Opinion
2014-02-13
In re PERLBINDER HOLDINGS, LLC, Petitioner–Appellant, v. Meenakshi SRINIVASAN, etc., et al, Respondents–Respondents.
Kaufman Friedman Plotnicki & Grun, LLP, New York (Howard Grun of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York (Jane L. Gordon of counsel), for respondents.
Kaufman Friedman Plotnicki & Grun, LLP, New York (Howard Grun of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York (Jane L. Gordon of counsel), for respondents.
TOM, J.P., ANDRIAS, SAXE, FREEDMAN, RICHTER, JJ.
Judgment, Supreme Court, New York County (Joan B. Lobis, J.), entered March 27, 2013, denying the petition to annul a resolution of respondent Board of Standards and Appeals of the City of New York (BSA), dated June 19, 2012, which upheld a decision of the New York City Department of Buildings (DOB) that revoked petitioner's permits for an outdoor advertising sign, and to annul violations issued by DOB, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously reversed, on the law and the facts, without costs, the petition granted to the extent of annulling BSA's resolution, and the matter remanded to BSA for further proceedings consistent herewith.
Petitioner contends that the revocation of the permits for a large advertising sign on its property was improper because petitioner constructed the sign in good-faith reliance on a 2008 determination of the Manhattan Borough Building Commissioner that the sign was a permissible replacement for a similar sign that was removed when a building on the property was demolished. In upholding the revocation of the permits, BSA concluded that it could not consider the issue of petitioner's good faith under its appellate jurisdiction. This was incorrect.
Under N.Y. City Charter § 666(6)(a), BSA is empowered to hear and decide appeals from DOB determinations. Section 666(7) provides that in determining such appeals, BSA may “vary ... any rule or regulation or the provisions of any law relating to the construction ... of buildings or structures ... where there are practical difficulties or unnecessary hardship in the way of carrying out the strict letter of the law, so that the spirit of the law shall be observed, public safety secured and substantial justice done.” In its resolution, BSA failed to appropriately address this charter provision, despite a request by petitioner. Indeed, to the extent that petitioner sought relief based on its good-faith reliance, petitioner's appeal before BSA was, in effect, a request for a variance. Thus, the matter must be remanded to BSA, in its appellate capacity, to determine whether petitioner is entitled to a variance applying the factors set forth in § 666(7). Because the record was not fully developed as to these criteria, before either BSA or Supreme Court, BSA shall permit the parties to make further submissions.
The record establishes as a matter of law that petitioner relied in good faith upon the 2008 determination. In deciding whether to grant a variance on remand, BSA must consider, along with the § 666(7) factors, petitioner's good-faith reliance. In Matter of Pantelidis v. New York City Bd. of Stds. & Appeals, 43 A.D.3d 314, 841 N.Y.S.2d 41 [1st Dept.2007],affd.10 N.Y.3d 846, 859 N.Y.S.2d 597, 889 N.E.2d 474 (2008), we affirmed a decision of the Supreme Court (10 Misc.3d 1077[A], 2005 N.Y. Slip Op. 52249[U], 2005 WL 3722913 [Sup.Ct., N.Y. County 2005] ), which held that BSA was required to consider the petitioner's good-faith reliance on a later-rescinded permit when considering the petitioner's application for a variance, and our decision was upheld by the Court of Appeals. Here, as in Pantelidis, BSA is required to consider petitioner's good-faith reliance in adjudicating petitioner's appeal ( see also Jayne Estates v. Raynor, 22 N.Y.2d 417, 423, 293 N.Y.S.2d 75, 239 N.E.2d 713 [1968] [good-faith reliance on invalid permit should be considered in determining whether variance applicant has suffered unnecessary hardship] ).
Petitioner's claim that no variance is required because the new sign was a permissible replacement for a previous sign on the property is without merit because the new sign is in a different location and position ( see Zoning Resolution § 52–83). In view of our conclusion that the matter must be remanded to BSA, any determination as to whether the DOB violations are enforceable is premature.
The Decision and Order of this Court entered herein on October 29, 2013 (110 A.D.3d 611, 973 N.Y.S.2d 622 [1st Dept.2013] ) is hereby recalled and vacated ( seeM–6123, 2014 WL 552921, decided simultaneously herewith).