Matter of Yung Bros. Real Estate Co. Inc. v Limandri

[*1] Matter of Yung Bros. Real Estate Co. Inc. v Limandri 2009 NY Slip Op 52653(U) [26 Misc 3d 1203(A)] Decided on December 29, 2009 Supreme Court, New York County Tolub, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 29, 2009
Supreme Court, New York County

In the Matter of the Application of Yung Brothers Real Estate Co., Inc., and OTR 296A, LLC , Petitioners,

against

Robert D. Limandri, AS COMMISSIONER OF THE NEW YORK CITY DEPARTMENT OF BUILDINGS, THE NEW YORK CITY DEPARTMENT OF BUILDINGS, THE NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS AND THE CITY OF NEW YORK, Respondents.



111986/09



For Petitioner:

Howard C. Crystal, Esq.

Novack Burnbaum Crystal

New York, NY

For Respondent:

Michael A. Cardozo, Esq.

by Christina L. Hoggan, Esq.

Corporation Counsel

New York, New York

Walter B. Tolub, J.

Petitioners bring this Article 78 special proceeding as part of their challenge to the July 29, 2009 Report and Recommendation of an OATH Administrative Law Judge Faye Lewis ("ALJ Lewis") who determined that petitioners had failed to establish a prior legal non-conforming use with respect to a exterior building sign ("the sign") located on the exterior wall of a building owned by petitioner Yung Brothers Real Estate Co., Inc., ("Yung Brothers") located [*2]at 838 6th Avenue in Manhattan ("the premises").

By this application, brought by Order to Show Cause, petitioners seek an order pursuant to CPLR 7805 staying respondents from removing the aforementioned sign or causing its removal, or, if the sign has already been removed, an order preventing petitioners from installing an advertising sign on the premises during the pendency of this proceeding. Although sought in the petition but not expressly asked for in the Order to Show Cause, petitioners additionally seek an order pursuant to CPLR 7803 and New York City Administrative Code 28-503.6 invalidating and rescinding the Order of Removal issued by respondent, Robert D. LiMandri, as Commissioner of the New York City Department of Buildings ("the Commissioner"), which authorized the removal of the sign on the grounds that the decision of ALJ Lewis was both affected by an error of law and not supported by substantial evidence. Petitioners further seek an award of damages for lost revenue incurred as a result of the respondents' actions. In opposition, respondents cross-move to dismiss the within application and petition pursuant to CPLR 3211(a)(7) on the grounds that the petition fails to state a cause of action.

As a preliminary matter, inasmuch as petitioners have raised the issue as to whether the decision issued by ALJ Lewis was supported by substantial evidence, the portion of petitioner's application which seeks an order invalidating the decision issued by ALJ Lewis, and respondents' cross-motion to dismiss the petition are respectfully transferred to the Appellate Division, First Department, in accordance with CPLR 7803(4) and 7804(g).

The balance of petitioner's request for a stay of the execution of the Order of Removal for the duration of this special proceeding may be addressed by this court, and thus requires a recitation of the facts of this case.

Background

The sign at the core of this application is located on the site of another sign which has existed since at least 1940 and advertises a company known as Bratman Brothers (Affirmation in Opposition, ¶37).[FN1] Bratman Brothers moved its business to the premises in 1929 where it remained until the mid-1980's (id.)

At the time of the installation of the Bratman Brothers sign, the building sat in an area zoned as M1-6, which allows for the erection and display of advertising signs (id.). The Bratman Brothers sign was still in place when petitioner Yung Brothers became the owner of the subject premises in the early 1980's. (Order to Show Cause, Exhibit B, p. 4). At some point thereafter, and it is unclear to the court as to when, petitioner OTR 296A, LLC ("OTR"), an outdoor advertising company, leased the Bratman Brothers sign location from Yung Brothers.

