Matter of Kaywein Realty Co. LLC v City of New York Envtl. Control Bd.

[*1] Matter of Kaywein Realty Co. LLC v City of New York Envtl. Control Bd. 2010 NY Slip Op 51810(U) [29 Misc 3d 1213(A)] Decided on October 21, 2010 Supreme Court, New York County Stallman, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 21, 2010
Supreme Court, New York County

In the Matter of the Application of Kaywein Realty Company, LLC and the Application of WINFIELD-FLYNN, LTD, Petitioners,

against

City of New York Environmental Control Board, Respondent.



109580/10



For Petitioners:

Steven Kaiden, Esq.

Meister Seelig & Fein, LLP

2 Grand Central Tower

140 East 45th St, 19th Floor

New York, NY 10017

(212) 655-3500

For respondent:

Michael A. Cardozo

Corporation Counsel of the City of New York

By: Christina L. Hoggan, Esq.

100 Church St

New York, NY 10007

(212) 788-0461

Michael D. Stallman, J.

Petitioner allegedly leased certain advertising space on the exterior of each of their buildings to non-party Troystar Corp. in exchange for certain fees. Respondent issued various notices of violation to respondents concerning advertising signs located on the two properties owned by petitioners. At administrative hearings, administrative law judges issued fines for the various violations. By separate letters dated April 1, 2010 to respondent, petitioners requested extensions of time to file their respective appeals from the decisions and orders of the administrative law judges. One letter states, in pertinent part, "We respectfully request a waiver of timeliness on the grounds that Respondent was unable to pay the penalties as required by ECB rules within the requisite 20 days following the mailing dates. . . Due to the magnitude of the penalties and precarious financial circumstance of the OAC [Troystar Corp.], payment of the penalties posed an impossible challenge for the OAC." Verified Petition, Ex E. It is undisputed that petitioners' request for an extension was denied by an email delivered to petitioners on April 2, 2010. The email states, in pertinent part: "The requests for waivers of timeliness are denied. In the future, please advise your [*2]clients that issues involving pre-payment of penalty should be referred to ECB within the time for bringing an appeal in the form of a hardship request for waiver of payment."

Verified Petition, Ex F. Although the email explanation is terse, the clear import of the email is that petitioners' request for an extension—which essentially raised a hardship in complying with the penalties— was denied because it was not brought within the time for bringing an appeal. It is undisputed that time for requesting an extension of an appeal had run. See Verified Petition ¶¶ 25-26. Because the requests had been made months after the time to request extensions had passed, respondent had a rational basis to deny petitioners' requests.

The Court is not persuaded by petitioners' argument that respondent did not offer a reason for the denial of their request for extensions because respondent used the words "in the future." Respondent's explanation, while framed in terms of advice to petitioners' counsel regarding the proper course of action, was clearly referring—albeit indirectly—to the lateness of petitioners' specific request for extensions. Therefore, respondent's denial was neither arbitrary nor capricious, and had a rational basis.

Petitioners also argue that respondent "completely disregarded the extenuating facts," i.e., that Troystar Corp. had allegedly agreed by contract to pay for any penalties but was financially unable to do so. This argument is similarly unavailing. The extenuating facts were clearly communicated to respondent in the letter dated April 1, 2010. This Court may not substitute its judgment for that of the agency responsible for making the determination or second guess its determination where such a determination is neither irrational nor arbitrary and capricious. See e.g. Cuccia v Martinez & Ritorto, PC, 61 AD3d 609, 610 (1st Dept 2009); Matter of Sacandaga Park Civic Assn. v Zoning Bd. of Appeals of Town of Northampton, 296 AD2d 807 (3d Dept 2002).

Balakas v Hamburg (198 AD2d 82 [1st Dept 1993) and Titen v N.Y.C. Dept. of Consumer Affairs (7 Misc 3d 1003 [A] [Sup Ct, NY County 2005]), which petitioners cite, are distinguishable. As respondent indicates, these cases involved license renewal applications, not requests for an extension of a time to appeal. In Balakas, the Appellate Division, First Department ruled that the agency had abused its discretion by denying a license renewal application ostensibly because the the petitioner had not submitted his renewal application at least 30 days prior to the expiration of the license. However, the agency applied an earlier expiration date of February 28, 1992, even though the expiration date of the license to be renewed had been extended to May 15, 1992. Balakas, 198 AD2d at 84. In Titen, the petitioner claimed that he did not receive the renewal application and had made a good-faith effort to renew his license prior to its expiration, but his inquires were allegedly answered only after his license had expired. Titen, 7 Misc 3d 1003 (A).

Nothing in the record indicates that petitioners made good-faith efforts to request an extension of their appeal prior to the expiration of the time to appeal. According to a manager of petitioner Kaywein Realty Company, LLC, Troystar Corp. did not inform petitioners that it had not paid the penalties or posted the bonds until March 5, 2010 (Kaiden Aff. ¶ 27), which petitioners acknowledge was well after the time to appeal had passed. Reply Mem. at 3-4. [*3]

Dated:10/21/10/s/, J.S.C.

New York, New York