Minchew, Matter of, v City of New York Dept. of Bldgs.

[*1] Minchew, Matter of, v City of New York Dept. of Bldgs. 2006 NY Slip Op 51436(U) [12 Misc 3d 144(A)] Decided on July 18, 2006 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through August 14, 2006; it will not be published in the printed Official Reports.

Decided on July 18, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON PATTERSON and GOLIA, JJ.
IN THE MATTER OF THE APPLICATION OF JAMIE M. MINCHEW AND ROCCO RINELLA, Petitioners/Respondents,

against

THE CITY OF NEW YORK DEPARTMENT OF BUILDINGS, Respondent/Appellant, -and- ATP DEVELOPMENT CORP. AND ALDO PULETTI JR., Respondents.

Appeal from a judgment, denominated a "decision/order," of the Civil Court of the City of New York, Richmond County (Philip S. Straniere, J.), entered December 13, 2004. The judgment, insofar as appealed from, enjoined respondent the City of New York Department of Buildings from issuing any violations or vacate orders against premises owned by petitioners Jamie M. Minchew and Rocco Rinella; ordered said Department to compel respondents ATP Development Corp. and Aldo Puletti Jr. to obtain final certificates of occupancy for petitioners' properties; ordered said Department to compel all persons holding open building permits to obtain final certificates of occupancy; and implicitly denied said Department's "cross motion" to dismiss the proceeding as against it.

Appeal from so much of the judgment as enjoined the City of New York Department of Buildings from issuing any violations or vacate orders against premises owned by petitioners Jamie M. Minchew and Rocco Rinella, and ordered the City of New York Department of Buildings to compel respondents ATP Development Corp. and Aldo Puletti Jr. to obtain final certificates of occupancy dismissed as moot.

Judgment, insofar as appealed from and insofar as reviewed, reversed without costs and [*2]the provisions thereof ordering respondent the City of New York Department of Buildings to compel all persons holding open building permits to obtain final certificates of occupancy, and denying said Department's "cross motion" to dismiss the proceeding are vacated; "cross motion" by the City of New York Department of Buildings to dismiss the proceeding as against it granted, and proceeding dismissed as against said Department.

Petitioners Jamie M. Minchew and Rocco Rinella commenced this proceeding in the Civil Court against the City of New York Department of Buildings as well as against ATP Development Corp. and Aldo Puletti Jr., seeking to compel issuance of a permanent certificate of occupancy for petitioners' home, and enjoining the Department of Buildings from issuing violations and/or a vacate order against the premises until the issuance of the certificate. They alleged that ATP Development Corp. and/or Puletti had failed to obtain the certificate of occupancy as required by contract. Both the Department of Buildings and the co-respondents moved to dismiss the proceeding on various grounds. In a "decision/order," the court below, implicitly denying the motions to dismiss, enjoined the Department of Buildings as requested by petitioners, ordered the Department to compel the co-respondents to obtain final certificates of occupancy, ordered the co-respondents to obtain the certificates of occupancy, and additionally ordered the Department to conduct investigations into the status of various other, unrelated, construction projects and their permits. The City of New York Department of Buildings appealed as of right.

In their brief on appeal, petitioners Minchew and Rinella note that they have obtained the issuance of a final certificate of occupancy, and they claim that therefore their matter is moot. This court agrees with them as to the portions of the judgment, insofar as appealed from, which directed the Department of Buildings to compel the co-respondents to obtain a final certificate of occupancy and enjoined the Department from issuing violations and/or vacate orders against the premises until the issuance of the certificate, and dismisses the appeal from those portions of the judgment. The remainder of the judgment, insofar as it is here being reviewed, is reversed because the court below had no subject matter jurisdiction to issue the judgment appealed from (CCA 209 [b]; see North Waterside Redevelopment Co. v Febbraro, 256 AD2d 261 [1998]; Washington v Culotta, No. 2005-1123 K C, decided herewith).

Pesce, P.J., Weston Patterson and Golia, JJ., concur.
Decision Date: July 18, 2006