In this CPLR article 78 proceeding brought by petitioners Bibi Lieberman 1999 Revocable Trust dated 11/24/99 (the Lieberman Trust), Batya Travitsky (Travitsky), and Madison-Marine Civic Association, Inc. (the Madison-Marine Civic Association) (collectively, the petitioners) against respondents the City of New York (the City), the New York City Board of Standards and Appeals (the BSA), the New York City Department of Buildings (the DOB) (collectively, the City respondents) and respondent Joseph Durzieh (Durzieh), the petitioners, under motion sequence number 1, seek a judgment: (1) nullifying and voiding a resolution of the BSA dated July 23, 2013 (the July 23, 2013 BSA Resolution), which granted an application by Durzieh for reinstatement of DOB Permit No. 302049441-01-AL on the claimed ground that it was arbitrary and capricious and/or affected by an error of law and/or an abuse of discretion for [*2]allegedly failing to comply with the court's decision and order dated September 5, 2012, which was rendered in a prior CPLR article 78 proceeding (Lieberman 1999 Revocable Trust v City of New York, Sup Ct, Kings County, index No. 27201/10) (the prior Article 78 proceeding) brought by the petitioners concerning this same application by Durzieh which was granted by a BSA Resolution dated October 5, 2010 (the October 5, 2010 BSA Resolution), and in which the court voided the October 5, 2010 BSA Resolution and remanded this matter to the BSA for a full review of the questions presented, including whether the permit issued by the DOB was legally sufficient to be the foundation of a common-law vested right to continue construction, and (2) declaring that the DOB permit is not valid pursuant to the common-law doctrine of vested rights. The petitioners, in their notice of petition, request, in the alternative, a trial of claimed issues of fact pursuant to CPLR 7804 (h). The petitioners, under motion sequence number 2, additionally move, by order to show cause, for a preliminary injunction, pursuant to CPLR article 63, enjoining Durzieh, during the pendency of this proceeding, from engaging in construction at the property owned by him, which is located at 1882 East 12th Street, in Brooklyn, New York (the property).^[FN1]

Durzieh owned residential property which, when purchased by him, consisted of a two-story wood-frame one-family house. In December 2005, Durzieh submitted an Alteration Type I Application (Alt.1) application to the DOB to enlarge the property to five stories. Durzieh's application was submitted by his architect, Shlomo Wygoda (Wygoda), using the DOB's professional certification process. At the time of Durzieh's application, the property was zoned R6, which allows, among other things, a maximum floor area ratio (FAR) of 2.2 on narrow streets with a 55-foot building height limit and a maximum FAR of 3.0 on wide streets, and Durzieh's application complied with these R6 zoning restrictions then in effect. On December [*3]13, 2005, the DOB issued a permit to Durzieh, authorizing the construction of a five-story and cellar residential building at the site. On February 7, 2006, the DOB issued a post approval amendment (PAA) to the permit which authorized the addition of a sixth floor to the proposed residential building at the site, and this proposed six-story building also complied with the R6 zoning district parameters then in effect. Durzieh proceeded with the construction work on the property and all work on the foundation was completed prior to February 15, 2006.

On February 15, 2006 (the Re-zoning Date), the Homecrest Zoning was adopted by the City Council, which re-zoned the site of the property and the surrounding area from R6 to R4-1, restricting construction to one and two-family houses with a maximum FAR of 9 and a maximum building height of 35 feet. As a result of the Homecrest Zoning, the proposed enlargement to the property no longer complied with the zoning district regulations. On April 13, 2009, the DOB issued another PAA to Durzieh's permit, which authorized the reduction of the proposed building to a one-family, three-story residential building and solarium. This proposed building complied with the prior R6 zoning district parameters and utilized all of the work completed at the site prior to the Re-zoning Date, but did not comply with the amended zoning restriction with respect to FAR or height.

Zoning Resolution §11-331 provides for a two-year extension of time from the effective date of a re-zoning to complete construction and obtain a certificate of occupancy under the prior zoning if the foundations have been completed prior to the Re-zoning Date. While the foundation was completed prior to the Re-zoning Date, Durzieh failed to complete construction within this two-year extension period. Although Zoning Resolution §11-332 allows for a further application to be made to the BSA within 30 days of the lapse of the two-year extension period to renew the building permit, Durzieh failed to make such an application. Thereafter, Durzieh requested that the DOB grant him additional time to complete construction and obtain a certificate of occupancy under common law. On December 24, 2009, the DOB denied Durzieh's request. On January 25, 2010, Durzieh appealed the DOB's denial of his request by filing an application with the BSA seeking recognition of a right to continue construction under the common-law doctrine of vested rights. Specifically, Durzieh asserted that he had acquired a common-law vested right to continue the development commenced by him under the prior R6 zoning.

