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Dept of Buildings v.

Schnall
OATH Index No. 2750/15 (Feb. 10, 2017), modified on penalty, Commr Dec. (Feb. 21, 2017),
appended

In licensing case, professional engineer was charged with


knowingly or negligently making material false statements in
eleven applications filed with the Department of Buildings relating
to six properties in Brooklyn. Charges also alleged that respondent
displayed negligence, incompetence, or lack of knowledge of
applicable laws, because six of the applications which he submitted
called for work in violation of the Zoning Resolution, the Multiple
Dwelling Law, or the Administrative Code. ALJ sustained eleven
charges, including three charges alleging that respondent
knowingly submitted material false statements. ALJ recommended
revocation of respondents filing privileges under its professional
self-certification and limited review programs. Further, ALJ
recommended that respondents filing privileges relating to any
application or document be revoked, with respondent given the
opportunity to seek reinstatement of those privileges after a year
upon the imposition of appropriate conditions, such as probation.
Commissioner modifies ALJs penalty recommendation and
imposes penalty of exclusion from limited supervisory check and
professional certification and the Department will not accept any
filing from respondent.
______________________________________________________

NEW YORK CITY OFFICE OF


ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of
DEPARTMENT OF BUILDINGS
Petitioner
-against-
SCOTT SCHNALL
Respondent
____________________________________________________

REPORT AND RECOMMENDATION


FAYE LEWIS, Administrative Law Judge
Petitioner, the Department of Buildings (the Department), brought this action against
respondent, Scott Schnall, a licensed professional engineer, relating to eleven alteration
applications which he filed with the Department between 2010 and 2014, seeking permission to
do work at six properties in Brooklyn. There are two sets of charges. Charge one, specifications
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1 through 11, alleges that respondent knowingly or negligently made materially false statements
on nine applications. Charge two, specifications 1 through 9, alleges that respondent filed seven
applications which demonstrated his negligence, incompetence or lack of knowledge of
applicable laws. Five of the seven applications specified in charge two were also the subject of
specifications in charge one (ALJ Ex. 1).
Over a five-day trial, petitioner presented the testimony of Adam Wapniak, the Queens
Deputy Borough Commissioner, and Fatima Murillo, an enforcement audit specialist in the
Departments Special Enforcement Unit. Respondent testified in his own behalf and also
presented the testimony of Walter Maffei, a registered architect. After trial respondent submitted
a motion for reconsideration of a discovery order, which I reviewed and denied. The parties
also submitted post-trial briefs, after which the record closed.
As discussed below, I find that eleven specifications are sustained: charge 1,
specifications 1, 5, 6, 7, 9, 10 and 11, and charge 2, specifications 1, 2, 8, and 9. The remaining
charges were unproved and should be dismissed. I recommend that respondents filing
privileges under the professional self-certification and limited review programs be revoked.
Further, I recommend that respondents filing privileges relating to any application or document
be revoked, but that he be given the opportunity to have those privileges reinstated after a year
upon the imposition of appropriate conditions, such as probation.

ANALYSIS
I. Preliminary Issues
Amendment of Charges
Before trial, petitioner sought to amend the petition. The motion to amend was made
almost seven months after the original petition was filed and about two weeks before the trial
was scheduled to begin. Respondent claimed prejudice. After briefing, I granted the application
over respondents objection (Discovery Conference II: Tr. 381-82).
OATH Rule of Practice 1-25 provides that amendments of pleadings are to be made as
promptly as possible and provides that if a pleading is to be amended less than 25 days before
trial, amendment may be made only on consent of the parties or by leave of the administrative
law judge on motion. 48 RCNY 1-25 (Lexis 2017). However, applications to amend petitions
are to be freely granted absent irremediable prejudice. Admin. for Childrens Services v. Diaz,
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OATH Index No. 2743/15 at 3 (Nov. 6, 2015).


I was not persuaded by respondents contention that the amendment of charges resulted
in prejudice. The amended petition did not contain any new charges or specifications, and
indeed omitted two of the charges in the original petition which related to alleged audit failures.
In essence, the amended petition was a more streamlined version of the original petition.
Respondents contention that new petition, unlike the original petition, changed the theory of
prosecution by alleging that respondent made material false statements (Tr. Discovery
Conference II: Tr. 217-18) was not compelling. Both petitions alleged that respondent
knowingly or negligently made false statements, in violation of section 28-211 of the
Administrative Code, which requires that such false statements be material. Thus, the fact that
the initial petition did not use the word material in its narrative, but the amended petition did,
is not consequential.
It was unfortunate that petitioner waited so long to amend the charge, as respondent
undoubtedly spent considerable effort (and money) preparing to defend against charges which
ultimately were withdrawn. Ultimately, however, the amended petition was to respondents
benefit, as he did not have to defend against the audit failure charges that were withdrawn.
Although given an opportunity to do so, respondent was unable articulate specific trial prejudice
that would result from the amendment. Thus, I granted petitioners motion to amend, while
requiring petitioner to provide respondent with a new set of exhibits to follow the order of the
specifications in the amended petition (Tr. 200, 201, 203-33, 234).
Discovery
There was substantial discovery practice before trial, including two discovery
conferences. Among the issues raised was respondents demand for the disciplinary and
personnel records relating to Mr. Wapniak and Ms. Murillo. I declined to order the production
of such records, both at a pre-trial discovery conference (Disc. Conf: Tr. 53, 57, 58, 62), and
again when a request for reconsideration was made shortly before the trial began. Nonetheless,
after Mr. Wapniak testified at trial, respondents counsel reiterated his request for the personnel
file of both Mr. Wapniak and Ms. Murillo, asserting, among other things, that Mr. Wapniak had
made several false statements under oath, relating to where he operated his business before
joining the Department of Buildings, whether he did consulting work after joining the
Department, and whether he filed professionally certified applications as a private architect (Tr.
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209-213). Counsel for petitioner opposed the request, asserting that respondent had not
produced any evidence of the alleged perjury and had ample opportunity to cross-examine Mr.
Wapniak (Tr. 213). I permitted counsel to brief the issue.
Respondent submitted a letter detailing Mr. Wapniaks alleged false testimony, asking
me to order petitioner to produce the personnel and disciplinary files for both witnesses, and
seeking additional relief such as striking Mr. Wapniaks testimony from the record and making
him available for further cross-examination. Respondent asserted that its ability to properly
cross-examine Mr. Wapniak and Ms. Murillo had been hindered by its lack of access to the
disciplinary and personnel records (Resp. letter brief, May 9, 2016). Petitioner, conversely,
contended that the claims of false testimony were unfounded, and that respondent had not been
prejudiced by its lack of access to the disciplinary and personnel files (Pet. Response, May 17,
2016).
I denied respondents motion for the personnel and disciplinary records.1 The request for
disciplinary records was moot as petitioners counsel represented that neither Mr. Wapniak nor
Ms. Murillo had a disciplinary record (Tr. 507, 651; May 23, 2016 e-mail from Morelli).
Further, respondent did not establish that the production of the personnel records would likely
lead to relevant information. In general, the party requesting production of documents bears the
burden of establishing that disclosure is likely to lead to relevant evidence. Sexter v.
Kimmelman, 277 A.D.2d 186, 187 (lst Dept 2000); Crazytown Furniture, Inc. v. Brooklyn
Union Gas Co, 150 A.D.2d 420 (2d Dept 1989); Commn on Human Rights ex rel. Aldad v.
North Shore Towers, OATH Index Nos. 2157/13, mem. dec. at 6 (Aug. 30, 2013).
Here, respondent did not meet its burden. Respondent made no showing that the
personnel records of either Mr. Wapniak or Ms. Murillo would likely lead to relevant
information. There was no basis to believe that those records would be germane to the issues to
be determined at trial whether respondent knowingly or negligently made material false
statements in various applications (charge one); and whether he displayed negligence,
incompetence, or lack of knowledge of the law in his filings (charge two). Thus, the request for
additional discovery was denied. See Aldad, 2157/13 at 6 (discovery request for materials
relating to Human Rights Commissions handling of other cases or investigations denied as that

