Matter of Hanges v New York City Dept. of Bldgs.

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Matter of Hanges v New York City Dept. of Bldgs. 2012 NY Slip Op 31264(U) May 9, 2012 Sup Ct, New York County Docket Number: 112089/11 Judge: Michael D. Stallman Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. SCANNED ON 511512012 . . [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY MICHAEL D. STALLMAN PRESENT: Hon. PART 21 Justice INDEX NO. In the Matter o the Appllcatlon of f STEVEN P. HANGES, 112089111 MOTION DATE 311112 Petltloner, MOTION SEQ. NO. -v- THE NEW YORK CITY DEPARTMENT OF BUILDINGS and THE CITY OF NEW YORK, Respondents. The followlng papem, numbered Ito Order to Show CameVerlfled Answer 7 Verifled Petltlon- -- FILED were read on thls Artlcle 76 Exhlbltn I 2 [Affldavlt], 3-15 , - Exhlblta A-E, F [Affidavit, G-H + 091 A W f4 2012 I No@). m ) 1; 2-3 4-5 . COUNTY CLEjt$$($FFICE Replylng Affldavit--Exhlblt 1-5 f No(+ Sur-reply Affirmation 7 Uponthe foregoing papers, it is ADJUDGED that this Article 78 petltlon is denied, and the proceeding is dlsmissed. Inthis Article 78 proceeding, petitioner challenges a determination dated September 12,2011by the NewYork City Departmentof Buildings (DOB), which denied petitioner s applicationfor a slte safety managercertificate. Petitioner claims that Carmen Cofrancesco, a site safety manager, supervised petitioner during his eighteen months of on-the-jobtraining program experience, which allegedly began In March 2008. The denial states that the application was denied because of [ansufficient practicalexperience and [dlid not complete an 8month onI the-job training program as described in Chapter 33 of the NYC Building Code . (Petitioner s Ex 1.) DOB explained in its denial that documents that petitioner submitted with the application are not acceptable proof that the candidate satisfactorily completed an on-the-jobtraining program as describedabove as none of the candidate s monthly summaries were notarized. (Continued. Page 1 of 6 , .) [* 2] - 4 Matter of Hanges v New York Clty Dept. of Buildings, Index No. 112089l1I Additionally, when intewiewed, the candidate and Cofrancesco stated that the candidate completedthe monthlysummariesand they were then signed by Cofranceso on the date listed on the bottom of the summaries. However,severalof the summaries were signed on Saturday s [sic] and both Cofrancescoand the candidate stated they did not work on Saturday s [SIC], and the summaries for April 2008 and May 2008 bothappear to havethe date 2009 written on them and 2008 written over it. Furthermore, all the monthly summaries state that the candidatewas at 305 West 1I Street 5fh during the 18 month on the job training program; however, boththe candidate and Cofrancesco stated that the candidate spent approximately 25% of his time on other projects and several of them were not major building projects. The Department has determinedall experience obtained after the enactmentof the J u l y 2008 code, must be in compliance with the code requirements described above. 9 1 Petitioner argues that DOB erred in requiring contemporaneously notarizedmonthlysummariesforjob experience. Petitionermaintains that he consulted and relied upon I RCNY Chapter 26, Appendix A (D), which does not expressly require contemporaneously notarized monthly summaries of petitioner s on-the-jobtrainlng. Sectlon (D) (3)(a) of Appendix Aof Chapter 26 of Title I the Rules of the City of New York stated, in pertinent part, Each of month, the site safety manager shall summarizethe trainee s activities in the site safety log or other record, and shall certify as to the trainee ssatisfactory completion of the program. (VerifiedAnswer, Ex A,) According to petitioner, Chapter 26 was not repealed until January 2, 2009. PetitioneracknowledgesthatI RCNY 104-08, which becameeffectiveJuly I2008, expressly states, in pertinent part, Dated and notarizedsummaries , must have been completed by the certified supervisingsite safety manager at the end of every month specifying the location and nature of the construction activity at the locationfor the month covered (RCNY 10448 [iv].) However, I petitioner asserts that 1RCNY 10448 did not expressly repeal I RCNY Chapter (Continued. Page 2 of 6 . I ) [* 3] U c Matter of Hanges v New York Clfy Dept. of Buildings, Index No. I1208911I 26 Appendix