Pamela Equities Corp. v Environmental Control

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Pamela Equities Corp. v Environmental Control 2017 NY Slip Op 32167(U) October 12, 2017 Supreme Court, New York County Docket Number: 162661/2015 Judge: Lucy Billings Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [*FILED: NEW YORK COUNTY CLERK 10/16/2017 09:52 AM 1] INDEX NO. 162661/2015 NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 10/16/2017 SUPREME COURT OF THE STATE OF NEW YORK NEWYORKCOUNTY PART ·r PRESENT: - -- - % Justice ~~- - - Index Number: 162661/20 15 PAMELA EQUITIES CORP. INDEX N O . - - - - - VS MOTION DATE _ _ __ ENVIRONMENTAL CONTROL MOTION SEQ. NO. - - - Sequence Number: 001 ARTICLE 78 ~ ~~s · &tk.vkm~ftt»t5 The following papers, numbered 1 to _ _ , were read on this jD.O&ien tolfrlf Notice of Motion/Order to Show Cause - Affidavits - Exhibits ~01"1 Answering Affidavits - E x h i b i t s - - - - - - - - - - - - - - - - - Replying Affidavits _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ Upon the foregoing papers, It Is ordered~~~ ~ c.avt/r (j~1d·s 1N (Jh' 1trtJ);i OM.cl <Pfft+J(~I-$ S11$03(3), /f{Or,. [XA1f1Jv\ fV 'fV--t ~ y_.-A- 'fWs; ~""j} ~ fO I No(s). I - II I No(s). ).3 ~ if 2.. I No(s). ___.-1.f-_,1,____ __ ftwr: f>TY"f1'l ~-i1f Oflv,vwt'rC- J}(At-1--.es fi_L ~ ~I~ tltUff1on. c. fl, l.ft • w <..> j::: ti) ::> ..., e c w a:: a:: w u.. w a:: >..:.:. _, !!!. _, z => o· u.. U) 1-0 < w a:: ~ C> w z a:: w ~ ~ w ...I ti) ...I <o <..> u.. - w z ::x: 0 .... g a:: :IE ft Dated: _LJW'j ~_~_s _ J.S.C. _______ _ 10/1i-J11 1. CHECK ONE: ..................................................................... B° CASE DISPOSED 2. CHECK AS APPROPRIATE: ...........................MOTION IS: 0 GRANTED 0 0 SETTLE ORDER DENIED ODO NOT POST 0 3. CHECK IF APPROPRIATE: ................................................ 1 of 17 - D NON-FtftACDISPOSITION 0 B"GRANTED IN PART 0 OTHER SUBMIT ORDER FIDUCIARY APPOINTMENT 0 REFERENCE [*FILED: NEW YORK COUNTY CLERK 10/16/2017 09:52 AM 2] NYSCEF DOC. NO. 62 INDEX NO. 162661/2015 RECEIVED NYSCEF: 10/16/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: IAS PART 46 --------------------------------------x In the Matter of the Application of Index No. 162661/2015 PAMELA EQUITIES CORP., Pe-titioner DECISION AND ORDER - against ENVIRONMENTAL CONTROL BOARD OF THE CITY OF NEW YORK and NEW YORK CITY DEPARTMENT OF BUILDINGS, Respondents ------~~---------------------~--------x APPEARANCES: For Petitioner Daniel E. Katz Esq. Rich, Intelisano & Katz. LLP 915 Broadway, New York, NY 10010 For Respondents Pamela A. Koplik, Assistant Corporation Counsel -New York City Law Department 100 Church Street, New York, NY 10007 LUCY BILLINGS I ,J. s. c. : Petitioner, the owner of 132 East 45th Street, New York County, challenges an Appeal Decision and Order by respondent Environmental Control Board of the City of New York (ECB) imposing discretionary civil penalties of $1,000 per day for 45 days pursuant to New York City Administrative Code C.P.L.R. § 7803(3) and (4). totalling $45,000 to it~ § 28-202.1. ECB added these daily penalties non-discretionary, set civil penalties of $5,800 in the ECB Buildings Penalty Schedule, 1 R.C.N.Y. 102-1 ( g) , for illegal _co:hversi·on of apartments 4G and 9C in pamelaeq.188 1 2 of 17 § [*FILED: NEW YORK COUNTY CLERK 10/16/2017 09:52 AM 3] INDEX NO. 162661/2015 NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 10/16/2017 petitioner's buil~ing from ~ermanent·residences to transient use, in violation of .Administrative Code I. 28-210. 3 and 28-301. L §'§ THE APPLICABLE STATUTES AND REGULATIONS Administrative CoO-e § 28-210-. 