Fourth Ave. Mgt. Corp. v Limandri
Annotate this CaseDecided on March 29, 2010
Supreme Court, New York County
Fourth Avenue Management Corporation, OTR MEDIA 59 FOURTH LLC, and FOURTH AVENUE LOFT CORPORATION, Plaintiffs,
against
Robert D. Limandri, AS COMMISSIONER OF THE NEW YORK CITY DEPARTMENT OF BUILDINGS, THE NEW YORK CITY DEPARTMENT OF BUILDINGS, and THE CITY OF NEW YORK, Defendants.
102243/10
For petitioners:
Howard C. Crystal, Esq.
Novack, Burnbaum & Crystal, LLP
300 East 42nd Street
New York, NY 10017
212-682-4002
For respondents:
Christina L. Hoggan, Esq.
Michael A. Cardozo
Corp. Counsel of the City of New York
100 Church St.
New York, NY 10007-2601
212-788-0461
Barbara Jaffe, J.
Plaintiffs, the owner, net lessee and manager of a commercial building (the
premises) located in the City of New York, move, pursuant to CPLR 6311 and 6313, to enjoin
defendants from preventing them from installing signs on the wall of the said premises and from
issuing violations. Defendants cross-move, pursuant to CPLR 3211(a)(7), to dismiss the
complaint.
I.
BACKGROUND
[*2]Pursuant
to a net lease agreement, dated January 10, 2007, Fourth Avenue Management Corp. (Owner),
the owner of the premises, leased to OTR Media 59 Fourth LLC (OTR), the exclusive right to
the premises:
for signage and to use that portion of the [premises] consisting of all of the South
wall ("Premises") for the purpose of installing and maintaining thereon outdoor advertising
displays, including necessary supporting structures, devices, illumination
facilities
and connection, service ladders and other appurtenances with free
and unfettered accessat all hours to an upon the same ("Signs") at Lessee's expense in
accordance with the terms of this Lease.
(Verified Complaint, Exh. A).
Pursuant to the lease, on or about January 2007, OTR placed two signs on the south wall of the premises, one on the top half of the wall (the upper sign), and one on the lower half of the wall (lower sign) (collectively, the signs). The signs were "flex-face" signs, each a one- millimeter thick vinyl wall sign hung from brackets that were mounted to the wall and wall parapet. (Id.).
Between October 11, 2007, and December 18, 2008, the Department of Buildings (DOB) issued 75 violations against plaintiffs, alleging that they illegally installed two flex-face advertising signs on the wall of the premises. Of the 75 violations, 57 currently pend before the Environmental Control Board (ECB), the administrative agency charged with enforcing the subject laws. (Id. ¶¶ 11-12).
On or about December 18, 2008, ECB violation number 34733077R was issued against the premises, alleging a violation of Administrative Code of the City of New York (Admin Code) § 28-105.1 (id.), which provides, in pertinent part, as follows: it shall be unlawful to . . . erect, install . . . or use or operate any sign . . . in or in connection [with any building or structure] . . . or to cause any such work to be done unless and until a written permit therefore shall have been issued by the commissioner in accordance with the requirements of this code, subject to such exceptions and exemptions as may be provided in section 28-105.4.2.
Plaintiffs are alleged to have violated this ordinance by failing to obtain a permit before placing on the wall of the premises outdoor advertising signs. On January 26, 2009, a "Full Stop Work Order" was served on owner. Subsequent and numerous violations issued on the grounds that the signs exceeded the maximum permissible height and width and surface area, and rules regarding registration of the sign. (Id.).
Before issuing the Stop Work Order, on January 2, 2009, the DOB served owner and OTR with a notice of hearing pertaining to the violations. On February 9, 2009, the return date, the matter was adjourned at the request of owner and OTR to February 12, 2009. Owner and OTR then voluntarily removed the signs, and DOB withdrew the petition giving rise to the hearing. (Id.).
In their complaint, plaintiffs set forth six causes of action, but have voluntarily discontinued,
by stipulation dated March 9, 2010, all but the first two causes of action, seeking: (1) a
declaration that they are entitled to legal non-forming use status for signs on the southern wall of
the subject premises; and (2) an order enjoining defendants from issuing any violations [*3]for signage on the premises pending the outcome of the instant
litigation. (Id.).
