DOB Violation for Cellar Apartment That Was Legal in 1938 Was in Error

November 17, 2016

LVT Number: #27314

DOB issued a violation notice to landlord for having an illegal cellar apartment. Landlord opposed the violation, but the ALJ ruled against landlord and fined it $1,200. ECB denied landlord’s appeal. Landlord then filed an Article 78 court appeal, claiming that ECB’s decision was unsupported by substantial evidence. The court ruled for landlord. The building was constructed in 1905, prior to Certificate of Occupancy requirements. HPD inspection cards (I-cards) indicated that, as of Jan. 1, 1938, the cellar apartment was in use as a dwelling.

DOB issued a violation notice to landlord for having an illegal cellar apartment. Landlord opposed the violation, but the ALJ ruled against landlord and fined it $1,200. ECB denied landlord’s appeal. Landlord then filed an Article 78 court appeal, claiming that ECB’s decision was unsupported by substantial evidence. The court ruled for landlord. The building was constructed in 1905, prior to Certificate of Occupancy requirements. HPD inspection cards (I-cards) indicated that, as of Jan. 1, 1938, the cellar apartment was in use as a dwelling. This established the apartment’s legal use. There was no proof of any subsequent authorized change to the apartment’s legal use. Although the 1945 I-card indicated that the apartment wasn’t in use at that time, this didn’t change the apartment’s legal use. And, even if for some time after 1945, landlord may have changed the use of the cellar apartment rather than merely leaving it vacant, this had no legal effect. ECB’s decision was based on a legal error.

 

 

 

 

345 West 70th Tenants Corp. v. ECB: 2016 N.Y. Slip Op. 07099, 2016 WL 6270971 (App. Div. 1 Dept.; 10/27/16; Friedman, JP, Andrias, Moskowitz, Gische, Gesmer, JJ)

Topics

More like this