3 provides that: It shall be unlawful for any persohor entity who owns or occupies a multiple dwelling or_ dwelling uriit classified for permanent residence purposes to use or occupy, off-er or permit the us_e or occupancy or to convert for use or occupancy such multiple dwelling or dwelling unit for other than permanent residence purp6ses. Administrative Code § 28-301.l provides that: "The owner shall . in a be responsible at all times to maintain the building safe and code-compliant manner II Administrative_Code § 28-201.2.1(16) classifies a "violation of section 28-:-210. 3 that involves more than_ one dwelling unit or ·a second or)subsequent violation of section 28-210.3 by the same person at the same d~elling unit or multiple dwelling" as a Class l imme-diately hazardous violation. ·0l (b) (1). Administrative Code § Seel R.C.N.Y. § 102- 28-202 .1 (1) sets forth the civil penalties for immediately hazardous violations: "not less than · one thousand dollars nor more than $25;DOO . for each violation. In addition . , a separate additional penalty may be imposed of not more- than $1, 0.00 for ·each day that the violation is not corrected." l R.C.N.Y. § 102-0l(g) (1) specifies· that the daily penalties: will accrue at the·~ate of $1,000 per day for a.total of f:orty::-five days running from the date of the Commissioner's order to.- correct set forth. in the NOV [Notice of Violation] , unless the violating condition i-s proved . . at the hearing to have been corrected prior to the end of that forty-five day period, in which case the idaily penalties will accrue for every day up to the date of that proved correction. pamelaeq.188 -2 3 of 17 [*FILED: NEW YORK COUNTY CLERK 10/16/2017 09:52 AM 4] INDEX NO. 162661/2015 NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 10/16/2017 III. STANDARDS FOR JUDICIAL REVIEW The court may overturn respondents' determinations only if they were arbitrary, lacked a rational basis in the administrative record, or lacked a basis in law. C.P.L.R. § 7803(3); Rossi v. New York City Dept. of Parks & Recreation, 127 A.D.3d 463, 473 (1st Dep't 2015); Nestle Waters N. Am., Inc. v. City of New York, 121 A.D.3d 124, 127 (1st/Dep't 2014); 20 Fifth Ave., LLC v. New York State Div .. of Hous. & Community Renewal, 109 'A.D.3d 159, 163 (1st Dep't 2013); Langham Mansions, LLC v. New York State Div. of Hous. & Community Renewal, 76 A.D.3d 855, 857 (1st Dep't 2010) . . See London Terrace Gardens L.P. v. New York State Div. of Hous. & Community Renewal, 149 A.D.3d 521, 521 (1st Dep't 2017). ECB's interpretation of the regulations and statutes governing the maintenance, use, occupancy, and safety of buildings in New York City that ECB is charged with enforcing, N.Y.C. Charter § 1049-a(c) (1), is entitled to deference as lortg as that interpretation is rational and consistent with governing law. Barenboim v. Starbucks Corp., 21 N.Y.3d 460, 470-71 (2013); Chesterfield Assoc. v. New York State Dept. of Labor, 4 N.Y.3d 597, 604 (2005); Nestle Waters N. Am., Inc. v. City of New York, 121 A.D.3d at 127. See Murphy v. New York State Div. of Hous. & Community Renewal, 21 N.Y.3d 649, 654-55 (2013); Lighthouse Pointe Prop. Assoc., LLC v. New York State Dept. of Envtl. Conservation, 14 N.Y.3d 161, 176-77 (2010); Roberts v. Tishman Speyer Props., L.P., 13 N.Y.3d 270, 285-86 (2009). court need not defer to ECB's pamelaeq.188 ~xpertise 3 4 of 17 Although the or interpretation when [*FILED: NEW YORK COUNTY CLERK 10/16/2017 09:52 AM 5] INDEX NO. 162661/2015 NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 10/16/2017 discerning the