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In Re Modiano Realty Inc v. Environmental Control Board of the City of New York

New York Supreme and/or Appellate Courts Appellate Division, First Department


May 16, 2013

IN RE MODIANO REALTY INC.,
PETITIONER, --
v.
ENVIRONMENTAL CONTROL BOARD OF THE CITY OF NEW YORK, RESPONDENT.

Matter of Modiano Realty Inc. v Environmental Control Bd. of the City of N.Y.

Decided on May 16, 2013

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Tom, J.P., Andrias, Renwick, DeGrasse, JJ.

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 $48,600.00, unanimously annulled, without costs, and the 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.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 16, 2013

CLERK

20130516

© 1992-2013 VersusLaw Inc.



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