Contest Promotions-NY LLC v. New York City Department of Buildings

116 A.D.3d 447, 982 N.Y.S.2d 767

Opinion

Judgment, Supreme Court, New York County (Eileen A. Rakower, J.), entered November 16, 2012, granting petitioner’s order to show cause and petition to the extent of annulling the determination, dated August 30, 2012, which reinstated five notices of violation issued against petitioner’s signs at two locations and imposed fines on petitioner, unanimously reversed, on the law, without costs, the petition denied, respondents’ determination reinstated, and the proceeding brought pursuant to CPLR article 78 dismissed. Order, same court and Justice, entered June 19, 2013, which consolidated the index numbers, unanimously dismissed, without costs, as academic.

The determination of respondent New York City Environmental Control Board (ECB) that the signs at issue constituted “advertising” signs, rather than “accessory” signs, under New York City Zoning Resolution § 12-10, was not arbitrary and capricious (see Matter of Atlantic Outdoor Adv., Inc. v Srinivasan, 110 AD3d 598 [1st Dept 2013]). The court should have deferred to ECB’s fact-sensitive analysis of whether the accessory use was clearly incidental to and customarily found in connection with the principal use of the property (see Matter of New York Botanical Garden v Board of Stds. & Appeals of City of N.Y., 91 NY2d 413, 420 [1998]). Concur — Tom, J.E, Acosta, Saxe, DeGrasse and Freedman, JJ.