plain meaning of a statute or regulation, ATM One v. Landaverde, 2 N.Y.3d 472, 476-77 (2008); Associated Mut. Ins. Coop. V. 198, LLC, 78 A.D.3d 597, 598 (1st Dep't 2010); Smith v. Donovan, 61 A.D.3d 505, 508-509 (1st Dep't 2009); Sombrotto v. Christina W., 50 A.D.3d 63, 69 (1st Dep't 2008), when the te:r:ms of the statute or regulation are ambiguous and susceptible to conflicting interpretati6ns, the court will accord deference to ECB's interpretation and uphold itaslong as it is reasonable. Golf v. New York State Dept~ of Soc. Servs., 91 N.Y.2d 656, 667 (1998); Chin v. New York City Bd. of Stds. & Appeals, 97 A.D.3d 485, 487 (1st Dep't 2012); Es'pada2001 v. New York City Campaign Fin. Bd,, 59 A.D.3d 57, 64 (1st Dep't 2008). IV. THE UNDISPUTED FACTS DlCTATE A'REDUCTION OF THE DISCRETIONARY PENALTIES. Following petitioner's administrative appeal of the ECB hearing officer's recommended Decision and Order, respondents' Appeal Decision and Order imposed three non-discretionary, set civil penalties totalling $5,800. Of that amount, $3,200 was for petitioner's violati.on of Admfnistrative Code for its violation of Administrative Code § § 28-210.3, $1,000 28-301.1, and .$1,600 for its violation of New York City Building Code § 907.2.8, which specifies requirements for fire alarm systems in buildings occupied by transients. Administrative Code § Thus qnly one violation was of 28-210.3, an immediately hazardous violation subject to the additional discretionary daily penalties if it involved "more than one dwelling unit or a second or subsequent violation of section 28-210.3 by the same person at pamelaeq.188 4 5 of 17 [*FILED: NEW YORK COUNTY CLERK 10/16/2017 09:52 AM 6] NYSCEF DOC. NO. 62 INDEX NO. 162661/2015 RECEIVED NYSCEF: 10/16/2017 the same dwelling unit or m_ultiple dwelling." N.Y.C. Admin. Code § 28-210.3. The parties do not dispute that petitioner's violations involved more than one dwelling unit, apartments 4G and 9C, but no evidence indicates that the violations were second or subsequent violations. The parties agree further that "the date of the Commissioner's order to correct set forth in the NOV" citing Administrative Cod!= § 28-210 . 3 was October 23, 2014. R.C.N.Y. § 102-0l(g) (1). 1 Thus the 45 days of potential daily penalties ran until December 7, 2014. that petitioner showed at the ECB Respondents also admit administ~ative hearing that by November 30, 2014, the tenant and occupants of apartment 4G had vacated the apartment, so that the transient use was corrected. At least by that point, the immediately hazardous violation of Administrative Code § 28-210.3 no longer involved "more than one dwelling unit," hor·was the violation ever "a second or subsequent violation of Administrative Code § 28-210.3 by the same person at the same dwelling unit or multiple dwelling." N.Y.C. Admin. Code § 28-210.3. Consequently, pursuant to 1 R.C.N.Y. § 102-0l(g) (1), petitioner proved at the hearing that the violating condition involving "more than one dwelling unit," N.Y.C. Admin. Code§ 28210.3, had been corrected seven days before the ·end of 45 days from October 23, 2014, the date of the order to correct in the NOV. Based on these facts, 1 R.C.N.Y. § 102-0l(g) (1) further dictates that the daily penalties may accrue only up to the date pamelaeq.188 5 6 of 17 [*FILED: NEW YORK COUNTY CLERK 10/16/2017 09:52 AM 7] NYSCEF DOC. NO. 62 INDEX NO. 162661/2015 RECEIVED NYSCEF: 10/16/2017 of that proved correction. ECB's determination that petitioner did.not prove that the violating condition had beeh corrected before February 10, 2015, when the tenants and occupants of apartment 