Sofronio Gajo,
Revocable Living Trust by Sofronio Gajo (Trustor), For a Judgment Under Article 78 of
the CPLR, Petitioner,
against
The Commissioner NYC Building Dept., and John Does
(referring to office personnel et al handling Building Violations Cases),
Respondents.
|
6235/2014
Robert J. McDonald, J.
Petitioner, Sofronio Gajo, commenced this Article 78 proceeding for an order
pursuant to CPLR Article 78 reviewing and annulling a notice of the NYC Department
of Buildings ("DOB") dated September 13, 2012, which required the petitioner to pay a
civil penalty of $5,000 to obtain a Certificate Of Correction for restoring his premises
back to prior legal condition with respect to a fence and remote gate door opener erected
on his property without a permit. In addition, petitioner seeks to vacate a DOB notice of
violation regarding certain plumbing fixtures in the basement of his rental property
located at 45-70 161st Street, Flushing, New York, 11358.
In his affidavit in support of the petition, Sofronio Gajo states that he owns a
3-family rental property located at 45-70 161st Street in Flushing, Queens. Petitioner
states that he received a notice of violation from the Environmental Control Board, NOV
No. 350-676-46N, dated January 30, 2014, stating that there was a sink, bathroom and
walls in the basement of his property for which there was no permit. The petitioner was
instructed to obtain a permit or to remove the illegal fixtures. The notice provided for a
hearing date of March 4, 2014. Petitioner contends that the fixtures are not illegal as they
were in existence at the time he purchased the premises 27 years ago. The hearing on this
violation was adjourned by the petitioner to June 24, 2014.
Petitioner also states that he received a Notice of Violation, No. 34988695J,
from the NYC DOB on August 16, 2012. The violation states that the petitioner installed
an 8 foot fence near the left side of his driveway and a roll down garage door without
first obtaining a permit. The notice states that there is a cure date of September 25, 2012
and a hearing date of October 2, 2012. The petitioner dismantled the fence and garage
prior to the hearing date. On September 13, 2012, in preparation for the hearing,
petitioner attempted to obtain a Certificate of Correction. However, even though the
fence had been taken down, the Certificate of Correction was disapproved by the DOB
Administrative Enforcement Unit in a disapproval notification dated September 13, 2012
stating that the petitioner "need to pay a DOB civil penalty for restoring premises back to
prior legal condition, need to pay $5,000." Similarly, on September 24, 2012, petitioner
received another Certificate of Correction disapproval stating that the petitioner had to
first pay a DOB civil penalty of $5,000.
On October 2, 2012, counsel appeared for a hearing before Administrative
Law Judge Sherry Aaron at the Office of Administrative Trials and Hearings in the
Matter of Department of Buildings v Sofronio Gajo. At the hearing, petitioner's counsel,
Leo L. Rosales, Esq., submitted [*2]an affidavit from his
client stating that the fence and garage door had been removed, photos pertaining to the
removal of the fence and garage, and a receipt for contractor charges. Counsel conceded
that the petitioner violated the DOB code by erecting the fence and garage without a
permit. However, because the violation was corrected before the first hearing date, the
penalty assessed by the ALJ on behalf of the City of New York Environmental Control
Board was $400.00. The ALJ informed counsel that a Certificate of Correction would
have to be filed and that there could be a violation from the DOB for not filing the
Certificate of Correction. The decision and order of the ALJ was served on October 5,
2012. The decision states that "the respondent's attorney admitted the violation and
produced evidence that the violation was corrected. I find based upon the credible
testimony and evidence that the Respondent was in violation and that the violation was
corrected in a timely manner." The total mitigated penalty imposed was $400.00.
Subsequent to the hearing the petitioner attempted to file a Certificate of
Correction, however, same was disapproved based upon petitioner's failure to pay a civil
penalty of $5,000.
Petitioner now seeks and order enjoining the respondent from requiring him
to pay any further fines or penalties for the notices of violation as he has already paid the
fine ordered by the Administrative Law Judge.
In opposition, the respondent, prior to filing an answer to the petition,
cross-moves to dismiss the petition as time-barred under the applicable four month
statute of limitations. Counsel for DOB, Assistant Corporation Counsel Jacqueline Hui,
Esq. asserts that with respect to the civil fine of $5,000.00 imposed by the DOB on
September 13, 2012, the petition is time barred by the four month statute of limitation.
