Alluke LLC v NYC Off. of Admin. Trials & Hearings

Annotate this Case

Download PDF

Alluke LLC v NYC Off. of Admin. Trials & Hearings 2022 NY Slip Op 33074(U) September 12, 2022 Supreme Court, New York County Docket Number: Index No. 158804/2021 Judge: Frank P. Nervo Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 158804/2021 FILED: NEW YORK COUNTY CLERK 09/12/2022 01:05 PM NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 09/12/2022 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: PART HON. FRANK P. NERVO Justice ---------------------------------------------------------------------------------X ALLUKE LLC, INDEX NO. MOTION DATE Plaintiff, 04 158804/2021 09/24/2021 001 MOTION SEQ. NO. -vNYC OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS, NYC DEPARTMENT OF BUILDINGS DECISION + ORDER ON MOTION Defendant. ---------------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 001) 2, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25 were read on this motion to/for ARTICLE 78 (BODY OR OFFICER) . Petitioner, via this Article 78 proceeding, seeks to annual a determination by the NYC Office of Administrative Trials and Hearings (“OATH”) finding that petitioner used or occupied an open lot without a valid certificate of occupancy at 4409 Third Avenue in The Bronx. The standard of review of an agency determination via an Article 78 proceeding is well established. The Court must determine whether there is a rational basis for the agency determination or whether the determination is arbitrary and capricious (Matter of Gilman v. New York State Div. of Housing and Community Renewal, 99 NY2d 144 [2002]). “An action is arbitrary and capricious when it is taken without sound basis in reason or regard to the facts” (Peckham 158804/2021 ALLUKE LLC vs. NYC OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS ET AL Motion No. 001 [* 1] 1 of 4 Page 1 of 4 INDEX NO. 158804/2021 FILED: NEW YORK COUNTY CLERK 09/12/2022 01:05 PM NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 09/12/2022 v. Calogero, 12 NY3d 424 [2009]; see also Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222 [1974]). When an agency determination is supported by a rational basis, this Court must sustain the determination, notwithstanding that the Court would reach a different result than that of the agency (Peckham v. Calogero, 12 NY2d at 431). Here, petitioner was issued a violation, pursuant to Administrative Code § 28-118.1, by the Department of Buildings upon a Buildings inspector observing construction vehicles stored at the subject property. It is undisputed that a valid certificate of occupancy does not exist for the subject property. At agency hearings related to the violation, Petitioner did not contest that construction vehicles were stored at the subject property. Petitioner now alleges that the Department of Buildings failed to establish a prima facie violation. The respondents’ determination is supported by the record and is not arbitrary nor capricious. 48 RCNY § 6-12 provides that a sworn summons is admitted as prima facie evidence of the facts stated therein. Furthermore, 1 RCNY § 102-01(k) provides that a violation of Administrative Code § 28-118.1 is a Class 1 Immediately Hazardous violation with a $2,500 penalty. Accordingly, 158804/2021 ALLUKE LLC vs. NYC OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS ET AL Motion No. 001 [* 2] 2 of 4 Page 2 of 4 FILED: NEW YORK COUNTY CLERK 09/12/2022 01:05 PM NYSCEF DOC. NO. 27 INDEX NO. 158804/2021 RECEIVED NYSCEF: 09/12/2022 the inspector’s summons stating that “building or open lot occupied without a valid certificate of occupancy. Note at time of inspection a vacant lot occupies with an excavator, dumpster, van and dumptruck inside chainlink fence” sufficiently established the violations. Petitioner offered no evidence to the contrary. Consequently, the respondents’ determination was taken with sound basis and regard for the facts. To the extent that petitioner alleges dismissal of similar violations must be afforded res judicata preclusive effect, petitioner’s argument is misplaced. Res judicata provides finality to the resolution of disputes such that parties may not relitigate that which was already decided (Matter of New York State Labor Relations Bd. v. Holland Laundry, 294 NY 480 [1945]). The doctrine is applied using a “transactional analysis” (Matter of Reilly v. Reid, 45 NY2d 24 [1978]). Under this analysis, the final conclusion of one claim bars all other claims “arising out of the same transaction or series of transactions, even if based upon different theories or if seeking a different remedy” (O’Brien v. City of Syracuse, 54 NY2d 353 [1981]; see also Platon v. Linden-Marshall Contr. Inc., 176 AD3d 409 [1st Dept 2019]). Put simply, the dismissal of prior violations issued by the Department of Buildings for prior alleged conduct, by petitioners or others, does not preclude the Department of Buildings from issuing further violations 158804/2021 ALLUKE LLC vs. NYC OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS ET AL Motion No. 001 [* 3] 3 of 4 Page 3 of 4 INDEX NO. 158804/2021 FILED: NEW YORK COUNTY CLERK 09/12/2022 01:05 PM NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 09/12/2022 upon new violating conduct by petitioner. The respondents’ denial of petitioner’s res judicata claims on administrative appeal was, therefore, proper. Accordingly, it is ORDERED that the application is denied in its entirety and the petition is dismissed; and it is further ORDERED that the matter shall be marked disposed; and it is further ORDERED that any claims or arguments raised and not expressly addressed herein have nevertheless been considered and are hereby denied. THIS CONSTITUTES THE DECISION AND 09/12/2022 DATE CHECK ONE: ORDER OF COURT. $SIG$ HO X CASE DISPOSED GRANTED • X NON-FINAL DISPOSITION DENIED APPLICATION: SETTLE ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN GRANTED IN PART SUBMIT ORDER FIDUCIARY APPOINTMENT 158804/2021 ALLUKE LLC vs. NYC OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS ET AL Motion No. 001 [* 4] THE 4 of 4 .NERVO • • J .S.C. OTHER REFERENCE Page 4 of 4

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.