The Lieberman Trust is the owner of property located at 1880 East 12th Street, and Travitsky is the owner and resident of property located at 1890 East 12th Street. The Lieberman Trust's property is contiguous to Durzieh's property and is immediately north of it and shares a boundary of roughly 100 feet with it. The Travitsky property is contiguous to Durzieh's property and is immediately south of it and shares a boundary of roughly 100 feet with it. The Madison-Marine Civic Association is the civic association for the neighborhood where Durzieh's property is located. By a letter dated March 24, 2010, counsel for petitioners, Stuart A. Klein, Esq. (Klein), advised the BSA that the petitioners wished to intervene in the proceeding before the BSA.

By a letter dated April 20, 2010, the DOB advised the BSA that the Alt.1 permit for the property was lawfully issued. A hearing was held before the BSA on April 27, 2010. The application was presented to the BSA by Lyra Altman, Esq. (Altman) from the Law Office of Fredrick A. Becker. Thereafter, Travitsky, Bella Center (for Bibi Lieberman), Ed Jaworsky as [*4]the executive vice-president of the Madison-Marine Civic Association, and Cathleen Jaworsky, an owner of a home which was located a block from the property, testified at the hearing. Klein, on behalf of the petitioners, opposed the application, arguing that the construction performed at the property under the permit was not done in accordance with the approved plans and was, therefore, unlawful. Altman responded to questions posed by the BSA commissioners, and the hearing was adjourned to June 8, 2010.

By a letter dated May 6, 2010, the DOB again advised the BSA that the permit was lawfully issued. There were various letters and submissions to the BSA by Klein and Altman. The hearing was resumed on June 8, 2010, and the BSA left the record open for further submissions by Klein and Altman. While the matter was deferred, the BSA, in response to Klein's complaints, asked the DOB to further investigate the issue of whether the permit was lawfully issued. By a letter dated September 17, 2010, the DOB advised the BSA that it needed additional time to complete its review. Thereafter, by a letter dated October 1, 2010, the DOB advised the BSA as follows: "By letter dated May 6, 2010, the [DOB] advised the [BSA] that the permit was issued lawfully. By letter dated September 17, 2010, [the DOB] advised the [BSA] that it was auditing the construction documents in response to a complaint that the documents contained an error. The [DOB] has now completed its review and can confirm that the permit was lawfully issued."

Based on the April 20, 2010, May 6, 2010, and October 1, 2010 letters by the DOB, the BSA, in the October 5, 2010 BSA Resolution, found that the permit was validly issued and, therefore, constituted a basis on which Durzieh was entitled to seek a vested right to continue construction. As set forth by the BSA in the October 5, 2010 BSA Resolution, "[t]he common law vested right to continue construction generally exists where: (1) the owner has undertaken substantial construction; (2) the owner has made substantial expenditures; and (3) serious loss will result if the owner is denied the right to proceed under the prior zoning." The BSA noted that as to substantial construction, the DOB determined that Durzieh had completed foundation work prior to the Rezoning Date, and that the right to continue construction had, therefore, vested pursuant to Zoning Resolution § 11-331. It reviewed the representations as to the work performed, the expenditures made, and the serious economic loss which could not be recouped by Durzieh, as well as the supporting documentation for such representations, and it agreed that Durzieh had satisfactorily established that a vested right to complete construction of the building had accrued to him.