9C vacated that apartment, is incons~stent with Administrative Code § 210.3 and 1 R.C.N.Y. § 102-0l(g) (1) and thus arbitrary. C.P.L.R. § 7803(3). Therefore petitioner is entitled at minimum to a $7,000 reduction in the $45,000 discretionary penalties. V. PETITIONER'S ADDITIONAL CLAIMS A. Enforcement Against the Owner Versus Enforcement Against .the Tenants In a n~tshell, petitioner insists that no penalties were warranted bec~use di~cretionary it showed its unawareness of its tenants' unlawful subleasing for transient use and that even penalties of $38,000 are disproportionate to its unknowing violation. Petitioner emphasizes that Administrative Code § 28- 210.3 prohibits "any person or entity who owns or occupies a dwelling unit classified for permanent residence purposes to use or occupy, offer or perm~t the use or occupancy or to convert for use of occupancy such than permanent residence purposes." 210.3 (emphasis added). . dwelling unit for other N.Y.C. Admin. Code§ 28- Thus the prohibition extends to tenants subleasing their apartments for trans~ent use and to their subtenants occupying the apartments for transient use. The fact that other violators might be penalized, however, I does not absolve apartment owners of their affirmative obligation to "be responsible at all times to maintain the building . pamelaeq.188 6 7 of 17 . in [*FILED: NEW YORK COUNTY CLERK 10/16/2017 09:52 AM 8] NYSCEF DOC. NO. 62 a. INDEX NO. 162661/2015 RECEIVED NYSCEF: 10/16/2017 . code-compliant manner." N.Y.C. Admin. Code§ 28-301.1. The prospect of daily penalties even for unknowing violations encourages owners' proactive efforts to know what is occurring in their buildings, to assure compliance with the Administrative Code, and to discover and correct immediately hazardous · violations promptly. Contrary.to petitioner's suggestion that the short term rental of only two units is not an immediately hazardous condition, the law so classifies such conduct. A repeated violation of Administrative Code § 28-210.3 is classified as immediately hazardous because transient use threatens the public interest in preserving permanent housing. 1 R.C.N.Y. § 102-0l(b)(l). Petitioner protests that the administrative record lacks any evidence of petitione~'s wrongdoing, but the undisputed fact that petitioner violated Administrative Code § 28-210.3 in two apartments at the same time evinces the owner's ,lax oversight of the apartments' use. The two apartments are within a building of 94 apartmen.ts, to be sure, but a larger building imposes greater responsibilities 6n its owner. Even if the wrongdoing was unknowing and unintentional and only negligent, the potential daily penalties deter even negligent conduct. Neith.er ECB nor the court need conclude ·that, because petitioner did not know of the transient use, petitioner ought not to have known. In sum, while petitioner maintains that respondents' enforcement of Administrative Code §§ 28-202 .1 (1) and 28-210 .. 3 does not target the wrongdoer, their enforcement against the pamelaeq.188 7 8 of 17 [*FILED: NEW YORK COUNTY CLERK 10/16/2017 09:52 AM 9] NYSCEF DOC. NO. 62 INDEX NO. 162661/2015 RECEIVED NYSCEF: 10/16/2017 .