A, which remained in effect until January 2,2009. Moreover, petitioner claims that, even as of August 2008, DOB s interpretationthat the summaries must be notarized at the end of every month was not stated to applicants on DOB s document entitled, HOWTo Become a New York City Certified SITE SAFETY MANAGER , available on DOB swebsite. (Verified Petition, Ex 8.) Respondents contend that the document does containa link to IRCNY 104-08, which sets forth the notarization requirement. Respondentsexplainthat, prior to the promulgationof 1RCNY 10448, the qualificationsfor a site safety managerwere listed in the Department of Buildings Manual for Site Safety Programs (the Manual), contained in Appendix A of Chapter 26 of Title Iof the Rules of the City of New York. However, respondents point out mat paragraphAof the Manualclearly stated, This Manual outlines the requirements of the site safety programs submitted to the Departmentof Buildings.. Theyare not intended, however, to supersede any requirements of the BuildJng Code, or rules and regulatlons promulgated by the Buildings Department or any other city, state, or federal agency, pertaining to site safety and other construction activity. (VerifiedAnswer, Ex A [emphasis supplied].) Therefore, petitioner s argument that the former provisionsof the Manualcontrolled, instead of 1RCNY 104-08, I without merit. s It is well settledthat the constructiongiven statutesand regulatlonsby the agency responsible for their administration, if not irratlonal or unreasonable, should be upheld. (MafterofHowardvWyman,28 NY2d434, 438 [1971].) Where the question is one of pure statutory readingand analysis, dependent only on accurate apprehensionof legislative intent, there is little basis to rely on any special competence or expertise of the administrative agency , and no deference is requlred. However, where the statutory language suffers from some fundamentalambiguity , or the interpretation of a statute or its application involves knowledge and understandingof underlying (Continued. Page 3 of 6 ..) [* 4] Matter of Hanges v New York City Dept. of Buildlngs, Index No. I I208911I operational practices , courts routinely defer to the agency s construction of a statute it administers. (New York City Council v City of New York, 4 AD3d 85, 96-97 [Ist Dept 2004][citations omitted].) of Here, Section 104-08 (iv) of Title I the Rules of the City of NewYork states, Dated and notarizedsummariesmust have been completed by the certified supervisingsite safety manager at the end of every month. ... The rule expressly providesthat 8 certified supervising site safety manager must complete the summaries at the end of every month, and that the summaries must be dated and notarized. - .. DOB s interpretation that the summaries must also be dated and notarized contemporaneously with their completion is a reasonable construction of I RCNY 104-08. If the summaries are undated, then DOB cannot obJectivelydetermine whether a certlfled supervising site safety managercompletedthe summaries at the end of every month, which is clearly required under the rule. If the summaries are not notarized contemporaneousIy with the completionof the summaries, there is no check upon the possibility that the summaries would be backdated. The DOB investigator who interviewed Hanges states in an affidavit that this requirementdecreases the likelihoodthatsuch summaries are backdatedand allows DOB to verify that a candidatefor a Site Safety Manager Certificate obtained the requiredexperience to qualify for the license. (VerifiedAnswer, Ex F [Schultz Aff.] 7 12.) Petitioner s lay Interpretation that 1 RCNY 104-08 did not requlre contemporaneously dated and notarized summaries is not entirely unreasonable. The rule could have beenwritten more clearly for a lay person that the summaries must be notarized contemporaneously with their completion. However, because DOB s Interpretation of IRCNY 104-08 is neither irrational nor unreasonable, its interpretation must be upheld. As petitioner points out, I RCNY 104-08went into effect after petitioner had purportedlycompleted4 out of 18months of on-the-jobtraining. There is some appeal to petitioner s argumentthat DOB s interpretationof I RCNY 104(Continued, , , ) Page 4 of 6 [* 5] Matter o f Hanges v New York C t Dept of Bulldlngs, Index No. I1208911I iy 08 should not be applied