Appeal on DSNY summons on ashtray contents, paper(s),,,,, on street gutters. Appeal

U

Union-NY

New Member
Jurisdiction
New York
7/22/24 am my condo building got summons from DSNY and summons was issues to individual owner.

Despite gutters were pretty clean, it would be difficult to convince ALJ that street was clean at time, because we were not around when ticket was issued.

In 2006, I ran into an Issuing Officer when he was issuing a violation to the condo.
I asked the agent " excuse me, where is the debris you describe in the ticket? Sidewalk is clean, I don't see any debris". IO replied " before, there were debris on the sidewalk"
I asked "how could you see debris before you came here?"
IO replied "go to fight at hearing"
City allowed IO issuing false tickets and innocent residents had to take time off to fight for justice.

Now, in 2024, our condo building got false ticket again and we did not catch IO action. But this time, among all owners of home units, parking units and condo built, IO issued the ticket to owner of one of on door basement parking spaces, not the condo. Set hearing, incorrectly, on Sunday of 10/25/24. In the affidavit of delivery showed ticket was not mail until 8/14/24, more than 20 days after ticket was issued, respondent's address on DSNY was different from DOF.

On 12/13/24, respondent attended hearing in person. Explained to ALJ that she owned the parking space but she did not live in the building. She did not get the ticket timely to inspect the alleged dirty gutters. She never received the notice by mail. NOV was not properly served. Respondent also showed ALJ HPPD and DOF that particular condo building at said address with block # and lot # was owned by condo, not the respondent. Property tax bill showed the property on the address of the ticket was Condo, not the respondent. Summons was issued to the wrong party.

ALJ printed out a property tax bill of respondent's parking showed different block # & lot #. As any person search DOF with the address there will be 20 block & lots show on the screen. If indoor parking owner is responsible of the violation, why not the rest of 19 owners? What DSNY based on to pick me as the owner responsible?

I have not received the decision, but DSNY system indicated "hearing completed, in violation" .

IO issued the ticket to wrong owner and improperly served the NOV that made the real owner unable to timely investigate the violation.

How do I fight? I don't know how DSNY constructs its owner / address system. In my case, DSNY ignores my DOF property tax bill record and Condo's DOF property. I want to stop IO from issuing any wrong ticket. It is terrible that ALJ knows Condo is the owner of the property by looking at the DOF screen before he printed out a copy of my tax bill to wrongly show me is the owner of the location.
 
Those citations are cash cows for the DS. The system is corrupt. The judges will find you guilty no matter how much the IO made a mess of things. You can file an appeal but they are counting on their victims not wanting to spend more on the appeal than the ticket cost.

thelaw.com is owned by an attorney in your area who actually has experience fighting DS citations. He'll be around. @Michael Wechsler

While you wait, read a similar post.

www.thelaw.com

NYC Department of Sanitation summons Title 16-118(2)(a)

Hi, it seems NYC Department of Sanitation start collecting funds for Christmas celebration. I got a ticket by mail yesterday . It says I violated 16-118(2)(a). Its a private house in Brooklyn and it was observed in 8:32 AM. on a day preceding a recycling collection. Thanks for the previous...
www.thelaw.com www.thelaw.com
 
Thanks @adjusterjack and feel free to contact me @Union-NY if you'd like. I address all the sanitation and other DoT and DoS summonses for my building since it doesn't pay to have our attorney deal with them and I've handled it before.

#1) Nobody can help you with any summons unless you provide the code for the offense and the description. That is absolutely essential as the defense begins there.

#2) You should have a board or managing agent for the co-op. They should have dealt with this.

#3) To escalate matters at OATH, you may need to reach the Chief Administrative Law Judge. Call them and ask them for that information or send an email in writing but more briefly explaining the nature of the issue (wrong party.) Note that this will simply pin liability on the condo, which I'm sure you know. At that point it becomes an issue that they can challenge on the merits and the problem you have, which can be dealt with separately.

As a fellow New Yorker, I feel your pain. Happy to help if I can.
 
Michael Wechsler said:
Thanks @adjusterjack and feel free to contact me @Union-NY if you'd like. I address all the sanitation and other DoT and DoS summonses for my building since it doesn't pay to have our attorney deal with them and I've handled it before.

#1) Nobody can help you with any summons unless you provide the code for the offense and the description. That is absolutely essential as the defense begins there.

#2) You should have a board or managing agent for the co-op. They should have dealt with this.