· building owner does target one wrongdoer, just not both: owner and its tenant. the Enforcement against the tenant is for the legislature and for the owner to address, as discussed below. Notably, petitioner expressly disavows any claim of respondents' selective· enforcement of Administrative Code 202.1(1) or § 28-210.3. § 28,- See 303 West 42nd St. Corp. v. Klein, 46 N.Y.2d 686, 693, 695-96 (1979); Fields v. Village of Sag Harbor, 92 A.D.3d 718, 719 (2d Dep't 2012); Liberty v. New York State & Local Employees' Retirement Sys., 85 A.D.3d 1285, 1288 (3d Dep't 2011) ; Sonne v. Board of Trustees of Vil. of Suffern, 67 A. D. 3d 192, 203-204 (2d Dep't 2009). In any event, the record does not show that petitioner and its tenants are similarly situated: that their non-compliant conduct is similar or that enforcing these statutes will be similarly effective against each group, for example. Bower Assoc. v. Town of Pleasant Val., 2 N.Y.2d - 617, 631-32 (2004); Dezer Entertainment Concepts, Inc. v. City of New York, 8 A.D.3d 37, 38-39 (1st Dep't 2004). 1. See 303 West 42nd St. Corp. v. Klein, 46 N.Y.2d at 693; Fields v. Village of Sai Harbor, 92 A.D.3d at 719; Sorine v. Board of Trustees of Vil. of Suffern, 67 A.D.3d at 203-2D4. Nor does the record show that the selective enforcement against owners is based deliberately on an impermissible· standard such as their status within a protected class, their exercise of a fundamental right, or another invidious motive such as personal or political gain, unrelated to effective enforcem·ent of the prohibition against transient use. C/S 12th Ave . .LLC v. City of New York, 32 A.D.3d 1, 9-10. (1st pamelaeq.188 8 9 of 17 [*FILED: NEW YORK COUNTY CLERK 10/16/2017 09:52 AM 10] NYSCEF DOC. NO. 62 INDEX NO. 162661/2015 RECEIVED NYSCEF: 10/16/2017 ,. Dep't 2006); Dezer Entertainment Concepts, Inc. v. City of New York, 8 A.D.3d at 38-39. See 303 West 42nd St. Corp. v. Klein, 46 N.Y.2d at 693, 695-96; Fields v. Village of Sag Harbor, 92 A.D.3d at 719; Sonne v. Board of Trustees of Vil. of Suffern, 67 A.D.3d at 203-204. Respondents' enforcement against building owners and not tenants or occupants derives from, Administrative Code § 28- 204.6.3, which authorizes respondent New York City Department of Buildings to issue NOVs only to building owners. Even were petitioner to so claim, this statute does not impermissibly di~criminate against building owners in favor of the buildings' tenants or.occupants simply because the statute may be underinclusive or fail to address all causes of transient use. New York State Assn. for Affordable Hous. v. Council of the City of N.Y., 141 A.D.3d 208, 217 (1st Dep't 2016). B. Factors to Be Considered in Assessing Penalties Nevertheless, there are factors that bear on the extent of the owner's laxity, negligence, or other wrongdoing in carrying out its responsibility to maintain a code-compliant building, N.Y.C. Admin.,Code § 28-301.1, to be taken into account when respondents assess discretionary penalties. One consideration is the owner's efforts to assure its tenants' compliance with the prohibition against transient use: conspicuous provisions in their leases that such use constitutes a default and will lead to termination of the tenancy and written warnings distributed to tenants and posted in the building, for example.· A second, pamelaeq.188 9 10 of 17 [*FILED: NEW YORK COUNTY CLERK 10/16/2017 09:52 AM 11] NYSCEF DOC. NO. 62 INDEX NO. 162661/2015 RECEIVED NYSCEF: 10/16/2017 related consideration is the owner's efforts to discover transient use, by monitoring the entry and egress of occupants I who are not tenants' household members, for example. A third consideration is the owner's prompt corrective action once the transient use is discovered . .Here, the record is bereft of evidence regarding these first two considerations. vi~lation Regarding corrective action, where the involves a tenant's conduct, and an owner must initiate an ev{ction proceeding to correct the violation, the process may be impossible to complete before the end of 45 days