Distinction between basement and cellar explained. The Department of Buildings issued Supreme Company LLC a notice of violation for failing to file a required report concerning the periodic inspection of the exterior walls of its building at 1659 York Avenue in Manhattan’s Upper East Side. Supreme contested the NOV at a hearing before an ALJ, claiming that it was exempt from the filing requirement since its building did not exceed six stories. Supreme’s architect stated that the certificate of occupancy showed that the building had six stories plus a cellar. Buildings claimed the lowest floor was not a cellar, but rather a basement.
Pursuant to the City’s Building Code, cellars were not counted as stories when measuring the height of a building. Basements, on the other hand, were counted as stories. The Building Code defined “cellar” as a portion of a building that is partly or wholly underground and has one-half or more of its clear height below the grade plane. “Basement” was defined as a story partly below the grade plane and having less than one-half its clear height below the grade plane.
The ALJ sustained the NOV, crediting Buildings’ field inspector’s observations. Supreme appealed to the Environmental Control Board. For the first time on appeal, Supreme submitted architectural drawings and photographs to support its architect’s statements. The Board reversed the ALJ’s decision and dismissed the NOV. Even though the drawings and photographs were submitted for the first time on appeal, the Board decided to consider them because they clarified the architect’s statements submitted to the ALJ.
The Board concluded that Supreme’s evidence established that the building had only six stories and a cellar. Thus, Supreme was not required to submit exterior wall reports.
NYC v Supreme Company LLC, ECB Appeal No. 1100160 (May 19, 2011).