Modiano Realty Inc. v. Environmental Control Board

Determination of respondent, Environmental Control Board of the City of New York, dated June 23, 2011, which, after a hearing, found that petitioner had violated the Administrative Code of the City of New York §§ 28-210.1, 28-202.1 and 27-369, and the New York City Building Code (Administrative Code of City of NY tit 28, ch 7) § BC 1020.2, and imposed civil fines totaling $48,600, unanimously annulled, without costs, and 542 the petition brought pursuant to CPLR article 78 (transferred to this Court by order of Supreme Court, New York County [Peter H. Moulton, J.], entered May 21, 2012), granted. Respondent failed to introduce substantial evidence to establish that petitioner’s residence was altered for occupancy by four or more families (see generally 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 180 [1978]). It was bare surmise and conjecture to conclude, from photographs depicting the outside of two doors in the basement, and the presence of five mailboxes on the exterior of the premises, that petitioner had illegally converted its premises (cf. Matter of Kurtin v City of New York, 78 AD3d 473 [1st Dept 2010]), especially since the Department of Building’s inspector who issued the notices of violation did not testify at the hearing. Concur— Tom, J.P, Andrias, Renwick and DeGrasse, JJ.