Consequently, on October 5, 2010, the BSA voted (by a vote of five in favor and none opposed) in favor of the October 5, 2010 BSA Resolution granting Durzieh a vested right to continue construction of his building. The BSA October 5, 2010 Resolution granted the reinstatement of the lapsed DOB permits necessary to complete the construction of the three-story building under R6 zoning parameters and to obtain a certificate of occupancy for the two years following the date of the resolution. By a subsequent e-mail dated October 25, 2010, the petitioners complained to the DOB, alleging that the walls and roof of the subject building were removed and the foundation was enlarged, and they argued that the Alt.1 permit was, therefore, invalid because it should have been filed as a New Building (NB) permit. The petitioners, during the proceedings before the BSA, had repeatedly raised the argument that the permit upon which Durzieh's vested rights rested was invalid because it was an Alt. 1 permit rather than an [*5]NB permit. The DOB, in response to the petitioners' October 25, 2010 e-mail, inspected the site and confirmed that such work had taken place. Consequently, by a letter dated November 15, 2010, the DOB, by its Assistant General Counsel, Lisa M. Orrantia, Esq. (Orrantia), advised the petitioners' counsel, Klein, that due to the extent of the removal work, the DOB policy set forth in Technical Policy and Procedure Notice (TPPN) 1/02 and TPPN 1/05 "require[d] that the proposed work be filed as a new building type [NR] permit instead of as an alteration type [Alt.1] permit; however, this administrative error did not render the permit unlawful." The DOB, in its letter, further stated that it had advised Durzieh that work under the Alt.1 permit could proceed, but that the filing error must be corrected by him with the submission of a DOB Builder's Pavement Plan (BPP) and a Department of Environmental Protection House Connection application (SD 1 and SD2), which are requirements generally reserved for NB applications.

By a petition dated November 3, 2010, the petitioners commenced the prior Article 78 proceeding, challenging the October 5, 2010 BSA Resolution as arbitrary and capricious, and further challenging the DOB's finding that the permit issued to Durzieh was lawful. The petitioners also sought a temporary restraining order and a preliminary injunction to bar the DOB from lifting a stop work order that was in place against the property until the proceeding was decided. The court initially denied the petitioners' application for a temporary restraining order, but granted their request to be heard on the preliminary injunction application. A three-day hearing was then held by the court. At the end of the first day of testimony, on April 6, 2011, the court granted a temporary restraining order. The hearing ended on May 26, 2011. By an order dated October 21, 2011, the court granted a motion by the petitioners to amend the petition to conform their pleading to the proofs adduced at the hearing on the preliminary injunction.

On September 5, 2012, the court rendered a decision and order in the prior Article 78 proceeding. In its September 5, 2012 decision and order, the court determined that the issue before the BSA was whether Durzieh had acquired vested rights to continue building under the former R6 zoning. It found that, as the BSA recognized in its October 5, 2010 BSA Resolution, a threshold matter in determining this issue was whether it could be found that "the construction was conducted pursuant to a valid permit." The BSA, in its October 5, 2010 BSA Resolution, had pointed to the petitioners' argument that the Alt.1 permit "was invalid at the time it was issued because the approved plans did not comply with the requirements of law in effect when the property was zoned as R6 and because the subject construction necessitated a[n NB p]ermit rather than an [Alt.1 p]ermit." The BSA, in rendering the October 5, 2010 BSA Resolution, relied upon the April 20, 2010 and May 6, 2010 letters by the DOB, which had stated that the Alt.1 permit was lawfully issued prior to the Rezoning Date, and the DOB's October 1, 2010 letter, which following an audit by it, confirmed that the Alt.1 permit was lawfully issued.

The court, in its September 5, 2012 decision and order, noted that the October 5, 2010 Resolution stated that the BSA "acknowledg[ed] that based on [the] DOB's determination, the [Alt.1] permit was lawfully issued to [Durzieh] prior to the Rezoning Date and was timely renewed until the expiration of the two-year term for construction." The court, therefore, found that the BSA had failed to determine independently for itself whether the DOB had issued a valid permit, but merely accepted the assertions given in the three letters by the DOB that the permit was lawfully issued. It held that the BSA's reliance upon the DOB's statements in its letters suggested that the BSA abandoned its obligation to review, and, if necessary, correct mistakes by [*6]the DOB. It pointed out that the fact that the DOB concluded that the permit issued to Durzieh should have been an NB permit after the BSA had already issued the October 5, 2010 BSA Resolution indicated that the DOB may have made a mistake or that the BSA did not have significant and relevant information when it decided Durzieh's appeal. The court found that the failure of the BSA to review the DOB's assertion that the permit was lawful and its acceptance of the DOB's administrative error, without substantiation by the DOB that the permit was lawful or an explanation by it of its designation of the grant of the wrong permit as an administrative error, constituted a failure by the BSA to perform a duty enjoined upon it by law and rendered the October 5, 2010 BSA Resolution to be an arbitrary and capricious determination.The court, in its September 5, 2012 decision and order, therefore, voided the October 5, 2010 BSA Resolution, and, since it found that the needed expert resolution of the issues in this matter could best be determined by the BSA, it remanded this matter to the BSA for a full review of the questions presented, including whether the permit issued by the DOB was legally sufficient to be the foundation of the common-law vested right to continue construction. The court denied the petitioners' request for a preliminary injunction as premature since it had remanded the question of Durzieh's right to continue construction to the BSA and it issued a temporary restraining order in order to maintain the status quo, pending the decision of the BSA.

