Matter of Paramount Group, Inc. v New York City Dept. of Consumer Affairs

[*1] Matter of Paramount Group, Inc. v New York City Dept. of Consumer Affairs 2004 NY Slip Op 50867(U) Decided on July 19, 2004 Supreme Court, New York County 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 19, 2004
Supreme Court, New York County

In the Matter of the Application of PARAMOUNT GROUP, INC., Petitioner, - v

against

NEW YORK CITY DEPARTMENT OF CONSUMER AFFAIRS, NEW YORK CITY DEPARTMENT OF TRANSPORTATION, NEW YORK CITY ART COMMISSION and MARK ALLEN SEPANSKI, Respondents.



120101/03

Debra A. James, J.

Petitioner brings this CPLR Article 78 proceeding seeking to annul the July 23, 2003, approval of co-respondent Mark Allen Sepanski's application to erect a newsstand near the northwest corner of West 50th Street and Broadway by respondent New York City Department of Consumer Affairs (DCA). The petitioner argues that DCA's approval was arbitrary and capricious because 1) the newsstand fails to provide "nine and one-half feet . . . on the sidewalk for pedestrian movement" as required by Administrative Code of the City of New York § 20-231 and Rules of City of New York Department of Consumer Affairs (6 RCNY) § 2-68 (b); [*2]2) respondent Mark Allen Sepanski (the "applicant") failed to comply with the notice requirements of 6 RCNY § 2-67 (b); and, 3) the operation of the newsstand will not be the applicant's principal employment as required by Administrative Code § 20-229. In its reply memorandum of law, petitioner withdraws its third claim that operation of the newsstand will not be the applicant's principal employment and this decision therefore will not consider that claim.

Respondents DCA, the New York City Department of Transportation (DOT), and the New York City Art Commission (collectively the "City respondents") oppose the petition. The respondent applicant also opposes the petition and additionally submits a counterclaim and cross-claims based upon the monies the applicant spent to construct the newsstand.

By application dated August 1, 1999, respondent Mark Allen Sepanski applied to construct a sidewalk newsstand near the northwest corner of West 50th Street and Broadway on 50th Street adjacent to the office building at 1633 Broadway.

Construction of sidewalk newsstands is governed by Title 20, Chapter 2, Subchapter 7 of the Administrative Code. Administrative Code § 20-231 (emphasis added) states in relevant part that e. No newsstand shall occupy an area of more than seventy-two square feet or have a height of over nine feet. . . In no event shall there be less than a width of nine and one-half feet maintained on the sidewalk for pedestrian movement.

The applicable DCA regulations in 6 RCNY § 2-68 (b) (2) (emphasis added) provide (2) Clearance for pedestrian: clear path for curb-line newsstands.(i) When reviewing the relationship of newsstands to other obstructions on the sidewalk, a principal concern is the maintenance of a straight clear path of at least 15 feet from either end of the newsstand, and a clearance of 9 1/2 feet in front of the stand. The intent of the clear path requirement is to provide, to the greatest extent feasible, for a straight unobstructed pedestrian flow along the sidewalk.(ii) In all cases, a straight unobstructed path as provided by the Administrative Code (which requires at least 9 1/2 feet of the sidewalk's width) must be left for pedestrian circulation in front of the newsstand. (See Illustrations 6, 7, and 8.) Where the building line does not coincide with the property line, the Department of Transportation shall include in its determination of clear path any portion of the area between those two lines which it finds to be immediately adjacent to and level with the public sidewalk, open to the sky and substantially unobstructed along its entire length, and level, paved and accessible so as to provide a usable walking surface. In calculating either the clear path or pedestrian level of service, areas covered by licensed stoop-line stands (up to a maximum of three feet beyond the property line) which protrude into the dear path in front of a newsstand shall not be included as walkable area.

The Administrative Code and rules promulgated thereunder require the DOT to approve the location of any newsstand based upon the criteria set forth in the regulations.

In this case, the DOT initially rejected the location proposed by the applicant on October 18, 1999, because it was within 15 feet of a standpipe not set forth in the application. The [*3]applicant subsequently presented a revised application and on March 20, 2000, the DOT approved the location as being in compliance with the applicable regulations.

By letter dated February 4, 2002, DCA requested that the DOT reinspect the proposed location to ensure that the location was still in compliance with the regulations and that conditions had not changed since the original DOT approval. On April 4, 2002, DOT conducted a site inspection of the proposed location and the DOT report stated that there was a clear walking path of 10 feet, 2 inches along the sidewalk after accounting for the fixtures and setbacks required by the regulations. Additionally, on April 5, 2002, the DOT conducted a pedestrian level of service analysis at the proposed location at 1:25 pm and determined that there would be adequate pedestrian flow upon construction of the newsstand. Therefore, DOT again approved the location by correspondence to DCA dated April 9, 2002. Subsequently, respondent Art Commission also approved construction of the newsstand by letter dated June 16, 2003.

