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In re Grand Imperial, LLC

Supreme Court of New York, First Department

March 6, 2014

In re Grand Imperial, LLC, Petitioner,
v.
The City of New York, et al., Respondents.

Cohen, Hochman & Allen, New York (Lindsay Garroway of counsel), for petitioner.

Zachary W. Carter, Corporation Counsel, New York (Elizabeth I. Freedman of counsel), for respondents.

Mazzarelli, J.P., Sweeny, Renwick, Freedman, Gische, JJ.

Determination of respondent Environmental Control Board (ECB), dated February 16, 2012, which, inter alia, found that petitioner violated Administrative Code of City of NY § 28-118.3.2 and New York City Zoning Resolution (ZR) § 22-00, unanimously confirmed, the petition denied, and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, New York County [Manuel J. Mendez, J.], entered on or about March 19, 2013), dismissed, without costs.

The proceeding was properly transferred to this Court as it raised an issue of substantial evidence and respondents raised no objections in point of law requiring disposition by the Supreme Court (see CPLR 7803[4] and 7804[g]; see also Matter of Al Turi Landfill v New York State Dept. of Envtl. Conservation, 98 N.Y.2d 758, 760 [2002]; Matter of O'Donnell v Rozzi, 99 A.D.2d 494 [2d Dept 1984]).

Respondent's determination that petitioner's premises were being used primarily as a transient hotel is supported by substantial evidence (see 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 N.Y.2d 176, 180-182 [1978]), including the inspector's unrefuted testimony that he entered 90% of the rooms, spoke to guests concerning the length of their stays, and observed that at least 60% of the premises was being used as a transient hotel. This conclusion was supported by, inter alia, the existence of rooms with three piece bathrooms with sealed toilet seats, towels placed on towel racks, coffee makers, mini-bars, the provision of housekeeping service, and a notice warning guests that staying past check-out time would cause them to be charged for an extra day (compare Terrilee 97th St., LLC v New York City Envtl. Control Bd., 102 A.D.3d 637 [1st Dept 2013]).

Petitioner failed to establish that its use as a transient hotel was a prior, lawful non- conforming use which existed at the time of the enactment of the relevant statutory provisions and continued thereafter, uninterrupted except for a period of up to two years (see Administrative Code § 27-111; ZR §§ 52-11, 52-61).


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