1
My e-mail decision and the parties letters are incorporated into the record as ALJ Ex. 2, collectively.
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information was not germane to trial issue, which was whether respondent engaged in specific
discrimination alleged); see also Dept of Correction v. LaSonde, OATH Index No. 2526/11,
mem. dec. (July 8, 2011); compare with In Re Moseley, 61 A.D.3d 1133, 1134 (3d Dept 2009)
(reversing and remanding disqualification of claimant for unemployment insurance benefits
where administrative law judge denied the claimants request to subpoena ambulance call
reports, which plainly were germane to the pivotal issue in this matter whether claimant did in
fact falsify work-related forms).
I also denied the motion to strike Mr. Wapniaks testimony, or to make him available for
further cross-examination. Mr. Wapniak testified generally about filing procedures and
Department protocols. Respondent had ample opportunity to cross-examine him at trial, and did
so. Further, in its motion papers, petitioners rebutted the bulk of respondents claims relating to
the alleged false testimony. The one exception related to Mr. Wapniaks testimony that he did
not file professionally certified applications as a private architect, which he apparently did on
two occasions. That discrepancy failed to establish an adequate prerequisite to either recall Mr.
Wapniak or strike his testimony.

II. Overview of Petition and Respondents Challenge to Charge 1 as


Duplicitious

The petition alleges in charge 1 that respondent violated the Administrative Code through
his submission of nine applications containing material false statements which he knowingly
or negligently made or allowed to be made. Admin. Code 28-211.1 (Lexis 2017). The
Department may refuse to accept filings from an individual found to have submitted such a
material false statement. Admin. Code 28-211.1.2 (Lexis 2017). Charge 2 alleges that in
seven applications, respondent displayed negligence or incompetence with regard to, or lack of
knowledge of, the Building Code, the Zoning Resolution, the Departments regulations, or other
applicable laws, rules, or regulations, in violation of 1 RCNY 21-02(a)(1). A person found to
have displayed such negligence or incompetence may be excluded or suspended from the
Departments limited review and professional certification programs. Id.
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The applications at issue relate to the following properties, all in Brooklyn: 164 Coffey
Street (charge 1, specification 1; charge 2, specifications 1-2)2; 921 Fulton Street (charge 1,
specifications 2-4; charge 2, specifications 4-5); 384 Sackett Street (charge 1, specifications 5-6);
178 5th Avenue (charge 1, specifications 7-8; charge 2, specification 6); 197 Patchen Avenue
(charge 1, specification 9; charge 2, specifications 7-8); and 152 Hinsdale Street (charge 1,
specifications 10-11; charge 2, specification 9). The applications also vary by their type
(Alteration Type 1, 2, and 3) and by the type of Department review requested by respondent
(full/standard plan review, or limited review involving professional self-certification, or
Directive 14 acceptance procedures).
Respondent asserts in its post-trial submission that charge 1 of the petition, which alleges
that respondent knowingly or negligently made materially false statements is unsustainable,
because it is duplicitous (Resp. Post-Closing Mem. at 20-22). I do not agree. In support of its
argument, respondent relies upon section 200.30 of the New York State Criminal Procedure
Law, which prohibits duplicitous counts in indictments, requiring that each count of an
indictment charge one crime only. Crim. Proc. Law 200.30 (1) (Lexis 2016). When a statute
has separate subdivisions or paragraphs providing separate ways in which an offense can be
committed, each count in the indictment must specify the particular subdivision or paragraph at
issue. Crim. Proc. Law 200.30 (2). However, an indictment can allege multiple crimes, so
long as only one crime is charged in each count.
The prohibition on duplicitous pleadings in indictments is not applicable here. This is a
civil administrative proceeding, not a criminal proceeding, and thus the Criminal Procedure Law
does not apply. The function of administrative pleadings is to provide notice, which the petition
does. See McGinigle v. Greenburgh, 48 N.Y.2d 949, 951 (1979) (municipal employee who was
charged with either committing arson or permitting arson to occur through gross negligence was
provided notice of charges against him; termination affirmed upon finding substantial evidence
to sustain either conclusion); Dep't of Buildings v. Owner, Occupants and Mortgagees of 31
West 11th Street, Apartments 6A and 6B, New York, OATH Index No. 990/94 (Aug. 26, 1994),
aff'd, BSA No. 165-94-A, reprinted in 80 Bulletin of Bd. of Stds. and Apps. 193 (May 4, 1995),
aff'd sub nom. Hiesiger v. City of New York, NYLJ, Nov. 6, 1996, at 26, col. 1 (Sup. Ct. N.Y.
Co.); 48 RCNY 1-22 (The petition must include a short and plain statement of the matters to

2
Charge 2, specification 3, was withdrawn (Disc. Conf. II: Tr. 280).
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be adjudicated, and, where appropriate, specifically allege the incident, activity or behavior at
issue as well as the date, time, and place of occurrence. The petition must also identify the law,
rule, regulation, contract provision, or policy that was allegedly violated and provide a statement
of the relief requested).
Moreover, respondents argument overlooks that respondent is not being charged with a
violation of multiple statutes, or multiple sections of a statue (which would be duplicitous if this
were a criminal case), but with a violation of a single section of a single statute (Administrative
Code 28-211.1), which prohibits both knowingly or negligently making a false statement.