Proceedings on remand recommenced before the BSA, with a public hearing held on February 12, 2013 and continued hearings on April 9, 2013 and May 21, 2013. The petitioners appeared by their attorney and made multiple submissions in opposition to the DOB's finding that the permit was valid, and Durzieh and the DOB made submissions in support of their position that the permit was valid. There was also testimony given by the parties and members of the community. After hearing the testimony and considering the submissions, the BSA, on July 23, 2013, voted 5-0 to adopt the July 23, 2013 BSA Resolution, which, pursuant to the common-law of vested rights, reinstated the DOB permit, as well as all related permits for various work types, either already issued or necessary to complete construction and to obtain a certificate of occupancy for two years from the date of such resolution.

The July 23, 2013 BSA Resolution consisted of 10 double-columned, single-spaced pages. It set forth, in great detail, the respective positions of the petitioners, the DOB, and Durzieh, its determination that the "DOB had reasonable bases for its determination that the Permit was validly issued," and its detailed findings as to the basis for its determination that the permit was validly issued and that Durzieh had satisfactorily established that he has a vested right to complete construction of the building.

On August 22, 2013, the petitioners filed their instant petition in this second CPLR article 78 proceeding, which, again, challenges the validity of Durzieh's permit and his right to continue construction under the common-law doctrine of vested rights. The petitioners reiterate their contention that the permit was invalid at the time it was issued because the construction necessitated an NB permit, rather than an Alt.1 permit, and that the approved plans did not comply with the requirements of law. The petitioners argue that the BSA, in the July 23, 2013 BSA Resolution, again abdicated its duties under section 666 of the New York City Charter to independently review the determination of the DOB by failing to conduct its own investigations. They contend that the BSA acted arbitrarily and capriciously by agreeing with the arguments made by the DOB and by rejecting their arguments. They maintain that the BSA should have [*7]declared the permit to be invalid pursuant to the common-law doctrine of vested rights, and they ask this court to annul the July 23, 2013 BSA Resolution.

By an order dated November 8, 2013, the court, after oral argument, in response to the petitioners' contention, in their petition, that the prior Article 78 proceeding "remains active" as of the date of their petition and that they may consider moving to consolidate that proceeding with the instant proceeding, deemed the prior Article 78 proceeding to be "resolved and disposed." Since, as conceded by the petitioners, the temporary restraining order issued during the prior Article 78 proceeding was no longer in effect, the petitioners, on November 26, 2013, filed their motion, by order to show cause, seeking a preliminary injunction, enjoining Durzieh from engaging in construction at the property during the pendency of this proceeding, and also seeking the up-front relief of a new temporary restraining order, preventing Durzieh from engaging in construction at the property pending a determination of such order to show cause. Following oral argument on December 6, 2013 and after considering the parties' respective arguments, the September 5, 2012 order, and the July 23, 2013 BSA Resolution, the court, by an order dated December 10, 2013, found that the BSA had adhered to its instructions as contained in its September 5, 2012 decision and order and denied the petitioners' request for a temporary restraining order.