after receipt of the NOV, if it constitutes the owner's discovery of the If the.owner has discovered the violating violating condition. condition before receiving the NOV, then correction may be possible sooner after the receipt,· but here the record lacks any evidence or finding that petitioner discovered either violating condttion before receipt of the ~OV dated October 23, 2014, as well as any evidence or find{ng of the violating conditions before that date. Not until 32 days later, on November 24, 2014, however, did petitioner serve a notice of termination of the tenancy of apartment 4G as a condition precedent to initiating an eviction proceeding. · V. Pet. ~ 16 and Ex. D; V. Answer ~ 94 and Ex. G. While no evidence discloses any further delays in the eviction proceeding attributable to petitioner, this delay is unexplained and extended over two thirds of the .45 days for which respondents assessed their penalties and over almost 85% of the 38 days to pamelaeq.188 10 11 of 17 [*FILED: NEW YORK COUNTY CLERK 10/16/2017 09:52 AM 12] NYSCEF DOC. NO. 62 INDEX NO. 162661/2015 RECEIVED NYSCEF: 10/16/2017 which the court has reduced the penalties. To petitioner's credit, the notice of termination did result in the tenants' departure and hence correction of the violation six days later, but that result also demonstrates, on the other hand, that a prompter notice of termination might have produced a prompter cure of the violation. Petitioner did react more promptly regarding apartment 9C. Petitioner waited 12 days before serving a notice of termination of the tenancy of apartment 4G on November 4, 2014. and Ex. D; V. Answer ~ 94 and Ex. G. V. Pet .. ~ 16 Again no evidence discloses any further delays in the eviction proceeding attributable to petitioner, but the delay of 11 days is still significant and \ unexplained, and the tenants' departure more than two months after the 45 days demonstrates that initiation of an eviction proceeding may not be expected to produce a prompt correction of the violation. Therefore it was incumbent on the owner to take as prompt action as possible regarding both apartments to effect the correction in even one apartment. C. Disproportionality Using petitioner's initiation of corrective action against both apartments as of November 2~, 2014, as a measure in assessing the penalties, the determination boils down to whether the penalties assessed after that date are disproportionate to petitioner's misconduct because, beginning then, petitione.r was taking all actions possible to eliminate the violation. Kelly v. Safir, 96 N.Y.2d 32, 38 (2001); Silverman v. Carrion, 146 A.D.3d pamelaeq.188 11 12 of 17 [*FILED: NEW YORK COUNTY CLERK 10/16/2017 09:52 AM 13] NYSCEF DOC. NO. 62 INDEX NO. 162661/2015 RECEIVED NYSCEF: 10/16/2017 570, 571 {1st Dep't 2017); Asch v .. New York City Bd./Dept. of Educ., -104 A.D.3d 415, 421 (1st Dep't 2013); Konstas v. Environmental Control Bd. v. City of N.Y., 104 A.D.3d 689, 690 (2d Dep't 2013). The harm to the public, based on the legislative purpose underlying Administrative Code § 28-210.3, however, continued until November 30, 2014. Petitioner also pdints out that it did not prof it from its tenants' transient use of their apartments, but the owner's bear~ profit from a code violation little relation to the hazard that the violation creates, here a reduction of the permanent housing stock and a further violation of requirements for the building's fire alarm system. On the other hand, the violation and petitioner's associated conduct do not display any "grave moral turpitude" or "grave injury v. Safir, 96 N.Y.2d at 