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Matter of Elenson v. Nassau County
Citations: 2017 NY Slip Op 4116; 150 A.D.3d 1109; 56 N.Y.S.3d 160Docket: 2016-04519
Court: Appellate Division of the Supreme Court of the State of New York; May 24, 2017; New York; State Appellate Court
Original Court Document: View Document
In the case of Matter of Elenson v. Nassau County, the Appellate Division, Second Department, reviewed a CPLR article 78 proceeding initiated by Brian Elenson and others against Nassau County. The petitioners sought to challenge the determinations made by the Nassau County Office of Consumer Affairs, which found them in violation of the Nassau County Administrative Code, specifically sections 21-25.2 and 21-10.0, and imposed fines of $1,000 and $2,500, respectively. The initial determination on November 2, 2015, cited a violation related to engaging in home service business without a license after January 1, 2013. The second determination on November 17, 2015, confirmed the prior violation and imposed a fine based on a consumer complaint from 2010. The Supreme Court of Nassau County denied the petition and effectively dismissed the proceeding. However, the Appellate Division modified the judgment by annulling the $2,500 fine imposed for the 2010 violation, while affirming the rest of the judgment. The petitioners argued that a missing comma in the definition of "home service" in the Code indicated that contractors engaged in "junk/debris/rubbish/estate cleanouts" were exempt from licensing requirements. The court's decision ultimately favored the petitioners regarding the 2010 violation fine but upheld the other aspects of the ruling. Punctuation serves a subordinate role to the text's plain meaning, only clarifying ambiguity when necessary, as established in Tyrell v Mayor of City of N.Y. and Arcularius v Sweet. The plain meaning of section 21-25.1(3) requires individuals involved in "junk/debris/rubbish/estate cleanouts" in Nassau County to be licensed if they have been engaged in such activities since January 1, 2013. The petitioners argued against a $2,500 fine for a violation closed in 2010, asserting that the violation was resolved without findings against them. The County did not provide sufficient evidence to dispute this claim or show that the fine was outstanding since 2010. The respondents also failed to counter the petitioners' evidence regarding the prior violation, which predated the 2012 licensing requirements for home service contractors. Consequently, the Supreme Court's decision to deny the petition to vacate the fine was erroneous.