III. Evidence on Types of Applications, Application Process, and Department


Review

The parties did not dispute the following. An alteration type 1 application (alt 1) is any
application that changes use, occupancy or egress, requiring an amendment to any existing
certificate of occupancy (Wapniak: Tr. 20, 163; Schnall: Tr. 1016-1017). By contrast, an
alteration type 2 application (alt 2), which is generally for interior repairs, does not affect the
certificate of occupancy (Wapniak: Tr. 21; Maffei: Tr. 1242; Schnall: Tr. 1016). An alteration
type 3 application (alt 3) is like an alt 2 application, but for more minor work (Maffei: Tr.
1257; Schnall: Tr. 1016). A PW1 is the plan/work application which is submitted whether the
application is alt 1, 2, or 3. Architectural plans are submitted with the application (Wapniak: Tr.
19).
Once an application is submitted, it is subject to either full review or limited review. Full
review takes place under a standard plan examination. A plans examiner reviews documents
submitted to the Department for compliance with applicable codes and zoning regulations. The
plans are either approved upon initial review or a set of objections is issued to the applicant, with
the expectation that the applicant will remedy the objections by modifying the plans and
submitting them for additional review (Wapniak: Tr. 21). An applicant has the opportunity to
meet with a plans examiner to tell him or her how the applicant is willing to resolve the
objections (Murillo: Tr. 735-36). The applicant can also seek a review by the Borough
Commissioner if he believes that the objection sheet is wrong (Murillo: Tr. 737, 740, 778;
Maffei: Tr. 1248). If such an appeal is denied, remaining appeals are to Technical Appeals, and
from there, to the Board of Standards and Appeals (Murillo: Tr. 741, 778).
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A limited review, by contrast, does not require a full plan examination (Wapniak: Tr. 28).
There are three types of limited review: professional certification of applications, self-
certification of objections, and Directive 14 of 1974 review (Wapniak: Tr. 28). According to Mr.
Wapniak, a professionally certified application is given a limited review for zoning, egress, and
occupancy, depending on the application. An alt 1 application is reviewed by the auditors at the
technical compliance unit for zoning and major or glaring code issues (Tr. 24, 32, 33, 34,
70), while an alt 2 application would receive a more limited review: for issues relating to egress,
occupancy, bulk, and where applicable, zoning (Wapniak: Tr. 25, 26, 115, 116, 117). If there are
no objections, a professionally certified application can be approved the same day that it is
reviewed (Tr. 26). Self-certification of objection is a process where, following the issuance of
objections, the applicant is able to submit revised drawings and to certify on a separate form that
he or she has resolved each objection, after which the plans are accepted (Tr. 28, 135).
Directive 14 review, under the Directive 14 of 1975 program, is a limited review
available for alt 2 and alt 3 applications where there is no change to use, egress or occupancy
(Resp. Ex. B; Wapniak: Tr. 28, 29). According to Mr. Wapniak and Ms. Murillo, under
Directive 14, the examiner reviews the plans for compliance with fire protection, energy, and
cost effectiveness standards, performs a limited zoning check, reviews briefly for egress and
occupancy, and possibly compares the application to the existing certificate of occupancy
(Wapniak: Tr. 29, 98; Murillo: Tr. 805). The existing conditions shown in the plan are deemed
to be accurate (Wapniak: Tr. 30). According to Mr. Maffei, Directive 14 review is supposed to
be cursory, but examiners will often take it upon themselves to do a full review (Tr. 1263).
The Special Enforcement Unit, for which Ms. Murillo works, audits applications for
compliance with the Building Code, the Multiple Dwelling Law, the Zoning Resolution, and
other applicable laws. This includes applications that were accepted by the Department through
self-certification or Directive 14 review, and that were also approved under a full review
(Murillo: Tr. 242, 668, 685, 823).

IV. Background information relating to Respondent


Respondent testified that he is a professional engineer, who graduated from engineering
school in 1990 and founded Scott Schnall PE in 1999 (Tr. 990, 996). Since 1999, he has filed
between 10,000 and 20,000 plans with the Department of Buildings, for all types of work (Tr.
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991-92). Besides the jobs that are the subject of this proceeding, he does not recall any other
jobs which he has filed failing an audit (Tr. 1085).
Respondent denied ever knowingly filing a false statement or negligently filing
documents with the Department (Tr. 1086). Asked to describe his standard of care, he explained
that he knew from his experience, how the laws and rules and regulations are supposed to
work with the Building Department, and tries to ensure that he uses all professional care into
making sure everything is correct and accurate and as per the laws and regulations and provable
for my clients, and safe (Tr. 1020).
All of the applications at issue in this case are undated. Respondent could not explain
why. He testified that he signs all applications and puts his seal on them, and the office
employees are supposed to date the forms when they are ready to file them. (Tr. 1021).

V. 164 Coffey Street (charge 1, specification 1, charge 2, specifications 1-3)


Charge 1, specification 1, alleges that respondent knowingly or negligently made a
materially false statement, in violation of Administrative Code sections 28-211.1 and 28-211.1.2,
by professionally certifying that an alt 1 application filed on or about August 9, 2010, under job
number 320200117, conformed to the requirements of all applicable laws, rules, and regulations.
Petitioner contends that the professional certification was materially false because the application
called for work in violation of the Zoning Resolution. Petitioner alleges that respondent had, on
or about July 12, 2010, submitted an application for the same scope of work (under job number
320185232), which had been disapproved because of identical violations of the Zoning
Resolution. Thus, petitioner asserts, respondent had knowledge that the August 9 application
called for work in violation of the Zoning Resolution. Additionally, in charge 2, petitioner
alleges that respondent displayed negligence or incompetence, or lack of knowledge of pertinent
laws or regulations, with regard to his filings because the July 12 and August 9 applications
violated section 52-61 of the Zoning Resolution (specifications 1 and 2, respectively).
Respondent filed application 320185232 on July 13, 20103 (Schnall: Tr. 1098; Pet. Ex.
2). The application was an alt 1, and standard plan review was requested (Pet. Ex. 1, boxes 4, 5).

