Dep t of Buildings v. 120 St. Marks Place, Manhattan OATH Index No. 648/09 (Apr. 27, 2009), adopted, Comm r Dec. (Apr. 30, 2009), appended

Dep t of Buildings v. 120 St. Marks Place, Manhattan OATH Index No. 648/09 (Apr. 27, 2009), adopted, Comm r Dec. (Apr. 30, 2009), appended Petitioner established that the premises are being used for an impermissible commercial use. Respondents failed to establish a defense of legal non-conforming use. Closure recommended. NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS In the Matter of DEPARTMENT OF BUILDINGS Petitioner - against - OWNERS, OCCUPANTS AND MORTGAGEES OF 120 ST. MARKS PLACE, MANHATTAN Respondents REPORT AND RECOMMENDATION JOAN R. SALZMAN, Administrative Law Judge This zoning violation proceeding was referred to this tribunal pursuant to the New York City Administrative Code, section 26-127.2, as amended in section 28-212.1, et seq., including, specifically, section 28-212.5, providing for hearings at this tribunal (the Padlock Law ). Petitioner alleges that the cellar of the premises at 120 St. Marks Place, New York County, also known as Block 435, Lot 24, is being used as a veterinarian s office in violation of law. Petitioner seeks an order of closure pursuant to the Padlock Law (Pet. Ex. 1). See Admin. Code 28-212.5. A hearing was originally scheduled for September 8, 2008. At the request of respondent owner, the hearing was adjourned until October 20, 2008, because September 8 th was a religious holiday. On October 20 th, respondent owner again requested an adjournment in order to research the legal issues further and prepare the defense of prior non-conforming use of the premises by obtaining documents of historic uses of the building. An adjournment was granted to November 19, 2008, at which time counsel for the owner of the premises, 120 St. Marks Place, and counsel for the cellar occupant of the premises, the Village Veterinarian, both appeared. The remaining respondent, mortgagee Fannie Mae, did not appear at the hearing. Petitioner presented proof of

- 2 - service of the petition and notice of the hearing upon Fannie Mae, which was found in default (Tr. 13-14; Pet. Ex 1). The owner s counsel argued that while the subject premises are indeed being used as a veterinarian s office, such use constitutes a legal non-conforming use of the premises. Specifically, respondents 1 argued that the premises had been legally used as a furrier business until the mid-1960 s, were converted to a sculptor s studio by 1976, and thereafter used as an eye-care facility by the early 1980 s, before being converted to use by three corporations for contracting, heating and fuel and oil businesses, and then finally to a veterinarian s office in 2006, all commercial uses. The record was held open until December 30, 2008, for the parties to brief the issue of whether the petitioner or respondents had the burden of proving or disproving prior non-conforming use and for respondents to subpoena tax and utility records from the New York City Department of Finance and Con Edison. At the belated request of respondent owner s counsel on the morning of the trial, and over the objection of the Department, I granted a request for subpoenas directed to those two entities, so that respondents could have a full opportunity to develop the record and prove the historical uses of the premises in their effort to show continuous non-conforming use since 1961 (Tr. 7-13, 54-55). I signed the subpoenas on December 8, 2008. The parties submitted their post-trial briefs, but respondents did not submit any additional evidence. The record was closed on January 8, 2009, when the Department filed the last letter brief in reply to a letter brief of respondent filed January 5, 2009. As discussed below, I find that petitioner proved the violation by a fair preponderance of the credible evidence, and I recommend that the Commissioner order the closure of the subject premises. ANALYSIS Investigator Nigel Sampson testified for the Department. The building has six floors and a cellar (Pet. Ex. 6). He first inspected the premises on May 30, 2008. On that date, he observed that the rear part of the cellar of the premises was being used as a veterinary office, with examination rooms, a doctor s office, and a reception area used as a waiting room (Tr. 15; Pet. Ex. 2). He took photographs showing a reception area, veterinarian s office, bathroom facilities, examination rooms, and an interior door to the office with a sign reading THE VILLAGE VET 1 The owner s tenant, The Village Veterinarian, respondent, did not file its own brief, but was represented by counsel. The owner s counsel took the lead, conducted the trial and submitted post-trial briefs.

