Matter of Minchew v City of New York

[*1] Matter of Minchew v City of New York 2005 NY Slip Op 50344(U) Decided on February 25, 2005 Civil Court Of The City Of New York, Richmond County Straniere, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 25, 2005
Civil Court of the City of New York, Richmond County

In the Matter of the Application of JAMIE M. MINCHEW and ROCCO RINELLA, Petitioners,

against

THE CITY OF NEW YORK, DEPARTMENT OF BUILDINGS, ATP DEVELOPMENT CORP. and ALDO PULETTI, JR., Respondents.



41573/04



Attorney for Plaintiffs:

The Law Firm of Jamie M. Minchew, Esq. 1741 Victory Blvd.

Staten Island, NY 10314

(718) 727-7700

Attorney for Respondent

Department of Buildings:

Leonard Koerner, Esq.

Chief, Appeals Division

MICHAEL A. CARDOZO, ESQ.

Corporation Counsel of the City of New York

100 Church Street

New York, NY 10007

(212) 788-1010

Attorney for Respondents

Aldo Puletti, Jr. and

ATP Development Corp.:

Howard M. File, Esq., P.C.

260 Christopher Lane

Suite 102

Staten Island, NY 10314

(718) 494-8800

Philip S. Straniere, J.

Petitioners, Jamie Minchew and Rocco Rinella, commenced this special proceeding against the New York City Department of Buildings, ATP Development Corp.(ATP), and Aldo Puletti Jr. Petitioners seek to enjoin the Buildings Department from issuing any violations, fines or vacate orders, against the petitioners, owing to the fact that the premises 44 Cottontail Court, Staten Island, New York, which is owned by the petitioners, lacks a final Certificate of Occupancy from respondent Buildings Department. Petitioners seek an order directing ATP Development Corp. and Puletti to obtain a final Certificate of [*2]Occupancy for the premises as they contracted to do. In addition, the petitioners ask that the Buildings Department refrain from issuing any further building permits to ATP and Puletti until such final Certificate of Occupancy is issued.

There are currently before the Court separate cross-motions by each respondent to dismiss the petition. Petitioner has opposed those applications. Respondents are represented by counsel. Although petitioners are self-represented, it should be pointed out that petitioner Minchew is an attorney.

BACKGROUND:

At some time in March 2001 petitioners entered into a written contract with respondent ATP Development Corp. to have the ATP construct a one/two family house at 44 Cottontail Court, Staten Island, New York. The Court notes that the contract attached as an exhibit is unsigned and not dated other than "March 2001." The closing date was to be on or about June 15, 2001. On November 9, 2001 the parties closed title. On that date, ATP's counsel for the closing signed a handwritten statement in which counsel agreed to hold $2,500.00 in escrow until a final Certificate of Occupancy was obtained. In addition, the agreement provided that the final Certificate of Occupancy would be obtained by ATP within one year. On January 4, 2004, respondent Puletti executed an affidavit stating that his attorney had the authority to sign all papers for ATP at the closing and was the attorney-in-fact for the corporation at the date of closing, November 9, 2001.

At closing of title ATP delivered a temporary Certificate of Occupancy issued by respondent Buildings Department dated November 1, 2001. The temporary Certificate of Occupancy, by its terms, expired on February 1, 2002. The temporary Certificate of Occupancy listed the following as open items: final survey, final tax lot, final highway sign-off, final electric, grade, sod, and street not complete. Query: how can a premises be safe if the electric has not been signed off?

A second temporary Certificate of Occupancy was issued on July 21, 2003 and expired on October 21, 2003. It listed as objections no final tax lot, final survey or final highway.

A third temporary Certificate of Occupancy was issued on October 22, 2003 and expired on January 22, 2004. It listed the same three items as being open as were set forth in the prior temporary Certificate of Occupancy.

All of the temporary Certificates of Occupancy were issued by the Buildings Department, presumably to ATP or Puletti. The Court uses "presumably" since a Certificate of Occupancy does not state to whom it is issued. There is no evidence that prior to January 22, 2004 the petitioners made any application to the Buildings Department for either another temporary Certificate of Occupancy or a final Certificate of Occupancy, nor is there anything in the record to indicate ATP or Puletti made such a [*3]request.

By letter dated November 30, 2004 and addressed to "Owner or Occupant 44 Cottontail Court," the Buildings Department notified the petitioners that they were occupying the premises without a valid final Certificate of Occupancy and advised petitioners that "Continued occupancy of a home with an expired TCO violates the law and may result in the issuance of Environmental Control Board violations and possible monetary penalties." The letter also advised the petitioners that the failure to have a Certificate of Occupancy had the potential risk of "not being able to sell or refinance your home or obtain a mortgage."

The Court finds such a warning from the Buildings Department a bit bizarre and perhaps a trifle disingenuous considering that this was new construction in conformity with rules and regulations promulgated and overseen by the Buildings Department. These rules and regulations did not prevent the petitioners from buying the home, ostensibly from the person to whom the Buildings Department issued the permits to construct the premises. Nor did it prevent the petitioners from obtaining a mortgage from a lender. If the amount of litigation this Court has concerning expired temporary Certificates of Occupancy is any indication, the lack of a final Certificate of Occupancy does not prevent the sale or mortgaging of the premises (See, Howard v Berkman, Henoch, NYLJ, 11/17/04 P. 20 col.1 ). In fact, title insurance companies indicate that the failure to have a Certificate of Occupancy is not an objection to title and will not render title to a premises uninsurable.