On September 19, 1995, the district where the premises are located was rezoned from an M1-6 district to a C6-4X district, which prohibits advertising signs. In 2007, petitioners installed at least one new sign on the site of the Bratman Brothers sign. In March of 2007, respondent Department of [*3]Buildings ("DOB") issued Yung Brothers two Notices of Violation and Hearing (NOV), one for failing to obtain a permit for the new sign, and one for violating the post-1995 zoning restriction by installing the new sign.

On June 5, 2007, Yung Brothers submitted a Certificate of Correction to DOB saying that they had removed the sign. Petitioners then applied to DOB for a permit to install an advertising sign on the site of the Bratman Brothers sign. The application was pending when on August 1, 2007, DOB again issued Yung Brothers an NOV for erecting an illegal sign on the premises without a permit.

On August 17, 2007, the DOB approved petitioners' permit application, indicating, in pertinent part, that the "non illuminated flex face advertising wall sign inside the property line complies with ZR 52-83 as per historical photos from the New York City Municipal Archives dated 1940-present day" (Order to Show Cause, Exhibit C). Three months later, DOB reversed its position, and, asserting that the permit had been issued in error, issued Yung Brothers Notices of Intent to Revoke and Notices of Objections.

Petitioners did not remove the sign, and apparently did not answer the Notices of Objections. On May 17, 2008, DOB issued Yung Brothers three additional NOVs pertaining to the claimed illegal signage. This was followed by revocation of the August 2007 permit on November 13, 2008 (Affirmation in Opposition, Exhibit K; Order to Show Cause, Exhibit B, Decision of ALJ Lewis, p. 2-3).

By Petition and Notice of Hearing dated February 5, 2009, DOB commenced an Office of Administrative Trials and Hearings (OATH) nuisance abatement proceeding charging that petitioners had violated §28-105.1 of the New York city Administrative Code. An OATH hearing was held on April 29, 2009, at which petitioners argued that they were legally permitted to maintain advertising signs because of the DOB August 17, 2007 permit. Petitioners further argued that the sign was entitled to non-confirming use status based on the existence of the Bratman Brothers sign.

In DOB's post-hearing brief, DOB argued that petitioners failed to establish that the sign was entitled to non-conforming use status because petitioners failed to present evidence with respect to when the Bratman Brothers sign was used and if it was legally allowed at that time. DOB further noted petitioners' failure to establish whether the Bratman Brothers sign had been discontinued for a period of two or more years (Affirmation in Opposition, Exhibit O). Petitioners, in their post-hearing brief, argued that the respondent's petition should be dismissed because petitioners held a valid permit from DOB. Petitioners further claimed that they were not required to establish that the sign qualified for non-conforming use based on proof that the use [*4]of the Bratman Brothers sign had not been discontinued for a period of two or more years, because the cited zoning rules containing the two or more year non-use inquiry, was adopted in 1961, and as such, were not applicable to the sign at issue because the sign predated the zoning regulations sought to be applied by respondents (Affirmation in Opposition, Exhibit P).

On July 29, 2009, ALJ Lewis recommended the issuance of an Order of Removal for the petitioners' sign. The decision was largely based on the finding that petitioner had failed to obtain the required permit allowing for the maintenance of their sign, and had failed to demonstrate that the sign was used for advertising as opposed to accessory purposes prior to 1995.[FN2] This application followed.

Discussion

Pursuant to CPLR 7805, a court may order a stay of further proceedings or the enforcement of a determination under review in order to preserve the status quo until the Article 78 proceeding is resolved (Town of East Hampton v. Jorling, 181 AD2D 781 [2nd Dept 1992]; see generally Barr Altman, Lipshie and Gerstman; New York Civil Practice Before Trial [James Publishing 2009] §42:430-42:432). The criteria assessed are similar to those used in determining whether a party should be entitled to a preliminary injunction. As such, to prevail, the moving party must demonstrate a likelihood of success on the merits, irreparable injury in the absence of provisional relief, and a balancing of the equities in the movant's favor (Melvin v. Union College, 195 AD2d 447 [2nd Dept 1993]; Jarrett v. Westchester County Department of Health, 166 Misc 2d 777 [Sup Ct. Westchester Co. 1995]).