In addressing the petition, the court notes that "[t]he BSA, consisting of experts in zoning and planning, is the ultimate administrative authority charged with enforcing the New York City Zoning Resolution" (Matter of Galvez v Srinivasan, 71 AD3d 1019, 1020 [2d Dept 2010] see also Matter of Menachem Realty Inc. v Srinivasan, 60 AD3d 854, 856 [2d Dept 2009] Matter of Mainstreet Makeover 2, Inc. v Srinivasan, 55 AD3d 910, 914 [2d Dept 2008]). "Judicial review of a determination by the BSA is limited to whether its determination was illegal, arbitrary, or an abuse of discretion, and whether it had a rational basis and is supported by evidence in the record" (Matter of Menachem Realty Inc., 60 AD3d at 856; see also Matter of SoHo Alliance v New York City Bd. of Stds. & Appeals, 95 NY2d 437, 440 [2000]). A BSA determination will not be set aside unless there is a showing of illegality, arbitrariness, or an abuse of discretion (see Matter of New York Botanical Garden v Board of Stds. & Appeals of City of NY, 91 NY2d 413, 423 [1998]). Where the BSA's determination is supported by substantial evidence and has a rational basis, it will not be disturbed by the court and will be upheld (see Matter of Homes for Homeless, Inc. v Board of Stds. & Appeals of City of NY, 7 NY3d 822, 823 [2006] Matter of Ifrah v Utschig, 98 NY2d 304, 305 [2002] Matter of Tarantino v Zoning Bd. of Appeals of Town of Brookhaven, 228 AD2d 511, 512 [2d Dept 1996]).

The petitioners argue that the July 23, 2013 BSA Resolution was arbitrary and capricious because under the common-law doctrine of vested rights, the permit must be valid at the time of its issuance. They rely upon Matter of Perrotta v City of New York, 107 AD2d 320, 325 [1st Dept 1985], affd 66 NY2d 859 [1985]), where, noting that the DOB had approved a petitioner's proposals based upon its initial failure to perceive that the design submitted by him represented plans for a two-family residence, held that "vested rights are not acquired where there is reliance upon an invalid permit." The petitioners contend that because the application by Durzieh was an Alt.1, instead of an NP application, the permit issued was void from its inception, and the right to build pursuant to the permit could not vest under the common-law doctrine of vested rights. [*8]

Significantly, as observed and quoted by the BSA, the Appellate Division, First Department, explained in Matter of Perrotta (107 AD2d at 324) that "[a] determination as to whether [there can be] vested rights under [a] building permit must, of necessity, involve an examination of the validity of the permit, as well as compliance with technical provisions of the Zoning Resolution, and this is clearly an appropriate inquiry for agency expertise" (emphasis added in the July 23, 2013 BSA Resolution). The BSA pointed to the DOB's expertise to review plans and construction documents and to issue interpretations of the Zoning Resolution, and, after analyzing the submissions, apparently agreed with the DOB that whether an application was required to have been filed as an NB application or an Alt.1 application was "an administrative matter that is not indicative of the permit's overall validity." The BSA noted that "the Administrative Code does not specify whether an NB application or an [Alt.1] application is appropriate where an existing building is to be enlarged by removing portions of the building, adding new construction materials and reusing existing building elements." The BSA thus agreed with the DOB that "the failure to file an NB [application] instead of an [Alt.1 application] is not a substantial deviation from the law and therefore not a basis for finding that [Durzieh's p]ermit was invalid when issued." The petitioners argue that the BSA, in so finding, again acted arbitrarily and capriciously and repeated its errors of law from the October 5, 2010 BSA Resolution and also made new errors of law and "thumbed its nose" at the court's September 5, 2012 ruling by refusing to make its own independent review of the DOB's conclusory assertions regarding Durzieh's application. Contrary to this argument, however, the BSA independently determined that the permit was validly issued under both the statutory standard set forth in Zoning Resolution § 11-31 and the common-law standard, that the permit application's lack of various forms and plans did not render it invalid, that the petitioners did not obtain final determinations for additional alleged instances of non-compliance with the Building Code and such alleged instances of non-compliance were beyond the scope of the application before it, and that its own precedent and case law were consistent with a determination by it that the permit was, in fact, valid. The BSA, in its detailed and exhaustive July 23, 2013 BSA Resolution, did not merely accept the conclusions of the DOB, but, rather, in accordance with the court's September 5, 2012 decision and order, discussed, in detail, the arguments and submissions made by petitioners, Durzieh, and the DOB, and the reasons for its arrival at its determination.