As of the date of this action, December 6, 2004, no final or additional temporary Certificate of Occupancy has been issued by the Buildings Department.

ISSUES PRESENTED:

I. Buildings Department Contentions.

The Buildings Department seeks dismissal of the petition on the grounds that: the Civil Court lacks the power to grant a writ of prohibition; the Civil Court lacks the power to grant the injunctive relief sought; the pleadings are defective; the petition fails to state a cause of action; and the petitioners lack standing to seek the relief sought.

A. Does the Civil Court have the jurisdiction to issue a writ of prohibition?

The Buildings Department contends that the petitioners' request to prevent the Buildings Department from issuing violations, fines or vacate orders amounts to asking for a writ of prohibition and that relief is only available under a CPLR Article 78 Proceeding in Supreme Court. Prohibition is traditionally used to restrain judicial or quasi-judicial officers from acting without jurisdiction or in excess of their jurisdiction. The Buildings Department is incorrect that the petitioners seek a writ of prohibition. At this stage there is no violation, fine or vacate order pending against the petitioners or the premises, so prohibition does not lie. If the violation or vacate order had been issued and served and the administrative process commenced at the Environmental Control Board (NYCAC 26-[*4]126.1 and 26-126.2) or in a court of civil jurisdiction in the city (NYCAC 26-246) against the petitioners, then the relief being sought might be classified as a writ of prohibition because the petitioners would be seeking to delay or thwart the quasi-judicial process of the administrative adjudication at the Environmental Control Board or the judicial process in Civil or Supreme Court. This is not the case. So it must be concluded that, at this stage, a writ of prohibition would not be proper.

B. Does the Civil Court have the jurisdiction to grant an injunction?

The Buildings Department contends that the Civil Court lacks the jurisdiction to grant the equitable relief of an injunction. The Civil Court has the jurisdiction to act having been given that authority both in the New York State Constitution Article 6 Section 15 which states that "(t)he court of city-wide civil jurisdiction shall further exercise such equity jurisdiction as may be provided by law...," and in the Civil Court Act which at

section 203 provides:

The court shall have jurisdiction of the following actions provided

that the real property involved or part of it is situate within the

county in the city of New York in which the action is brought.... (k) An action brought to impose and collect a civil penalty for a

violation of state or local laws for the establishment and maintenance

of housing standards, including but not limited to, the multiple dwelling

law, and the housing maintenance code, building code and health code

of the administrative code of the city of New York... (n) Actions and proceedings for the removal of housing violations

recorded pursuant to any law described in subdivision (k) of this

section or for the imposition of such violation or for the stay of any

penalty thereunder.

(o) An action or proceeding for the issuance of an injunction, restraining

orders or other orders for enforcement of housing standards under any

law described in subdivision (k) of this section....

The New York City Administrative Code directly grants the Civil Court jurisdiction to render decisions involving alleged violations of the code. It should be noted that in the sections of the Administrative Code cited below, Title 26 refers to Housing and Buildings; chapter one to the Department of Buildings; subchapter one to General Provisions; subchapter two to Licenses, and subchapter three to Building Construction. Reference to Title 27 is to Construction and Maintenance with chapter one of Title 27 being the Building Code for the City of New York. [*5] NYCAC 26-120 provides: Enforcement proceedings. a. Upon the violation of any law, rule or

regulation enforceable by the department...the commissioner may,

in his or her discretion, request the corporation counsel to institute

legal proceedings to restrain, correct or abate such violation...and the

corporation counsel shall thereupon institute such actions or proceedings

as may be necessary and appropriate for such purposes. b. Such actions

and proceedings may be instituted...in the name of the city in any court of

civil jurisdiction in the city (emphasis added) and shall be given preference

over pending causes therein.

NYCAC 26-125 provides: Violations of building law; punishments; penalty. a. Except as

otherwise provided in subsection b and f of this section, section 26-126

or 26-148 of this title, every person who shall violate any provisions of

any laws, rules or regulations enforceable by the department or who

shall knowingly take part or assist in any such violation shall be guilty

of any offense and upon conviction thereof shall be punishable by a fine

of not more than five thousand dollars. Such person shall also be subject

to the payment of a penalty of not more than five thousand dollars in a civil action brought in the name of the city in any court of record in the city (emphasis added)....f. As an alternative to the penalties provided in subdivision b of this

section, any person who violates the provisions of such subdivision may

be subject to a civil penalty...to be recovered in a civil action brought in

the name of the city in any court of record in the city....

NYCAC 26-126.1 provides:

Environmental Control Board; civil penalties. a. In addition to or as an

alternative to any of the remedies and penalties provided in subchapters

one, two and three of chapter one of this title or chapter one of title

twenty-seven any person who shall violate or fail to comply with any

provisions of subchapters one, two and three of chapter one of this title or chapter one of title twenty -seven or the rules and regulations promulgated hereunder shall,...be liable for a civil penalty in a proceeding before the Environmental Control Board....

