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SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK In the Matter of Application of AHMED GALAL Petitioner, Index No.L081] x01, for Judgment pursuant to Art. 78, CPLR, -against- NOTICE OF PETITION CITY OF NEW YORK Respondent. PLEASE TAKE NOTICE that upon the annexed Verified Petition, duly verified on the 22nd day of December, 2016 and upon the Exhibits annexed hereto, an application will be made to this Court at the ILA.S. Submission Part at the New York County Courthouse, located at 60 Centre Street, Room 130, New York, New York, on the 27" day of January, 2017, at 9:30 in the forenoon of that day, or as soon thereafter as counsel can be heard, for judgment pursuant to CPLR Article 78, granting the relief demanded in the petition, and for such other and further relief as may be just, proper, and equitable, PLEASE TAKE FURTHER NOTICE that a verified answer and supporting affidavits, if any, shall be served on the undersigned no later than seven (7) days before the aforesaid return date of tion, this appli Venue herein is based upon CPLR Section 506(b) in that Respondent has its principal place of business located in New York County. Dated: ‘New York, New York December 22, 2016. Respectfully Submitted, apiro URBAN JUSTICE CENTER Attorneys for Petitioner Ahmed Galal 40 Rector Street, 9" Floor ‘New York, NY 10006 (646) 602-5681 (phone) (212) 533-4598 (fax) To — Corporation Counsel of the City of New York 100 Church Street ‘New York, NY 10007 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK In the Matter of Application of AHMED GALAL Petitioner, for Judgment pursuant to Art. 78, CPLR, Index No. -against- VERIFIED PETITION CITY OF NEW YORK Respondent. SUMMARY , has This case is about a street vendor and Egyptian immigrant who, on a part-time ba sold hot dogs in midtown Manhattan for the past four years. On December2, 2015, Mr. Galal, who speaks minimal English, was employed as a worker on a food cart on st Avenue ear 25" ‘Street when he was approached by an inspector from the Department of Health and: “Mental Hygiene (‘DOHMH”) and then officers from the New York City Police Depaitinent cep). ‘The NYPD officers arrested Mr, Galal, for allegedly possessing a stolen permit, and the DOHMH inspector wrote four Notices of Violation (‘NOV"), returnable to the Office of Administrative Trials and Hearings (“OATH”) for various alleged violations of the New York City Health Code Mr. Galal, however, was never served with the NOVs since he had been arrested by and was in the custody of the NYPD. Additionally, the NOVs were subsequently mailed to Mr. Galal, but the mailings were sent to an incorrect address, even though the DOHMH had notice of Mr. Galal’s correct address. Mr, Galal did not leam about the NOVs until July, 2016 when he attempted to renew his food vendor license. Since Mr. Galal was never served personally with the NOVs and never subsequently received them, he did not appear for the hearings and the NOVs went into default with judgments currently totaling $4,036.57. In August, 2016, Mr. Galal ;. Mr. Galal cannot requested to vacate the default judgments, but OATH denied the reques afford to pay these fines and thus cannot renew his food vending license and return to work. Now, Mr. Galal has no choice but to petition this Court to dismiss these NOVs since they were never served properly, or to compel OATH to schedule new hearings for the NOVs so Mr. Galal will have a chance to contest the NOVs before a Hearing Officer. FACTUAL AND GENERAL ALLEGATIONS As such, Petitioner Ahmed Galal, by his attorney, the Urban Justice Center, for his Verified Petition to this Court, respectfully alleges as follows: 1, Petitioner is a sixty-four year old resident of Brooklyn, New York and a mobile food vendor who has sold hot dogs in Manhattan for approximately four years. 2. On December 9, 2015, Petitioner was working as an employee of a man named Elsayed Abdelhalim, on a food cart located on 5" Avenue near 25" Street. 3. At approximately 11:00 AM', Yasmin Bright, an inspector from the DOHMH, approached petitioner and asked for his mobile food vending license. 4, Ms. Bright conducted an inspection and then began using her computer and telephone. When petitioner asked about his food vending license, Ms. Bright replied that she was speaking to her boss. 5. After several hours, an NYPD van arrived with two police officers. After Ms. Bright spoke briefly with the officers, the officers approached petitioner, used a Taser on his neck, and placed him under arrest. ' The NOVs state they were issued at 1:31 PM, but Petitioner maintains that Ms, Bright first arrived around 11:00 AM. 6. Petitioner was charged with New York Penal Law §§ 165.40 and 170.05 for criminal possession of stolen property and forgery. 7. The iminal charges against Petitioner were dismissed on March 15, 2016. A copy of the Certificate of Disposition is attached hereto as Exhibit A. 8 During Petitioner's arrest, Ms, Bright issued four NOV? for various violations of the Health Code. However, these NOVs were never served on Petitioner since he was in NYPD. custody. Copies of the NOVs and their affidavits of service are attached hereto as Exhibit B. 9. Notably, the affidavits of service for the NOVs contain no indication that they were actually served on Petitioner. The affidavits contain pre-printed statements that the issuing inspector must mark to indicate how the NOVs were served. None of the NOVs contain any marking next to the statement that Petitioner was served personally. See Exhibit B. 10. Ms. Bright also prepared an inspection report on December 9 which lists the alleged Health Code violations. The report also notes that Petitioner was arrested. A copy of the report is attached hereto as Exhibit C. 11, Significantly, in the part of the report where the vendor usually acknowledges he received a copy, the report indicates that Petitioner was “Unable To Sign,” another indication that Petitioner never received any documentation regarding these NOVs on the day they were issued, See Exhibit C, 12, On December 10, 2015, copies of the NOV were purportedly mailed to Petitioner. However, the NOVs were mailed to: Ahmed Galal 754 NULL Brooklyn, NY NULL. ? NOVs 0890324060, 0890325884, 0890324390, and 0890325893. Four of the NOVs are for alleged Health Code violations relating to vending with an expired, oF unlawfully reproduced permit while one NOV was issued for allegedly failing to provide commissary information to the DOHMH. 