#3) To escalate matters at OATH, you may need to reach the Chief Administrative Law Judge. Call them and ask them for that information or send an email in writing but more briefly explaining the nature of the issue (wrong party.) Note that this will simply pin liability on the condo, which I'm sure you know. At that point it becomes an issue that they can challenge on the merits and the problem you have, which can be dealt with separately.

As a fellow New Yorker, I feel your pain. Happy to help if I can.
Click to expand...
Attached is the code and description of the violation.

You are right, when ALJ said I would get decision by mail meant decision would be in violation.

Based on the facts, improper services and issued to the wrong owner, this would be an invalid summons should be dismissed. DSNY could not prove that we are the owner or person in charge of the manager. We provided both DOF and HPD record to prove we are not the owner. I also got an old summons that was issued to Condo ( registered owner and managing the property).

I followed 311 instruction to bring both HPD & DOF (with block & lot number) record to show we are not the property owner. ALJ showed DSNY & DOF list different address , block & lot , then in his decision claimed he found we were listed as property owner in DOF & DSNY. I also pointed errors on the tickets and not received a copy of summons by mail. He claimed there no defect on the services.

Issuing officer set (OATH not working date) Sunday as hearing date, mailed summons more than 20 days later with incorrect address to the wrong owner. It certainly raised doubts of issuing officer's ability, and credibility, accuracy and validity of the summons.

In the decision, ALJ specifically claimed I did not contest the listed violation in the summons. Yes, I did not wasted time for the alleged violations. Because I did not get the summons soon enough to investigate the violation to defense and I was not the even the right party to be penalized.
 
When I went to check the condition of gutter, it was clean with no ashtray contents, paper bag, paper, wrapper at all. This is a well managed building, not a neglected building.

If individual owner is responsible for the dirty gutter, then DSNY needs to specify what section of the gutter is my indoor parking responsible for. The outdoor parking by the street was not mine.
 
Union-NY said:
You are right, when ALJ said I would get decision by mail meant decision would be in violation.
Click to expand...

The ALJ must say that because those are the rules. I just successfully fought a Department of Sanitation violation (incredible that the issuing officer did what they did) and was fortunate to receive a dismissal, as I expected.

Union-NY said:
Based on the facts, improper services and issued to the wrong owner, this would be an invalid summons should be dismissed. DSNY could not prove that we are the owner or person in charge of the manager. We provided both DOF and HPD record to prove we are not the owner. I also got an old summons that was issued to Condo ( registered owner and managing the property).

In the decision, ALJ specifically claimed I did not contest the listed violation in the summons. Yes, I did not wasted time for the alleged violations. Because I did not get the summons soon enough to investigate the violation to defense and I was not the even the right party to be penalized.
Click to expand...

The following is not legal advice. There is much I do not know about your specific issue. If you wish to obtain legal advice you should obtain a proper legal consultation with a licensed attorney knowledgeable in this area.

That said, I'll mention the following thoughts.

OATH rules and its flexibility are different than state or federal courts. When you come into court, be prepared to challenge their jurisdiction and the merits. I see the violation now, which is exactly what I suspected - the usual "wrappers" scattered within the "18 inch" extension into the street from the curb during their established hour to inspect and summons.

1) As to who is responsible for the area in question, we don't have the address listed and how and why your name might be listed by the DSNY as the owner is not something we can address here and is very important. Is the address/location of the violation a building? Is it a specific garage structure that has an address or identifying number? We don't have a visual understanding and appreciation for the space in issue. You need to speak to whomever the managing agent is for the condo association and/or to the board of directors if you know one of them. They can confirm with you ownership and control and might be able to explain (or not) how you ended up with the violation.

2) As to whether the ticket is false, this is not a claim that you can make from what I've read. If you implied that the issuing officer is a liar, the ALJ may not have been happy with you. You admitted that you were not observing the street area at exactly that time. There may have been ash tray contents, a paper bag, papers and wrappers there at the time the issuing officer wrote the summons. You don't know. You can only state what you saw later (unless you might have camera footage but it seems you do not.) But there may be defenses available to whomever is the proper party to assert them..

Here is the New York City Administrative Code, Title 16 Sanitation.

