| Dextra v City of New York |
| 2007 NY Slip Op 09895 [46 AD3d 328] |
| December 13, 2007 |
| Appellate Division, First Department |
| Frantz Dextra, Petitioner, v City of New York et al.,Respondents. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York City (Norman Corenthal of counsel),for respondents.
Determinations of respondent Environmental Control Board, both dated June 9, 2005,finding that petitioner performed an illegal alteration to a residence, in violation ofAdministrative Code of the City of New York § 27-118.1, and that petitioner performedconstruction work without a permit, in violation of Administrative Code § 27-147,unanimously modified, on the law, to vacate so much of the latter determination as imposed an$800 penalty, and the proceeding (transferred to this Court by order of Supreme Court, NewYork County [Eileen A. Rakower, J.], entered October 26, 2006) otherwise disposed of byconfirming the remaining determinations, without costs.
The notices of violation were reasonably calculated to apprise interested persons of theproceeding and afford them an opportunity to be heard and to present their objections. Noreasonable person would interpret the "hearing penalty" language of the notice, as petitionerdoes, to state that a penalty will be imposed if the violation is contested, regardless of theoutcome of the hearing. Such a reading defies logic and common sense, and furthermore isinconsistent with a reading of the notice as a whole.
There is no inconsistency between the language of the notice requiring that petitioner correctthe violations and file a certificate of correction and the instruction contained in the informationsheet that a certificate should not be filed in cases where a hazardous violation is alleged. Theinformation sheet explains that filing a certificate will constitute an admission of the violation inadvance of the hearing at which the violation is to be contested, and is a procedure available innonhazardous cases only, in order to avoid penalties and the necessity of a hearing.
By clearly directing petitioner to appear for a hearing on a scheduled date, and furnishingtelephone numbers for both the Environmental Control Board (ECB) and the Department ofBuildings in a section titled "for more information," the notices of violation complied with theNew York City Charter's requirement that such notices "contain information advising the personcharged of the manner and the time in which such person may either admit or deny the violationcharged in the notice" (NY City Charter § 1404 [d] [1] [c]). Similarly, the informationsheet accompanying the notices stated the [*2]maximum civilpenalty applicable to each offense. The $800 penalty imposed for each violation was well withinthe statutory range.
However, ECB erred in failing to consider petitioner's evidence and in rejecting his defensebased on Administrative Code § 26-212.1, which provides, "No civil penalty shall beimposed if the work for which a permit is required was completed prior to the effective date ofthis section" (subd [b]). Petitioner presented affidavits from two family members, who averredthat they lived with other family members in the building from 1976 to 1982, during which timethey often went into the basement, and that the basement had been altered for dwelling purposesbefore 1975. While the Administrative Law Judge found that neither affidavit explained what thecellar looked like or what work was done to convert it to dwelling space, and that there was noindication that either affiant had inspected the premises subsequent to petitioner's taking title,both affidavits stated that the cellar was being used for dwelling purposes before 1989, theeffective date of Administrative Code § 26-212.1.
In addition, ECB erred in failing to consider the notice of violations annexed to the"voluntary repair agreement" between petitioner and the Department of Housing Preservation andDevelopment. On March 22, 1988, the premises owner was cited for various violationspertaining to the cellar and was admonished to "[f]ile plans and application and legalize thefollowing alteration or restore to the legal condition existing prior to the making of said alterationwood and plasterboard partitions installed cellar thruout creating rooms," to "[d]iscontinue use ofrooms for living, disconnect plumbing fixtures and properly seal pipe connections cellar frontand rear," and to "[d]iscontinue unlawful cooking space or file plans and application with thisDepartment to legalize same, if lawfully feasible, cellar rear."
The affidavits and the list of violations were before the ECB and should have beenconsidered. Because they constitute substantial evidence that the alteration work was completedbefore the effective date of Administrative Code § 26-212.1, the $800 penalty forperforming construction work without a permit, in violation of Administrative Code §27-147, should not have been imposed.
We have considered and rejected petitioner's remaining contentions.Concur—Friedman, J.P., Marlow, Nardelli and Catterson, JJ.