Image Credit: NYCourts.gov

Owner converted basement into additional rental apartment without permit. On December 26, 2012, an inspector from the Department of Buildings served a notice of violation charging that Pandora Realty LLC had without a permit created an apartment in the basement, complete with gas and waste lines. The illegal basement apartment on 201st Street in Queens was being rented at the time. Included with the notice was an order by Buildings to correct the violation by either obtaining the proper permits for the work already done or removing the violations. Buildings served four additional notices in 2013 charging that Pandora Realty had failed to comply with the Commissioner’s order.

On February 18, 2014, and March 21, 2014, respectively, two Administrative Law Judges sustained two of the notices and ordered penalties of $12,000 and $6,000. Pandora Realty appealed to the Environmental Control Board arguing that it was impossible to comply with the order because the tenant who occupied the basement apartment did not leave until November 30, 2013 after protracted eviction proceedings. Pandora Realty’s architect had subsequently filed an application for the permits required to remove the violation, but those permits were pending. Additionally, Pandora Realty argued that it was denied its right to cross-examine the inspector.

The Environmental Control Board sustained the two ALJs’ decisions. The Board noted that Pandora Realty’s defense of impossibility was not established because no evidence was shown that Pandora Realty was either legally or physically barred from the basement. Additionally, the Board pointed out that the two notices at issue were served ten and twelve months after the first notice of violation. Furthermore, the Board ruled that a respondent does not have an absolute right to the attendance of the inspector at a hearing. The Board found that the inspectors’ testimonies would have no evidentiary value because the notices were based on continued non-compliance with the order and not a newly assessed violation. Pandora Realty appealed to the Second Department which confirmed the Board’s decisions.

Pandora Realty, LLC v. New York City Environmental Control Board, 35 N.Y.S.3d 168 (2d Dep’t June 22, 2016) (Attorneys: Calie Razis, George J. Razis, and Elena Razis, for Pandora Realty; Zachary W. Carter, Scott Shorr and Max McCann, for City).

By: Jonathon Sizemore (Jonathon is the CityLaw Fellow and a New York Law School Graduate, Class of 2016).