§ 16-118 Littering prohibited.
1. (a) No person shall litter, sweep, throw or cast, or direct, suffer or permit any servant, agent, employee, or other person under his or her control, to litter, sweep, throw or cast any ashes, garbage, paper, dust or other rubbish and refuse of any kind whatsoever, in or upon any street or public place, vacant lot, air shaft, areaway, backyard court, park, or alley.
(b) No person shall spit upon a sidewalk of a street or public place, or on a floor, wall or stairway of any public or private building or premises used in common by the public, or in or on any public transportation facility.
2. (a) Every owner, lessee, tenant, occupant or person in charge of any building or premises shall keep and cause to be kept the sidewalk, flagging and curbstone abutting said building or premises free from obstruction and nuisances of every kind, and shall keep said sidewalks, flagging, curbstones, and air shafts, areaways, backyards, courts and alleys free from garbage, refuse, rubbish, litter, debris and other offensive material. Such persons shall also remove garbage, refuse, rubbish, litter, debris and other offensive material between the curbstone abutting the building or premises and the roadway area extending one and one-half feet from the curbstone into the street on which the building or premises front. Such persons shall not, however, be responsible for cleaning the garbage, refuse, rubbish, litter, debris and other offensive material which accumulates at catch basins located within the one and one-half foot distance from the curbstone into the street.

Note that the code says "every owner, lessee, tenant, occupant or person in charge of any building or premises..."

Potential Defense 1. You are not the owner nor the party "in charge" of the area. You've made that claim. As I mentioned above, if the DSNY has the wrong information in its database, it's something you should address with OATH and make it very clear that this is the primary issue you need to address with them. It's an agency failure, not a defense failure that will be resolved in an appeal. You'd help yourself with a letter from your condo association and/or the management company.

Potential Defense 2. The owner/operator of the address and area listed regularly and routinely cleans the area at certain specific times (see my other post listed above) which ensures the area is kept clean and that (from what is recalled) it was clean after the last cleaning. See my posts in the following threads:

www.thelaw.com

A tiny amount of trash of only 7-9 or so small napkin sized items were found on my sidewalk's soil in NYC. Is the ticket justified?

The trash is mostly on the soil area where the city plants trees. It didn't pose a safety hazard or obstruct foot traffic. Did I get a bogus sanitation violation ticket? Here is a picture of that sidewalk as it was when the violation ticket was written. Here is a screenshot of my sidewalk...
www.thelaw.com www.thelaw.com

www.thelaw.com

NYC Department of Sanitation summons Title 16-118(2)(a)

Hi, it seems NYC Department of Sanitation start collecting funds for Christmas celebration. I got a ticket by mail yesterday . It says I violated 16-118(2)(a). Its a private house in Brooklyn and it was observed in 8:32 AM. on a day preceding a recycling collection. Thanks for the previous...
www.thelaw.com www.thelaw.com

Potential Defense 3. The description of the violation in the summons mentions ashtray contents, piece of paper, wrappers, etc. It does NOT say that these items were "matted" into the street area or any indication that this wasn't dumped by someone else just minutes before the issuing officer arrived. This describes trash and litter that is transient in nature, and certainly capable of being blown away in the wind easily and explains why you did not see anything of the sort when you did. Nor would such trash described be conclusive of the failure of a property owner to provide regular and proper cleaning. T

The word "matted" is an important key term of art often used in summonses of this nature to give a clear indication of the likelihood that the trash has stayed in the area for a long time and that passers by may have continued to step on the trash and mat it down into the sidewalk and sustain its presence there longer than it should be.

As I mentioned above, you may need to reach out to OATH, as I mentioned, to insist that OATH exceeded its jurisdiction and you shouldn't be forced to pay a penalty to appeal an agency failure, which only the agency could confirm and rectify and resolve with the Department of Finance.

Your biggest enemy the incredible waste of your valuable time. Wishing you the best of luck with this and, for what it's worth, happy holidays.
 
Michael Wechsler said:
The ALJ must say that because those are the rules. I just successfully fought a Department of Sanitation violation (incredible that the issuing officer did what they did) and was fortunate to receive a dismissal, as I expected.



The following is not legal advice. There is much I do not know about your specific issue. If you wish to obtain legal advice you should obtain a proper legal consultation with a licensed attorney knowledgeable in this area.

That said, I'll mention the following thoughts.

OATH rules and its flexibility are different than state or federal courts. When you come into court, be prepared to challenge their jurisdiction and the merits. I see the violation now, which is exactly what I suspected - the usual "wrappers" scattered within the "18 inch" extension into the street from the curb during their established hour to inspect and summons.