3
Charge 1, specification 1, alleges that application 320185232 was filed on or about July 12, 2010, which was the
pre-filing payment date. The evidence at trial the job overview (Pet. Ex. 2) - shows the actual filing date as July
13, 2010. Similarly, specification 1, provides that application 320100117 was filed on or about August 9, 2010, the
pre-filing payment date, but the job overview shows the actual filing date as August 12, 2010. It would have been
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The job description was to reduce building occupancy to a two-family residence, with no
change to egress, use or occupancy (Pet. Ex. 1, box 11).4 Respondent showed the existing and
proposed occupancy classification as residential (Pet. Ex. 1, box 13c), the proposed use as
residential (Pet. Ex. 1, box 12c), and the zoning district as manufacturing (Pet. Ex. 1, boxes 12a,
12c). Respondent signed the application under form language acknowledging, to the best of my
knowledge and belief, the construction documents and work shown thereon comply with the
provisions of the NYC Administrative Code and other applicable laws and rules (Pet. Ex. 1, box
25). The application was disapproved on July 27, 2010 (Pet. Ex. 2) and an objection sheet was
issued (Pet. Ex. 3).5 The third objection on the objection sheet, citing ZR 52-61, was that the
existing residence was not permitted as of right in a manufacturing zone, as required by section
52-61 of the Zoning Resolution. The applicant was to [p]rovide proof that existing
nonconforming use of building has never been discontinued for a continuous period of two
years. The second objection on the objection sheet, citing TPPN 14/88, required that the
applicant provide proof of existing nonconforming 6 family dwelling unit in manufacturing
district. The top of the objection sheet indicated, To discuss and resolve these objections,
please call 311 to schedule an appointment with the Plan Examiner listed above. (Pet. Ex. 3).
Under the Zoning Resolution, residential occupancy generally is not permitted as of right
in a manufacturing district. ZR 42-10; ZR Appendix A (Index of Uses, Residences).
However, residential occupancy is permissible in a manufacturing district if there is a prior legal
nonconforming use which was in existence before the adoption of the Zoning Resolution in
1961. Under ZR 52-61, which the plans examiner cited, if a nonconforming use is
discontinued for two or more years, the property may only be used for a conforming use. TPPN
14/88 (Resp. Ex. I), which the plans examiner also cited, discusses ZR 52-61, and provides that
when an application does not comply with the Zoning Resolution, the applicant may submit
proof of a prior, nonconforming, continuous use.

clearer if the specifications referenced the actual filing date, rather than the pre-filing payment date. This decision
will use the actual filing date referenced in the record.
4
Although respondent did not articulate this in the job description, it appears that the building had been configured
as a six--family dwelling unit (Pet. Ex. 3).
5
The Notice of Objections contains an incorrect date. Originally the date was shown, typed, as September 27, 2011
(Pet. Ex. 3). Then, 2011 was crossed out and 2010 handwritten in (Pet. Ex. 3). However, the Departments job
overview shows that the job was disapproved by the plans examiner on July 27, 2010 and then withdrawn by
respondent on August 4, 2010 (Pet. Ex. 2).
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Respondent acknowledged that he did not schedule an appointment with the original
examiner to resolve the objection (Tr. 1117). He believed that he was dealing with an
inexperienced examiner who wasnt really capable of approving an alt type 1 application
(Tr. 1043). Respondent also believed that he would not be able to get an appointment with the
examiner for three months, or get the application approved for six months, and was afraid his
client would lose the building (Tr. 1117). Instead, respondent withdrew application
320185232 on August 4, 2010 (Pet. Ex. 2), and eight days later, on August 12, 2010, filed
application 320200117, under professional certification (Pet. Ex. 5, box 4).
The August 12 application, like the prior application: was filed as an alt 1 (meaning no
change to use, occupancy, or egress); listed the job description as reduce occupancy to a two (2)
family residence; and showed the existing occupancy classification as residential, zoning as
manufacturing, and the proposed use as residential (Pet. Ex. 5, boxes 5, 11, 12a, 12c, 13c). As
on the prior application, respondent stated that to the best of his knowledge, the construction
documents and work shown complied with all applicable laws. Moreover, the professional
certification which respondent filed in connection with the application provided:

I hereby state that I have exercised a professional standard of care


in certifying that the filed application is complete and in
accordance with applicable laws, including the rules of the
Department of Buildings, as of this date. I am aware the
Commissioner will rely upon the truth and accuracy of this
statement. . . . I further realize that any misrepresentation or
falsification of facts made knowingly or negligently by me, my
agents or employees, or by others with my knowledge, will render
me liable for legal and disciplinary action by the Department of
Buildings and other appropriate authorities, including termination
of participation in the professional certification procedures of the
Department of Buildings.