- 3 - posted on it (Pet. Ex. 2). On July 25, 2008, Inspector Sampson made a second visit to the premises for a reinspection, but was unable to gain access because the front gate to the premises was closed. Attached to his inspection report of that date is a photograph showing the gated front door to the premises, identified with a street address 120 Saint Marks and an awning sign reading, The Village Veterinarian (Tr. 15; Pet. Ex. 3). In addition, the Department submitted into evidence the business card for the Village Veterinarian, showing its street address, identified as 120 St. Marks Place, and the name of a doctor of veterinary medicine, O. Moscovich, D.V.M., P.C. (Pet. Ex. 2). The Department asserts that the existing use of the premises is illegal under the Zoning Resolution, and I find that it is. The tax and zoning maps show that the premises are located in an R7-2 residential district 2 and are not zoned for commercial or manufacturing use (Pet. Exs. 4, 5). According to the Index of Uses of the Zoning Resolution, veterinary medicine is a commercial use that falls within Use Group 6 (Pet. Ex. 7). While the certificate of occupancy for the premises provides that the cellar may be used for a doctor s office, such use falls under Use Group 4, and, therefore, the certificate of occupancy does not provide for the use of the cellar as a veterinarian s office (Tr. 19; Pet. Exs. 6, 7). I accepted into evidence the certificate of occupancy of the premises, over respondent owner s objection that it is not relevant (Tr. 19-20). Under Administrative Code section 28-212.1, [a]ny building or part thereof... that is located in a residence zoning district and that is occupied for a use not permitted in such district in violation of the zoning resolution, without a certificate of occupancy authorizing such use, is hereby declared to be a public nuisance. 3 Respondent s objection to the introduction of the certificate of occupancy (Tr. 19; Jan. 5, 2009, Letter Brief) is without merit because the certificate is clearly relevant to this matter. Contrary to respondent s accusations, petitioner s counsel properly offered the document (see Petitioner s Letter Reply Brief, Jan. 8, 2009). Had the certificate of occupancy permitted a veterinary office, this case would not have gone forward (Tr. 20; 22-24). 2 The petition erroneously refers to the residence district as R6, when in fact the Department proved that the district is R7-2 in the zoning map. Because both are residential districts, and there is no difference in the applicable defense that flows from this correction, and thus no prejudice to respondents from making a correction, I conformed the pleadings to the proof at the hearing (Tr. 17-18). 3 The prior version of this code provision similarly refers to the certificate of occupancy and essentially the same analysis applies under both texts: Any building or part thereof that is located in a residential district, which is occupied for a commercial or manufacturing use in violation of the zoning resolution without a valid certificate of occupancy, is hereby declared to be a public nuisance. Admin. Code 26-127.2(a) (emphasis supplied).