1) As to who is responsible for the area in question, we don't have the address listed and how and why your name might be listed by the DSNY as the owner is not something we can address here and is very important. Is the address/location of the violation a building? Is it a specific garage structure that has an address or identifying number? We don't have a visual understanding and appreciation for the space in issue. You need to speak to whomever the managing agent is for the condo association and/or to the board of directors if you know one of them. They can confirm with you ownership and control and might be able to explain (or not) how you ended up with the violation.

2) As to whether the ticket is false, this is not a claim that you can make from what I've read. If you implied that the issuing officer is a liar, the ALJ may not have been happy with you. You admitted that you were not observing the street area at exactly that time. There may have been ash tray contents, a paper bag, papers and wrappers there at the time the issuing officer wrote the summons. You don't know. You can only state what you saw later (unless you might have camera footage but it seems you do not.) But there may be defenses available to whomever is the proper party to assert them..

Here is the New York City Administrative Code, Title 16 Sanitation.

§ 16-118 Littering prohibited.
1. (a) No person shall litter, sweep, throw or cast, or direct, suffer or permit any servant, agent, employee, or other person under his or her control, to litter, sweep, throw or cast any ashes, garbage, paper, dust or other rubbish and refuse of any kind whatsoever, in or upon any street or public place, vacant lot, air shaft, areaway, backyard court, park, or alley.
(b) No person shall spit upon a sidewalk of a street or public place, or on a floor, wall or stairway of any public or private building or premises used in common by the public, or in or on any public transportation facility.
2. (a) Every owner, lessee, tenant, occupant or person in charge of any building or premises shall keep and cause to be kept the sidewalk, flagging and curbstone abutting said building or premises free from obstruction and nuisances of every kind, and shall keep said sidewalks, flagging, curbstones, and air shafts, areaways, backyards, courts and alleys free from garbage, refuse, rubbish, litter, debris and other offensive material. Such persons shall also remove garbage, refuse, rubbish, litter, debris and other offensive material between the curbstone abutting the building or premises and the roadway area extending one and one-half feet from the curbstone into the street on which the building or premises front. Such persons shall not, however, be responsible for cleaning the garbage, refuse, rubbish, litter, debris and other offensive material which accumulates at catch basins located within the one and one-half foot distance from the curbstone into the street.

Note that the code says "every owner, lessee, tenant, occupant or person in charge of any building or premises..."

Potential Defense 1. You are not the owner nor the party "in charge" of the area. You've made that claim. As I mentioned above, if the DSNY has the wrong information in its database, it's something you should address with OATH and make it very clear that this is the primary issue you need to address with them. It's an agency failure, not a defense failure that will be resolved in an appeal. You'd help yourself with a letter from your condo association and/or the management company.

Potential Defense 2. The owner/operator of the address and area listed regularly and routinely cleans the area at certain specific times (see my other post listed above) which ensures the area is kept clean and that (from what is recalled) it was clean after the last cleaning. See my posts in the following threads:

www.thelaw.com

A tiny amount of trash of only 7-9 or so small napkin sized items were found on my sidewalk's soil in NYC. Is the ticket justified?

The trash is mostly on the soil area where the city plants trees. It didn't pose a safety hazard or obstruct foot traffic. Did I get a bogus sanitation violation ticket? Here is a picture of that sidewalk as it was when the violation ticket was written. Here is a screenshot of my sidewalk...
www.thelaw.com www.thelaw.com

www.thelaw.com

NYC Department of Sanitation summons Title 16-118(2)(a)

Hi, it seems NYC Department of Sanitation start collecting funds for Christmas celebration. I got a ticket by mail yesterday . It says I violated 16-118(2)(a). Its a private house in Brooklyn and it was observed in 8:32 AM. on a day preceding a recycling collection. Thanks for the previous...
www.thelaw.com www.thelaw.com

Potential Defense 3. The description of the violation in the summons mentions ashtray contents, piece of paper, wrappers, etc. It does NOT say that these items were "matted" into the street area or any indication that this wasn't dumped by someone else just minutes before the issuing officer arrived. This describes trash and litter that is transient in nature, and certainly capable of being blown away in the wind easily and explains why you did not see anything of the sort when you did. Nor would such trash described be conclusive of the failure of a property owner to provide regular and proper cleaning. T

The word "matted" is an important key term of art often used in summonses of this nature to give a clear indication of the likelihood that the trash has stayed in the area for a long time and that passers by may have continued to step on the trash and mat it down into the sidewalk and sustain its presence there longer than it should be.

