Opinion
12777 Index No. 152861/19 Case No. 2020-00019
01-05-2021
In the Matter of Krishna TIWARI, Petitioner–Appellant, v. CITY OF NEW YORK et al., Respondents–Respondents.
Kramer Levin Naftalis & Frankel LLP, New York (Julia A. Quigley of counsel), for appellant. James E. Johnson, Corporation Counsel, New York (Amy McCamphill of counsel), for respondents.
Kramer Levin Naftalis & Frankel LLP, New York (Julia A. Quigley of counsel), for appellant.
James E. Johnson, Corporation Counsel, New York (Amy McCamphill of counsel), for respondents.
Webber, J.P., Singh, Kennedy, Shulman, JJ.
Judgment, Supreme Court, New York County (Carol Edmead, J.), entered on October 9, 2019, denying the petition to annul a $6,000 penalty imposed by respondent Department of Buildings (DOB), and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.
The court properly found that the minimum mandatory fine imposed by DOB pursuant to Administrative Code of City of N.Y. § 28–213.1.2, based upon petitioner's installation of a four-by-twenty foot illuminated and cantilevered awning sign at his commercial premises without a permit, in violation of Administrative Code § 28–105.1, was not excessive. Petitioner's challenge to the penalty as violative of the constitutional prohibitions against excessive fines (see U.S. Const., 8th Amend; N.Y. Const., Art. I, § 5 ), is unavailing. The penalty serves a remedial, rather than punitive, purpose and is intended to "coerce compliance" ( Matter of Franklin St. Realty Corp. v. NYC Envtl. Control Bd., 164 A.D.3d 19, 30, 83 N.Y.S.3d 41 [1st Dept. 2018], affd 34 N.Y.3d 600, 122 N.Y.S.3d 567, 145 N.E.3d 204 [2019] ; see OTR Media Group, Inc. v. City of New York, 83 A.D.3d 451, 454, 920 N.Y.S.2d 337 [1st Dept. 2011] ). Even if the penalty was punitive, it was not "grossly disproportional to the gravity of [the] offense" (see County of Nassau v. Canavan, 1 N.Y.3d 134, 140, 770 N.Y.S.2d 277, 802 N.E.2d 616 [2003] ). Contrary to petitioner's argument, the fact that, as of February 9, 2019, Local Law 28 of 2019 instituted a temporary, two-year moratorium on the issuance of violations and penalties for certain accessory signs, does not establish that the $6,000 penalty imposed on him was excessive.