Dep't of Buildings v. Owners, Occupants and Mortgagees of 560 West 170th Street, New York County
OATH Index No. 1171/06 (Mar. 21, 2006)
Undisputed evidence at zoning violation proceeding established that property, zoned for residential use, was being used for impermissible commercial and manufacturing purposes. Closure recommended.
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NEW YORK CITY OFFICE OF
ADMINISTRATIVE TRIALS AND HEARINGS
In the Matter of
DEPARTMENT OF BUILDINGS
Petitioner
- against -
OWNERS, OCCUPANTS AND MORTGAGEES OF
560 WEST 170th STREET, NEW YORK COUNTY
Respondents
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REPORT AND RECOMMENDATION
ALESSANDRA F. ZORGNIOTTI, Administrative Law Judge
This proceeding was referred to this tribunal pursuant to section 26-127.2 of the New York City Administrative Code. Petitioner alleges that Apartment 1A on the first floor of the property at 560 West 170th Street, in Manhattan, also known as Block: 2126, Lot: 10, located in a residentially zoned district, is being used for impermissible purposes, including a clothing store. Petitioner seeks an order of closure, pursuant to the “padlock law,” to abate the nuisance. Admin. Code § 26-127.2(b)(West 2004).
Prior to the hearing, held on March 20, 2006, Noel Intner, on behalf of respondent Haryn Realty, LLC, the owner of the premises and Nivrka Reyes, the occupant of the premises, entered into stipulations of settlement with petitioner in which they each agreed to discontinue improper use of the premises by June 20, 2006 (Pet. Exs. 1 and 2). None of the remaining respondents appeared at the hearing. Petitioner presented proof of service of the petition and notice of the hearing to the non-appearing respondents who were declared in default (Pet. Ex. 3).
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As discussed below, I find that respondents’ use and occupancy of the premises violates the applicable zoning resolutions, and recommend closure of the premises.
ANALYSIS
At the hearing, petitioner presented the credible, undisputed testimony of Department of Buildings’ Inspectors Daniel Marcucci and Ronald Mener, inspection reports, photographs, and other documentary evidence. The lot in question is located in an R7A residential district (Pet. Ex. 10). In separate written stipulations, the owner and the occupant admitted that apartment 1A has been used for “a clothing store” (Pet. Ex. 1, ¶ 1; Pet. Ex. 2, ¶ 1). The property was inspected on July 29, November 15, December 28, 2005, and January 6, 2006 (Pet. Exs. 4, 7, 8, & 9).
During the July 29, 2005, inspection, Inspector Marcucci was unable to gain access to the apartment and no commercial activity was observed on this date (Pet. Ex. 4).
On November 15, 2005, Inspector Mener was given access to apartment 1A by a woman who did not speak much English. A friend of the woman was called on the telephone to interpret. Inspector Mener was advised that no one lives in the apartment and that the woman is an employee of the owner. He observed that the apartment had clothing racks and a glass display case with a cash register on top. The case had jewelry, perfume, and belts on display. On his way out, Inspector Mener obtained a business card stating Roca Fashion with an address of 560 West 170th St., Apt. 1-A, NY 10032. Attached to the Inspector’s report is a copy of the business card as well as two photographs showing the clothing racks and the glass case with jewelry, perfume, belts and the cash register (Pet. Ex. 7).
On December 28, 2005, and January 6, 2006, Inspector Mener was unable to gain access to apartment 1A (Pet. Exs. 8 & 9).
Operation of a clothing/accessory store is a commercial or manufacturing activity that is classified in use groups that are not permissible on this residentially zoned premises (Pet. Ex. 11).
FINDINGS AND CONCLUSIONS
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- Service was sufficient to entitle petitioner to proceed in the absence of the respondent occupants and mortgagees.
- The premises is being used for impermissible commercial or manufacturing purposes in a residential zone.
RECOMMENDATION
I recommend that the Commissioner issue an order of closure consistent with the stipulation of settlements entered into between the Department and the owner and occupant of the premises.
Alessandra F. Zorgniotti
Administrative Law Judge
March 21, 2006
SUBMITTED TO:
PATRICIA J. LANCASTER, FAIA
Commissioner
APPEARANCES:
KEVIN O’SULLIVAN
Attorney for the Petitioner
No appearance by Respondents