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Dep’t of Correction v

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Dep't of Buildings v. Owners, Occupants and Mortgagees of 11 Waverly Place, New York, New York

OATH Index No. 426/07 (Oct. 30, 2006)*

In a default padlock proceeding, a settlement agreement with the building owner stipulated that the second floor had been used as a commercial leasing office in violation of the zoning resolution; closure recommended if illegal use is not discontinued by date specified in the agreement.


*After inspections subsequent to the compliance date, petitioner determined no further action was required and closed the complaint, without execution of a padlock order. Apr. 9, 2007 letter, appended.

______________________________________________________


NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS


In the Matter of

DEPARTMENT OF BUILDINGS

Petitioner

- against -

OWNERS, OCCUPANTS AND MORTGAGEES OF

11 WAVERLY PLACE, NEW YORK, NEW YORK

Respondents

______________________________________________________


REPORT AND RECOMMENDATION

JOHN B. SPOONER, Administrative Law Judge

This is a zoning violation proceeding referred by the petitioner, the Department of Buildings, pursuant to section 26-127.2 of the Administrative Code. The petition (ALJ Ex.1) alleges that the second floor at the premises 11 Waverly Place, New York, New York (hereinafter "the premises"), located in a residential district, are occupied as a commercial leasing office in violation of the Zoning Resolution.

At the hearing on October 19, 2006, petitioner appeared along with the attorney for the owners and second floor occupants of the premises. The mortgagee, Valley National Bank, did not appear. The owner, Eleven Waverly Associates LLC, and the occupant, Jakobson Properties, entered into a stipulation of settlement with the petitioner, admitting that three apartments on the second floor were being used for a “business office” and agreeing to discontinue the illegal use by January 22, 2007. Upon presentation of the proof of service of both the petition and the notice of the hearing, the hearing went forward in the form of an inquest against the remaining respondents.

For the reasons provided below, I recommend that the petition be granted and that, if the illegal use has not been discontinued by January 22, 2007, the Commissioner issue an order closing the premises.


ANALYSIS

The premises are a house located in Manhattan on a residential street which is zoned R7-2. The certificate of occupancy (Pet. Ex. 7), issued in 1968, is for a “class A hotel,” with an “eating and drinking establishment" in the cellar, stores and offices on the first floor, and apartments on the second to 12th floors. Petitioner’s proof of the violations consisted of documents (Pet. Ex. 2, 3, 4, and 10) indicating that inspections of the premises took place on May 3, May 18, July 5, and October 10, 2006. On May 3, a Department inspector observed a sign for Jakobson Properties, with what appeared to be a leasing office on the first floor. There was an interior stair connecting the cellar, first, and second floors, with five offices and five work stations located on the three floors. The subsequent inspections found the office arrangement to be unchanged, although the inspection of October 10, 2006, revealed that not one but three second floor apartments (2L, 2M, and 2N) are being used as offices.

The proof, including the inspectors' visits and the admissions of the owner as to the leasing offices on the second floor, establishes unequivocally that three apartments on the second floor are occupied as a commercial office. These uses are in direct violation of the certificate of occupancy and sections 32-15 and Appendix A of the Zoning Resolution (offices listed as commercial Use Group 6 and not permitted in a residential zone). See Zoning Resolution section 52-34 (non-conforming Group 6 use may be changed only to a conforming use of Group 6 use).

I therefore recommend that, if the use is not discontinued by January 22, 2007, as agreed by the owner, the Commissioner may then order closure of the premises pursuant to section 26-127.2 of the Administrative Code.

FINDING AND CONCLUSION

Apartments 2L, 2M, and 2N on the second floor at the premises 11 Waverly Place, New York, New York, are being used for a commercial office in violation of sections 22-00 et seq. of the Zoning Resolution and, if this illegal use has not been discontinued by January 22, 2007, may be closed pursuant to section 26-127.2 of the Administrative Code.





John B. Spooner

Administrative Law Judge


October 30, 2006


SUBMITTED TO:


PATRICIA J. LANCASTER, FAIA

Commissioner


APPEARANCES:


INGRID M. ADDISON, ESQ.

Attorney for the Petitioner


No Appearance by Respondents



Department of Buildings, Padlock Unit, August 9, 2007


In a letter to the Office of Administrative Trials and Hearings Calendar Unit, the Department of Buildings, Padlock Unit indicated:

pursuant to multiple inspections conducted subsequent to the compliance date in the stipulation agreement, the Department has decided to take no further action and has closed the complaint against these premises without execution of an Order of Closure.


FRAN GREEN, Padlock/Sign Enforcement Unit, Department of Buildings



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