Opinion
2013-10-8
In re TRUSTEES OF COLUMBIA UNIVERSITY, Petitioner, v. The CITY OF NEW YORK, et al., Respondents.
Cohen, Hochman & Allen, New York (Bradley Green of counsel), for petitioner. Michael A. Cardozo, Corporation Counsel, New York (Michael J. Pastor of counsel), for respondents.
Cohen, Hochman & Allen, New York (Bradley Green of counsel), for petitioner. Michael A. Cardozo, Corporation Counsel, New York (Michael J. Pastor of counsel), for respondents.
GONZALEZ, P.J., MAZZARELLI, ANDRIAS, DeGRASSE, JJ.
Determination of respondents, dated October 27, 2011, finding petitioner in violation of Administrative Code of City of N.Y. § 28–301.1, and imposing a penalty of $5,000, unanimously confirmed, the petition denied, and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of Supreme Court, New York County [Alexander W. Hunter Jr., J.], entered May 15, 2012), dismissed, without costs.
The subject petition does not contest that a worker was killed in petitioner's building when he fell from a scaffold into an elevator shaft, which was secured only by plastic sheeting. Since no substantial evidence question is raised, as the issues involve statutory interpretation, the matter should not have been transferred to this Court. However, in the interest of judicial economy, we will retain jurisdiction and decide the merits ( see Matter of Heisler v. Scappaticci, 81 A.D.3d 954, 918 N.Y.S.2d 496 [2d Dept.2011]; see also Matter of DeMonico v. Kelly, 49 A.D.3d 265, 852 N.Y.S.2d 124 [1st Dept.2008] ).
Petitioners were properly found to have violated Administrative Code § 28–301.1. Respondents' interpretation of section 28–301.1 is entitled to deference, since the agency was responsible for administering the statute and its interpretation is reasonable and comports with the plain language of that provision ( see Matter of Partnership 92 LP & Bldg. Mgt. Co., Inc. v. State of N.Y. Div. of Hous. & Community Renewal, 46 A.D.3d 425, 428–429, 849 N.Y.S.2d 43 [1st Dept.2007], affd.11 N.Y.3d 859, 873 N.Y.S.2d 247, 901 N.E.2d 740 [2008] ). We see no conflict between an owner's duty to maintain its premises in a safe condition under Administrative Code § 28–301.1, and a contractor's duty to safeguard a construction site under New York City Building Code (Administrative Code of City of N.Y. tit 28, ch. 33) § BC 3301.2.