NYCAC 26-246 provides: Judicial remedies.... c. Courts having jurisdiction. All courts of civil jurisdiction

in the city shall have full legal and equitable jurisdiction over any and all suits

and proceedings (emphasis added) authorized by the subchapter or chapter

one of title twenty-seven of the code to be brought for the recovery of any [*6]

fine or enforcement of any provision of this subchapter of chapter one of

title twenty-seven of the code, and to make appropriate orders and render

judgment therein according to law, so as to give force and effect to the

provisions of this subchapter or chapter one of title twenty-seven of the code.

Such courts shall give preference to such suits and proceedings over all others....

NYCAC 26-248 provides: Punishments....e. Jurisdiction of actions to recover fines. For the recoveryof any such fine, an action may be brought in the New York City Civil Court (emphasis added), or other court of record, in the city;...

The Civil Court Act grants to the Civil Court the jurisdiction over an action to impose or collect a civil penalty for violation of the building code (CCA 203(k)). These actions would presumably arise as a result of the Buildings Department using the Civil Court for enforcement proceedings arising above. If the Buildings Department had issued a violation to the petitioners for occupying the premises without a final Certificate of Occupancy, and the matter had been adjudicated before the Environmental Control Board (NYCAC 26-126.1), the Buildings Department would be required to bring an action in Civil Court to impose or collect a civil penalty (NYCAC 26-125 and NYCAC 26-248) or the commissioner could bring an action directly in Civil Court to impose the penalty for violating the building code (NYCAC 26-246).

If the City has the right to commence proceedings to enforce alleged violations, why then cannot a homeowner act to prevent the imposition of the civil penalty by resorting to the Civil Court? The Buildings Department has notified the petitioners by letter dated November 30, 2004 that they are in violation of the law because the premises they occupy lacks a final Certificate of Occupancy and that they face penalties. At any time, the Buildings Department could take steps to enforce the Administrative Code against the petitioners for their occupancy of the premises without a final Certificate of Occupancy. The petitioners have acted preemptively to prevent such actions by commencing this proceeding in which they seek to establish good, valid, legal and equitable reasons for not being able to comply with the law.

Due process of the law and common sense tells us that if the Buildings Department has access to the court system, including in this situation the Civil Court, to enforce the Buildings Code, the public, in the appropriate situation, must have equal access to the courts to prevent the City from acting. Since the City has the right to levy fines and enjoin violations of the code, the alleged perpetrator of the violation must have equal access to the courts to enjoin the City from acting or to remove a violation prior to the institution of administrative or legal proceedings by the City.

If the Buildings Department can resort to the Court to enforce a penalty, why cannot the petitioners utilize the Court to adjudicate the matter on the merits before going [*7]through the administrative process? It cannot be asserted that the petitioners must exhaust their administrative remedies since the Building Code does not give the petitioners such a remedy. It gives the right to commence an action at the Environmental Control Board to the Buildings Department and not to the property owner. The property owners' only redress is to the court system. Since the Civil Court has the jurisdiction to enforce violations of the building code, it stands to reason it has the power to prevent enforcement of such violations under the proper circumstances. Among them would be issues arising from the occupying of a premises without a final Certificate of Occupancy.

The Buildings Department argues that CCA 203 applies only to landlord-tenant proceedings. This is not correct. Although there are specific rules promulgated for the redress of these issues in the Housing Part of the Civil Court (CCA 110), the jurisdictional grant to the Civil Court in CCA 203 contains no limiting language. CCA 203 refers to violations of the Building and Housing Maintenance Code; what can be a more basic violation of the Building Code than occupying a premises without a final Certificate of Occupancy? In fact, CCA 110 does not strip the Civil Court of jurisdiction for the items designated in that section, it merely creates a special part of the Civil Court with defined specialized jurisdictional parameters. The jurisdiction granted to the Civil Court under CCA 110 is actually greater than that specified in CCA 203. For instance CCA 110(c) gives the Court the power to "recommend or employ any remedy, program, procedure or sanction authorized by law for the enforcement of housing standards, if it believes they will be more effective to accomplish compliance or to protect and promote the public interest;..." Nowhere in CCA 110 is it specified that the action set forth must be commenced only by a governmental agency. This leads to the conclusion that any person or entity has access to the court system to enforce housing standards. To follow the logic of the Buildings Department would mean that the Civil Court would be barred from hearing any claim for $5,000.00 or less since the Small Claims part of the Civil Court has that jurisdiction.

The jurisdiction of the Civil Court to grant injunctive relief is even more clearly set forth in CCA 203(n). Here the Civil Court is given jurisdiction over "actions and proceedings" which are "for the removal of housing violations recorded pursuant to any law" set forth in CCA 203(k) or for the "imposition of such violation" or if the relief sought is a "stay of any penalty thereunder." Although the Buildings Department apparently has not issued a formal violation by serving a "notice of violation" against the premises, the letter of November 30, 2004 is the equivalent. It notified the petitioners that they were in violation of the Building Code by occupying the premises without a final Certificate of Occupancy. The Court applauds the Buildings Department for not taking a Draconian stance in such situations, recognizing that the homeowners are for the most part the victims of developer-builders who failed to deliver a final Certificate of Occupancy as they agreed to do when issued the building permit and temporary Certificate of Occupancy. Since the notice from the Buildings Department contained the language it did, it triggered a right in the petitioners to seek redress from the courts. [*8]

The Buildings Department has cited several cases to support its contention that the Civil Court lacks the authority to grant injunctive relief. All three cases are clearly distinguishable in that they addressed a situation in which a party was seeking equitable relief where the Civil Court did not have a grant of such jurisdiction; that is not the case in this litigation. The Civil Court does have the power to grant injunctions in regard to the enforcement of housing standards (CCA 203(o)). The existence of a proper Certificate of Occupancy clearly is the basic housing standard from which, or to which, all others flow. In fact, one of the cases cited by the Buildings Department, Broome Realty Associates v Sek Wing Eng, 182 Misc 2d 917 (1999), specifically recognized that the Civil Court does have injunctive powers under CCA 110(a)(4) and 203(o); two of the sections upon which this Court is relying.

