NEW YORK SUPREME COURT - QUEENS COUNTY

Transcription

1 Short Form Order NEW YORK SUPREME COURT - QUEENS COUNTY Present: HONORABLE KEVIN J. KERRIGAN Part 10 Juice X MATTHEW SAFOS, M.D.M.Z. CORP., and Index 150 LIGHTHOUSE CORP., Number: 7769/07 Petitioners, Motion For a Judgment pursuant to Article 78 Date: 09/04/07 of e Civil Practice Law and Rules, Motion - again - Cal. Number: 23 THE CITY OF NEW YORK, and THE CITY OF NEW YORK DEPARTMENT OF BUILDINGS, Motion Seq. No. 1 Respondent X The following papers numbered 1 to 8 read on is Article 78 petition for a judgment annulling a determination of respondent. Papers Numbered Notice of Petition-Petition-Exhibits Answer-Exhibits Reply Affirmation Upon e foregoing papers it is ordered at e petition is decided as follows: Application, pursuant to CPLR Article 78, for an order annulling e notice of violation (NOV) and op work order (SWO) issued by e Commissioner of e Department of Buildings (DOB) on November 29, 2006 relating to Lighouse s property located at 150 Beach 115 Street in Queens County is denied and e petition is dismissed. MDMZ is e owner of 166 B 114 St and Lighouse is e owner of 150 B 115 St. Safos is e president of bo MDMZ and Lighouse. Bo properties are single room occupancy dwellings (SRO). A prior owner of 150 B 115 St, one John Valez, filed an

2 application for a work permit wi e DOB on February 21, 2006 under job # to perform exterior renovation/repair work. In response to a complaint alleging at work was being performed wiout a permit, a DOB inspector went to e premises on March 9, 2006 and issued two Environmental Control Board (ECB) notices of violation (NOV). NOV K was issued upon e ground at e work pursuant to e permit did not conform to e approved plans. NOV M was issued upon e ground at a conruction fence was erected for which no permit had been obtained. A op work order was issued pursuant to e NOVs. Additional complaints on March 20 and March 23, 2006 resulted in e issuance of anoer NOV ( L) for safety violations. On March 30, 2006, an application (# ) was filed wi DOB by a subsequent owner, Mike Parikos, to convert e premises from an SRO into udio apartments. Work permits were issued on May 3, Safos avers at Lighouse purchased e 150 B 115 St property on May 9, Therefore, Lighouse has anding to maintain e inant proceeding. On May 10, 2006, a NOV (# P) was issued for failure of e work to conform to e approved plans. A SWO was also issued in conjunction wi e NOV. On May 19, 2006, a certificate of correction to cure e violation was filed and, on May 23, 2006, was approved, granting permission to cure e violation. By letters dated June 2, 2006, a op work order was issued wi respect to e and permits, for e reasons ated in a li of objections annexed to each of e letters. Furer complaints on June 5, 6 and 8, 2006 resulted in e issuance on June 8, 2006 of anoer NOV( R) for work being performed in violation of e SWO issued on May 10, On June 14, 2006, an application was filed to reore e premises back to an SRO (# ). Subsequent to approval and issuance of a work permit on November 8, 2006, DOB, responding to furer complaints, issued a SWO on November 21, The bases for e SWO were e audit objections set for on November 20, 2006 apprising petitioner of its failure to [v]erify your legal exiing conditions and use, [p]rovide a legend and clarify your proposed work. Note work under and " and [e]very alteration application where e building is defined as a single room occupancy MD a HPD Certificate of No Harassment is required. On November 29, 2006, an NOV was issued, which was not an ECB -2-

3 violation but a DOB violation, ating, The Queens Borough Commissioner of e Dept. of Buildings, City of New York has revoked job # and ordered all work at is site opped as of 11/21/06. Approx. 60% of work was completed as of is date. Stop all work. A SWO was also issued on November 29, 2006 pursuant to is NOV. Finally, by letters dated April 18, 2007, DOB revoked e permits wi respect to Job Nos , and Petitioner ereafter commenced e inant Article 78 proceeding. In its reply, petitioner ates at e only cause of action it seeks to pursue is at seeking to annul e NOV and SWO issued on November 29, 2006 wi respect to e 150 B 115 St property. Therefore, it is ordered at e petition is discontinued except for Lighouse s cause of action seeking to annul e determination of e Commissioner of e DOB wi respect to e NOV and SWO issued on November 29, 2006 relating to e property 150 B 115 St under job # Wi respect to e 150 B 115 St property, petitioner does not challenge respondent s second affirmative defense of atute of limitations interposed in its answer as to petitioner s causes of action concerning e NOVs and SWOs issued prior to November 29, Pursuant to CPLR 217(1), an Article 78 proceeding mu be commenced wiin four mons after a final determination by e agency is sought to be reviewed. Petitioner does not dispute at all NOVs and SWOs, except e November 29, 2006 NOV and SWO, were issued more an four mons before e inant proceeding was commenced and, erefore, petitioner s claims wi respect to ose determinations are time barred. Wi respect to e only remaining relief petitioner seeks, namely, e vacatur of e NOV and SWO issued on November 29, 2006 again Lighouse, respondent contends at e petition mu be dismissed since petitioner has not exhaued its adminirative remedies. This Court agrees. Pursuant to CPLR 7801(1), resort to a proceeding under Article 78 may not be had to challenge an agency determination which is not final or can be adequately reviewed by appeal to a court or to some oer body or officer