As I mentioned above, you may need to reach out to OATH, as I mentioned, to insist that OATH exceeded its jurisdiction and you shouldn't be forced to pay a penalty to appeal an agency failure, which only the agency could confirm and rectify and resolve with the Department of Finance.

Your biggest enemy the incredible waste of your valuable time. Wishing you the best of luck with this and, for what it's worth, happy holidays.
Click to expand...
Very disappointed. I called the help center, only recorder answered the call.

I sent a email to help center. Only get a general information that were cut and pasted from OATH web. My request of not paying penalty due to agency errors, lack of jurisdiction to errors and way to reach out to Chief Administrative Judge was completely ignored ( no touch on those matters).
Should I just submitted complaint to Chief Administrative Judge Office, instead of asking assistance from help center as questions?
Your suggestions and advises are greatly appreciated.
 
As I mentioned, I haven't seen the specific details of your summons and don't know your property so the above represents general thoughts, not legal advice - and your first step is probably speaking to your property manager or condo association who can review and confirm important details.

Getting past that, I obviously don't know the how operations and assistance might work day to day at OATH nor what they will provide to you. A simple clear case of error must be made, not one that may be murky such as commingling issues, defenses on the merits, and questions of where the truth might lie which creates complexity.

One of the issues I had to deal with at OATH and reason for addressing the Chief Administrative Judge had to do with a clear case of incontrovertible technical error in OATH's infrastructure that denied my client the ability to have a hearing. The reason for my effort on behalf of my client was due to a regulation about repeat sanitation offenses resulting in substantially higher fines. A guilty plea on record is taken face value. Problem is my client nor any representative ever entered the guilty plea OATH had on record. Vacating it was impossible and a waste of time, but at least I have a paper trail that will be used against the City in the event they ever pile on the sanitation summonses again in the hope of generating high fines for repeat violations that are unwarranted and unavoidable.

In short, a neighbor of my client had put out garbage on their property and resulted in a sanitation officer lazily issuing the same violation to them and my client. I filed to defend and showed up at OATH. When I was pysically present for the hearing, I was told that the summons was paid and a guilty plea was entered. My client didn't enter the plea, didn't pay the summons, nor even know about the payment being made. How could this happen?

I discovered the neighbor paid the ticket without telling anyone. Even OATH confirmed that the neighbor's credit card was used to pay and no separate confirmation was made that the party paying that entered an entirely different name and address was the actual party charged. They assume that if the fine is paid, it's the party being charged if they check a box to enter a guilty plea - which anyone can do if they have the summons number and no proof of being that party is required other than a checkbox affirmation.

Your condo has a different problem and the potential for repeat performances. If this is me, in all candor, I'd be demanding that the condo association reimburse me and have it handle the logistics. One wonders whether they would bother and would simply pay the ticket due to the negative return on investment and see how often the issue recurs. Wish you the best of luck and hope it can be sorted out.
 
Call me a cynic, but after reading all this I conclude that the DS citations are a cash cow for the DS/city and the sanitation officers are as corrupt as the ALJs who adjudicate the citations.

You, Mike, won your case because you are an attorney. The corrupt know better than to mess with attorneys.

That's my story and I'm sticking to it. ;)
 
Updates on appeal.

1/12/25, within 30 days of decision made, I submitted my appeal request - challenged the identification of the responder based on sufficient evidence (HPD & DOF records indicating responder is not the owner )presented in the hearing and shifted the burden of proof back to DSNY. Pointed out even property addresses of respondent listed on summons' affirmation of services were different between DOF & DSNY.

Have not received the formal appeal board decision, but I received a copy of email answer from DSNY counsel to OATH appeal board stated "DSNY will withdraw the summons".
 
I have to fight.

Because I received another summons on 10/2/24. Improper party same as 7/22/24.

This time, because of 7/22 incidents, one owner took pictures within one hour after the summons posted on wall, because sidewalk and gutter were very clean, not garbage at all. Cleaning people said gutter was clean when they left the premises in the afternoon. There were no food wraps, papers, tissues,…around. This was a fake ticket, false allegation. False allegations are very difficult to fight, unless there is a camera. ALJ always credits issuing officer's accusation. IO lies under oath. Why can't NYC property owners require DSNY IO take pictures as evidence just like traffic tickets?

We don't want to be setup to be fined as a repeating offender.
 
Union-NY said:
We don't want to be setup to be fined as a repeating offender.
Click to expand...

Would that it be so, alas, the gubmint fiends rarely cease their criminal pursuits, disguised as justice; so say the fiends.
 

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