Aparicio v. Environmental Control Board , 921 N.Y.S.2d 571 ( 2011 )

In a proceeding pursuant to CFLR article 78 to review a determination of the New York City Environmental Control Board dated September 24, 2009, finding, after a hearing, that the petitioner violated former section 27-118.1 of the Administrative Code of the City of New York by altering a dwelling for occupancy by more than the legally approved number of families and imposing a civil penalty, the appeal is from a judgment of the Supreme Court, Queens County (Taylor, J.), dated June 8, 2010, which granted the petition and annulled the determination.

Ordered that the appeal is dismissed and the judgment is vacated; and it is further,

Adjudged that the determination is confirmed, the petition is denied, and the proceeding is dismissed on the merits; and it is further,

Ordered that one bill of costs is awarded to the Environmental Control Board of the City of New York.

Since a question of substantial evidence is involved, the proceeding should have been transferred to this Court pursuant to CPLR 7804 (g). Nevertheless, because the record is now before this Court, we will treat the matter as one initially transferred here and will review the administrative determination de novo (see Matter of Natiello v Carrion, 73 AD3d 1070 [2010]; Matter of Roth v Manhasset Union Free School Dist., 60 AD3d 771, 772 [2009]).

The determination of the Environmental Control Board of the City of New York affirming the Administrative Law Judge’s finding that the petitioner had converted the subject residence for occupancy by more than the approved number of families was supported by substantial evidence, and consistent with its prior precedent. Accordingly, the determination should be confirmed, the petition denied, and the proceeding dismissed (see Matter of R.I., Inc. v New York State Dept. of Labor, 72 AD3d 1098, 1099 [2010]; Matter of Brooklyn Resource Recovery, Inc. v City of New York, 11 AD3d 682, 683 [2004]; cf. Knight v Amelkin, 68 NY2d 975, 978 [1986]; Matter of Charles A. Field Delivery Serv. [Roberts], 66 NY2d 516, 522 [1985]). Mastro, J.P., Belen, Chambers and Roman, JJ., concur.