| Matter of Chin v New York City Bd. of Stds. & Appeals |
| 2012 NY Slip Op 05599 [97 AD3d 485] |
| July 17, 2012 |
| Appellate Division, First Department |
| In the Matter of Jean Chin, Appellant, v New York CityBoard of Standards and Appeals et al., Respondents. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York (Susan Paulson of counsel), formunicipal respondents. Law Offices of Marvin B. Mitzner, LLC, New York (Marvin B. Mitzner of counsel), for 516East 6th Street, LLC and 514 East 6th Street, LLC, respondents.
Judgment, Supreme Court, New York County (Cynthia S. Kern, J.), entered March 9, 2011,denying the petition to annul a determination of respondent Board of Standards and Appeals(BSA) dated August 3, 2010, which granted respondents 514 East 6th Street, LLC and 516 East6th Street, LLC (collectively, the owners) certain variances to provisions of the MultipleDwelling Law, and dismissing the proceeding, unanimously affirmed, without costs.
In this CPLR article 78 proceeding, petitioner challenges variances obtained in connectionwith the owners' application to enlarge two adjacent, five-story, non-fireproof tenements, whichwere constructed some time prior to 1901. In or about October 2006, the owners filed anapplication with the New York City Department of Buildings (DOB) seeking a permit to add newsixth floors and seventh-floor penthouses to the buildings. Because the proposed expansion didnot conform with certain provisions of the Multiple Dwelling Law, the owners sought waiversfrom DOB. In October 2007, DOB waived the Multiple Dwelling Law requirements and issuedan alteration permit for the expansion; construction began shortly thereafter.
On November 25, 2008, BSA revoked the permit, finding that DOB did not have theauthority to vary the application of the Multiple Dwelling Law. By the time the permit wasrevoked, the owners had already completed construction on the expansion of the buildings. InJune 2009, in an effort to legalize the buildings, the owners sought the required variances fromBSA. By resolution dated August 3, 2010, BSA granted the variance request with respect to theaddition of the sixth floor.[FN*] BSA's approval was contingent on the owners' compliance with certain conditions, [*2]including the installation of an automatic wet sprinkler system inthe common areas, cellar, and all apartment interiors, hard-wired smoke detectors and emergencylighting in all apartments and common areas, new fire escapes and ladders at the front and rear ofthe buildings, and replacement of wood apartment doors with self-closing metal doors.
In determining whether to grant the variances, BSA reviewed the owners' application underMultiple Dwelling Law § 310 (2) (a), which applies to "buildings existing on" July 1,1948. Since the buildings existed on that date, section 310 (2) (a) is, on its face, applicable.Petitioner argues that BSA utilized the wrong statutory subdivision, and that the applicationsshould have been reviewed under Multiple Dwelling Law § 310 (2) (c). That section,which provides for more stringent criteria for variances, applies to "buildings erected or to beerected or altered pursuant to plans filed on or after" December 15, 1961. Since the alterationplans here were filed after that date, section 310 (2) (c) is also, on its face, applicable.
Because both subdivisions (a) and (c) could reasonably apply to the owners' request forvariances, we find that the statute, when read as a whole, is ambiguous under the facts presentedhere. Although the correct interpretation of a statute is ordinarily an issue of law for the courts todecide, where the statutory language suffers from some fundamental ambiguity, courts shoulddefer to the interpretation of the agency charged with administering the statute (Matter ofGolf v New York State Dept. of Social Servs., 91 NY2d 656, 667 [1998]; Matter of New York City Council v City ofNew York, 4 AD3d 85, 97 [2004], lv denied 4 NY3d 701 [2004]). Thus, wherethe language of a statute is susceptible to conflicting interpretations, the agency's interpretation isentitled to great deference, and must be upheld as long as it is reasonable (Golf, 91 NY2dat 658; Matter of Espada 2001 v NewYork City Campaign Fin. Bd., 59 AD3d 57, 64 [2008]; Matter of Beekman HillAssn. v Chin, 274 AD2d 161, 167 [2000], lv denied 95 NY2d 767 [2000]).
In light of the ambiguity, we defer to BSA's interpretation of the statute (see BeekmanHill, 274 AD2d at 167 [deferring to BSA's construction of ambiguous provisions in theZoning Resolution]). BSA's decision to review the owners' variance application undersubdivision (a) was reasonable under the circumstances. The language of subdivision (a) plainlyapplies on its face since the "buildings exist[ed]" on July 1, 1948. The original version ofsubdivision (a), which remains essentially the same today, was enacted to govern variances forbuildings constructed prior to July 1, 1948. BSA reviewed the history of the statute and itssubsequent amendments, and reasonably concluded, based on that history, that subdivision (a)applies to pre-1948 buildings, whenever they are altered.
Petitioner points to nothing in the legislative history that conclusively establishes thatsubdivision (c) should be applied here. Furthermore, BSA reasonably concluded that if one wereto adopt petitioner's view that subdivision (c) applies to alterations of pre-1948 buildings, itwould render subdivision (a) largely superfluous. Finally, there are rational policy reasonssupporting BSA's interpretation of the statute, because subjecting owners wishing to alterpre-1948 buildings to the more stringent requirements of subdivision (c) could have a chillingeffect on the making of improvements to those buildings most in need of renovation.Concur—Mazzarelli, J.P., Catterson, Moskowitz, Richter and Manzanet-Daniels, JJ.[Prior Case History: 2011 NY Slip Op 30539(U).]
Footnote *: At BSA's direction, respondentseliminated the seventh floor from the plans and now seek to legalize only the sixth floor.