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Dep't of Buildings v. Owners, Occupants and Mortgagees of 350 Central Park West, New York County

OATH Index No. 1341/05 (May 3, 2005)

In this zoning violation (padlock) proceeding, the evidence established illegal use of residential apartment as a business office of a social worker and of a massage therapist in violation of the Zoning Resolution. ALJ recommends that premises be closed in accordance with terms of stipulation with owner and occupant.

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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

350 CENTRAL PARK WEST, NEW YORK COUNTY

Respondents

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REPORT AND RECOMMENDATION

JOAN R. SALZMAN, Administrative Law Judge

This is a zoning violation proceeding referred to this tribunal pursuant to section 26-127.2 of the New York City Administrative Code (the “padlock law”). The Department of Buildings, petitioner, alleges that apartment 6B of the premises at 350 Central Park West, New York County, also known as Block: 1208, Lot: 29, although located in an R10A residence district, is being used as business offices of a social worker and of a massage therapist. Petitioner seeks an order of closure by which the use of the premises, specifically, apartment 6B thereof, would be sealed as a public nuisance pursuant to the padlock law (ALJ Ex. 1; Pet. Exs. 1 and 2). See Admin. Code § 26-127.2 (Lexis.com 2005).

A hearing was held before me on May 2, 2005. The owner of the premises, 350 Central Park West Associates LLC, and an occupant of apartment 6B at that address, Susan H. Dowell, CSW, represented by their attorney, Fred L. Seeman, Esq., entered into and signed a stipulation of settlement (the “stipulation”) with the Department (Pet. Ex. 1) prior to the hearing. The owner and Ms. Dowell were not present for the hearing, which proceeded as an inquest as to the remaining respondents, none of whom appeared.

Petitioner presented sworn proof of service of the petition and notice of the hearing, as adjourned,[1] by appropriate notices to all parties, on the named, remaining parties, another occupant, Jeanne Ann Karfo, and the assignee, Fannie Mae (Pet. Exs. 2, 3), in accordance with the mandates of section 26-127.2(c) of the New York City Administrative Code. Petitioner’s proof of service establishes the jurisdictional prerequisites for finding these respondents in default. Therefore, the occupant, Ms. Karfo, and the assignee of the premises, Fannie Mae, are in default.

At the hearing, petitioner presented the testimony of Department of Buildings Inspector Lennox B. Williams, who visited the premises; two inspection reports including photographs of the site taken by Inspector Williams; an affidavit of Inspector Williams, sworn to February 7, 2005; a certificate of occupancy for the site; the applicable provisions of the Zoning Resolution; a tax map showing the location of the premises; and a zoning map showing the zoning designation of the premises (Pet. Exs. 4-10).

Upon consideration of the evidence in this matter, I find that respondents' use of the premises is in violation of the Zoning Resolution and recommend closure of the premises, consistent with the terms of the stipulation on file.

ANALYSIS

The premises are located in an R10A residence district. The certificate of occupancy, dated August 12, 1996, for the premises shows that the legal use of the premises is as a residential apartment (Pet. Ex. 9). Inspector Williams inspected the premises on May 6, 2004, and January 21, 2005 (Pet. Exs. 4, 5). In the course of his first on-site inspection, Inspector Williams observed that the premises were used as office space where a woman greeted him, told him she worked for a marriage counselor in that space, and gave him business cards that showed Ms. Dowell to be a social worker with a business at apartment 6B of 350 Central Park West in Manhattan. The woman also gave Inspector Williams business cards for Ms. Karfo. These cards showed Ms. Karfo to be a licensed massage therapist (Pet. Ex. 3). Inspector Williams was unable to gain access to the premises on his second visit (Pet. Ex. 4). Ms. Dowell was advertising on the internet as a social worker and marriage counselor at the premises, apartment 6B, as of February 7, 2005 (Williams Affidavit, Pet. Ex. 6). The owner and Ms. Dowell admitted in their stipulation that the premises were being used as a business office.

The New York City Zoning Resolution (Dec. 15, 1961) (nyc.gov/planning) (the “Zoning Resolution”), as amended, does not permit commercial uses as of right in residential districts. The use of the premises as a professional and business office falls within Use Group 6 of the Zoning Resolution. Zoning Resolution, App. A: Index of Uses, revised April 8, 1998; Zoning Resolution § 32-15 (Sept. 25, 2002). Use Group 6 is for commercial uses permitted as of right only in certain commercial districts, not in an R10A residential area. Zoning Resolution § 12-10 (Dec. 15, 1961). No valid certificate of occupancy permits the use of the premises as business or professional offices. Inspector Williams testified that he observed no residential uses of apartment 6B of the premises.[2]

FINDINGS AND CONCLUSIONS

1. Service of the petition and the accompanying notice of hearing on respondents, the occupant, Ms. Karfo, and assignee, Fannie Mae, was sufficient to entitle the Department to proceed in those respondents' absence.

2. The subject premises, 350 Central Park West, apartment 6B, New York County, are used for impermissible commercial purposes in a residential zone, in violation of the Zoning Resolution.

3. The premises can be sealed without impairing access to any residence.

RECOMMENDATION

The padlock law authorizes only one remedy: the closure of the offending premises. I recommend that the Commissioner issue an order of closure of apartment 6B, 350 Central Park West, New York County, consistent with the terms of the stipulation of settlement, in accordance
with the above findings.

Joan R. Salzman

Administrative Law Judge

May 3, 2005

SUBMITTED TO:

PATRICIA J. LANCASTER, FAIA

Commissioner

APPEARANCES:

CHI-KIT SIU, ESQ.

Attorney for Petitioner

No Appearances for Respondents

[1] The hearing, originally scheduled for April 13, 2005, was adjourned on April 8, 2005, at the request of counsel for the owner and occupant Ms. Dowell, upon their counsel’s representations that they were trying to bring the premises into compliance with the law and that counsel had another court appearance on the scheduled hearing date.

[2] There was no suggestion that the massage therapy or social work constituted a permissible “accessory use” or “home occupation,” as those terms are defined in section 12-10 of the Zoning Resolution. No residential use was observed in the apartment by the inspector and no respondent contended that the uses observed were permitted.