The BSA noted that, as the court found in its September 5, 2012 decision and order, since the October 5, 2010 BSA Resolution pre-dated the DOB's inspection and November 15, 2010 letter confirming that an NB application was required for the scope of work performed at the site, the extent to which construction work deviated from that allowed by the DOB under an Alt.1 application pursuant to the TPPN could not have been considered by it in its decision to grant the application. The BSA then found, now that the November 15, 2010 letter was before it, that "whether an application ha[d] been filed on the proper form [wa]s not dispositive as to whether such permit was valid, because [it] agree[d] with [the] DOB that whether an application is filed as an NB or an [Alt.1] is not determined by the Administrative Code but rather is an administrative determination that is by statute (New York City Charter § 645 [b] [2] and Administrative Code §§ 27-110 and 27-139) and case law (Matter of Perrotta,107 AD2d 320) within the purview of [the] DOB." It, consequently, found that the "DOB's application forms/types are not relevant to its analysis of vesting criteria, particularly if [the] DOB has [*9]determined that the error does not render the permit invalid." Thus, the permit was deemed valid by the BSA regardless of whether the proper form of an application was filed under TPPN 1/02.

The petitioners argue that the DOB exceeded its power and authority by issuing and upholding the underlying permits in contravention of TPPN 1/02, which requires an NB application when "more than 50% of the area of existing walls of such building are removed, in addition all floors at or above grade and roof are removed, and any portion of the foundation system is altered or enlarged." The petitioners cite Orrantia's testimony that it was the DOB's "consistent practice that once TPPN thresholds are exceeded after work has begun, [the] DOB allows the work to continue under the alteration," and "[i]t does not require a re-filing as an NB as long as Code requirements are met" and does not require "one application [to] be withdrawn and replaced with another." The petitioners point to TPPN 1/05, which amended TPPN 1/02 to exclude a paragraph that had permitted the Borough Commissioner to grant exceptions to the requirements for an NR application when a building was subject to specific zoning provisions by virtue of its being located in a special use district or otherwise subject to special permit provisions. They contend that since, under this amendment, the Borough Commissioner lacks the power to waive or alter the requirement of an NB application under TPPN 1/02, it should not be permissible for the DOB to determine that the work could continue under the Alt.1 permit without requiring the applicant to re-file an NB permit application.

The petitioners' contention is devoid of merit. TPPNs are guidelines and do not carry the weight of provisions of law. The BSA specifically noted that "while [the] DOB's policy may be embodied in the form of a TPPN, [the] DOB has the authority to deviate from the requirements of a TPPN where appropriate." The BSA observed that the permit did not initially in 2005 or in subsequent amendments filed in 2006, 2008, and 2009, propose work that was required to be filed under an NB application pursuant to TPPN 1/02, but that during the course of construction, the Alt.1 limits of the TPPN were exceeded and the requirement for an NB was then triggered. It determined that "it [wa]s reasonable for [the] DOB to require retroactive compliance with the TPPN only where work has not commenced," and noted that "in the instant matter, [the] DOB discovered that the NB limits of the TPPN were triggered nearly five years after the initial issuance of [Durzieh's p]ermit." The court finds this determination to be rationally based and not arbitrary or capricious.

The petitioners contend, however, that the BSA was wrong in its statement that the issue of whether the application was required to have been filed as an NB application or an Alt.1 application is merely an administrative matter that is not indicative of the permit's overall validity. They assert that Durzieh, by designating his December 2005 application as an Alt.1, avoided many substantial items that are required for an NB permit. They argue that the Alt-1 plans, as filed by Durzieh in December 2005, were insufficient as a matter of law because certain items that would have been required by the DOB to accompany an NB application were omitted, including underpinning, demolition or sprinkler plans, a site connection plan on forms SD1 and SD2, forms TR1 and TR2 regarding the underpinning, bracing, and shoring, and a BPP. The petitioners maintain that the plans generally lacked sufficient details under Administrative Code §27-157 (which governs NB applications).

The BSA, however, specifically addressed and rejected these arguments. It found that the fact that the permit application did not contain these items did not render it invalid. The [*10]BSA agreed with the DOB that the Administrative Code does not require the submission of an SD1 and SD2 and a BPP prior to the issuance of a permit. Rather, as asserted by the DOB, these plans could be filed at any time prior to the issuance of a certificate of occupancy, thus curing any deficiency in the Alt.1 permit issued to Durzieh. The BSA also found that since the permit application's proposed excavation was less than 10 feet below grade, the Administrative Code did not require the submission of controlled inspection forms (TR1s and TR2s) for underpinning, shoring, and bracing. It further found that demolition plans were not required because the permit was filed as an Alt.1 and showed the existing conditions, sprinkler plans were not required under either Administrative Code §27-157 (which, as noted above, governs NB applications) or Administrative Code §27-162 (which governs Alt.1 applications), and that underpinning plans were not required because the plans included with the permit showed shoring details, which, per Administrative Code §27-715, the DOB had found acceptable.