- 4 - Respondents, however, assert that the cellar of the premises has continuously been used for commercial purposes, and, therefore, falls under the prior non-conforming use exception found in section 52-11 of the Zoning Resolution. Zoning Resolution Art V, ch. 2, para. 52-11 (eff. Dec. 15, 1961). 4 While respondents presented only sketchy evidence in support of their prior use theory, they relied primarily upon the unsupported argument that it is or should be the Department s burden to prove a break in the continuous use of the premises: there is no evidence whatsoever suggesting that the cellar and first floor of the Existing Building were used for anything but commercial use (Resp. Brief at 3; emphasis in original). Pursuant to section 12-10 of the Zoning Resolution, a non-conforming use is any lawful use, whether of a building or other structure or of a tract of land, which does not conform to any one or more of the applicable use regulations of the district in which it is located, either on December 15, 1961 or as a result of any subsequent amendment thereto. Zoning Resolution Art. I, ch. 2, para. 12-10 (eff. Dec. 15, 1961). Despite respondents contention that the Department must establish a break in the commercial use, the burden of proving a nonconforming use defense rests upon the respondents, and I decline the invitation from respondents to rewrite the law and reassign the burden of proof on that issue. This tribunal has repeatedly stated that [t]he legal non-conforming use argument is an affirmative defense, and the burden is on respondent to establish the defense at the hearing. Dep t of Buildings v. 211-20 Northern Boulevard, Queens, OATH Index No. 1225/03 at 2 (July 17, 2003) (citing Town of Ithaca v. Hull, 174 A.D.2d 911 (3d Dep t 1991)), aff d, Comm r Dec. (Nov. 25, 2003); Dep t of Buildings v. 17 Monroe Street, Manhattan, OATH Index No. 1586/07 at 3 (July 19, 2007); Dep t of Buildings v. 232 Mount Hope Place, Bronx, OATH Index No. 1207/94 at 2-3 (Oct. 28, 1994), aff d, Comm r Dec. (Nov. 1, 1994). In Hull, the court held that it was incumbent upon a defendant owner to establish that the use of the premises was legally created prior to the restrictive ordinance. 174 A.D.2d 911; see also Virgil v. Ford, 160 A.D.2d 1073, 1074 (3 rd Dep t 1990) ( A party who raises a claim of a nonconforming use must establish that the use was legally created ). The difficulty of proving continuous use of a building over nearly 50 years will vary depending on how well owners and occupants have kept their property records and whether there 4 The Zoning Resolution is published on the website of the New York City Department of City Planning at http://www.nyc.gov/html/dcp/pdf/zone/art01c02.pdf.

- 5 - are witnesses with memory of the actual uses. The imposition of the burden of proof on owners and occupants is consistent with zoning law and policy, and comports with the zoning scheme in New York State, as explained by the Court of Appeals in Toys R Us v. Silva, 89 N.Y.2d 411, 417 (1996): The law... generally views nonconforming uses as detrimental to a zoning scheme, and the overriding public policy of zoning in New York State and elsewhere is aimed at their reasonable restriction and eventual elimination. In Off Shore Restaurant Corp. v. Linden, 30 N.Y.2d 160, 164 (1972), the Court of Appeals articulated an important exception to the general principle (espoused by respondent here) that zoning ordinances are to be strictly construed in favor of the property owner. That principle of statutory construction loses its force when it comes to the specialized regulation of non-conforming uses: the courts do not hesitate to give effect to restrictions on nonconforming uses.... It is because these restrictions flow from a strong policy favoring the eventual elimination of nonconforming uses.... (citations omitted), quoted in Silva, 89 N.Y.2d at 422. As noted by Judge Rodriguez in 17 Monroe Street, the policy disfavoring nonconforming uses: was expressly incorporated into the 1961 Zoning Resolution. The purposes of the Zoning Resolution were to encourage the development of desirable residential, commercial, and manufacturing areas with appropriate groupings of compatible and related uses and thus to promote and to protect public health, safety and general welfare. [Silva] at 418, quoting Zoning Resolution 51-00 [Zoning Resolution Art V, ch. 1, para. 51-00 (eff. Dec. 15, 1961)]. The Zoning Resolution s Statement of Legislative Intent reads that [t]he regulations governing non-conforming uses... are therefore adopted in order to provide a gradual remedy for existing undesirable conditions resulting from such incompatible non-conforming uses.... Id. OATH 1586/07 at 3. Respondents reliance on Silva, for their position that substantial evidence of discontinuity has to be presented by the petitioner, (Resp. Brief at 8), is misplaced because it rests upon a fundamental misapprehension of the procedural posture and import of that case. The Court of Appeals was not directly addressing the question of which party bore the burden of proof. Rather, the question presented on appeal was whether there was substantial evidence to support the administrative agency s determination that a non-conforming use had been discontinued or abandoned. In Silva, a commercial tenant appealed a Board of Standards and Appeals ( BSA ) determination that a non-conforming use had been discontinued for a period of