The papers submitted with this application support petitioners' claim that in the absence of a stay, both petitioner Yung Brothers and petitioner OTR stand to be irreparably harmed, both financially, and by damage caused by loss of their respective business reputations. While financial loss suffered by a party can often be calculated, the damage of a lost relationship with an existing business client is more difficult to calculate, and thus can be held to constitute irreparable harm (see, Register.com Inc. v. Verio, Inc., 356 F.3d 393, 404 [2nd Cir. 2004]; Ticor Title Insurance Co. v. Cohen, 173 F.3d 63, at 66 and 69 [2nd Cir. 1999]).

More significantly, is the fact that petitioners have [*5]presented a compelling argument supporting their claim that they will very likely succeed on the merits. New York City, from a historical perspective, began implementing limiting' zoning regulations with respect to signs in 1916. It was not until 1940, however, that the City Planning Commission ("CPC") amended the 1916 Zoning Resolution to create a distinction between off-site commercial or, "advertising signs" which direct attention to another location, and on-site, or "business" or "accessory" signs, which direct attention to a business at the same location where the sign exists (see, ZR § 12-10 [2001]); ZR § 3(q) [1940], renumbered as ZR § 12-10 [1998]. For a general overview of the history of New York City Zoning Laws, see, Infinity Outdoor, Inc. v. City of New York, 165 F. Supp. 2d 403 [E.D.NY 2001]).

When a zoning authority challenges the use of property as being in violation of a zoning ordinance, the property owner may raise the defense of nonconforming use. To prevail, the individual asserting the defense must demonstrate that the property was in use for the nonconforming purpose at the time that the zoning ordinance became effective (see, Matter of Syracuse Aggregate Corp. v. Wise, 51 NY2d 278 [1980]).

In the instant application, the sign involved, as conceded by respondents, existed in 1940. The sign had existed for more than 20 years when the City of New York adopted ZR §12-10 and §52-11, both of which pertain to the definition of nonconforming use. Since preexisting use within the context of zoning is to be evaluated solely on whether the use offends the regulations which were in effect at the time of the use (see, Costa v. Callahan, 41 AD3d 1111 [3rd Dept 2007]; Kellner v. Haller, 226 AD2d 639 [2nd Dept 1996]), petitioners have raised a very valid issue as to whether the 1961 zoning regulations were improperly applied by ALJ Lewis in determining whether or not petitioners' sign qualified for preexisting nonconforming use designation. Having reviewed the papers submitted, and under the circumstances, it is this court's determination that pending the Appellate Division, First Department's review of the substantial evidence issues advanced by the parties, a stay pursuant to CPLR 7805 is warranted. As such, it is

ADJUDGED that the portion of petitioners' application which seeks a stay preventing respondents from removing the aforementioned sign or causing its removal, or, if the sign has already been removed, preventing petitioners from installing an advertising sign on the premises during the pendency of this proceeding, is granted; and it is further

ORDERED that the balance of the issues raised in this application which involves questions as to whether a determination made as a result of a hearing held, and at which evidence was taken, pursuant to direction of law, is on the entire record, supported by substantial evidence (CPLR 7803(4)), [*6]is respectfully transferred to the Appellate Division, First Department for disposition pursuant to CPLR 7804(g); and it is further

ORDERED that the Clerk of Court is directed to transfer the file to the Appellate Division, First Department, upon service of a copy of this order with notice of entry.

This memorandum opinion constitutes the decision and order of the Court.

Dated:

____________________________

HON. WALTER B. TOLUB, J.S.C. Footnotes

Footnote 1: The Bratman Brothers sign appears in a New York City archived photograph taken in 1940.

Footnote 2: An accessory sign is one which directs attention to businesses on the zoning lots where the signs are located. By contrast, an advertising sign is one which directs attention to a business sold or offered in a location other than where the sign is located (ZR §12-10).