The petitioners point to an affidavit by Walter C. Maffei, R.A. (Maffei), an architect who testified on their behalf as an expert witness in the prior Article 78 proceeding, in which Maffei stated that any plan examiner would have immediately noticed that Durzieh's application should have been filed as an NB and not as an Alt.1 and would have rejected the plan due to the missing items discussed above. He states that if these missing items had not been "hidden from view" by the professional certification of Wygoda, "the application would have been rejected out of hand and no permit would have been issued."

The BSA, however, addressed this argument and rejected the petitioners' position that the appropriate inquiry for the remand to it was whether the permit would have been issued in the first instance if the permit application had not been filed under professional certification and if the DOB had been aware of the permit's irregularities. The BSA found that it would be speculative and not possible to determine whether the permit application, as originally filed, would have been approved by a DOB plan examiner. The court does not find the BSA's determination in this regard to be arbitrary or capricious or lacking in a rational basis.

The petitioners also argue that Durzieh's initial application was invalid when it was filed under the DOB's self-certification process on December 9, 2005 by Durzieh's architect, Wygoda. They assert that because Wyoda self-certified the application, it was incomplete and defective. They point to Administrative Code §28-105.1, which requires a professional who certifies construction documents to attest that the construction documents submitted "do not contain false information and are in compliance with all applicable provisions of law." They contend that Wygoda did not comply with this requirement since the application should have been an NB and not an Alt.1. They maintain that as a result, the building permit issued in response to Durzieh's application was invalid upon its issuance so that it cannot form the basis of an appeal under the common-law doctrine of vested rights.The BSA, however, considered this argument and found that the fact that the application was professionally certified, which is a common and established practice for design professionals in this city, was inconsequential. In making this finding, the BSA relied upon the fact that the DOB had audited the permit application multiple times and found that it contained no errors that would render it invalid. The court finds that this finding by the BSA was rationally based, was supported by the evidence, and was not arbitrary or capricious. [*11]

The petitioners further argue that the BSA did not independently investigate the validity of the permit, in violation of both its duty under New York City Charter §666 (6) (a), which gives the BSA the power to hear and decide appeals from determinations made by the Commissioner of the DOB, and the court's September 5, 2012 decision and order. They contend that the BSA ignored the court's September 5, 2012 order by not conducting its own independent investigation, rather than accepting the assertions of counsel for the DOB. The petitioners point to the denial by the Chair of the BSA of Klein's request, at the BSA's February 12, 2013 hearing, that the BSA issue a subpoena ad testificandum, requiring that the DOB produce the Deputy Commissioner of the Brooklyn office, John Gallagher, as a fact witness, to explain the procedure that has been followed over the last five or ten years in Brooklyn with respect to Alt.1 and NB permit applications. The Chair of the BSA found that such a subpoena was unnecessary since the DOB's counsel could speak with the Brooklyn office and present its position. The petitioners complain that the DOB's submissions relied upon the statements of its counsel, Orrantia, rather than compelling Mr. Gallagher to appear and testify. They assert that no witness with direct knowledge of facts appeared at the BSA hearing on behalf of the DOB except for Orrantia.

The court, in considering this argument, does not find that the BSA's determination not to subpoena Mr. Gallagher lacked a rational basis. While pursuant to New York City Charter § 663, the Chair of the BSA "may administer oaths and compel the attendance of witnesses," this is discretionary. The BSA, at the hearing, found that it could determine if it needed Mr. Gallagher to testify, and the BSA, which had its own expertise to determine if it needed Mr. Gallagher's testimony, found that there was no need for him to testify. In addition, while the petitioners argue that Orrantia should not have been permitted to provide testimony at the BSA hearing, Orrantia did not testify as an advocate for a client, but, rather, simply offered pertinent information based upon her personal knowledge as an Assistant General Counsel for the DOB who, among others, advises the DOB staff and departments on the interpretation of the Building Code and Zoning Resolution. As noted by the City respondents, the BSA hearings are routinely dominated by statements of counsel, who present arguments to the BSA and answer questions posed by the BSA.