- 6 - two years. The BSA conducted a factual hearing at which evidence was presented. Id. at 416-17. The BSA determined that the non-conforming use had ceased for a period of two years and the commercial tenant filed an Article 78 appeal, which eventually reached the Court of Appeals. Id. at 417. The Court sat in review of the BSA s determination, which, the Court held, must be sustained if it has a rational basis and is supported by substantial evidence, the familiar standard of judicial review for appeals of administrative decisions. Id. at 419. See also Comm n on Human Rights ex rel. Rhodes v. Apollo Theatre Investor Group, OATH Index No. 676/91 at 25 (June 14, 1991) ( The substantial evidence standard referred to defines the measure of proof necessary to uphold a[n agency] decision on judicial review, not the burden of proof necessary for a complainant to prevail at an administrative trial. ), aff d in part, modified in part, Comm n Dec. and Order (Mar. 11, 1992), modified, Index No. 10056/92 (S. Ct. N.Y. Co. Apr. 20, 1993); People ex rel. Vega v. Smith, 66 N.Y.2d 130, 139 (1985) (defining substantial evidence as such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact ) (citing 300 Gramatan Avenue Associates v. State Div. of Human Rights, 45 N.Y.2d 176, 180 (1978) (substantial evidence standard is less than a preponderance of the evidence )). The Court in Silva, contrary to respondents contention, did not place the burden of establishing a discontinuity in the non-conforming use of the property on the government. Rather, the Court deferred to the BSA s determination that the commercial tenant had abandoned its non-conforming use of a building as a warehouse, finding the proper test to be substantial discontinuance, and rejecting a supposed requirement to prove complete cessation of the nonconforming use. The BSA premised its conclusion in the fact finding proceeding on the absence of any standard evidence for the critical [time] period typically available to document a legitimate business operation, such as insurance records, tax documents, advertisements, liability coverage, customer records, employee records, certain directory listings, telephone records or sale receipts. 89 N.Y.2d at 423-24. Thus, it appears, the BSA found against the commercial tenant because of the tenant s failure to present evidence to document a continuous commercial presence in the building. Silva does not reassign the burden of proof of non-conforming use, an affirmative defense. The burden is and has always been on the respondent owners and occupants in New York City padlock proceedings to prove the affirmative defense of prior non-conforming use.

- 7 - Nor does Marzella v. Munroe, 69 N.Y.2d 967 (1987), also cited by respondent owner (Resp. Brief at 7), require a change in the burden of proof in a civil, administrative padlock proceeding in New York City. 5 There was no discussion of burden of proof in that case either. There, the Court reversed a zoning board in Dobbs Ferry for denying a permit because there was no evidence before that administrative agency that the non-conforming use had been abandoned in a village where complete cessation had to be shown. The case is distinguishable because in New York City, the standard is substantial discontinuance. Contrary to respondent s arguments, Silva and Marzella do not require any change in the burden of proof in a padlock case in which an issue of non-conforming use arises, and I find that a reasonable interpretation of Silva is that the burden to prove a non-conforming use is properly placed on the owners and occupants, given the zoning policy disfavoring such uses. Respondents would have the burden of proof broken up such that the owner of the property must prove only the creation of a lawful, non-conforming use prior to 1961, and then would shift the burden to the Department to show that that use was changed, interrupted or abandoned. But the uses to which the property was put are best known to the owner and occupants. An owner who has bought a property since 1961 with a non-conforming use in operation should inform itself as to the history and records of the property from the prior owner. No reason has been shown to eviscerate the consistent administrative precedent on point and reinvent the burden of proof on the affirmative defense of non-conforming use. Nor does the case law cited by respondent owner require any such change in the law. On the contrary, this tribunal has long held that it is not the burden of the Department of Buildings to plead or prove the non-existence of a non-conforming use: Nor is there a requirement that the Department plead the non-existence of a nonconforming use. Rather, whether or not there was a prior nonconforming use is an affirmative defense, and the burden is on respondent to establish the defense at the hearing. 232 Mount Hope Place, OATH 1207/94 at 2. 5 The analysis might be different if this were a criminal matter involving non-conforming use in violation of local ordinances and burdens of proof applicable under Penal Law. See People v. Burns, 115 Misc. 2d 897 (City Ct. Oswego Co. 1982) (the burden of disproving a prior nonconforming use when the issue is raised is shifted as a matter of law to the prosecutor in a criminal matter); People v. Simpson, 2004 NY Slip Op 51604U, at 5-6, 5 Misc. 3d 1029A (District Ct., 1 st Dist. Suffolk Co. 2004) (finding that a fair reading of Marzella in the context of a criminal zoning case in which the issue was non-conforming use in violation of a local zoning code indicates that the People bear the burden of proof on the issue of abandonment ). These cases, though interesting for their discussion of burdens of proof, arise in a very different context and do not govern civil, administrative padlock proceedings, in which the New York City Administrative Code does not require proof of complete abandonment of a non-conforming use or of the owner s intent in any event.

