| Matter of Perlbinder Holdings, LLC v Srinivasan |
| 2014 NY Slip Op 00940 [114 AD3d 494] |
| February 13, 2014 |
| Appellate Division, First Department |
| In the Matter of Perlbinder Holdings, LLC,Appellant, v Meenakshi Srinivasan et al.,Respondents. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York (Jane L. Gordon of counsel),for respondents.
Judgment, Supreme Court, New York County (Joan B. Lobis, J.), entered March 27,2013, denying the petition to annul a resolution of respondent Board of Standards andAppeals of the City of New York (BSA), dated June 19, 2012, which upheld a decisionof the New York City Department of Buildings (DOB) that revoked petitioner's permitsfor an outdoor advertising sign, and to annul violations issued by DOB, and dismissingthe proceeding brought pursuant to CPLR article 78, unanimously reversed, on the lawand the facts, without costs, the petition granted to the extent of annulling BSA'sresolution, and the matter remanded to BSA for further proceedings consistent herewith.
Petitioner contends that the revocation of the permits for a large advertising sign onits property was improper because petitioner constructed the sign in good-faith relianceon a 2008 determination of the Manhattan Borough Building Commissioner that the signwas a permissible replacement for a similar sign that was removed when a building onthe property was demolished. In upholding the revocation of the permits, BSA concludedthat it could not consider the issue of petitioner's good faith under its appellatejurisdiction. This was incorrect.
Under NY City Charter § 666 (6) (a), BSA is empowered to hear and decideappeals from DOB determinations. Section 666 (7) provides that in determining suchappeals, BSA may "vary . . . any rule or regulation or the provisions of anylaw relating to the construction . . . of buildings or structures. . . where there are practical difficulties or unnecessary hardship in the wayof carrying out the strict letter of the law, so that the spirit of the law shall be observed,public safety secured and substantial justice done." In its resolution, BSA failed toappropriately address this charter provision, despite a request by petitioner. Indeed, to theextent that petitioner sought relief based on its good-faith reliance, petitioner's appealbefore BSA was, in effect, a request for a variance. Thus, the matter must be remanded toBSA, in its appellate capacity, to determine whether petitioner is entitled to a varianceapplying the factors set forth in section 666 (7). Because the record was not fullydeveloped as to these criteria, before either BSA or Supreme Court, BSA shall permit theparties to make further submissions.
The record establishes as a matter of law that petitioner relied in good faith upon the2008 [*2]determination. In deciding whether to grant avariance on remand, BSA must consider, along with the section 666 (7) factors,petitioner's good-faith reliance. In Matter of Pantelidis v New York City Bd. of Stds. & Appeals(43 AD3d 314 [1st Dept 2007], affd 10 NY3d 846 [2008]), we affirmed adecision of the Supreme Court (10 Misc 3d 1077[A], 2005 NY Slip Op 52249[U] [SupCt, NY County 2005]), which held that BSA was required to consider the petitioner'sgood-faith reliance on a later-rescinded permit when considering the petitioner'sapplication for a variance, and our decision was upheld by the Court of Appeals. Here, asin Pantelidis, BSA is required to consider petitioner's good-faith reliance inadjudicating petitioner's appeal (see also Matter of Jayne Estates v Raynor, 22NY2d 417, 423 [1968] [good-faith reliance on invalid permit should be considered indetermining whether variance applicant has suffered unnecessary hardship]).
Petitioner's claim that no variance is required because the new sign was a permissiblereplacement for a previous sign on the property is without merit because the new sign isin a different location and position (see NY City Zoning Resolution §52-83). In view of our conclusion that the matter must be remanded to BSA, anydetermination as to whether the DOB violations are enforceable is premature.Concur—Tom, J.P., Andrias, Saxe, Freedman and Richter, JJ.
The decision and order of this Court entered herein on October 29, 2013 (110 AD3d611 [1st Dept 2013]) is hereby recalled and vacated (see 2014 NY Slip Op63776[U] [2014] [decided simultaneously herewith]). [Prior Case History: 2013 NYSlip Op 30466(U).]