Counsel also asserts that with respect to the fine of $5,000 and the separate Notice of
Violation for illegal basement fixtures, the petition must be dismissed as the petitioner
has failed to exhaust his administrative remedies. The respondent contends that there has
not been a decision reached after the hearing on June 24, 2014 and as such the instant
Article 78 proceeding is premature. With respect to the failure to pay the fine assessed by
the DOB, respondent states that although the Administrative Law Judge assessed a fine
of $400.00 for the violation, there is an additional $5000.00 fine that was imposed by the
DOB pursuant to Administrative Code § 28-213-1.2 as a penalty for doing
construction without a permit on other that a one or two family dwelling. Counsel
contends that the DOB rendered a final determination regarding the $5,000 civil penalty
associated with NOV 95J by mailing a determination disapproving petitioner's Certificate
of Correction on September 13, 2012. Thus, counsel claims that ths statute of limitations
for filing an Article 78 challenging this determination expired four months after the
September 13, 2012 date. Respondent claims this Article 78 is therefore untimely as it
was not commenced until April 23, 2014, more than one year after the statute of
limitations expired. Further, respondent contends that the petitioner has failed to exhaust
all administrative remedies as petitioner has not administratively appealed the imposition
of the $5,000 fine and the determination as to the basement fixture violation is still
pending. Counsel claims that petitioner has waived his available administrative remedies
and therefore is barred from seeking judicial relief on these matters.
In reply, the petitioner submits proof showing that the Notice of Violation,
No. 035067646N, was dismissed by Administrative Law Judge Michelle Mason, after a
hearing held on June 24, 2014. The ALJ found that petitioner was not in violation as he
purchased the property in its current condition and did not make any changes.
As to the $5,000.00 fine imposed by the Department of Buildings, the
petitioner argues that the statute of limitations has not lapsed, that petitioner has
complied with the correction required by the DOB and that the petitioner restored the
premises back to its prior legal condition prior to the hearing and prior to the cure period
set forth in the NOV.
Upon review and consideration of the petition and the respondent's
cross-motion to dismiss the petition, this court finds that the cross-motion to dismiss the
petition as time barred and for failure to exhaust administrative remedies is denied.
Pursuant to CPLR 217(1):
"Unless a shorter time is provided in the law authorizing the proceeding, a
proceeding against a body or officer must be commenced within four months after the
determination to be reviewed becomes final and binding upon the petitioner or the person
whom he represents in law or in fact..."
"A determination generally becomes binding when the aggrieved party is
'notified' " Matter of Silvestri v
Hubert, 106 AD3d 924 [2d Dept. 2013] quoting Matter of Village of
Westbury v Department of Transp. of State of NY, 75 NY2d 62 [1989]). "The
burden rests on the party seeking to assert the statute of limitations as a defense to
establish that the petitioner was provided notice of the determination more than four
months before the proceeding was commenced" Matter of Silvestri v Hubert,
supra quoting Matter of Bill's Towing Serv., Inc. v County of Nassau, 83 AD3d
at 699; Matter of Working
Families Party v Fisher, 109 AD3d 478 [2d Dept. 2013]).
Here, there has been no proof offered by the respondent that any type of
notice of final determination imposing a fine on the petitioner in the amount of $5,000
for a violation of Administrative Code §§ 28-213.1, 28-213.1.2, or 28-204.4
was ever served on the petitioner by the DOB. The record does not contain a notice from
the Department of Buildings notifying the petitioner that he has been fined $5,000, what
the violation is based upon, whether the petitioner is entitled to a hearing on the violation
and under what provision of law the fine has been imposed. Further, there is no proof in
the record of mailing of any notice of fine and no proof of the existence of a final
determination that could be appealed to the Board of Appeals. The only notification of a
fine, which is relied upon by the respondent, is a notice dated September 13, 2012
entitled "Certificate of Correction Disapproval" which states that the petitioner needs to
pay a DOB civil penalty for restoring premises back to prior legal condition. The notice
of disapproval is unsigned and states that there is a hearing scheduled for October 2,
2012 as to an ECB violation and an DOB violation. However, the $5,000 fine was not
the subject of the [*3]October 2, 2013 hearing and the
petitioner was not served with notice of the fine prior to the hearing or given the
opportunity to contest that fine at the hearing or at any other time. In fact, the only fine
imposed after the hearing was mitigated penalty in the total amount of $400.00.
Accordingly, as the respondent has failed to satisfy its burden of
demonstrating that the petitioner was properly served with an appropriate notice
imposing the $5,000 fine and the basis thereof, the statute of limitations was not properly
triggered and did not begin to run and the cross-motion to dismiss he petition as time
barred is denied (see Matter of
Banos v Rhea, 111 AD3d 707 [2d Dept. 2013]). In addition, as respondent did
not provide notice of final determination regarding the $5,000 fine, the petitioner was not
able to file a proper notice of appeal with the Board of Appeals and could not, therefore,
exhaust his administrative remedies.
The cross-motion to dismiss the petition with respect to the NOV as to the
basement fixtures is denied as academic as that violation was dismissed after a hearing by
decision and order dated June 27, 2014.
Therefore, the respondent's cross—motion to dismiss the instant
Article 78 petition is denied in its entirety.
Pursuant to CPLR 7804(f), the respondent shall have 20 days from service of
a copy of this order with notice of entry to serve and file an answer to the petition and
petitioner shall serve and file a reply within ten days after service of the answer (see
Matter of Davis-Elliot v New York City Dept. Of Educ., 31 AD3d 266 [1st Dept.
2006]).
Dated: August 4, 2014
Long Island City, NY______________________________
ROBERT J. MCDONALD
J.S.C.