(Pet. Ex. 6). In the required items checklist, required for professional certification, respondent
also indicated that a BSA variance was not required (Pet. Ex. 6). Respondent acknowledged that
this second application was the exact same filing as the first application (Tr. 1045). He
believed that this was an acceptable way to proceed, because he believed his filing was correct
(Tr. 1106). He testified that he did all professional due diligence that couldve been done at
the time in submitting the second application (Tr. 117). The second application was approved
and a permit was issued in January 2011 (Pet. Ex. 2).
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Upon auditing this application, Ms. Murillo issued an objection sheet (Pet. Ex. 7).
Objections were issued indicating that the proposed two-family house was not permitted under
ZR 42-10 and 52-61, because residential use is not permitted as of right in a manufacturing
district, and because HPD records showed that the premises have been vacant since October 4,
1977. Ms. Murillo testified that respondent would have been required to get a variance on the
property prior to the application being approved (Tr. 305-06).
Charge 1, specification 1, the false filing charge, is predicated only upon the second,
professionally certified application, filed on August 12, 2010. At issue is whether respondent
made a knowing or negligent false statement by stating that he had exercised a professional
standard of care in certifying the application conformed to all applicable laws.
As a preliminary matter, I find that the application did not conform to the requirements of
the Zoning Resolution. Petitioner submitted a building registration summary report from HPD,
showing a notice of violation (NOV) issued on January 8, 1979, alleging that the premises
have been vacant since 10/04/77 and vacant and untenanted except for caretaker for 60 days
or more, and cannot be reoccupied until a new certificate of occupancy has been obtained (Pet.
Ex. 4). The summary report, under the heading status/status date, shows that as of June 3,
1981, the violation was not complied with (Pet. Ex. 4).
Although respondent testified that he was not aware of the HPD building information
summary until the Special Enforcement Team issued its objections (Tr. 1047, 1115), he
acknowledged that he then advised his client to retain an attorney and file for a variance with the
Bureau of Standard and Appeals (BSA) (Tr. 1052). BSA issued a decision on August 19,
2014, granting a variance to legalize the existing three-story, two-family building (Pet. Ex. 8).
BSAs decision also noted the following. According to the only existing certificate of occupancy
for the building, issued in 1939, the building was previously occupied by six families. Permits
were obtained to renovate the building and convert it to a two-family residence in January 2011.
However, in October 2011, the Department determined that the permits were issued in error
because the residential use became non-conforming as of December 15, 1961 (the date of the
Zoning Resolution), ceased in October 1977, and thus was not permitted to continue (Pet. Ex. 8).
The HPD summary report, as well as the BSA decision, establishes that although there
was a prior residential use, it became nonconforming as of December 1961 and ended in October
1977, when the property became vacant. Thus, residential use of the premises was not
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permissible absent the issuance of a new certificate of occupancy. Thus, the August 12, 2010
application which respondent filed (320200117), to convert the occupancy to a two-family
residence, was not in accordance with the Zoning Resolution.
Respondents defense is that he did not know of the HPD building information summary
when he filed the second application (Tr. 1047). He asserted that when he got the objections to
the first application (Pet. Ex. 3), he did all professional due diligence that couldve been done at
that time before filing the second, professionally certified application (Tr. 1117). According to
respondent, the HPD website was not functioning for many years, and he was unable to check
any of these things for a very long time (Tr. 1047). He couldnt get to the screens on the
HPD website. He asked the title company to do a search in preparation for the closing, but it did
not uncover any violation (Tr. 1113). Respondent explained that it can be difficult to find
records documenting prior use of a building, particularly Building Department records (Tr. 1029-
30).
Moreover, respondent testified that he checked the HPD website on the public access
system on the date of trial and it did not show the existence of any violation (Tr. 1047, 1048).
The information on the website showed that the unit had six class A units, thus showing a legal
six family (Tr. 1109). Respondent testified that it is absolutely a legal job to change a six-
family dwelling to a two-family dwelling in a manufacturing zone (Tr. 1108).
Information displayed on HPDs website in 2016 does not speak to the legal occupancy
of the building in 2010. The BSA decision, which granted a variance to legalize the building,
held that permits were issued in error, because the legal nonconforming use of the building had
been extinguished. The issue here is whether respondent had a good faith basis to believe in
2010 that the building complied with the Zoning Resolution.
Respondent did not provide any corroboration of his claim that he could not find the
NOV on the HPD website, and that the title company also did not find the violation. However,
Mr. Maffei credibly testified that it can be difficult to locate old Department records, particularly
in Brooklyn (Tr. 1240), and that he has had difficulty accessing I-cards on-line (Tr. 1241). In
one instance, according to Mr. Maffei, when he requested some documents through HPDs
online service, it took the agency close to a year to post the material (Tr. 1241).
But even if respondents testimony that he was unaware of the NOV when he filed the
second application is credited, he was aware of the objections issued by the plans examiner who
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reviewed the identical, first application. This is fatal to respondents defense that he did not
knowingly or negligently falsely state that he had used a professional standard of care in
certifying that the application conformed to all applicable laws.
Regardless of what respondent thought of the plan examiners competence, the objections
directed him to provide proof of an existing nonconforming residential use, as well as proof that
such use had not been discontinued for two or more years. Respondent did not submit such
proof. Nor did he seek review from the Borough Commissioner. Instead, respondent filed a new
application on which he professionally certified that the building was in accordance with all
applicable laws. I was not convinced that respondent acted in good faith when he made this
certification. Respondent did not testify that he believed the plans examiner was wrong, only
that the plans examiner was inexperienced and he was afraid of losing the building.
Moreover, the record does not support respondents assertion that he did all professional
due diligence before to filing a second application and certifying that it complied with existing
laws (Tr. 1117). Respondent testified that he does all the research that can possibly be done to
make sure that the jobs [he is] doing are accurate and correct . . . by the regulations and
procedures (Tr. 1086). He specified that to determine the existing legal use of a location, he
might also check his clients records, current and old tax records, and records such as old utility
bills and old phone books (Tr. 1022, 1032, 2045, 1035). Moreover, TPPN14/88 (Resp. Ex. I),
which was referenced on the objection sheet for the first application, provides a list of
acceptable documentation in support of proof of continual nonconforming use, including old
utility or phone bills, and affidavits to substantiate prior use. Respondent did not testify that he
tried to obtain any such documentation. Absent such evidence, respondent had no basis to
reasonably believe that residential use in the building would be legal.
Accordingly, I find that respondent knowingly made a false statement in certifying that