II. CONTENTIONS
Plaintiffs argue that the violations were improperly issued as the signs are entitled to legal pre-existing non-conforming use status. They allege that the signs were on the walls well before the enactment of any laws governing building signage, and submit photographs which show that as of 1916, the wall had on it a painted sign, whereas the governing zoning regulations were enacted in 1940. They also deny the applicability of a 1976 New York City Zoning Resolution (NY Zoning Resolution), § 52-61, which provides that a non-conforming use may be lost if there is a discontinuance of substantially all of the non-conforming activity for a period of two years. (Id.).
In their cross-motion, defendants assert that the matter is not ripe for judicial review as plaintiffs have failed to exhaust their administrative remedies. They contend that before plaintiffs may seek relief from this court, they must either challenge the issuance of the DOB violations or seek a permit, and file a timely notice of claim. They also maintain that the individual defendant is immune from liability since his actions were discretionary. (Affirmation of Christina L. Hoggan, Esq., dated Feb. 26, 2010).
At oral argument, plaintiffs admitted that they had not sought a permit for the signs, but contend that it would be futile to attempt it, relying on statements allegedly made by Alex J. Berger, Assistant Deputy Director of the DOB, during the course of a hearing held on December 18, 2009, at which plaintiffs challenged several of the violations. Plaintiffs contend that at the hearing, when they raised the issue of the pre-existing non-conforming use status, Berger, who prosecuted the case on behalf of the DOB, stated that the DOB "would not consider a grandfathered non-conforming use case based on the evidence and arguments presented . . ." (Affirmation of Ariel S. Holzer, Esq., dated March 4, 2010).
In opposition, Berger denies having stated "that the evidence would be insufficient to obtain
a DOB non-conforming use permit if [plaintiffs] filed for such an application as is required under
New York City Administrative Code ("Administrative Code") § 28-105.1," and maintains
that even if his words could be so construed, he is not authorized to decide such matters on
behalf of the DOB. (Affirmation of Alex J. Berger in Response to the Affidavit of Ariel S.
Holzer, dated March 12, 2010).
III. DISCUSSION
CPLR 6311 and 6313 provide, respectively, for the granting of preliminary injunctions and temporary restraining orders. At oral argument, I declined plaintiffs' request for a temporary restraining order, and the parties submitted papers addressing plaintiffs' prayer for a preliminary injunction.
Pursuant to NYC Zoning Resolution § 12-10, a use of a building which "does not conform to any one or more of the applicable use regulations of the district in which it is located, either on December 15, 1961 or as a result of any subsequent amendment thereto" is a "non-conforming use." A non-conforming use thus results from the "failure to conform to the applicable district regulations . . ." (NYC Zoning Resolution § 12-10). And if, "for a continuous period of two years, either the non-conforming use . . . is discontinued, or the active operation of substantially all the non-conforming uses in any building . . . is discontinued, such land or building or other structure shall thereafter be used only for a conforming use." (NYC Zoning [*4]Resolution §§ 52-11, 52-61). The intent to resume active operations is immaterial to the determination of whether the use discontinued. (NYC Zoning Resolution § 52-61).
The Administrative Code establishes the procedures by which a building owner may seek a permit to erect a sign or a permit allowing a non-conforming use based on a non-conforming use that existed before the enactment of the zoning resolutions restricting such use, and provides for the procedures to be followed if the DOB prosecutes a violation. (Admin Code § 105.1, et seq.). Here, the DOB commenced a hearing which was halted upon plaintiffs' voluntary removal of the allegedly illegal signs. Plaintiffs thereby cut off the administrative process and instituted the instant judicial action.
The threshold issue is thus whether plaintiffs may proceed in this manner.
It is hornbook law that one who objects to the act of an administrative agency must
exhaust available administrative remedies before being permitted to litigate in a court of law.
This doctrine furthers the salutary goals of relieving the courts of the burden of deciding
questions entrusted to an agency, preventing premature judicial interference with the
administrators' efforts to develop, even by some trial and error, a co-ordinated, consistent and
legally enforceable scheme of regulation and affording the agency the opportunity, in advance of
possible judicial review, to prepare a record reflective of its expertise and
judgment.
