275 Webster Tenants, Inc. v. Wright

238 A.D.2d 143, 655 N.Y.S.2d 506, 1997 N.Y. App. Div. LEXIS 3096

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 3, 1997
• Status: Published

Opinion

—Judgment (denominated an order), Supreme Court, New York County (Carol Arber, J.), entered on or about February 21, 1996, which denied petitioner’s application pursuant to CPLR article 78 to annul respondent’s denial of J51 benefits for the installation of a new boiler/burner, and dismissed the petition, unanimously affirmed, without costs.

We defer to respondent’s interpretation of its rule 2.4 (5), which defines "commencement” of the 36-month period allowed to complete a J51 project as "the date of issuance of a permit by a City agency”, as creating only an evidentiary presumption that can be rebutted by actual evidence of a different start date (see, Matter of Howard v Wyman, 28 NY2d 434, 438). Petitioner’s argument that the start date for its boiler/burner project should not have been fixed on the date it began actual physical installation of the burner, without having the required permit from the Department of Buildings, but rather from the date that the permit was issued eight months later, not only fails to address whether it was legal to start such work without such permit, but would allow an applicant to take as long as it wanted to complete a project through the simple device of delaying its application for the necessary work permit, and thereby negate the purpose of the J51 program to provide an incentive for the swift upgrading of multiple dwellings (see, Matter of 31171 Owners Corp. v New York City Dept. of Hous. Preservation & Dev., 190 AD2d 441, 443). Concur— Rosenberger, J. P., Rubin, Williams and Andrias, JJ.