It must be concluded that the Civil Court has the jurisdiction to grant the injunctive relief requested by petitioners since this proceeding involves the enforcement of housing standards under the Building Code.

C. Are the Pleadings Defective?

The Buildings Department correctly points out that since petitioners' action was brought as a special proceeding commenced pursuant to CPLR Article 4 and CPLR 304 it should have contained a petition and not just an Order to Show Cause with an affirmation. The Buildings Department also contends that since Minchew is a party and an attorney-at-law, she cannot utilize the affirmation permitted CPLR 2106; but should have submitted an affidavit.

Petitioners filed opposition to the Buildings Department motion in which they assert that a special proceeding is normally commenced by a petition (CPLR 402); however, CPLR 403(d) permits a special proceeding to be commenced by an Order to Show Cause in lieu of a petition. It should be noted that on December 20, 2004 petitioners submitted a "petition" to the court, in which the signatures of both petitioners were notarized. It contained the same information that was provided in the original order to show cause and affirmation. This document apparently corrected any defects that existed in the original pleading. In fact, the Buildings Department cannot show that they were prejudiced in any way by the technical defect of the original proceeding. The Buildings Department is aware of the nature of petitioners' claims and the relief being sought. There is no surprise to it.

CPLR 2001 provides that "at any stage of an action, the court may permit a mistake, omission, defect or irregularity to be corrected, upon such terms as may be just, or, if a substantial right of a party is not prejudiced, the mistake, omission, defect or irregularity shall be disregarded." Applying this statute to the facts of this case it can only be concluded that the defects in petitioners' papers alleged by the Buildings Department [*9]are de minimus and were corrected by the subsequent filing by the petitioners. In any event, the affirmation attached to the Order to Show Cause sufficiently advised the respondents of the nature of the claim and gave them adequate notice of the contentions and the relief being sought.

The defects in the pleading do not warrant dismissal of the action.

D. Is There A Cause of Action Against the Buildings Department?

Respondent Buildings Department contends that even if the Court credits everything in petitioners' papers as true, there is no cause of action against the Buildings Department. Respondent asserts, and did so at oral argument, that the petitioners' dispute is with Respondent ATP and not the City of New York. The Buildings Department takes the position that the gravamen of petitioners' assertions is that ATP failed to carry out the terms of the contract between the parties, that is, to deliver a final Certificate of Occupancy. On its face the Buildings Department's contention seems to have merit; however, as set forth below, such a position cannot withstand any rational scrutiny.

The Buildings Department has adopted 18th Century Deist philosophy in regard to Certificates of Occupancy. Like Deists, who believe that God created the world and then left, leaving mankind to its own devices, the Buildings Department, as mandated by the City Charter, has created a system for the issuance of building permits, temporary and final Certificates of Occupancy and asserts that it has no responsibility for the failure of the party with which it is in privity to enforce that parties' failure to perform.

Article 10 of the New York City Administrative Code governs the issuance of permits.

NYCAC 27-147 provides: When permits required. No building construction...shall be commenced,

...unless and until a written permit shall have been issued by the

commissioner (emphasis added).

NYCAC 27-150 provides: Application for permit. All applications for permits shall be

submitted on forms furnished by the department, and shall be

accompanied by the required fee. The application shall contain

a general description of the proposed work...,or as the

commissioner may require (emphasis added).

NYCAC 27-151 provides: Applicant. Applications for permits shall be made by or on behalf

of the owner or lessee of the buildings: and if made by a person other

than the owner, the application shall be accompanied by a signed [*10]

statement of the applicant declaring that he or she is authorized by

the owner to make the application. The full names of the owner,

lessee, and applicant, and of the principal officers thereof, if a

corporation, shall be set forth in the application.

Article 11 of the Administrative Code governs applications for new building permits.

NYCAC 27-156 provides: General requirements. All applications for new building permits shall

be subject to the requirements of articles nine and ten of this

subchapter. In addition, each application shall set forth the name

and business address of the person who is to perform the proposed

work, and shall be accompanied by satisfactory evidence of compliance

with the provisions of the worker's compensation law.

Article 19 of the New York City Administrative Code governs the issuance of permits.

NYCAC 27-191 provides: Approval of permit application...,applications complying with the

provisions of this code and other applicable laws and regulations

shall be approved by the commissioner and the permit issued

promptly and not later than forty calendar days after the submission

thereof, and applications failing to comply with the requirements of

this code and other applicable laws and regulations shall be rejected

and written notice of rejection, stating the grounds of rejection shall

be given the applicant promptly....(emphasis added).

