Modiano Realty Inc. v. Environmental Control Board

Appellate Division of the Supreme Court of New York

Modiano Realty Inc. v. Environmental Control Board

106 A.D.3d 541, 965 N.Y.S.2d 462

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 16, 2013

StatusPublished

This text of 106 A.D.3d 541 (Modiano Realty Inc. v. Environmental Control Board) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Modiano Realty Inc. v. Environmental Control Board, 106 A.D.3d 541, 965 N.Y.S.2d 462 (N.Y. Ct. App. 2013).

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Opinion

Determination of respondent, Environmental Control Board of the City of New York, dated June 23, 2011, which, after a hearing, found that petitioner had violated the Administrative Code of the City of New York §§ 28-210.1, 28-202.1 and 27-369, and the New York City Building Code (Administrative Code of City of NY tit 28, ch 7) § BC 1020.2, and imposed civil fines totaling $48,600, unanimously annulled, without costs, and [542]*542the petition brought pursuant to CPLR article 78 (transferred to this Court by order of Supreme Court, New York County [Peter H. Moulton, J.], entered May 21, 2012), granted.

Respondent failed to introduce substantial evidence to establish that petitioner’s residence was altered for occupancy by four or more families (see generally 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 180 [1978]). It was bare surmise and conjecture to conclude, from photographs depicting the outside of two doors in the basement, and the presence of five mailboxes on the exterior of the premises, that petitioner had illegally converted its premises (cf. Matter of Kurtin v City of New York, 78 AD3d 473 [1st Dept 2010]), especially since the Department of Building’s inspector who issued the notices of violation did not testify at the hearing. Concur— Tom, J.P, Andrias, Renwick and DeGrasse, JJ.

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Determination of respondent, Environmental Control Board of the City of New York, dated June 23, 2011, which, after a hearing, found that petitioner had violated the Administrative Code of the City of New York §§ 28-210.1, 28-202.1 and 27-369, and the New York City Building Code (Administrative Code of City of NY tit 28, ch 7) § BC 1020.2, and imposed civil fines totaling $48,600, unanimously annulled, without costs, and [542]*542the petition brought pursuant to CPLR article 78 (transferred to this Court by order of Supreme Court, New York County [Peter H. Moulton, J.], entered May 21, 2012), granted.

Respondent failed to introduce substantial evidence to establish that petitioner’s residence was altered for occupancy by four or more families (see generally 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 180 [1978]). It was bare surmise and conjecture to conclude, from photographs depicting the outside of two doors in the basement, and the presence of five mailboxes on the exterior of the premises, that petitioner had illegally converted its premises (cf. Matter of Kurtin v City of New York, 78 AD3d 473 [1st Dept 2010]), especially since the Department of Building’s inspector who issued the notices of violation did not testify at the hearing. Concur— Tom, J.P, Andrias, Renwick and DeGrasse, JJ.

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Bluebook (online)

106 A.D.3d 541, 965 N.Y.S.2d 462, Counsel Stack Legal Research, https://law.counselstack.com/opinion/modiano-realty-inc-v-environmental-control-board-nyappdiv-2013.

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