39. . to the public." Kelly See Inglese v. LiMandri, 89 A.D.3d 604, 605 (1st Dep't 2011). The court may overturn the penalty imposed by respondents' Appeal Decision and Order following the ECB hearing officer's recommendation only if the penalties are so disproportionate to the violation and to petitioner's misconduct as to shock the conscience or a sense of fairness. Harris v. Mechanicville Cent. School Dist., 45 N.Y.2d 279, 284-85 (1978); Brito v. A.D.3d 544, 546 (1st Dep'-t 2014). W~lcott, 115 See Russo v. New York City Dept. of Educ., 25 N.Y.3d 946, 948 (2015); Kelly v. Safir, _96 N.Y.2d at 38; Silverman v. Carrion, 146 A.D.3d at 571; Asch v. New York City Bd./Dept. of Educ., 104 A.D.3d at 421. pamelaeq.188 12 13 of 17 The hearing [*FILED: NEW YORK COUNTY CLERK 10/16/2017 09:52 AM 14] NYSCEF DOC. NO. 62 INDEX NO. 162661/2015 RECEIVED NYSCEF: 10/16/2017 .. officer typically is in a "far superior position" than the court in reviewing the hearing record_to assess a penalty warranted by the record, since the hearing officer observed and heard the witnesses' testimony. 104 A.D.3d at 421. Asch v. New York City Bd./Dept. of Educ., See City.School Dist. of City of New York v. McGraham, 17 N.Y.3d 917, 9~0 (2011). Here, however, neither the hearing officer's recommendation nor respondents' final decision reflects any consideration or balancing of factors bearing on.the proportionality of the discretionary penal ties to be assessed.· . Nor did peti ti~:mer present any such factors in its favor. Pe.titioner simply challenged the assessment of discretionary penalties altogether because it was unaware of the violations and they implicated the tenants' misconduct. The hearing officer and respondents mechanically assessed the maximum discretionary penalties by rote, resulting in their failure to consider the correction of the second violation before the end of the maximum 45 days of daily penalties. Thehearing officer and respondents likewise failed'to consider the extent of harm to the public from the· transient use of petitioner's apartments or that petitioner engaged in no conduct exhibiting poor moral character, derived no _profit from the transient use, and as of November 24, 2014, was taking all actions possible to eliminate the violations. ·Kelly v. Safir, 96 N.Y.2d at 38-39; Inglese v. LiMandri, 89 A.D.3d at 605; Konstas v. Environmental Control Bd. v. City of N.Y., 104 A.D.3d at 690. parnelaeq ...18 8 13 14 of 17 [*FILED: NEW YORK COUNTY CLERK 10/16/2017 09:52 AM 15] NYSCEF DOC. NO. 62 INDEX NO. 162661/2015 RECEIVED NYSCEF: 10/16/2017 Nevertheless, petitioner's lack of expedient steps to correct the violations would not per.mit reduction of the discretionary penalties to any date earlier than November 24, 2014. While respondents' mechanical assessment of the maximum discretionary penalties by rote is not to be condoned, even if the above factors were to be considered by respondents, the assessment of six more days of daily penalties, µntil November 30, 2014, would not abuse their discretion. BarFreeBedford v. New York State Liq. Auth., 130 A.D:3d 71, 77-78 (1st Dep't 2015); South Bronx Unite! v. New York City Indus. Dev. Agency, 115 A.D.3d 607, 610 (1st Dep't 2014); Che Lin Tsao v. Kelly, 28 A.D.3d 320-, 321 (1st Dep't 2006). See Russo v. New York City Dept. of Educ., 25 N.Y.3d at 948; Kelly v. Safir, 96 N.Y.2d at 38-39; Silverman v. Carrion, 146 A.D.3d at 571; Asch v. New York City Bd./Dept. of Educ., 104 A.D,3d at 421. In Konstas v. Environmental Control Bd. v. City of N.Y., 104 A.D.3d at 690, for example, the court upheld a $25,000 penalty for illegal conversion of a