NY Appellate Court Holds Owner Failed to Preserve for Appeal That It Did Not Violate Provision Based on Owner’s Alleged Lack of Knowledge How Tenants Were Using Their Apartments

This post was authored by Matthew Loeser, Esq.

An apartment building owner commenced this Article 78 proceeding, which challenged a determination of the City of New York’s Environmental Control Board to impose discretionary and non-discretionary civil penalties based on the owner’s violation of a city code provision prohibiting conversion of dwelling units from permanent residences to transient use. The Supreme Court, New York County, denied the owner’s petition and dismissed the proceeding.

As pertinent to this appeal, Administrative Code § 28–210.3 prohibits the owner of a multiple dwelling classified for permanent use to permit the use or occupancy of the dwelling for other than permanent residence purposes. The court found petitioner’s contention that it did not violate this provision because it did not have knowledge that its tenants were using their apartments for transient occupants was unpreserved, and it had no discretionary authority or interest of justice jurisdiction to reach the issue. Moreover, the penalty assessed against petitioner was consistent with the Administrative Code, as petitioner failed to establish at the hearing that it had corrected the violations of Administrative Code §§ 28–210.3 in fewer than 38 days following the notice of violation. Accordingly, the holding of the Supreme Court of New York was affirmed.

Pamela Equities Corp. v. Environmental Control Board of the City of New York, 171 A.D.3d 623 (1 Dept. 2019)