the August 12, 2010 application was in compliance with all applicable laws, as alleged in charge
1, specification 1.
Petitioner also alleges, in charge 2, specifications 1 and 2, that respondent was
negligent or incompetent or lacked knowledge of applicable rules because the July 13, 2010,
and August 12, 2010, applications violated ZR 52-61. Respondent argues that petitioner failed
to establish the standard of care to which petitioner should be held, and that, even if respondent
were to be held to a reasonable-man [sic] standard, petitioner failed to establish a prima facie
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case of negligence (Resp. Post-Trial Br. at 18-19). Respondent is mistaken. Both applications
failed to conform to the Zoning Resolution, as discussed above, because they proposed
residential use in a manufacturing district, and the prior non-conforming residential use had
ceased in October 1977. Respondents testimony that he was unaware of the NOV showing the
discontinuance of the prior nonconforming use was plausible. Mr. Maffei testified about his own
difficulties in accessing HPD records, and petitioner did not establish that the NOV was
available through the HPD website at the time respondent submitted his application. The fact
remains, however, that respondents application proposed continuing residential use in a
manufacturing zone. There is no evidence that the premises were occupied at the time
respondent filed his application, although they were configured as a 6-family dwelling unit.
Respondent did not testify that he knew when the building had been residentially occupied. On
this record, therefore, there is no evidence that respondent had a good faith basis to believe when
he filed the July 13 application that the proposed residential use of the building comported with
the Zoning Resolution. By filing this application, respondent did not exercise a professional
standard of care. See Dept of Buildings v. Ali, OATH Index No. 2751/15 at 13 (Mar. 16, 2016)
modified on penalty, Commr Dec. (Mar. 21, 2016) ([t]he appropriate measure for the
professional standard of care included in the certification of the applications is the competence
and accuracy that average engineers would exercise, including familiarity with the Zoning
Resolution . . .), quoting Dept of Buildings v. Fernando, OATH Index No. 2423/10 at 3 (Sept.
9, 2010), adopted, Commr Dec. (Sept. 14, 2010). His filing was negligent. Charge 2,
specification 1, is sustained.
Specification 2, which pertains to the August 12 application, is also sustained. Petitioner
alleges that respondent showed negligence, incompetence, or lack of knowledge of applicable
laws in filing this application, because it proposed work in violation of ZR 52-61. Respondent
filed the August 12 application after receiving objections for the first application relating to the
zoning issue. Respondent failed to do his due diligence to determine if there was an existing,
continuous nonconforming use. He instead filed an identical application to the first application,
seeking permission for the building to be occupied as a two-family residence even though this
violated the Zoning Resolution. Even if respondent was unaware of the NOV, his filing of the
August 13 application, particularly after receiving objections from the July 13 application, was
negligent.
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VI. 921 Fulton Street (charge 1, specifications 2-4, charge 2, specifications 4-5)
Charge 1, specifications 2-4, alleges that respondent knowingly or negligently made
materially false statements, in violation of Administrative Code sections 28-211.1 and 28-
211.1.2, on alt 2 applications filed on May 28, 2014, under job number 321006727 (specification
2), and December 3, 2014, under job number 321033387 (specifications 3-4). Petitioner
contends that respondent falsely stated in both applications that there was no change in use,
occupancy, or egress, which was contrary to the approved plans (specifications 2, 3, and 4).
Specifications 2 and 3 allege that the May 28 and December 3 applications show a change in use
and occupancy from residential storage to commercial use at the cellar level, and specification 4
alleges that the approved plans for the December 3 application show a major alteration to the
existing exit.
Charge 2, specifications 4 and 5, alleges that respondent displayed incompetence or
negligence, or lack of knowledge of pertinent laws or regulations, because the December 3, 2014
application and accompanying plans proposed work in violation of Administrative Code 28-
101.4.3 (specification 4) and Multiple Dwelling Law 242 (specification 5).
Respondent filed both applications as alt 2s, requesting standard plan review and
Directive 14 acceptance (Pet. Exs. 9, 15, boxes 4, 5, 5a). The applications were initially
approved by a plans examiner (Pet. Ex. 10). The first application (321006727) showed the scope
of work as renovate eating and drinking place (U.G.6). No change to egress, use or
occupancy) (Pet. Ex. 9, box 11). Respondent certified, as required for Directive 14
applications, that the construction documents submitted and all construction documents relating
to this application do not require a new or amended Certificate of Occupancy as there is no
change in use, exits, or occupancy (Pet. Ex. 9, at 25). Plans that were filed with the first
application (Pet. Ex. 12) show only the first floor, not the cellar level. They contain a notation
for the first floor, Eating & Drinking Place (U.G.6) 50 Persons and they also show a staircase
leading downstairs.
In auditing the first application and plans, Ms. Murillo concluded, based upon the stairs
to the cellar, that the plans showed the commercial use on the first floor extending to the cellar
(Tr. 349). She testified that the building does not have a certificate of occupancy (Tr. 401).
Thus, she relied upon an I-card for the premises, dated December 1, 1916 (Pet. Ex. 11, page 2),
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which indicated that the nature of business in the cellar was No business. Storage only. The
I-card also showed that the first floor was used as a Painting & Decorating store. Remainder
used as a kitchen (Pet. Ex. 11, p. 2). Based upon the staircase to the cellar, which Ms. Murillo
characterized as an open stair, she concluded that the application would extend the legal
commercial use from the first floor to the cellar, where commercial use was not permitted. The
result would be a change in legal occupancy, contrary to respondents representation on the
application (Tr. 348, 349).
At Ms. Murillos request, a Department inspector visited the premises and photographed
the cellar area on July 16, 2014, about six weeks after respondent had filed application
321006727 (Pet. Ex. 13: Tr. 349). The photographs show stairs leading down to the cellar. In
the cellar they show a food preparation area, with a microwave on a shelving compartment and
sterno units on the bottom, as well as some other type of stainless steel or metal cabinet. Another
photograph depicts couches in a separate area from the shelving unit (Pet. Ex. 13). The inspector
issued a violation to the owner of the building for work without a permit in the cellar, indicating
that the work included a cellar seating area and a food preparation and serving area, that the
certificate of occupancy for the premises6 states that the cellar is to be used for ordinary use, and
that the observed work in the cellar requires an alt 1 permit (Pet. Ex. 14). The NOV set a hearing
date of September 15, 2014, at which the building owner defaulted and a penalty was imposed
(Pet. Ex. 14). Respondent testified that the building owner was not his client; rather, his client
was the first floor commercial tenant (Tr. 1135).
Respondent acknowledged that the stairs depicted in the plans were in place when he
filed the applications (Tr. 1058). He asserted, however, that although he had visited the site
when he filed application 321006727, the stairs had been boarded up so he did not go to the
cellar. He testified that there was a new tenant moving in so his access was limited to the first
floor space (Tr. 1127). He had told his client, who wanted to store kegs and liquor in the cellar,
that he could use the cellar only for storage (Tr. 1127).

