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W. 81St Garage, LLC v. N.Y.C. Dep't of Buildings

Supreme Court, New York County
Apr 25, 2022
2022 N.Y. Slip Op. 31336 (N.Y. Sup. Ct. 2022)

Opinion

No. 157853/2021 Motion Seq. No. 001

04-25-2022

WEST 81ST GARAGE, LLC, 95 WORTH GARAGE, LLC, SARANAC LLC Petitioner, v. NEW YORK CITY DEPARTMENT OF BUILDINGS, NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS, MELANIE E. LA ROCCA IN HER OFFICIAL CAPACITY AS COMMISSIONER OF THE NEW YORK CITY DEPARTMENT OF BUILDINGS, Respondent.


Unpublished Opinion

MOTION DATE 12/22/2021.

PRESENT: HON. LAURENCE LOVE, Justice.

DECISION + ORDER ON MOTION

HON. LAURENCE LOVE, Justice.

The following e-filed documents, listed by NYSCEF document number (Motion 001) 10, 14, 38, 39, 42, 43, 44, 46 were read on this motion to/for ARTICLE 78 (BODY OR OFFICER) . Upon the foregoing documents, the instant Petition is resolved as follows:

Petitioners commenced the instant Petition by filing same on August 20, 2021, seeking CPLR Article 78 review of four summonses issued to Petitioners for violations of New York City Administrative Code §28-105.1, which makes it "unlawful…to erect, install, alter, repair, or use or operate any sign…unless and until a written permit therefore shall have been issued by the commissioner in accordance with the requirements of this code, subject to such exceptions and exemptions as may be provided in section 28-105.4."

On November 4, 2019 the Department of Buildings issued to Petitioner West 81st Garage, LLC summons numbers 35450830P and 35450831R for Outdoor sign on display without a permit. On November 6, 2019, the Department of Buildings issued to Petitioner Saranac, LLC summons numbers 35450833K and 35450832Z. Following a hearing before the Office of Administrative Trials and Hearings ("OATH"), penalties in the amount of $1,250.00 were imposed for each violation, which were paid by Select Garages, the operator of said premises. Petitioners appealed said determinations to OATH's Appeals Unit, which sustained the civil penalties assessed for the violations. Petitioners appealed the determinations to OATH's Appeals Unit arguing that the hearing officer abused his discretion in not requiring the Investigating Officer to appear at the hearing and that the complained of signs were within the "safe harbor" provisions of by §§ 3 and 10 of Local Law 28 of 2019.

As this Petition concerns procedural and substantive questions of law and statutory interpretation as well as principles of fundamental fairness, review by this Court is de novo, Walsh v. New York State Comptroller, 34 N.Y.3d 520, 523-24 (2019). No deference is to be accorded to the agency in this proceeding. See Bikman v. New York City Loft Board, 14 N.Y.3d 377, 381 (2010); Claim of Gruber, 89 N.Y.2d 225, 231-32 (1996). The statutory "words mean precisely what they say, and the [agency] may not under the guise of administering the statute ascribe a different or unreasonable meaning to those words." Rosenbluth v. Finkelstein, 300 N.Y. 402, 405 (1950).

Pursuant to § 6-15(a) of Title 48 of the Rules of the City of New York (RCNY), a hearing officer may grant an adjournment for the IO's testimony if the hearing officer finds that it is "likely to be necessary to a fair hearing on the violation(s) charged and/or the defense(s) asserted." Here, there is no legitimate dispute that the offending signs exist and that Petitioners hung said signs without a permit. Petitioners contentions concern only whether a permit was required for said signs.

Pursuant to Section 3 of LL 28/19:

Notwithstanding any other provision of law, no applicable violations shall be issued on or after the effective date of this section for an accessory sign in existence on or before the effective date of this section for a period of two years commencing on the effective
date of this section, unless such accessory sign creates an imminent threat to public health or safety or the commissioner of buildings determines that such sign is otherwise not eligible for the temporary waiver created under this section.

Petitioners contend that as there were similar signs in place outside of Petitioner's parking garages on the effective date of said section, February 9, 2019 that Petitioners' signs which had different sign copy are grandfathered under said section. Said argument is without merit as pursuant to BC § 105.7.2 "[t]he changing of copy on a sign not permitted for changeable copy or any structural change of the sign or sign structure shall require a new permit pursuant to this code." As it is undisputed that the new sign was installed after the effective date, said argument is without merit.

Pursuant to Administrative Code § 28-213.1:

In addition to any penalties otherwise authorized by law pursuant to article 202 and the rules of the department, whenever any work for which a permit is required pursuant to this code has been performed without a permit, a penalty shall be imposed by the department as provided in this article.
Exception: No such penalty shall be imposed for work performed without a permit to hang or attach upon or on the outside of any building a sign that is accessory to a use on the same zoning lot, as defined in section 12-10 of the zoning resolution that does not exceed one hundred fifty square feet in area, measured on one face only, or exceed one thousand two hundred pounds in weight. All such outstanding penalties imposed on or after December 28, 2017 shall be waived.

Based upon same, Petitioners contend that the subject signs are exempt from any permitting requirement. It is undisputed that the subject signs are "accessory signs" within the meaning of the statute. There is absolutely no support for the proposition that Petitioners were not required to obtain a permit to hang the subject signs. The subject statute merely serves to assist those who have hung signs without a permit in violation of the Administrative Code to resolve those villations without the burden of also paying substantial fines in addition to correcting the violation. However, Respondents' contention that the exemption from penalties contained in Code § 28-213.1 (LL 28/19 § 10) pertains to penalties imposed by DOB, not civil penalties imposed by OATH is also without merit. The interpretation of the statute argued by Respondents that the DOB may not impose penalties, but that by bringing a proceeding before OATH, seeking penalties that additional penalties may be imposed contradicts both the plain meaning of the statute and the legislative intent behind same. The New York City Council, in enacting this law, described its purpose and effect, writing: "this bill would establish a waiver of all work without a permit penalties issued in relation to the hanging of an accessory sign from December 28, 2017 going forward." See Minutes of Charter Meeting, Jan. 9, 2019. As such, Respondents' interpretation would remove all meaning from the subject statute. However, though there is currently no penalty associated with the instant violations of Administrative Code §28-105.1, the signs remain in violation of same.

The Court has considered Petitioners' first amendment arguments and finds them to be without merit as inapposite to the facts of this case.

ORDERED that Petitioners' Petition is GRANTED to the extent that this action is REMANDED to the Office of Administrative Trials and Hearings for further proceedings consistent with this opinion; and it is further

ORDERED that the remaining branches of the Petition are DENIED.


Summaries of

W. 81St Garage, LLC v. N.Y.C. Dep't of Buildings

Supreme Court, New York County
Apr 25, 2022
2022 N.Y. Slip Op. 31336 (N.Y. Sup. Ct. 2022)
Case details for

W. 81St Garage, LLC v. N.Y.C. Dep't of Buildings

Case Details

Full title:WEST 81ST GARAGE, LLC, 95 WORTH GARAGE, LLC, SARANAC LLC Petitioner, v…

Court:Supreme Court, New York County

Date published: Apr 25, 2022

Citations

2022 N.Y. Slip Op. 31336 (N.Y. Sup. Ct. 2022)