3 Copies of the NOVs that were purportedly mailed are attached hereto as Exhibit D. 13, It is clear that these NOVs were mailed to an incorrect address, which is further proof that Petitioner never received the NOVs nor had any knowledge of their issuance. 14, Furthermore, the City did have Petitioner's correct address on file since the DOHMH mailed Peti ner an application to renew his mobile food vending license which expired on September 30, 2016. A copy of the application is attached hereto as Exhibit E. 15, Since Petitioner never received the NOVs, he never appeared on the scheduled hearing date and the NOVs went into default. 16. Petitioner received his mobile food vendor license renewal application in July, 2016. 17. Before renewing his license, Petitioner went to OATH to see if he had any outstanding violations. He applied for his NOV “clearance” on July 12, 2016. A copy of the application is attached hereto as Exhibit F. 18, On July 26, 2016, a bill was issued to Petitioner showing the four NOVs that were issued on December 9, 2015. A copy of the bill is attached hereto as Exhibit G. 19. Since this was the first time Petitioner learned about the NOVs, he filed motions to vacate the default judgments and explained that he never received the NOVs. Copies of the motions to vacate are attached hereto as Exhibit H.° 20. On September 1, 2016, OATH denied Petitioner's requests to vacate the default judgments on the grounds that the requests were made more than 60 days after the service of the default decisions and that OATH’s records showed that the NOVs were properly served. of the denial letters are attached hereto as Exhibit I. ° Due to Petitioner's limited English language skills, he was assisted by “Mohamed Aly” a “representative” registered with OATH. 21. OATH’s denial of Petitioner's requests to vacate the default judgments for the NOVs, which were never served properly, is arbitrary and capricious and contrary to law. 22, Pursuant to OATH’s rules, a motion to vacate a default judgment will be granted if it is submitted within sixty days of the date the default decision is served. See 48 RCNY § 6- 210). 23. Upon information and belief, the default decisions for the NOVs at issue were never served properly, Petitioner has never received the default decisions and given that the NOVs were mailed to an incorrect address, it is likely that the default decisions were similarly incorrectly mailed.* 24. Since the default decisions were not served properly, Petitioner properly filed motions to vacate the default judgments and OATH should have granted Petitioner's requests for new hearings in accordance with § 6-21(b). 25. Additionally, the New York City Charter prevents OATH from entering any judgment unless it has been served pursuant to Article 3 of the Civil Practice Law and Rules (“CPLR”). See New York City Charter § 1049-a(d)(2\a). 26. For service upon a natural person, the CPLR requires either personal service, or service upon a person of suitable age and discretion at the place of business, or home of the person to be served, followed by a mailing to the person to be served. See CPLR 308. 27. The incomplete details in the affidavits of service for the NOVs evince a reasonable basis to believe that Petitioner never received the NOVs. See Sabul Hussain v. City of New York, Sup Ct, New York County, June 29, 2012, Jaffe J., Index No. 400832/2011. A copy of the unreported decision is attached hereto as Exhibit J. * Petitioner's attomey submitted a request on December 8, 2016, pursuant to the Freedom of information Law, to OATH for copies of the default decisions, but has not yet received any response, 5 28. In Hussain, a food vendor claimed he never received an NOV that was allegedly served at the same time as other NOVs. The affidavit of service for the NOV being challenged was allegedly served at the same time as other NOVs but at a different location, leading the Court to find that the inconsistency established a reasonable basis to believe the vendor never 29. Since the NOVs at issue were never served personally on Petitioner or anyone else, nor were they mailed to Petitioner's address, OATH is prohibited from entering the default judgments. 30. Repeatedly, in New York State, it has been held that “it is the general policy of the court to permit actions to be determined by trial on the merits whenever possible and for that purpose a liberal policy is adopted with respect to opening default judgments in furtherance of justice to the end that the parties may have their day in court to litigate the issues.” 38 Holding Corp. v City of New York, 578 N.Y.S.2d 174 (1" Dep't 1992). 31. Petitioner has meritorious defenses to the NOVs which deserve to presented at a hearing, Since Petitioner was working as a mere employee, he had no knowledge that regarding the status of the permit for the food cart. A copy of an affidavit from Mr. Galal’s employer, hibit K* explaining the status of the permit, is attached hereto as 32, The NOVs should either be dismissed for improper service of process, or be rescheduled so Petitioner’s meritorious defenses can be presented before a hearing officer at OATH. WHEREFORE, Petitioner respectfully requests that this Court: 1. Order OATH to vacate the penalties and dismiss NOVs 0890324060, 0890325884, 0890324390, and 089032589; * In the affidavit, Petitioner's name is spelled incorrectly as Ame 6 2. Ororder OATH to vacate the default judgments and schedule hearings for NOVs 0890324060, 0890325884, 0890324390, and 089032589 3. Grant him such other and further relief as this court deems proper. Dated: New York, New York December 22, 2016 MATTHEW SHAPIRO Urban Justice Center ATTORNEYS FOR PETITIONER 40 Rector Street, 9" Floor New York, NY 10006 (646) 602-5679 (phone) (212) 533-4598 (fax)