6
The trial record was reopened for briefing on whether the building in fact had a certificate of occupancy. Both
petitioner and respondent asserted that the NOV was incorrect in referring to a certificate of occupancy (number
189505), because that certificate of occupancy was for premises at 929-931 Fulton Street. Respondent submitted a
copy of a page from the Departments BIS system for 921 Fulton, stating that there are no certificates of occupancy
on file for the premises. Petitioner submitted a copy of the BIS listing for 921 Fulton, stating that there was no
certificate of occupancy for the premises. Copies of the parties submissions on this issue are incorporated into the
record as ALJ Exhibits 3a (petitioners submission) and 3b (respondents submission).
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Respondent also admitted being aware of the issuance of the NOV before he filed the
second application in December, 2014 (Tr. 1133). He testified that he went to visit the premises
after the NOV was issued and saw that the area was being used as a stripper room (Tr. 1139).
He told his client that he could not use the room for that purpose and that the room which his
client had in the cellar was not able to be legalized (Tr. 1150).
On December 3, 2014, respondent submitted application 321033387, which showed the
scope of work to renovate eating and drinking place (U.G. 6) renovate apartment at 2 floor. No
change to egress, use or occupancy (Pet. Exs 10, 15, box 11). The location information
showed that there would be work on floors 001 to 002, CEL (Pet. Ex. 15, box 1). Respondent
testified that he filed this application to answer the violation and also to show that the owner had
installed a new storefront (Tr. 1137). He left blank the box on the application in which to note
any violations (Pet. Ex. 15, box 9h), and he indicated that he was not requesting legalization of
work where no work without a permit violations had been issued (Pet. Ex. 15, box 9b). As he
had on the prior application, respondent certified that the construction documents submitted and
all construction documents related to the application do not require a new or amended
Certificate of Occupancy as there is no change in use, exits, or occupancy (Pet. Ex. 15, box 25).
The plans which respondent filed in connection with the December 3 application, like the
plans which he filed for the first application, do not include plans for the cellar, other than a
small plan for the boiler room (Pet. Ex. 16). These plans also show a staircase on the first floor
leading to the cellar (Pet. Ex. 16), with a notation for the first floor, Eating & Drinking Place
(U.G.6) (50 Persons) (Pet. Ex. 16). The plans were drawn on April 17, 2014, before the
issuance of the NOV (Pet. Ex. 16).
Petitioner failed to satisfy its burden of proof as to charge 1, specification 2, which
alleges that respondent knowingly or negligently made a material false statement by falsely
stating in the May 28, 2014 application that there was no change in use, occupancy, or egress.
Petitioner contends that respondents statement is false because the approved plans show a
change in use and occupancy from the residential storage to commercial use at the cellar level.
Petitioner did not establish that the prior, legal use of the cellar was limited to residential
storage. Petitioner relied on the I-card from 1916 (Pet. Ex. 11). Reference to the I-card was
appropriate as petitioner established that there was no certificate of occupancy for the premises.
However, respondents contention that the I-card establishes only the observed use, not the legal
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use (Resp. Post-Tr. Br. at 55-56), was unavailing in light of the First Departments recent
decision in 345 West 70th Tenants Corp. v. NYC Environmental Control Bd. 143 A.D.3d 654 (lst
Dept 2016). There, the Court held that where a building lacks a certificate of occupancy, the
latest I-card completed before January 1, 1938, when certificates of occupancy began to be
required, establishes the legal use of a premises, absent evidence of any subsequent, authorized
change to the legal use. Id.
However, reliance upon the I-card does not establish that the legal use of the cellar was
limited to residential storage. The I-card states that the use of the cellar is No business. Storage
only. This language is ambiguous as to whether storage could relate to the business use on the
first floor, or whether it was limited to residential storage. Moreover, Mr. Maffei and Mr.
Wapniak both testified that storage is generally an accessory use (Maffei: Tr. 1256; Wapniak: Tr.
158). Mr. Maffei testified that a cellar is typically an accessory use to a first floor occupancy,
which can mean storage (Tr. 1256). Mr. Wapniak, similarly, testified that in a mixed use
multiple dwelling, storage in the cellar would usually be accessory storage to whatever use it
was connected to (Tr. 158). As the legal use of the first floor is commercial, this suggests that
the legal use of the cellar was storage, accessory to the commercial use on the first floor.
Additionally, although petitioner contends that the approved plans show a change in
occupancy, respondent did not submit plans for the cellar. Petitioner instead relies upon
respondents plans, which show an open staircase from the first floor to the cellar, along with
Ms. Murillos testimony that the stairs show an extension of the commercial use on the first floor
to the cellar. However, petitioner did not provide any case law or citation to statute or rule to
support its claim that the plan drawing itself establishes a change in occupancy in the cellar.
I am not persuaded by respondents argument that Ms. Murillos testimony should be
disregarded because she was not qualified as an expert (Resp. Br. at 13-14). Ms. Murillo has
worked with the Department for almost 17 years: 8 years as a plans examiner, and the remaining
time as a zoning consultant and enforcement audit specialist with the Special Enforcement (Tr.
241-42, 666, 667, 681, 786). She testified that she audits applications for compliance with the
Building Code, the Multiple Dwelling Law, the Zoning Resolution, and other applicable laws,
and that she did the same type of work as a zoning consultant that she now does as an
enforcement audit specialist (Tr. 669-670, 681). It is true that she is not a professional architect
or engineer. See Dept of Buildings v. Velasquez, OATH Index No. 1557/10 at 5 (Nov. 24,
- 20 -

