| Matter of St. Clair Nation v City of New York |
| 2009 NY Slip Op 01719 [60 AD3d 468] |
| March 10, 2009 |
| Appellate Division, First Department |
| In the Matter of Leon St. Clair Nation, Petitioner, v City ofNew York et al., Respondents. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York (Louise Moed of counsel), forrespondents.
Determination of respondent Commissioner of the Department of Buildings (DOB), datedDecember 4, 2007 and January 15, 2008, which, after a hearing, revoked petitioner's professionalcertification privileges pursuant to 1 RCNY 21-02 and refused to accept any application or otherdocument submitted by petitioner to DOB, pursuant to Administrative Code of the City of NY§ 26-124 (c), for two years effective January 15, 2008, to be followed by a three-yearprobationary period, unanimously modified, on the law, to the extent of vacating the penaltyimposed pursuant to Administrative Code § 26-124 (c), and the proceeding broughtpursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, New YorkCounty [Jane S. Solomon, J.], entered June 26, 2008) otherwise disposed of by confirming theremainder of the determination, without costs.
Substantial evidence supports the Commissioner's determination that petitioner negligentlycertified the accuracy of falsified photographs submitted with plans for two separate propertiesand a false application for alterations to the nonexistent second floor of a third property (see300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 180-181 [1978]).Whether or not petitioner was required by statute, regulation or rule to visit work sites or tosubmit photographs in connection with applications and plans, he was professionally bound toverify the accuracy of the applications and plans he certified as accurate. The AdministrativeLaw Judge's reference to the professional standards for engineers of the New York State Boardof Regents and the National Society for Professional Engineers was neither an improperusurpation of the Board of Regents' authority to regulate engineers nor an attempt to enforce therules of the National Society against a nonmember. Rather, these professional standards werecited as evidence of the standard of care expected of a professional engineer certifyingdocuments such as applications and plans filed with DOB. Given that, in issuing permits underthe "Limited Supervisory Check and/or Professional Certification Program for Applications andPlans" (1 RCNY 21-01), DOB must rely on the certifications of professionals such as petitioner,the Commissioner's determination to revoke petitioner's professional certification privileges doesnot shock the conscience of the Court (see Matter of Pell v Board of Educ. of Union FreeSchool Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d222, [*2]233 [1974]).
However, the Commissioner impermissibly invoked Administrative Code § 26-124 (c)to bar petitioner from submitting any applications or documents to DOB under his name for aperiod of two years, to be followed by a probationary period of three years. Section 26-124 (c)did not take effect until well after petitioner engaged in the acts charged against him. Since it isclearly penal in nature, it may not be applied retroactively (see Majewski v Broadalbin-PerthCent. School Dist., 91 NY2d 577, 584 [1998]; Landgraf v USI Film Products, 511US 244, 265, 280 [1994]; Doe v Pataki, 120 F3d 1263, 1272-1273 [2d Cir 1997], certdenied 522 US 1122 [1998]; Forti v New York State Ethics Commn., 75 NY2d 596,609-610 [1990]; Ciafone vKenyatta, 27 AD3d 143, 146 [2005]; Matter of Allied Grocers Coop. v Tax AppealsTrib., 162 AD2d 791 [1990]). Concur—Mazzarelli, J.P., Saxe, Nardelli, DeGrasse andFreedman, JJ.