Opinion
16899 Index No. 159184/20 Case No. 2022-02758
12-15-2022
In the Matter of ONLY PROPERTIES LLC, Petitioner–Appellant, v. The NEW YORK CITY DEPARTMENT OF BUILDINGS et al., Respondents–Respondents
Peluso Touger LLP, New York (Nicole Waknine of counsel), for appellant. Sylvia O. Hinds-Radix, Corporation Counsel, New York (Eva L. Jerome of counsel), for respondents.
Peluso Touger LLP, New York (Nicole Waknine of counsel), for appellant.
Sylvia O. Hinds-Radix, Corporation Counsel, New York (Eva L. Jerome of counsel), for respondents.
Renwick, J.P., Shulman, Rodriguez, Higgitt, JJ.
Judgment (denominated an order), Supreme Court, New York County (Debra James, J.), entered February 7, 2022, denying the petition to vacate a determination of respondent New York City Office of Administrative Trials and Hearings (OATH), dated September 10, 2020, which reinstated the charge of occupancy contrary to a certificate of occupancy, in violation of Administrative Code of City of N.Y. § 28–118.3.2, and imposed a civil penalty of $500, and dismissing the proceeding brought pursuant to CPLR article 78 as moot, unanimously affirmed, without costs.
The court properly denied the petition and dismissed the article 78 proceeding as moot, in light of respondent New York City Department of Buildings’ (DOB) withdrawal of prosecution of the summons, and OATH's issuance of a superseding decision dismissing the administrative proceeding, during the pendency of the article 78 proceeding (see Matter of Santiago v. Berlin, 111 A.D.3d 487, 487, 974 N.Y.S.2d 457 [1st Dept. 2013] ; Matter of Callwood v. Cabrera, 49 A.D.3d 394, 394, 854 N.Y.S.2d 42 [1st Dept. 2008] ). We reject petitioner's contention that OATH did not have the authority to unilaterally dismiss the summons after a final determination by its Appeals Unit and commencement of this article 78 proceeding (see 48 RCNY 6–08[e]). The fact that the DOB reserved the right to issue a new violation in the future, the likelihood of which is unclear, is insufficient to support petitioner's argument against mootness (see Encore Coll. Bookstores, Inc. v. City Univ. of N.Y., 75 A.D.3d 442, 443, 905 N.Y.S.2d 573 [1st Dept. 2010] ; Matter of Clifford v. First Am. Corp., 240 A.D.2d 335, 335, 659 N.Y.S.2d 268 [1st Dept. 1997] ). Petitioner has not demonstrated any enduring negative consequences from the issuance of the summons such that this matter remains ripe for judicial review (cf. Matter of New York State Commn. on Jud. Conduct v. Rubenstein, 23 N.Y.3d 570, 576, 992 N.Y.S.2d 678, 16 N.E.3d 1156 [2014] ; Matter of Williams v. Cornelius, 76 N.Y.2d 542, 546–547, 561 N.Y.S.2d 701, 563 N.E.2d 15 [1990] ). Finally, the exception to the mootness doctrine does not apply, as petitioner failed to show that this matter involves a "phenomenon typically evading review" ( Matter of Hearst Corp. v. Clyne, 50 N.Y.2d 707, 714–715, 431 N.Y.S.2d 400, 409 N.E.2d 876 [1980] ; see also Matter of Metropolitan Steel Indus., Inc. v. Dormitory Auth. State of N.Y., 72 A.D.3d 495, 495–496, 897 N.Y.S.2d 905 [1st Dept. 2010] ). Its contention that respondents engaged in a "practice" of withdrawing summonses after commencement of article 78 proceedings in order to evade judicial review, only to later reissue violations, is unsupported and speculative.
We have considered petitioner's remaining arguments and find them unavailing.