Matter of Consolidated Flooring Corp. v Environmental Control Bd. of City of N.Y. (2009 NY Slip Op 00313)

Matter of Consolidated Flooring Corp. v Environmental Control Bd. of City of N.Y.

2009 NY Slip Op 00313 [58 AD3d 541]

January 22, 2009

Appellate Division, First Department

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

As corrected through Wednesday, March 11, 2009

In the Matter of Consolidated Flooring Corp., Petitioner,
v
Environmental Control Board of the City of New York et al., Respondents.

—[*1] Mazur, Carp & Rubin, P.C., New York (Brian G. Lustbader of counsel), for petitioner.

Michael A. Cardozo, Corporation Counsel, New York (Tahirih M. Sadrieh of counsel), for respondents.

Determination of respondent Environmental Control Board, dated December 6, 2007, finding that petitioner contractor violated asbestos control program regulations of respondent Department of Environmental Protection by disturbing asbestos without taking proper steps to contain it and to protect the public and its workers, and imposing a fine, unanimously confirmed, the petition denied and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, New York County [Kibbie F. Payne, J.], entered August 11, 2008), dismissed, without costs.

The record shows that petitioner, hired to remove and replace a wood floor in a public elementary school gym, was engaged in asbestos "abatement activities" within the meaning of the asbestos control program regulations (15 RCNY 1-01 [c]; 1-02), and, as such, is subject to those regulations even if it had no reason to suspect the presence of asbestos under the floor (see Matter of Vision Envtl. Servs. Corp. v New York City Dept. of Envtl. Protection, 242 AD2d 431 [1997], lv denied 91 NY2d 805 [1998]). We have considered petitioner's other arguments and find them unavailing. Concur—Tom, J.P., Andrias, Nardelli, Catterson and Moskowitz, JJ.