The petitioners further argue that the court should itself hold a trial on the issues of whether Durzieh's permit is invalid, pursuant to CPLR 7804 (h), which provides that "[i]f a triable issue of fact is raised in a proceeding under this article, it shall be tried forthwith." They contend that if they are allowed to call their own witnesses and use the subpoena power to compel DOB witnesses to appear, they will be able to demonstrate the validity of their claims and the invalidity of Durzieh's permit. The petitioners' argument is rejected. The BSA has already made a full, independent review of the record before it and rendered its July 23, 2013 BSA Resolution after holding a public hearing. The petitioners had a full opportunity to present their evidence before the BSA. Notably, the court already conducted a three-day hearing in the prior Article 78 proceeding, at which the petitioners presented their arguments and evidence. There are no disputed issues of fact raised which need to be tried in order for this court to determine the issue of whether the July 23, 2013 BSA Resolution was irrational or arbitrary and capricious.

Moreover, as observed by the BSA, case law supports its finding in the July 23, 2013 BSA Resolution that the permit was valid because it contained only minor curable errors and [*12]administrative irregularities. Notably, Matter of GRA V, LLC v Srinivasan (12 NY3d 863 [2009], revg 55 AD3d 58 [1st Dept 2008]) and Matter of Menachem Realty Inc. v Srinivasan (60 AD3d 854 [2d Dept 2009]) are consistent with the July 23, 2013 BSA Resolution.

In Matter of GRA, the DOB determined that a permit was invalid because it contained a front yard with a 1' 9'' error and the BSA denied the application for a declaration that the petitioner therein had acquired a common-law vested right to continue development under zoning regulations applicable prior to the enactment of more restrictive zoning, and this determination was upheld by the Supreme Court and the Appellate Division. While that case was pending before the Court of Appeals, the DOB acknowledged that its position on permit validity had evolved since the commencement of that case to accept cures of similar defects in other cases after a zoning amendment and the DOB determined the permit to be valid. On appeal, the Court of Appeals, in Matter of GRA (12 NY3d at 864), reversed since the BSA had conceded that the lower court rulings were incorrect because the BSA had based its decision on what it erroneously thought to be a fatal flaw in the petitioners' application. This formed the basis for the BSA's ultimate grant of the common-law vested rights application. after the Court of Appeals remitted the case to the BSA to review other material aspects of the application

In Matter of Menachem Realty Inc. (60 AD3d at 856), the DOB had determined that a permit issued for the construction of a new building was invalid because it failed to demonstrate compliance with required plantings and an accessible ramp and its permit application had not included "complete plans and specifications" pursuant to New York City Zoning Resolution §11-31 (a). The BSA determined that since the petitioner lacked a valid permit as of the effective date of a re-zoning, New York City Zoning Resolution §11-331 prohibited renewal of the permit. The Supreme Court reversed the BSA's decision and the Appellate Division, in Matter of Menachem Realty Inc. (60 AD3d at 855), affirmed the granting of the petition. The July 23, 2013 BSA Resolution is consistent with this relevant case law.

As to the common-law doctrine of vested rights, the BSA relied upon the holding in Matter of Putnam Armonk v Town of Southeast (52 AD2d 10, 15 [2d Dept 1976]) that where a restrictive amendment to a zoning ordinance is enacted, the owner's rights under the prior ordinance are deemed vested "and will not be disturbed where enforcement [of new zoning requirements] would cause serious loss' to the owner," and "where substantial construction ha[s] taken place and substantial expenditures made prior to the effective date of the ordinance." The BSA found that Durzieh met these requirements and satisfactorily demonstrated his right to complete construction of the building pursuant to the common-law doctrine of vested rights. This finding is supported by the evidence in the record.

Thus, the court finds that the July 23, 2013 BSA Resolution was not arbitrary or capricious, had a rational basis, and was not affected by any error of law (see CPLR 7803; Matter of Menachem Realty Inc., 60 AD3d at 856). Consequently, the petition must be denied.

Accordingly, the petition is denied in its entirety and the proceeding is dismissed on the merits. In view of this determination, the petitioners' motion for a preliminary injunction, pending the resolution of this proceeding, is denied as moot.

This constitutes the decision, order, and judgment of the court.

E N T E R,

_______________________________ [*13]

yvonne lewis, JSC