Matter of OTR Media Group v Board of Stds.

Matter of OTR Media Group v Board of Stds. 2016 NY Slip Op 05340 Decided on July 5, 2016 Appellate Division, First Department 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.

Decided on July 5, 2016
Sweeny, J.P., Acosta, Feinman, Kapnick, Kahn, JJ.
1657 260130/14

[*1]In re OTR Media Group, et al., Petitioners-Appellants,

v

Board of Standards and Appeals of the City of New York, et al, Respondents-Respondents.

Smith, Buss & Jacobs, LLP, Yonkers (Jeffrey D. Buss of counsel), for appellants.

Zachary W. Carter, Corporation Counsel, New York (Brian T. Horan of counsel), for respondents.

Judgment (denominated a decision and order), Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered November 23, 2015, denying the petition seeking to annul a resolution of respondent Board of Standards and Appeals of the City of New York (BSA), dated January 28, 2014, which affirmed respondent the New York City Department of Buildings' (DOB) determination denying petitioners' application to register a sign as a nonconforming advertising sign, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.

Substantial evidence supports BSA's determination that the continuation of the nonconforming use of the sign as an advertising sign is prohibited because such nonconforming use was discontinued for more than two years, when it was replaced by an accessory sign beginning in 1981 (see NY City Zoning Resolution § 52-61; Matter of Toys "R" Us v Silva, 89 NY2d 411 [1996]). Petitioners' contention that Supreme Court erred in applying the substantial evidence standard is unavailing (see Matter of SoHo Alliance v New York City Bd. of Stds. & Appeals, 95 NY2d 437, 440 [2000]; Matter of Sasso v Osgood, 85 NY2d 374, 384 n 2 [1995]). Nor is there any basis for disturbing BSA's determination to discredit affidavits submitted by petitioners, sworn in 2011 and 2013, which contradicted documents submitted in support of the accessory sign application that was granted by DOB in 1981.

Since the record shows that BSA's determination was supported by substantial evidence and had a rational basis, petitioners were not entitled to a hearing pursuant to CPLR 7804(h) (see Matter of St. Onge v Donovan, 71 NY2d 507, 519 [1988]; cf. Matter of Church of Scientology of N.Y. v Tax Commn. of City of N.Y., 120 AD2d 376 [1st Dept 1986] [matter remanded for a full evidentiary hearing because the record was not sufficient to determine whether the respondent had acted arbitrarily and capriciously], appeal dismissed 68 NY2d 807 [1986], lv dismissed 69 NY2d 659 [1986]).

Petitioners' due process claim is unpreserved, and this Court has "no discretionary authority" to reach it in the

interest of justice (Matter of Khan v New York State Dept. of Health, 96 NY2d 879, 880 [2001]; see Green v New York City Police Dept., 34 AD3d 262, 263 [1st Dept 2006]).

We have considered petitioners' remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JULY 5, 2016

DEPUTY CLERK