to summaries forthe period beforethe rule came Into effect. Otherwise, it would be impossible for petitioner to obtain contemporaneously notarized summariesfor that period. However, thi$ argumentwould not explain or excuse petitioner s noncompliancewith the rule after it became effective. Because DOB s interpretationof I RCNY 104-08 is reasonable, respondents did not act arbitrarily or capriciously in denying petitioner sapplicationfor a site safety manager certificate based on the lack of contemporaneously notarizedsummariesof petitioner s on-the-jobtraining. None of the summaries submitted are notarized. Petitioner also contends that DO8 allegedly did not mentionto petitioner that his summaries were not notarizedwhen It requestedfurther Itemsfor petitioner s application, and that DOB delayed in issuing its denial. To the extent that petitioner argues that DOB should be estopped from raising the requirementthat the summaries be contemporaneouslynotarized, there is no basis here for the application of estoppel. [Elstoppel cannot be invokedagalnst a governmental agency to prevent it from discharging Its statutory duties. Among other reasons, to permlt estoppelagainst the government could easily result in large scale public fraud. While we have not absolutely precluded the possibllky of estoppel against a governmental agency, our declsions have made clear that it is foreclosed in all but the rarest cases. . . . Furthermore, the law is clear that those who deal with the government are expected to know the law, and cannot rely on the conduct of government agents contrary to law as a basis for ma nifest inj ust ice c Iaims. (Matter of New York State Med. Transporters Assn. v Perales, 77 NY2d 126, 130-131 [9901 [internal citations omitted].) I other Although petitionerclaims that he had practical experience on 1I projects, the Court may not consider this alleged on-the-job experience. [Jludicial review of administrativedeterminations I confined to the facts and s record adduced before the agency. (MatterofFeafhersfonevFranco,95 NY2d 550, 554 [2000].) It appears that not all of the other projects were presented to DO13 in the application process as qualifying on-the-job training (Continued. . . ) Page 5 of 6 [* 6] U Matter of Hanges v New York Cify Depf. o f Buildings, Index No. I I208911I experience. In a letter to DOB dated September 30,2009, Cofrancesco mentioned only 3 of the 1I projects constituting the additional on-the-job experience. (Verified Petition, Ex 5.) Moreover, the monthly summaries submittedto DOB concerned only the project at 305 West 115* Street, not the other projects , The Court finds unpersuasive petitioner sargumentthat DOB s insistence that the summaries be contemporaneously notarized essentially elevates form over substance. DOB interviewedpetitioner and Cofrancesco about the on-thejob experience listed in the summaries (VerifiedAnswer, Ex F [Shultz Affirm. 7-8.) In sum, the quantum of proof that petitionerpresentedto DOBwas not sufficient to resolve the agency s doubts and concerns about petitioner s experience,which were raised not only by the documentsthemselves, but also from the intewiewsthat DOB conducted. Petitloner is essentiallyasking the Court to second-guessthe agency s belief, notwithstandingnon-compliance with I RNCY 104.O8. Courts are not permittedto substitutetheirjudgment for that of the administrative agency where said decision is rationallybasedon the record. (Matter of Royal Realty Co. v New York State Div. of Hous. & Community Renewal, 161 AD2d 404,405 [ l s t Dept 19901.) Finally, petitioner s request for limited discovery of tape recordings, memoranda, and notes relatingto interviewsthat respondentsconducted, as well as a depositionconcerningDOB s delay, is denied. The requestwas first raised in reply, and the discovery sought does not change the fact that the summaries submitted were not notarized contemp 4 hb Dated: ,J.S.C. New York, New York I. Check one: ................................................................ 2. Check If approprlate:............................ 3. Check If approprlate: CASE DISPOSED PETITION I S 0 GRANTED I DENIED ................................................ 0GRANTED IN PART 0OTHER SETTLE ORDER r] SUBMIT ORDER 0DO NOT POST 0FIDUCIARY APPOINTMENT 0REFERENCE Page 6of 6

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