Touro College v. City of New York Environmental Control Board , 29 N.Y.S.3d 808 ( 2016 )

Matter of Touro Coll. v City of N.Y. Envtl. Control Bd. (2016 NY Slip Op 03813)

Matter of Touro Coll. v City of N.Y. Envtl. Control Bd.

2016 NY Slip Op 03813

Decided on May 12, 2016

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 12, 2016
Tom, J.P., Sweeny, Andrias, Manzanet-Daniels, JJ.

1143 101338/13

[*1]In re Touro College, Petitioner,

v

City of New York Environmental Control Board, Respondent.

Tenenbaum, Berger & Shivers, LLP, Brooklyn (Damien Bernache of counsel), for petitioner.

Zachary W. Carter, Corporation Counsel, New York (Diana Lawless of counsel), for respondent.

Determination of respondent Environmental Control Board, dated May 30, 2013, which found petitioner in violation of Administrative Code of City of NY §§ 28-118.3.2 and 28-204.4 and imposed civil penalties in the amount of $2,000, 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 [Michael D. Stallman, J.], entered February 4, 2014), dismissed, without costs.

The ambiguities in the first notice of violation were clarified at the first session of the hearing and petitioner had the opportunity to present a defense at the second session. Substantial evidence, including the issuing officer's affirmed statements in the notice of violation, supports the finding that petitioner's use of the cellar for a laundry room, workshop, and recreation area was unauthorized since such uses were not noted in the most recent certificate of occupancy (see generally 300 Gramatan Ave Assoc. v State Div. of Human Rights , 45 NY2d 176, 180-181 [1978]).

Furthermore, petitioner did not dispute the presence of a laundry room in the cellar, and its claim that the laundry room was a permitted accessory use of the premises was not raised before the administrative agency and is, thus, unpreserved (see Matter of Seitelman v Lavine, 36 NY2d 165, 170 [1975]).

We have considered petitioner's remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 12, 2016

CLERK