Opinion
9091 Index 162661/15
04-25-2019
In re PAMELA EQUITIES CORP., Petitioner–Appellant, v. The ENVIRONMENTAL CONTROL BOARD OF the CITY OF NEW YORK, et al., Respondents–Respondents. Community Housing Improvement Program, Inc. and Rent Stabilization Association of New York City, Inc., Amici Curiae.
Rich, Intelisano & Katz, LLP, New York (Robert J. Howard of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York (Scott Shorr of counsel), for respondents. Borah, Goldstein, Altschuler, Nahins & Goidel, P.C., New York (Paul N. Gruber of counsel), for amici curiae.
Rich, Intelisano & Katz, LLP, New York (Robert J. Howard of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York (Scott Shorr of counsel), for respondents.
Borah, Goldstein, Altschuler, Nahins & Goidel, P.C., New York (Paul N. Gruber of counsel), for amici curiae.
Sweeny, J.P., Manzanet–Daniels, Tom, Kapnick, Moulton, JJ.
Judgment, Supreme Court, New York County (Lucy Billings, J.), entered October 16, 2017, to the extent appealed from as limited by the briefs, denying the petition to annul respondent Environmental Control Board's determination, dated August 27, 2015, which imposed penalties for violations of Administrative Code of City of N.Y. § 28–210.3, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.
Administrative Code § 28–210.3 prohibits the owner of a multiple dwelling classified for permanent use to permit the use or occupancy of the dwelling for other than permanent residence purposes. Petitioner's contention that it did not violate this provision because it did not have knowledge that its tenants were using their apartments for transient occupants is unpreserved, and we have no discretionary authority or interest of justice jurisdiction to reach the issue ( Matter of Khan v. New York State Dept. of Health, 96 N.Y.2d 879, 730 N.Y.S.2d 783, 756 N.E.2d 71 [2001] ; Matter of Boyd v. Perales, 170 A.D.2d 245, 246, 565 N.Y.S.2d 518 [1st Dept. 1991], lv denied 78 N.Y.2d 851, 573 N.Y.S.2d 69, 577 N.E.2d 60 [1991] ; Matter of Curry v. New York City Hous. Auth., 161 A.D.3d 578, 579, 78 N.Y.S.3d 18 [1st Dept. 2018] ).
The penalty assessed against petitioner is consistent with Administrative Code § 28–202.1 and 1 RCNY 102–01[g][1], as petitioner failed to establish at the hearing that it had corrected the violations of Administrative Code §§ 28–210.3 in fewer than 38 days following the notice of violation. The penalty is not excessive and does not shock the conscience (see Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 N.Y.2d 222, 233, 356 N.Y.S.2d 833, 313 N.E.2d 321 [1974] ; Matter of Reese v. Rhea, 96 A.D.3d 430, 430, 944 N.Y.S.2d 882 [1st Dept. 2012], lv denied 20 N.Y.3d 860, 2013 WL 538196[2013] ; Matter of 42/9 Residential LLC v. New York City Envtl. Control Bd., 165 A.D.3d 541, 542, 84 N.Y.S.3d 352 [1st Dept. 2018] ).