4 A petitioner mu exhau all adminirative remedies before seeking judicial review unless an agency s action is challenged as eier unconitutional or wholly beyond its grant of power... or when resort to an adminirative remedy would be futile... or when its pursuit would cause irreparable injury (Matter of Cliff rd v. Russell, 264 AD 2d 892, 893 [3 Dept 1999], quoting Watergate II Apts. v. Buffalo Sewer Au., 46 NY 2d 52, 57 [1978]). Section 666(7)(a) of e New York City Charter ves e Board of Standards and Appeals wi jurisdiction over appeals from determinations of e Commissioner of e New York City Department of Buildings (see also NYC Charter 648). Petitioner does not challenge e determinations of e DOB as being unconitutional or beyond its grant of power. Petitioner does not dispute at e DOB has e auority to issue op work orders and revoke permits (see New York City Adminirative Code ). Petitioner does not argue, nor does e record on is petition eablish or even sugge, at an appeal would be futile or cause irreparable injury. Raer, petitioner argues at an appeal of e determinations of e DOB to e Board of Standards and Appeals is discretionary and not a prerequisite to maintaining e inant proceeding, and at e issue of wheer a certificate of no harassment was necessary is a queion of law which can be decided wiout e necessity of petitioner exhauing its adminirative remedies. Adminirative review by e Board of Standards and Appeals of an adverse determination by e Department of Buildings prior to judicial review via an Article 78 proceeding is not optional, as petitioners contend. Petitioner s failure to appeal e NOV and SWO precludes it from maintaining e inant Article 78 proceeding (see Perrotta v. City of New York, 107 AD 2d 320 [1 Dept 1985]). Petitioner additionally argues at it need not pursue e adminirative review process before seeking judicial intervention because e matter only involves an issue of law. Petitioner contends at it is only challenging e DOB s determination at a certificate of no harassment is required as a prerequisite to e conversion of e subject property back to an SRO, which, it argues, is purely a queion of law. Petitioner contends at it is not directly challenging e Commissioner s NOV and SWO, but raer only e legal basis for said NOV and SWO, which is at petitioner mu furnish a certificate of no harassment. The cases cited by petitioner s counsel in e reply are inapposite to e facts of is case and are not supportive of petitioner s position. Moreover, e cases cited in support of -4-

5 petitioner s atement at a challenge to e granting or denial of a certificate of no harassment may be judicially reviewed wiout appeal to e Bureau of Standards and Appeals ate no such rule of law. Petitioner s argument at it is not challenging e agency s determination but merely e legal rationale underlying its determination is wiout merit. Petitioner seeks an order rescinding e NOV and SWO as being arbitrary and capricious and is, us, challenging e NOV and SWO. Therefore, counsel s semantical argument at petitioner is not directly challenging e NOV and SWO but is merely seeking to invalidate em via a judicial declaration at e legal basis for e agency s determination was in error is disingenuous. A component of every agency determination is an interpretation and application of e relevant law. In any event, even if, arguendo, petitioner need not exhau its adminirative remedies where e issue involved is purely a queion of law, e NOV of November 29, 2006 wi its accompanying SWO was issued pursuant to e SWO of November 21, The determination at a certificate of no harassment was needed was rendered at e audit on November 20, 2006 and resulted in e issuance of e November 21 SWO. The Court may not review said determination since it is concededly time-barred. Moreover, since e November 21 SWO is ill in effect and has not been rescinded, and petitioner is not challenging said SWO, e issue of wheer a certificate of no harassment is necessary and wheer, as a result, e NOV and SWO issued on November 29 should be annulled, is academic. Even had petitioner not widrawn at branch of e petition challenging e November 21 SWO, and even were Article 78 review of e November 21 determination not time-barred, said determination was not based solely upon petitioner s failure to furnish a certificate of no harassment, but also upon its failure to [v]erify your legal exiing conditions and use and [p]rovide a legend and clarify your proposed work. Therefore, petitioner s argument at e November 29 determination of e DOB Commissioner may be reviewed directly by is Court because it was based solely upon an issue of law, to wit, wheer a certificate of no harassment was required, is wiout merit. Finally, Deborah Rand, Esq., e Assiant Commissioner for housing litigation of e New York City Department of Housing Preservation and Development (HPD), in her affirmation dated May 9, 2007 annexed to respondent s answer, affirms at petitioner did, -5-

6 in fact, file an application for a certificate of no harassment wi HPD on January 8, 2007, and at such application is currently pending before HPD. Petitioner does not dispute is atement. Therefore, since petitioner did respond to e SWO issued on November 21, 2006 to e extent of submitting an application for a certificate of no harassment and e application has not been denied but is currently pending, e inant petition does not present a juiciable controversy upon which relief could be granted at would have an immediate, practical effect on e conduct of e parties but, in effect, seeks an advisory opinion, which is Court may not properly issue (see King v. Glass, 223 AD nd 2d 708 [2 Dept 1996]). Since petitioner had an available remedy rough adminirative review before e Board of Standards and Appeals and did not avail itself of such remedy, it failed to exhau its adminirative remedies and, erefore, e inant proceeding is premature (see Weissman v. City of New York, 96 AD 2d 454 [1 Dept 1983]). This Court does not consider respondent s sur-reply. Alough respondent was permitted to submit a sur-reply to address new matters at defendant s counsel represented were raised in e reply, upon review of e record on is petition, is Court does not find at petitioner s reply introduced any new arguments or facts which were beyond e scope of e arguments and allegations raised in respondent s answer. Accordingly, e petition is dismissed. Dated: September 28, 2007 KEVIN J. KERRIGAN, J.S.C. -6-