Opinion
June 19, 1995
Appeal from the Supreme Court, Queens County (Milano, J.).
Ordered that the appeal from the order dated July 16, 1993, is dismissed as academic; and it is further,
Ordered that the order dated December 10, 1993, is reversed insofar as appealed from, on the law, with costs, and the defendant's motion is denied in its entirety; and it is further,
Ordered that the plaintiffs are directed to prosecute their administrative appeal before the New York City Board of Standards and Appeals to determine whether the use of the defendant's house as a three-family dwelling was discontinued pursuant to New York City Zoning Resolution § 52-61 before this action continues, and the disposition of this action is stayed pending that determination.
The Supreme Court erred by granting the defendant's motion, inter alia, to enjoin the plaintiffs from prosecuting an administrative appeal before the New York City Board of Standards and Appeals. The issue of whether the use of the defendant's house as a three-family dwelling was discontinued pursuant to New York City Zoning Resolution § 52-61 is best left to the New York City Board of Standards and Appeals, which, with the New York City Department of Buildings, is "responsible for administering and enforcing the zoning resolution (New York City Charter §§ 643, 666 [7])" ( Applebaum v. Deutsch, 66 N.Y.2d 975, 977; see, Haddad v. Salzman, 188 A.D.2d 515, 517). "[P]ursuant to the doctrine of primary jurisdiction * * * the plaintiffs should pursue relief in the New York City Board of Standards and Appeals for resolution of the * * * factual [issue] raised by their cause of action for declaratory relief, and disposition of the action is stayed pending that administrative determination" ( Haddad v Salzman, supra, at 517).
In light of this result, the plaintiff Ingrid Ain's filing of an administrative appeal with the New York City Board of Standards and Appeals to determine whether the defendant's use of her house as a three-family dwelling was discontinued is not frivolous conduct warranting the imposition of costs ( see, 22 NYCRR 130-1.1 [c]). Rosenblatt, J.P., Ritter, Copertino and Santucci, JJ., concur.