NYCAC 27-193 provides: Signature to permit. Every permit issued by the commissioner

shall have his or her signature affixed thereto; but the

commissioner may authorize any subordinate to affix such

signature (emphasis added).

NYCAC 27-197 provides: Revocation of permit. The commissioner may, on notice to the

applicant, revoke any permit for failure to comply with the

provisions of this code or other applicable laws and regulations;

...(emphasis added).

Article 20 of the New York City Administrative Code governs the conditions for issuance of a permit.

NYCAC 27-200 provides: [*11]

Compliance with the code etc. Permits shall be deemed to incorporate

the proviso that the applicant, his or her agent, employees, and

contractors shall carry out the permitted work or use in accordance

with the provisions of this code and other applicable laws and regulations,

whether specified or not, except insofar as variations therefrom have

been legally permitted or authorized.

Article 21 of the New York City Administrative Code governs department inspections.

NYCAC 27-205 provides: Right of entry and inspection. The commissioner or his or her authorized representatives, in the discharge of their duties, shall have the authority

to enter upon and examine and inspect at all reasonable times any building,

...for the purpose of determining compliance with the provisions of this

code and other applicable laws and regulations (emphasis added).

NYCAC 27-207 provides: General provisions. All examinations and inspections, including all tests in connection therewith, as required by the provisions of this code and other

applicable laws and regulations shall be made and conducted under the

direction of the commissioner....(emphasis added).

NYCAC 27-210 provides: Final inspection. Upon completion of the work, and before the issuance

of any certificate of occupancy..., a final inspection of the work shall be

made by the department,...and any and all failures to comply with the

provisions of this code or other applicable laws and regulations shall

be noted and the owner or lessee promptly notified thereof in writing

(emphasis added).

Article 22 of the New York City Administrative Code governs the issuance of certificates of occupancy.

NYCAC 27-213 provides: General provisions. All certificates of occupancy shall be issued

by the commissioner and the issuance thereof shall be governed

by the provisions of this section,...(emphasis added).

NYCAC 27-214 provides: New buildings: ...a. ...no building hereafter constructed shall be

occupied or used, in whole or in part, unless and until a certificate [*12]

of occupancy shall have been issued certifying that such building

conforms substantially to the approved plans and the provisions

of this code and other applicable laws and regulations.

NYCAC 27-218 provides: Temporary occupancy. The commissioner may, upon request, issue a

temporary certificate of occupancy,...provided that such part or

parts may be occupied safely prior to the completion of the building and

will not endanger public safety, health or welfare, and further provided

that the temporary certificate of occupancy shall be issued initially for a

period of between ninety and one hundred eighty days... subject to

renewal for additional ninety-day periods at the discretion of

the commissioner (emphasis added).

NYCAC 27-219 provides: Application for certificates of occupancy. All applications for

certificates of occupancy shall be submitted on forms furnished

by the department....(emphasis added).

NYCAC 27-220 provides: Applicant. The application for a certificate of occupancy shall be made

by or in behalf of the owner of the building premises; and if made by a

person other than the owner, the application shall be accompanied by

a signed statement of the applicant stating that he or she is authorized

by the owner to make the application. The full names of the owner,

lessee, and applicant, and of the principal officers thereof, if a corporation

shall be stated in the application.

NYCAC 27-222 provides: Issuance of certificates of occupancy. (a) All applications for certificates

of occupancy and accompanying papers shall be examined promptly

after their submission. If the building is entitled to the certificate of

occupancy applied for, the application shall be approved and the

certificate of occupancy issued by the commissioner....(emphasis added).

NYCAC 27-223 provides: Contents of certificates. In addition to the required certification by the commissioner, each certificate of occupancy shall state....(emphasis added).

Having reviewed the above cited sections, it becomes abundantly clear that not only does the Buildings Department have the authority to regulate the final issuance of a certificate of occupancy and to compel the builder to obtain it, but they have a legal obligation to do so. In fact, Article l, General Provisions of The Building Code clearly [*13]states at 27-106, "Enforcement. The code shall be enforced by the commissioner of buildings, ... (emphasis added). To adopt the Buildings Department position is as ludicrous as the Department of Motor Vehicles claiming that they cannot suspend or revoke drivers licenses.

At every stage of the construction process the Buildings Department is involved with the issuance, supervision of the work, and compliance with the building code of applicants for permits and certificates of occupancy. The commissioner is ultimately responsible for the issuance of the Certificate of Occupancy which is a certification that the premises is constructed in conformity with the code and safe for human habitation. In fact, the commissioner retains the right to revoke a permit for the failure to comply with the code (NYCAC 27-197).

Since the Buildings Department requires disclosure of the name of an individual applicant and the principal officers of a corporate applicant, it follows that the commissioner has the authority to deny permits to individuals, corporations and subsequent corporations made up of the same individuals who had previously received permits if they did not deliver Certificates of Occupancy as agreed to under prior permits.

The permit process is in effect a contract between the Buildings Department and the applicant, which in the case of new construction at the permit and temporary Certificate of Occupancy stage, is the builder. If the builder does not deliver the premises in conformity with the terms of the permit or allows the temporary Certificate of Occupancy to expire without renewal, the Buildings Department has the duty and the obligation to discipline the applicant. The only effective method of doing so is to deny the issuance of further permits until compliance with the terms of the prior contract or contracts has been met. In addition, the Buildings Department as set forth in Section B above, has the power to levy fines and enjoin further actions by a defaulting applicant.