By letters dated June 26, 2003 and July 15, 2003, petitioner's consultant, Sam Schwartz Company, objected to the approval of the application. The primary grounds for petitioner's objection, which remains the primary grounds asserted by petitioner in this proceeding, was that the DOT improperly included a one-foot wide stretch of black granite slab in their calculation of the clear walking path. Petitioner asserts that although this one-foot wide section of stone (the "granite strip") is flush with the sidewalk, it should not have been included as a part of the clear walking path because it is inside of the building property line and the purpose of the strip was to provide a "footrest" for pedestrians who sit on black granite benches adjacent to the slab.

On July 23, 2003, DCA approved the application and this proceeding ensued.

Petitioner's main claim in this proceeding alleges that DOT improperly included the granite strip in its calculations of the clear walking path and had it not done so the newsstand could not be approved because the walking path would be four inches too narrow. The court rejects petitioner's arguments and upholds the newsstand approval by the City respondents.

Administrative Code § 20-231 provides that there must be "nine and one-half feet maintained on the sidewalk for pedestrian movement." Contrary to petitioner's argument, the Code does not prohibit the inclusion of private property in the calculation of the space available for pedestrian movement. The petitioner's argument may have had merit had the regulation referred to the "public" sidewalk, but it does not. Furthermore, DCA's implementing regulation 6 RCNY § 2-68 (b) (2) (ii) rationally includes in its walking path analysis space available for pedestrian movement which is directly adjacent to the sidewalk. The wording of the Administrative Code makes clear that its intent is that there be adequate space for pedestrian circulation when there is a newsstand present without regard to how that space is classified.

Petitioner's argument that the granite strip is a "footrest" is meritless because as petitioner concedes, the granite strip is level with and adjacent to the sidewalk and therefore provides an area upon which pedestrians can walk with their "feet" as well as "rest" those same feet if they wish..

In this case the DOT inspected the location in 2000 and 2002 and found that there was adequate pedestrian flow at the location during the busy lunch hour period which is the most likely time the granite strip was being used as a "footrest." The City respondents' consideration of this application was anything other than arbitrary and capricious. The record instead reveals that the City respondents conducted a careful and detailed review which this court is bound to [*4]respect. See Matter of Schatz v Department of Consumer Affairs of the City of New York, 177 AD2d 324, 326-327 (1st Dept 1991).

The petitioner's contention that DCA should not have considered the application because of petitioner's alleged failure to comply with DCA's regulation 6 RCNY § 2-67 (b) [FN1] is also meritless.

It is uncontroverted that on August 2, 1999, the applicant sent a letter by certified mail dated July 30, 1999, to Broadway Plaza Associates. It is also undisputed that Broadway Plaza Associates is the fee owner of record for the building lot. Therefore petitioner complied with the regulation in sending notice to them as "owner" of the lot adjacent to the newsstand.

Although the petitioner, managing agent for the property, states that it never received the July 30, 1999, letter, it still argues that the application should have been rejected because the contents of the letter failed to comply with 6 RCNY § 2-67 (b) in that it did not set forth the distance and direction the proposed stand would be from the closest intersection. The petitioner also argues that the respondent failed to include an affidavit as required by the regulation.

The court agrees with respondents that the July 30, 1999, letter substantially complies with 6 RCNY § 2-67 (b) and that DCA had the authority to determine that the application complied with a regulation promulgated by DCA. See 23 Realty Associates v Teigman, 213 AD2d 306, 308 (1st Dept 1995) ("The Commissioner of Consumer Affairs, as administrator of this statute, is empowered to promulgate rules and regulations . . . and his rational construction of the statute in such rules and regulations is thus entitled to deference"). In this case, the applicant's letter simply stated that "an application for a newsstand has been submitted to the Department of Consumer Affairs" and "the proposed newsstand is to be located on the north west corner of 50th Street and Broadway in Manhattan, New York City. P.S. The size will be 5 feet by 12 feet." The application also included a copy of the certified mail receipt.

The court holds that the primary purpose of the notification requirement in 6 RCNY § 2-67 (b) was to provide affected property owners with notice of the application to place a newsstand in proximity to their premises. DCA rationally found that the letter submitted by the [*5]applicant in this case satisfied that regulatory purpose. Furthermore, although the petitioner denies receiving any notice, the petitioner in this case did learn of the application and submitted opposition thereto including a report from a professional engineering firm. Therefore petitioner was not prejudiced by any alleged defect in the notice.

Therefore the petition shall be dismissed.

Accordingly, it is

ORDERED and ADJUDGED that the Petition is DISMISSED and the counterclaims and cross-claims of respondent MARK ALLEN SEPANSKI are also DISMISSED.

This is the decision and order of the court.

Dated: July 19, 2004 ENTER:

J.S.C. Footnotes

Footnote 1: 6 RCNY § 2-67 (b) provides (b) Building Notification Language. Within 30 days before the application is filed, the applicant is required to provide the owner of record or owner's agent 2 of the building or lot directly adjacent to the site of the proposed newsstand, with notice that a newsstand application will be submitted within 30 days to the Department of Consumer Affairs. Such notice shall be made by certified mail. The notice shall specify the dimensions of the proposed stand, and the distance and direction it will be located from the closest intersection. Proof that such notice was given is required at the time the completed application is submitted to the Department of Consumer Affairs. The applicant must submit the certified mail receipt with an affidavit. Documents to be submitted for Department of Transportation, Art Commission and Community Board Review. 2 Also known as the management corporation.