residence for occupancy by more than the authorized number·of families. Although this violation appears more hazardous than petitioner's violation, in upholding the penalty, the court did not conclude that a higher penalty would have been impermissible. Here, _petitioner provides no basis to conclude that $32,000 in penalties is permissible but $38,000 is an abuse of discretion. $38,000. pamelaeq.188 Therefore the court limits its reduced penalties to ECB's determination to assess discretionary penalties 14 15 of 17 [*FILED: NEW YORK COUNTY CLERK 10/16/2017 09:52 AM 16] . NYSCEF DOC. NO. 62 . INDEX NO. 162661/2015 RECEIVED NYSCEF: 10/16/2017 beyond the date that the violating condition was corrected is consistent with Administrative Code and 1 R.C.N.Y. § basis in the law. §§ 2·8-202 .1 (1) and 28-210. 3 102-01{g) (1) and thus rational, with a sound C.P.L.R. § 7803(3). Even if the statutes or regulation allow lesser discretionary penalties, the alternative dates at which to end the penalties requires the court to give ECB's assessment deference and uphold it as reasonable. See Golf v. New York State Dept. of Soc. Servs., 9·1 N. Y. 2d at 667; Chin v. New York City Bd. of Stds. & Appeals, 97 A.D.3d at 487; Espada 2001 v. New York City Campaign Fin. Bd., 59 A.D.3d at 64. VI. CONCLUSION The determination of this proceeding thus turns on whether respondents' interpretation and application of the Administrative Code and its implementing regulations were erroneous and not any material di.spute concerning the evidentiary support for respondents' administrative determinations. Although the petition claims otherwise, petitioner now maintains that itsbasis for vacatur of the discretionary penalties is not that respondents' de~erminations - are unsupported by substantial evidence. Nor do respondents identify any outstanding issue _whether substantial evidence supports their determinations that requires a transfer of this proceeding to the Appellate Division. C.P.L.R. §§ 7803(4), 7804(g); Silverman v. Carrion, 146 A.D.3d at 571;.Joseph Paul Winery, Inc. v. State of New York, 135 A.D.3d 639, 639 (1st Dep't 2016); Dillin v. Waterfront Commn. of N.Y. Harbor, 119 A.D.3d 429, 429 (1st Dep't 2014); Earl v. Turner, 303 pamelaeq.188 15 16 of 17 [*FILED: NEW YORK COUNTY CLERK 10/16/2017 09:52 AM 17] NYSCEF DOC. NO. 62 INDEX NO. 162661/2015 RECEIVED NYSCEF: 10/16/2017 A.D.2d 282, 282 (1st Dep't 2003). For the reasons explained above, the court grants the petition to the following extent. 7806. C.P.L.R. §§ 409(b), 7803(3), The court vacates ECB's determination finding that p~titioner .failed to prove that the violating condition had been corrected before February 10, 2015, because that determination is unsupported by and contrary to Administrative Code § 210.3 and 1 R.C.N.Y. § 102-0l(g) (1) and thus arbitrary. C.P.L.R. §.7803(3). Therefore ECB's assessment of penalties from November 30, 2014, when the condition was corrected, to December 7, 2014, is contrary to Administrative Code §· 210.3 and 1 R.C.N.Y. § 102l(g) (1), is arbitrary, and tnust be vacated. Within 30 days after entry of this order, respondents shall remit all discretionary penalties that petitioner paid in excess of $38,000 for the violations cited October 23, 2014. If respondents fail to pay petitioner as required, it may enter a judgment against respondents for $7000. The court otherwise denies the petition and dismisses this proceeding. C.P.L.R. §§ 409(b), 7803(3), 7806.· DATED: October 12, 2017 LUCY BILLINGS, J.S.C. LUCY Bfi..UNGS ~~~"°""·. pamelaeq.188 16 17 of 17 J.S.C.

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