Let us examine the process. Mr. Blandings, the individual developer-builder, of a piece of property or New York Veeblefetzer, Ltd., the corporate developer-builder, file the appropriate papers for a building permit (27-147;27-150; 27-151;27-156). It is obvious from the submission that the applicant is in the business of constructing new homes for sale to third parties. The papers are reviewed by the Buildings Department and a permit is issued by the commissioner(27-191; 27-193). Employees of the Buildings Department have the right to inspect the premises (27-205). If the inspector finds that the work is not being done in conformity with the permit or the application, the commissioner may revoke the permit (27-197). Presumably working in violation of the permit would allow the commissioner to seek civil penalties against the applicant and any other parties involved in committing the violating activities (26-120; 27-125; 27-126.1; 26-246 7 26-248). In fact, a claim by the commissioner that any law, rule or regulation has been violated is presumptive evidence that the matters contained in the commissioner's finding are true (27-121). As is permitted by the building code, a temporary Certificate of Occupancy is issued and delivered to the third party purchaser at closing of title. Why does not the failure of the developer-builder [*14]to procure the final Certificate of Occupancy create a violation of the building to be enforced by the Buildings Department? The developer-builder is the person in privity with the Buildings Department, not the purchaser of the premises, since the developer-builder has agreed to construct the premises according to plans filed with the Buildings Department. In fact, the Buildings Department is the only entity that can initially determine if the premises has been constructed in compliance with those plans. The Buildings Department has the authority to stop the construction and revoke the permits. Where does it say that such oversight ends when the premises is sold to the purchaser or when the final Certificate of Occupancy is issued? The Buildings Department has a continuing obligation to insure the public safety and can inspect the premises at any time and issue violations if changes are made to the premises not in conformity with the building code.

Another interesting sidelight is the fact that the developer-builder is the initial applicant, yet when the final Certificate of Occupancy is issued, there is a new owner. Should not the new owner be the applicant for the final Certificate of Occupancy under the building code? If the new owner is not the applicant, where is the authority of the developer-builder to obtain the Certificate of Occupancy? NYCAC 27-220 requires that if the application is made by someone other than the owner, the applicant must file a signed statement from the owner authorizing the developer-builder to obtain the final Certificate of Occupancy as well as for additional temporary Certificates of Occupancy. Without such signed statement, the developer-builder would still be the only person in privity with the Buildings Department. Again the point must be made, why does the Buildings Department not think it has the authority and duty to compel the developer-builder to obtain the final Certificate of Occupancy when they contracted with the Buildings Department to do so and to construct the premises in conformity with the code?

Perhaps the Buildings Department is reluctant to act because 27-214 permits the issuance of Certificates of Occupancy when there is only substantial compliance with the approved plans and the code. Substantial compliance is a term that is nebulous, without standards and subject to individual interpretation and whim. By shifting its legal obligation to enforce the building code against the developer-builder to the purchaser, the Buildings Department is not exposing itself to litigation by developer-builders for abuse of discretion or arbitrary and capricious actions in the issuance of final Certificates of Occupancy. This Court finds that the "conforms substantially" clause of 27-214 is unconstitutionally vague. No reasonable person could determine what this means.

It must be concluded that the Buildings Department under current law has the authority to compel applicants to obtain final Certificates of Occupancy.

E. Do the Petitioners Have Standing to Seek Relief on Behalf of Other Property Owners?

Respondent Buildings Department contends that the petitioners lack the standing to have the relief they are seeking expanded to other persons similarly situated. Although this [*15]Court believes that Respondent Buildings Department has the statutory authority to compel all developer-builders to obtain final Certificates of Occupancy for persons similarly situated, the Court also believes that it should not compel the Buildings Department to act in each and every situation at this time. Since there are various reasons why a final Certificate of Occupancy has not been issued, the Court will not enjoin the Buildings Department from issuing vacate orders and violations. In some cases, the failure to have a final Certificate of Occupancy issued could be the result of the actions of the purchasers in making unapproved changes to the premises or the fact that the developer-builder did not construct the premises in substantial conformity to the plans, making occupancy dangerous and a threat to the public safety. There is no showing that these factors were involved in the current litigation.

The Court declines to apply this decision to any persons not a party to this litigation.

II. ATP Development Corp. And Aldo Puletti, Jr.'s Contentions.

A. Are the Pleadings Defective?

Respondents ATP and Puletti raise the same issues as did Respondent Buildings Department concerning certain defects in petitioners' pleadings. The Court has addressed these issues in Section I. C. above. For the reasons set forth therein, the Court finds that petitioners have corrected any such defects and the defects did not prejudice the respondents.

B. Is This Action Precluded By Another Action Between the Parties?

Respondents ATP and Puletti contend that in November 2003 petitioners commenced an action in Supreme Court, Richmond County (Index No. 13324/03) seeking the same relief as this action. The Court notes that there are two additional defendants in the Supreme Court action, Eric Puletti, who, it is alleged, is a principal of ATP and Stephen J. McLoughlin who was the attorney at law and attorney in fact for respondents when the petitioners closed title.

