BMP Contracting Corp. v. City of New York Environmental Control Board ( 1994 )

—Order, Supreme Court, New York County (Norman Ryp, J.), entered January 24, 1992, which denied respondent Board’s motion to dismiss petitioner’s CPLR article 78 petition and directed it to serve an answer, unanimously reversed, on the law, and the petition dismissed, without costs.

The IAS Court erred in denying the motion to dismiss petitioner’s article 78 application, which sought, inter alia, to overturn respondent’s determinations, after a hearing, that petitioner was in violation of certain Administrative Code sections concerning construction scaffolding, and the consequent fines imposed. Petitioner’s failure to exhaust its administrative remedies, by neglecting to pursue an administrative appeal of respondent’s January 3, 1991 determinations, prior to commencing the article 78 proceeding, constituted grounds for dismissal (Watergate II Apts. v Buffalo Sewer Auth., 46 NY2d 52, 57). Concur — Murphy, P. J., Rosenberger, Wallach, Asch and Williams, JJ.