(Watergate II Apartments v Buffalo Sewer Auth.,
46 NY2d 52, 57 [1978]). However, the rule of exhaustion is relaxed where, inter alia, it
would be futile to attempt to obtain the administrative remedy. (Banker's Trust Corp. v New York City
Dept. of Fin., 1 NY3d 315 [2003]; Watergate II, 46 NY2d at 57; Matter of Mirenberg v Lynbrook Union
Free School Dist. Bd. of Educ., 63 AD3d 943, 943 [2d Dept 2009]).
Here, Berger not only denies having said that plaintiffs would never be able to meet DOB requirements to receive a permit, but he denies having any authority to make such determinations for the DOB. Absent any evidence that Berger has such authority, plaintiffs' reliance on his statement for their assertion that it would be futile to seek a permit is misplaced and, thus, they have failed to demonstrate that it would be futile.
In any event, their claim of futility is rebutted by a recent decision in which another justice of this court granted injunctive relief to a similarly situated party. In Matter of Yung Brothers Real Estate Co., Inc. v LiMandri, 26 Misc 3d 1203(A), 2009 NY Slip Op 52653(U) (Sup Ct, NY County 2009), the petitioners, having received an unfavorable ruling from the DOB on their request for a permit to install a sign based on a pre-existing non-conforming use, commenced an Article 78 proceeding seeking, inter alia, to stay the DOB from removing the sign or causing its removal. Not only had the petitioners proceeded by way of an Article 78 proceeding and exhausted their administrative remedies but, as the decision supports plaintiffs' substantive position here, it suggests that an application to the DOB may not be futile.
Moreover, most of the cases cited by plaintiffs were instituted as Article 78 proceedings seeking judicial review of final administrative actions. (Toys-R-Us v Silva, 89 NY2d 411 [1996]; Syracuse Aggregate Corp. v Wise, 51 NY2d 278 [1980]; Matter of Allen v Adami, 39 NY2d 275 [1976]; Stephentown Concerned Citizens v Herrick, 246 AD2d 166 [3d Dept 1998]; Keller v Haller, 226 AD2d 639 [2d Dept 1996]). Although plaintiffs cite three cases that were not [*5]brought pursuant to Article 78 (City of New York v Les Hommes, 94 NY2d 267 [1999]; City of New York v 330 Continental LLC,60 AD3d 226 [1st Dept 2009]; Costa v Callahan, 41 AD3d 1111 [3d Dept 2007]), none of them supports heir position. Les Hommes and 330 Continental were instituted by the City to enjoin the defendants from, respectively, violating a certificate of occupancy and a city zoning ordinance. As the City cannot institute an Article 78 proceeding to uphold a ruling of its own agency, they are distinguishable.
Costa v Callahan was instituted as a declaratory judgment action after, as here, the
plaintiff voluntarily discontinued his allegedly illegal use of his property, thereby effectively
ending an administrative hearing then in progress. Absent any discussion of the procedural
posture of the case, however, Costa is of dubious precedential value, and it does not bind
me in light of the well-settled law that administrative remedies must be first exhausted before
such injunctive relief may be sought.
Given this analysis, the merits of the underlying request for injunctive and
declaratory relief need not be addressed.
Although it is not disputed that plaintiffs have failed to comply with the
provisions of GML § 50-i(1), which requires that, prior to instituting an action or special
proceeding against the City, the plaintiff must file a notice of claim with the Comptroller, no
such notice is required when seeking equitable relief. (62A NY Jur 2d, Government Tort
Liability § 359 [2d ed]; Malcuria v Town of Seneca, 66 AD2d 421 [4th Dept
1979]).
Finally, plaintiffs do not challenge defendants' contention that the individual defendant is
immune from liability. (McLean v City of New York,12 NY3d 194 [2009]).
Accordingly, it is hereby
ORDERED, that plaintiffs' motion is denied; it is further
ORDERED, that defendants' motion to dismiss is granted and the complaint is dismissed with costs and disbursements to defendants as taxed by the Clerk of the court; and it is further
ORDERED, that the Clerk is directed to enter judgment accordingly.
This constitutes the decision and judgment of the court.
_______________________________
Barbara Jaffe, JSC
DATED:March 29, 2010
New York, New York
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