Dep’t of Buildings v. Owners, Occupants and Mortgagees of 150-32 29th Avenue, Queens Co.

OATH Index No. 713/08 (Nov. 30, 2007)

Zoning violation proceeding pursuant to section 26-127.2 of the Admin. Code. Uncontroverted evidence established that the premises is being used for the dead storage of automobiles and automobile repair in a residential district. ALJ recommends closure.

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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

150-32 29th AVENUE, QUEENS COUNTY

Respondents

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REPORT AND RECOMMENDATION

CHARLES D. McFAUL, Administrative Law Judge

This proceeding was referred to me in accordance with section 26-127.2 of the Administrative Code. Petitioner seeks to close the illegal commercial use taking place at the subject premises, which is located in a residential district. Respondents were properly served with the petition and notice of the hearing that was held on November 29, 2007. Respondent Frances and Andrew Bullaro, the owners, entered into a stipulation of settlement with petitioner prior to the hearing (Pet. Ex. 2). Respondent Anna Marchisio, the mortgagee, failed to appear at the hearing, although she appeared through her attorney by filing an answer to the petition on November 29, 2007(Pet. Ex. 1; ALJ Ex. 1)

ANALYSIS

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Petitioner presented reliable and unrebutted evidence to establish that the garage and driveway of the subject premises are being used for the storage of unlicensed and unregistered motor vehicles and for automobile repair (Pet. Exs. 3, 4 & 5). The New York City Zoning Resolution classifies such uses into Use Group 16. Use Group 16 activities are not permitted as of right in a residential district (Pet. Ex. 9). Petitioner's evidence established that the premises is located in an R3-2 residential district (Pet. Exs. 6 & 7) and that Department of Buildings records show that the permitted uses for the garage do not include automobile repair (Pet. Ex. 8).

FINDINGS AND CONCLUSIONS

1. The garage and driveway of the subject premises are occupied for dead storage of motor vehicles and automobile repair, which are commercial uses designated as Use Group 16 activities.

2. The subject premises is situated in an R3-2 residential district.

3. The commercial use taking place at the subject premises is not permitted as of right in a residential district and constitutes a nuisance.

RECOMMENDATION

I recommend that the illegal commercial use taking place at the subject premises be discontinued by the issuance of a closure order consistent with the terms of the stipulation of settlement entered into with the owner/occupant.

Charles D. McFaul

Administrative Law Judge

November 30, 2007

SUBMITTED TO:

PATRICIA J. LANCASTER, FAIA

Commissioner

APPEARANCES:

KEVIN M. O’SULLIVAN, ESQ.

Attorney for Petitioner

ANTHONY F. BELLUCCI, ESQ.

Attorney for Respondent Mortgagee