/2023 19 of 41 FILED: QUEENS COUNTY CLERK 04/19/2023 02:14 AM INDEX NO. 701472/2023 NYSCEF DOC. NO. 61 RECEIVED NYSCEF: 04/19/2023 60. Contrary to the OAG's discussions at ¶ 130 in the Answer, the Petitioner submitted a tremendous amount of information in support of the notion that the NOV was asserted against the incorrect party, and in fact, the DOT and Mr. Howard, personally, simply ignored the presentation of the evidence at the August 30, 2022 hearing. 61. The Certification of Record (“Certification”) offered by Mr. Howard is incomplete at best and just adds more fuel to the fire and our position that the DOT just simply ignores rules, laws, and facts. On March 12, 2023, we moved for a Motion to Strike, requesting that the Certification be stricken based on the grounds that it was scandalously filed and resulted in substantial prejudice suffered by the Petitioner. 62. Mr. Howard failed in his obligations under the statute, particularly § 306(2) & (4) respectively, to admit all evidence in possession of the agency and should be made as part of the record. Furthermore, as the record was clear on its face, it should have been incorporated and admitted by reference. Had Mr. Howard acted fairly and reasonably, he would have invoked § 306(4) and taken judicial notice of the evidence submitted by the Petitioner, as the evidence came directly from the DOT's internal records and emails, with no adulteration by the Petitioner. 63. For a more complete discussion concerning the proper actions taken by Mr. Howard, as it concerns admissible evidence and proofs, we refer your attention to the Memorandum of Law in Support of our Motion to Strike, filed on March 12, 2023 (NYSCEF # 26). 64. I'm more than happ