- 8 - To establish the defense of non-conforming use, respondents must demonstrate that the commercial use of the premises predated the 1961 Zoning Resolution and was legal at the time it was established. Further, the respondents must show that the premises have been continuously commercially occupied since that time without an impermissible change in or interruption of the use for a period of two or more years. See 17 Monroe Street, OATH 1586/07 at 2-3; Dep t of Buildings v. 137 Osgood Avenue, Staten Island, OATH Index No. 888/93 at 2 (Sept. 23, 1993). The two-year period derives from section 52-61 of the Zoning Resolution, which provides: If, for a continuous period of two years, either the non-conforming use of land with minor improvements is discontinued, or the active operation of substantially all the non-conforming uses in any building or other structure is discontinued, such land or building or other structure shall thereafter be used only for a conforming use. Intent to resume active operations shall not affect the foregoing. Zoning Resolution Art V, ch. 2, para. 52-61 (eff. Dec. 21, 1989). Respondents have failed to meet this burden. Mr. Adam Haenal, an assistant at Magnum Management, the managing agent of 120 St. Marks Place, testified on behalf of the respondents. He stated that he had performed research in the Manhattan telephone directories at the New York Public Library, the Science, Industry and Business Library, and other libraries (Tr. 39-41). Despite their efforts, respondents were unable to locate records showing uninterrupted commercial use of the premises without major, yearslong gaps, nor were they able to show that the uses they identified in historical records were specific to the cellar of the building, the only portion of the premises at issue here. There was no designation of the unit or units within the six-floor building that pertained to the old phone numbers found for the address of the building. Respondents submitted photocopies from mirofiche of these listings, from the Cole s phone directory, using reverse listings by address, asserting that the directories demonstrate that there were commercial tenants at the premises during at least part of the relevant period of time. Photocopies of excerpts of these phone directories showed a John Lakusta, a furrier, at 120 St. Marks Place for 1948, 1949, 1951-59, 1962, 1965 and 1966. The listings for 1956, 1957 and 1958 also separately showed a Ken-Lin Stores at 120 St. Marks Place with a notation that it was a television store. Neither set of listings specified the particular floor or unit in the building corresponding to the furrier or the television business. Respondents did not have a copy of the directory for the years 1960, 1961, 1963 or 1964 (Resp. Ex. E). Respondents presented no evidence for the years 1967 through 1975. For

