Matter of Van Wagner Communications, LLC v. Board of Stds. & Appeals of the City of N.Y.

Matter of Van Wagner Communications, LLC v Board of Stds. & Appeals of the City of N.Y. (2016 NY Slip Op 02165)

Matter of Van Wagner Communications, LLC v Board of Stds. & Appeals of the City of N.Y.

2016 NY Slip Op 02165

Decided on March 24, 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 March 24, 2016
Mazzarelli, J.P., Manzanet-Daniels, Kapnick, Webber, JJ.

610 100085/14

[*1]In re Van Wagner Communications, LLC, Petitioner-Respondent,

v

Board of Standards and Appeals of the City of New York, Respondent-Appellant.

Zachary W. Carter, Corporation Counsel, New York (Mackenzie Fillow of counsel), for appellant.

Akerman LLP, New York (Richard G. Leland of counsel), for respondent.

Judgment, Supreme Court, New York County (Eileen A. Rakower, J.), entered July 25, 2014, granting the petition brought pursuant to CPLR article 78 to annul a resolution of respondent Board of Standards and Appeals of the City of New York, dated December 17, 2013, which denied the application of petitioner to register a wall sign as a nonconforming advertising sign, unanimously affirmed, without costs.

The determination that an "art installation" that was displayed between 1979 and 1989 on the 4,500 square-foot wall sign, now owned by petitioner, was not an "advertising sign" within the meaning of New York City Zoning Resolution § 12-10, and therefore that the legal nonconforming advertising sign use of the sign was discontinued pursuant to Zoning Resolution § 52-61, involved "a pure legal question that does not mandate deference to the BSA" (Matter of Toys "R" Us v Silva , 89 NY2d 411, 419 [1996]). Although the installation might not have comported with conventional notions of what constitutes advertising, the court correctly found that it met Zoning Resolution § 12-10's definition of "advertising sign," as a sign that "directs attention to a business, profession, commodity, service or entertainment conducted, sold, or offered elsewhere than upon the same zoning lot." The installation directed attention to the artist, who, inter alia, sold off the installation in pieces when it was dismantled, 10 years after it first appeared. Accordingly, because the wall sign maintained its character as an advertising sign, the nonconforming use was not extinguished.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 24, 2016

CLERK