An examination of the pleadings in the Supreme Court action reveals that the First Cause of Action is for breach of contract in that the defendants in that action failed to construct the premises in a workmanlike manner. This is not the same relief being sought in the Civil Court special proceeding. The premises might still qualify for a final Certificate of Occupancy even if not constructed in a workmanlike manner. Disputes as to the quality of the work performed does not necessarily mean that a final Certificate of Occupancy would not be issued. Although there is a claim that these defects prevented the Buildings Department from issuing a final Certificate of Occupancy, those allegations and the fact that the final Certificate of Occupancy was not issued, are not necessarily related. A Court could find that there has been a breach of contract and warranty irrespective of the Certificate of Occupancy issue. Since a temporary Certificate of Occupancy has been [*16]issued and the open items on that document do not go to the quality of the respondents' work, they are not the same issues. Also, the relief being sought is damages, which is not the same relief as set forth in the Civil Court proceeding.

Petitioners' Second Cause of Action in the Supreme Court action is basically a restatement of the contract claim asserted under a negligence theory. For the reason stated above, such a claim and the relief sought are independent of the Civil Court proceeding.

Petitioners' Third Cause of Action in the Supreme Cause litigation is a claim for damages arising from defendants' failure to deliver a final Certificate of Occupancy as contracted. The issue of what damages, if any, will arise from petitioners' occupancy of the premises without a final Certificate of Occupancy is separate and apart from the relief sought in the Civil Court proceeding, the compelling of the respondents to issue a final Certificate of Occupancy. In fact, the Civil Court proceeding is an attempt by petitioners to mitigate the defendants' potential damages by compelling the Buildings Department, ATP and Puletti to issue a final Certificate of Occupancy and thereby moot that issue in the Supreme Court action.

Petitioners' Fourth Cause of Action in the Supreme Court action is for fraudulent misrepresentation of material facts. The last temporary Certificate of Occupancy issued by the Buildings Department does not list any of the items specified in this cause of action as being reasons why the final Certificate of Occupancy was not issued. The allegations of the Civil Court proceeding and the relief being sought are not the same. This proceeding is to compel the issuance of a final Certificate of Occupancy and not for damages that arose from the failure to timely have the certificate issued.

Petitioners' Fifth Cause of Action in the Supreme Court action is a casting of the same allegations as the Fourth Cause of Action in terms of damages arising from the negligence of the defendants. As such, it is not duplicative of the relief sought in the Civil Court proceeding.

Petitioners' Sixth Cause of Action in the Supreme Court action is for negligence in the construction and subsequent repairs to the premises by the defendants and is asserted in more general terms and not the specific terms of some of the prior causes of action so that the negligence of the defendants resulted in the premises not being fit for human habitation. This allegation too does not contradict the relief sought in the Civil Court proceeding.

Respondent ATP and Puletti's motion to dismiss the Civil Court proceeding on the grounds that there is currently an action pending in Supreme Court is denied. The actions are not duplicative and the relief being sought herein is different.

C. Is Aldo Puletti, Jr. a Proper Party? [*17]

Respondent Puletti contends that as an individual he is not a proper party to this action. Respondent asserts that all dealings and agreements were between petitioners and the corporation ATP. The documents attached as exhibits clearly establish that Puletti was named on them only in corporate capacity. None of the parties have submitted a signed contract so it is impossible to determine if Puletti signed any documents in other than a corporate capacity.

The problem lies elsewhere. There is also no way for the Court to determine to whom the building permits or the temporary Certificates of Occupancy were issued. The three temporary Certificates of Occupancy do not disclose to whom they are issued or who was the applicant. If Puletti, as an individual, is the original applicant for the building permit or for the temporary Certificate of Occupancy, then he remains a necessary party to this action.

D. Does the Court Have the Authority to Order the Buildings Department to Deny Building Permits to ATP and Puletti?

As set forth in Section I above, this Court has concluded that not only does this Court have the jurisdiction to issue injunctions in regard to violations of the building code, so too does the Buildings Department have the authority and duty to regulate developer-builders who routinely fail to provide final Certificates of Occupancy during the period set forth in a temporary Certificate of Occupancy. The failure of the developer-builder to obtain a final Certificate of Occupancy as is required by the agreement between the Buildings Department as the permitter and the developer-builder as the permitee, is a process and relationship over which the Buildings Department has the statutory authority to monitor and police. Although the Court believes that the Buildings Department, if it wanted to, could refuse to issue permits to ATP and Puletti, there is insufficient evidence before the Court to indicate that such a step is warranted in this situation. The Court will re-visit the issue if it is shown that ATP and Puletti have a history of such a failure and if the reason for the inability to obtain final Certificates of Occupancy is at the doorstep of the developer-builder or of the Buildings Department and its reluctance to employ sufficient personnel to achieve the purposes of the building code in an expeditious manner.

III. Court Contentions

A. What is the Applicability of Civil Court Act 212?

Civil Court Act 212 provides: In the exercise of its jurisdiction the court shall have all of the

powers that the supreme court would have in like actions and

proceedings.