- 9-1976, respondents presented a copy of a page from that year s phone directory, which was at best barely legible, but which Mr. Haenal represented, listed a Gino Giannaccini, with a notation that apparently says sculpture casting, at 120 St. Marks Place. The 1977 phone directory likewise listed Gino Giannaccini at that address. Respondents presented no evidence for 1978 or 1979. The 1980 phone directory shows another change in use: a tenant of the premises was now listed as East Village Eye and Eye Productions. The next year for which respondents presented evidence was 1986, as to which the phone directory lists three tenants of 120 St. Marks Place: General Contractor & Heating, Jarr Fuel Oil Corp., and Midtown Heating Corp. (Resp. Ex. F). Respondents additionally presented a copy of a 12-year lease signed by the owners of the premises and O. Moscovich, D.V.M., P.C., indicating that the veterinarian s office has been located in the cellar since November 2006 (Resp. Ex. H). Respondents evidence was deficient in a number of respects. First, although respondents submitted an uncontested 1953 zoning map (Resp. Ex. G; Tr. 47-49) that appears to show the property within a business district, and there was no challenge to the lawfulness of some type of business use before 1961 (Tr. 42, 49), they did not otherwise establish that the use of the premises as of 1961 was a lawful, non-conforming use or that there was no impermissible change or interruption in the use for two or more years from then to now. Section 52-34 of the Zoning Resolution states that a non-conforming use listed in Use Group 6 [among other use groups] may be changed, initially or in any subsequent change, only to a conforming use or to a use listed in Use Group 6. Zoning Resolution Art V, ch. 2, para. 52-34 (eff. Aug. 17, 1990). (Emphasis supplied). See Off Shore Restaurant Corp. v. Linden, 30 N.Y.2d at 163-64 ( [wh]ile zoning authorities may not prohibit [non-conforming] uses entirely, they may prevent changes from one nonconforming use to another ); 17 Monroe Street, OATH 1586/07 at 5. Here, veterinary medicine is a commercial use falling within Use Group 6, but there was no attempt to show that the various changes of use noted in the historical phone directories fell within that Use Group over time. Nor did respondents even argue that the assorted telephone listings corresponded to any particular, lawful uses or use groups over time, as required to prove a nonconforming use defense. The commercial phone numbers found intermittently covered a wide range of businesses and there was no effort to link them to permissible, identified changes of use. Second, even if appropriate proof of continuous use had been adduced, and it was not, the phone records respondents submitted do not speak to which floor of the premises was used

- 10 - by the various commercial tenants (Tr. 52). Here, the Department seeks only to padlock the cellar of the premises, a six-story building, and respondents must demonstrate that the cellar specifically has been continuously commercially used since the zoning change. See Dep t of Buildings v. 86 West 183rd Street, Bronx, OATH Index No. 595/01 (Apr. 9, 2001), aff d, Comm r Dec. (Apr. 26, 2001). Respondents have failed to prove that the furrier business or any other commercial use might have been in operation in the cellar, as opposed to other parts of the building, prior to 1961 until the present without an interruption of two years or more. Moreover, respondents failed to demonstrate the requirement of continuous tenancy as there are periods of time far greater than two years in length during which no commercial tenancy was established. Respondents did not submit any evidence that any part of the premises was occupied by a commercial tenant from 1967 through 1975, 1981 through 1985, and 1987 through 2006. Any one of these lengthy gaps in the proof completely defeats the nonconforming use defense. Zoning Resolution 52-61. As such, even if the original commercial use was located in the cellar and had been legally permitted pursuant to the zoning law prior to 1961, the right to continue such non-conforming use has expired and no valid certificate of occupancy permits the use as a veterinarian s office. The cellar is now allowed to be occupied only for uses permitted in a residential district, not for a Use Group 6 veterinary office, which is commercial (Pet. Ex. 7). Respondents remaining arguments are also unavailing. Their assertion that because the cellar could not have been used as a residence on the theory that it had only one door, to the street, and not into the other residential floors of the building, it must, therefore, have been used solely for commercial purposes (Resp. Brief at 3), is a non-sequitur. This argument does not substitute for proof, nor have respondents established the required continuity of commercial use. The certificate of occupancy says the cellar may be used as a doctor s office (Pet. Ex. 6). The cellar could have gone unoccupied for any or all of the time respondents were unable to document commercial occupancy; no evidence was adduced to fill the large gaps in proof of usage over time. Finally, respondents submitted into evidence a series of 50 photographs showing various commercial establishments located on St. Marks Place, asserting that St. Marks Place is a major commercial thoroughfare (Resp. Ex. C), and a portion of an environmental impact statement (Resp. Ex. D). These documents do not change the legal zoning of the premises. In effect,

