Document loss defeats NOV

Buildings cited 1974 building plan but could not produce it. Buildings issued a notice of violation to the owner of a building for engaging in work that did not conform to an approved building plan. Buildings stated that the owner extended the building beyond the size specified in a 1974 plan. At a hearing, Buildings stated that it could not locate the 1974 plan and relied instead on a copy of a 1959 plan and photographs that showed an extension to the building. The owner submitted a copy of a 1977 Certificate of Occupancy referencing the 1974 plan that certified the building substantially conformed to the plan. He also submitted a copy of a Buildings inspector’s approval of an architect’s 1974 certification attesting to the accuracy of a plot diagram and other work related to the building’s extension. The ALJ upheld the violation, ruling that the owner’s documents did not permit the extension.

The owner appealed, claiming that he could not be in violation of the Administrative Code for failing to conform to the 1974 plan if Buildings could not produce that plan and that the 1977 C of O proved that the building did conform to the 1974 plan.

The Environmental Control Board reversed the ALJ, explaining that the owner credibly challenged the violation by submitting the 1977 C of O, and that Buildings should have produced the plan to which the owner allegedly did not conform. The Board found that, absent the 1974 plan, Buildings did not present enough evidence to establish the violation.

New York City v. Frank Gissi, ECB Appeal No. 43531 (June 25, 2009).

Leave a Reply

This site uses Akismet to reduce spam. Learn how your comment data is processed.