Surprisingly there is very limited case law interpreting this statute. The reading of those cases leads to the conclusion that this statute cannot be used to grant the Court [*18]subject matter jurisdiction it does not have, but does permit the Court once it does have subject matter jurisdiction to grant the same relief that the Supreme Court would have in like actions and proceedings( Kwoczka v Dry Dock Savings Bank, 52 Misc 2d 67 (1966)). In other words if in the course of an action or proceeding for money damages, it becomes apparent that in order to properly decide the case, equitable relief is warranted, the Civil Court could grant such a remedy to a party. The purpose of the statute is to reduce unnecessary, duplicative litigation so that rather than deciding only part of the case and suggesting to the parties that the remainder of the relief should be sought in Supreme Court, the Civil Court is given the authority to resolve the litigation.

One case dealing with CCA 212 is Voccola v Shilling, 88 Misc 2d 103, affd 57 AD2d 931 (1976), which dealt with the issue of whether or not the Civil Court had the statutory authority to vacate a default judgment of the Parking Violation Bureau. Although it is similar to this case in that it involves an administrative agency created by the New York City Administrative Code and Charter, it differs substantially in that the Civil Court Act does not grant the Civil Court specific authority over the Parking Violations Bureau or its subject matter. As pointed out in Section I above, the NYCAC and the Civil Court Act specifically grant to the Civil Court the authority to enforce the building, housing maintenance and health codes in regard to housing standards (CCA 203). Since it has this statutory grant of authority over these parts of the NYCAC, the Civil Court has the same jurisdiction as would the Supreme Court to render the appropriate relief for disputes arising under those sections of the NYCAC.

The cases that have rejected relief being sought under CCA 212 all involve situations where there was no grant of subject matter jurisdiction to the Civil Court. Enforcement of the building code is specifically granted to the Civil Court as is the power to issue injunctions in that regard. CCA 212 merely confirms to the Civil Court the authority to resolve in the same manner as the Supreme Court litigation involving violations of the building code.

Therefore it must be concluded that the Civil Court has the authority to enjoin the Buildings Department from issuing violations, fines and vacate orders to the petitioners, owing to the failure of the developer-builder to obtain a final Certificate of Occupancy as required by the permits issued in regard to the construction of the premises.

B. What are the Contractual Obligations of the Parties?

Not to be lost in the complexity of this litigation are the contractual obligations of the parties. ATP contracted with the petitioners to deliver a final Certificate of Occupancy within one year of the closing of title. It failed to do so. It also failed to continue to obtain temporary Certificates of Occupancy until the Buildings Department issued a final Certificate of Occupancy. ATP clearly breached this contractual obligation and is liable for damages and should be compelled to obtain that document. There is no evidence or any allegation that the petitioners, unlike other purchasers of new construction on Staten [*19]Island, did anything that would prevent ATP from fulfilling its contractual obligation. The allegation that petitioners said they contacted an architect after ATP was in breach by failing to perform, does not change the facts or relieve ATP of its obligation.

Petitioners are also third party beneficiaries of the contract between the Buildings Department and ATP. By applying for the building permit and the temporary Certificate of Occupancy, ATP contracted with the Buildings Department to construct the premises in conformity with the plans filed with that agency. When ATP applied for a temporary Certificate of Occupancy it contracted with the Buildings Department that it would complete the open items within a specified period of time so that the final Certificate of Occupancy could be issued. ATP failed to do so and is in breach of its agreement with the Buildings Department. The Buildings Department can enforce its contract with ATP and compel it to obtain the final Certificate of Occupancy. If the Buildings Department fails to act, then the petitioners, as the purchasers of the permit approved premises, are the intended third party beneficiary of the agreement between the Buildings Department and ATP and can take steps to compel both of those parties to perform and deliver the final Certificate of Occupancy.

CONCLUSION:

Petitioners' application by Order to Show Cause is granted to the extent set forth below.

The Civil Court has the authority to enjoin the Buildings Department.

The Buildings Department has the authority and duty to regulate developer-builders and to compel them to obtain final Certificates of Occupancy.

The Civil Court and the Buildings Department have the authority to compel developer-builders to obtain final Certificates of Occupancy.

The Civil Court has jurisdiction over the parties.

//The defects in the pleadings are de minimus, were subsequently corrected and do not warrant dismissal of this proceeding.

It is ordered that the Buildings Department is enjoined from issuing any violations, fines or vacate orders against the petitioners as owners of the premises 44 Cottontail Court, Staten Island, New York, absent a showing that the premises is unsafe for occupancy.

It is ordered that the Buildings Department, as the issuer of the building permits, temporary Certificates of Occupancy and final Certificates of Occupancy, use the authority granted to it under the New York City Administrative Code to compel ATP Development Corp., Aldo Puletti, Jr., and any other person or entity involved with filing [*20]for the permits to construct the premises 44 Cottontail Court or involved with the obtaining of the final Certificate of Occupancy and any temporary Certificates of Occupancy to obtain them.

It is ordered the ATP Development Corp. and Aldo Puletti, Jr., obtain a final Certificate of Occupancy for the premises 44 Cottontail Court, Staten Island, New York by March 31, 2005.

It is further ordered that the Buildings Department use the authority granted it under the New York City Administrative Code to compel all persons holding open building permits or persons who did not obtain final Certificates of Occupancy to obtain them in a timely manner.

The foregoing constitutes the decision and order of the Court.

Dated: February 25, 2005

Staten Island, NY PHILIP S. STRANIERE

Judge, Civil Court