- 11 - respondents argued that the Department ignored other commercial establishments while singling out The Village Veterinarian. However, this case concerns only the cellar of 120 St. Marks Place, and the defense of selective enforcement is not available in an administrative hearing such as this one; this defense must instead be adjudicated in a judicial forum. Dep t of Buildings v. 64 & 66 Buchanan Place, Bronx, OATH Index No. 667/99 (Nov. 18, 1998), aff d, Comm r Dec. (Mar. 1, 1999); Dep t of Buildings v. 2377 Grand Avenue, Bronx, OATH Index No. 1061/98 (June 12, 1998), aff d, Comm r Dec. (June 22, 1998). Accordingly, even if there may be other commercial establishments along St. Marks Place that the Department is not presently seeking to padlock, that circumstance does nothing to invalidate this proceeding, nor would it be appropriate to delve here into the history of uses at those other properties. FINDINGS AND CONCLUSIONS 1. Service was sufficient to entitle petitioner to proceed in the absence of the respondent mortgagee, which is in default. 2. The cellar of the premises is being used illegally for a commercial purpose in violation of the Padlock Law. RECOMMENDATION The Padlock Law authorizes only one remedy for the kind of public nuisance shown here: the closure of the offending premises. Accordingly, I recommend that the Commissioner issue an order of closure of the premises, specifically the cellar of 120 St. Marks Place, New York, New York. It is undisputed that padlocking the cellar will not impede ingress to or egress from the residential portions of the building (Tr. 59). April 27, 2009 SUBMITTED TO: ROBERT D. LiMANDRI Commissioner APPEARANCES: Joan R. Salzman Administrative Law Judge

- 12 - KEVIN M. O SULLIVAN, ESQ. Attorney for Petitioner BLANK ROME, LLP Attorneys for Respondent-Owner BY: JACK A. GREENBAUM, ESQ. MARVIN B. MITZNER, ESQ. DANIEL BRAFF, ESQ. CHRISTOPHER LIM, ESQ. Attorney for Respondent-Tenant No Appearance by Respondent-Mortgagee

- 13 - Commissioner s Dec (Apr. 30, 2009) I have reviewed the record of charges and specifications in the Petition and Notice of Hearing, dated August 15, 2008, and the Report and Recommendation of the Administrative Law Judge, dated April 27, 2009. The Report and Recommendation found that the premises was in violation of the Zoning Resolution and concluded that impermissible commercial activity consisting of the cellar being used for a commercial purpose was taking place at the premises. The Administrative Law Judge determined that the uses constitute illegal commercial uses in an R7-2 residence district and recommended closure of the premises, specifically the cellar of the above address. It is my determination that uses of the cellar of the above premises for a veterinarian's office constitute illegal commercial use in a residence district and, therefore, the cellar of the premises are ORDERED CLOSED. On or after the tenth business day after the posting of this order, the New York City Police Department and authorized employees of this Department shall act on and enforce this order by sealing, padlocking or otherwise preventing access to the cellar of the premises. It shall be a misdemeanor for any person to use or occupy or to permit any other person to use or occupy any building or part thereof that has been sealed, padlocked, or otherwise closed pursuant to an order of the commissioner. Mutilation or removal of a posted order of the commissioner shall be punishable by a fine of not more than twenty five thousand dollars or by imprisonment not exceeding one year, or both. So ordered, Robert D. LiMarndri Commissioner