2010), modified on penalty, Commr Dec. (Dec. 2, 2010) (rejecting challenge to testimony of
professional architect, not formally qualified as an expert, that respondent in that matter failed to
demonstrate professional standard of care). However, Ms. Murillos experience as a plans
examiner and auditor provides her with some basis to offer an opinion concerning the plans
which she audited and whether they comply with applicable laws. See 48 RCNY 1-46
(compliance with strict rules of evidence not required at OATH administrative trials); see also
People v. Norman, 6 Misc. 3d 317, 333 (Sup. Ct. Kings Co. 2004) (absent formal qualification of
a witness as an expert, such testimony is permissible as long as the witnesss expertise is
adequately demonstrated).
At the same time, Ms. Murillos testimony should not automatically be given conclusive
weight. The stairs appear to provide open access from the first floor, which was to be used as a
restaurant/bar, to the cellar. But, without more, there is an insufficient basis to conclude that the
plans show commercial use of the cellar, as opposed to commercial storage, which petitioner has
not established is impermissible.
Petitioner also contends that the inspection report and related Notice of Violation provide
circumstantial evidence of the use of the cellar at the time that respondent filed the first
application (321006727). However, the inspection report and related Notice of Violation were
issued six weeks after the filing of the application. The gap in time does not permit an inference
that the cellar was used for commercial use when the application was filed.
Further, petitioner asserts that it is highly unlikely that an area used solely for storage
would be accessible to the public (Pet. Post-Tr. Br. at 11) and that, as a licensed professional,
respondent should have conducted a further inquiry before filing an application showing no
change in use, occupancy, or egress. But this specification does not allege negligence or
incompetence. Rather, it charges respondent with making a false statement in this application by
certifying that there was no change in use, occupancy, or egress, where the plans showed
otherwise. Petitioner failed to establish that the plans showed a change in use, occupancy, or
egress. Hence, charge 1, specification 2, was not proven and should be dismissed.
Petitioner has also failed to meet its burden of proof on charge 1, specification 3.
Specification 3, which relates to the December 3, 2014 application, alleges that respondent
falsely stated on the application that there was no change in use, occupancy, or egress, which
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was false because the approved plans show a change in use and occupancy from residential
storage to commercial use at the cellar level.
The problem with petitioners case is that the approved plans for this application do not
include plans for the cellar level, except for showing a boiler room. Moreover, Ms. Murillos
testimony that the approved plans show a change in occupancy in the cellar by virtue of the open
staircase leading from the first floor to the cellar is insufficient by itself to support this claim.
Nonetheless, petitioner has emphasized that respondent submitted the second application
on December 3, 2014, after becoming aware of the NOV issued to the owner, and was thus
aware in the change in use and occupancy in the cellar (Pet. Post-Tr. Brief at 11). Respondent
acknowledged knowing of the NOV before he filed the second application. The NOV indicated
that the use observed in the cellar required an alt 1 permit (Pet. Ex. 14). Instead, respondent filed
the December 3 alt 2 application.
There is some merit to petitioners claim. Respondent gave confusing and inconsistent
testimony about why he filed the December 3 application, to renovate both the eating and
drinking place, and the second floor apartment. Initially, respondent asserted that he did not file
this application to legalize the work that the owner had done. Rather, because he had concluded
that the work in the cellar could not be legalized (Tr. 1150, 1151), he filed a new job to answer
the audit (Tr. 1147), so the owner could undo the condition or remove the illegal stuff in
the cellar (Tr. 1151). He also explained that he needed to be able to clear the violation and to
open up the job, to add a work type (for a construction fence), and that the only procedural
way to do that was to file a new application (Tr. 1147). On cross-examination, however,
respondent acknowledged that to lift the violation, the owner would need to legalize or remove
the condition (Tr. 1138). Further, he testified that the scope of work of the December 3
application was to renovate the building as required by the violation (Tr. 1138). But the
violation required the filing of an alt 1, not an alt 2, application.
Petitioner contends that, having been aware of the NOV, respondent should have filed an
alt 1 application to establish the new use (Pet. Reply Mem. at 13). Ultimately, however,
petitioners argument falls short. Respondent is not charged with negligence or incompetence in
filing an alt 1 application rather than an alt 2 application. Nor is respondent charged with failing
to submit accurate or complete plans. Rather, he is charged with knowingly or negligently
making a false statement by indicating that the proposed work would not change use, occupancy,
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or egress, where the approved plans show a change in use and occupancy from residential
storage to commercial use at the cellar level. Because the approved plans do not show how the
cellar was used, petitioner has failed to establish that respondent made a statement on the
application contrary to the approved plans. Hence, this specification is not sustained.
Charge 1, specification 4, is also not sustained. This specification alleges that respondent
made a material false statement in certifying on the December 3, 2014 application that there
would be no change in egress, where the approved plans show a major alteration to the existing
exit. Ms. Murillo testified that the plans which were submitted with the application show the
stairs from the second floor to the first floor going in a straight and continuous direction
without any landing in between them (Tr. 401). She believed that this was contrary to a diagram
on the I-card (but not on the use card itself), dated February 4, 2003, which she believed showed
a scissor stair with a landing (Tr. 399, 401, Pet. Ex. 11 at p. 1). She testified that a major
alteration is any change to the main exit (Tr. 905). However, it is not clear what the drawing
on the I-card represents. There is handwriting above and to the left of the drawing that reads, 2
story frame and Brick (above the drawing) and 3rd story (to the left of the drawing).
Respondent testified that the drawing appeared to indicate the third story, which was not a part of
his application (Tr. 1060). He also testified that the approved plans (Pet. Ex. 16) show a
convenience stair, leading to the cellar, enclosed at the cellar level for staircase, which he
described as like an accessory stair, and not a legal egress stair, so it did not have to follow
the same rules as an exit stair (Tr. 1048). This record is murky. Petitioner has failed to meet
its burden of establishing that respondent knowingly or negligently made a material false
statement by certifying that there would be no change in use, occupancy, or egress, as alleged in
charge 1, specification 4.
Charge 2, specification 4, alleges that respondent was negligent or incompetent, or
displayed a lack of knowledge of pertinent laws, in filing the December 3, 2014, application
because the application showed a public assembly space between the first and cellar floors, in
violation of Administrative Code 28-101.4.3, which prohibits public assembly spaces in a
frame building.
Ms. Murillos testimony constituted petitioners only evidence on this claim. She
asserted that the first and cellar floors, together, would provide space for over 100 people, which
would constitute a public assembly space (Tr. 406, 415, 418, 747). Further, she testified that
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public assembly spaces are not permitted in frame buildings, noting that the I-card for the
premises characterizes the building as a 2 story frame and brick (Pet. Ex. 11, p. 1).
Petitioner did not point to any legal authority which supported Ms. Murillos testimony.
Administrative Code 28-101.4.3 does not address whether public assemblies are permitted in a
frame building. This section of the Code is titled, Optional Use of the 1968 building code for
work on prior code buildings. It provides that, At the option of the owner, work on prior code
buildings may be performed in accordance with the requirements of and standards set forth in the
1968 building code. It then sets out 19 exceptions where this option is not available.
Moreover, respondent introduced a portion of the 1938 Building Code, defining place of
assembly, as a space that is occupied by 75 or more people, but making no mention of
applicability to frame buildings (Resp. Ex. N).
Thus, petitioner failed to prove that the December 3, 2014 application called for work in
violation of this section of the Administrative Code. Accordingly, charge 2, specification 4, is
not sustained.
Charge 2, specification 5, alleges that respondent was negligent or incompetent, or
displayed a lack of knowledge of pertinent laws, in filing the December 3, 2014 application
because the application proposed work in violation of Multiple Dwelling Law (MDL) 242.
Petitioner contends that the application shows a proposed open stair in an existing old law
tenement, which connects the first floor commercial space to the cellar level, and which is not
enclosed in a fireproof enclosure. MDL 242 provides that in old-law tenements which exceed a
basement and three other stories in height, the opening to an inside cellar stair if located
underneath the main stair leading to the upper stories shall be enclosed from the level of the
entrance story up to the underside of the first flight of such main stairs. The soffit of such first
flight of main stairs and the partitions forming such enclosure shall be fire-retarded or covered
with twenty-six gauge metal. The opening to such enclosure shall be provided with a fireproof
door and assembly with the door self-closing.
Ms. Murillo testified that the building is an old law tenement, although in doing so she
referred to a HPD document which was not in evidence (Tr. 413). Further, on his application
respondent characterized the buildings multiple dwelling classification as OL (Pet. Ex. 15,
box 13c), which Ms. Murillo testified referred to old law. When asked if the plans submitted by
respondent (Pet. Ex. 16) complied with the requirement that stairs be enclosed in a fireproof
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enclosure, testified, No, theyre not (Tr. 412). She did not elaborate and no further questions
were asked. This is insufficient to satisfy petitioners burden of proof. Accordingly, charge 2,
specification 5, is not sustained.

VII. 384 Sackett Street (charge 1, specifications 5-6)


Charge 1, specifications 5-6, allege that respondent knowingly or negligently made
materially false statements, in violation of Administrative Code sections 28-211.1 and 28-
211.1.2, on alteration applications filed on February 20, 2014, under job number 320962963
(specification 5), and March 31, 2014, under job number 320942165 (specification 6). Petitioner
contends that in the February 20 application, which was an alt 2 application filed under Directive
14, respondent falsely stated that there was no change in use, occupancy or egress. Petitioner
alleges that this representation was contrary to the approved plans, which show a change in
occupancy at the basement level by converting a half dwelling unit into a full dwelling unit
(specification 5). Further, petitioner contends that in the March 31 application, which was an alt
1 application, respondent submitted a set of plans that showed existing conditions different than
the existing conditions shown in the plan for the February 20 application. Thus, petitioner
asserts, one or both of the submitted plans falsely represent the existing conditions.
(specification 6).
Respondent filed the February 20 application with the scope of work as renovate
existing residential building. No change to use, egress or occupancy (Pet. Ex. 17b at box 11).
The work location was BSM or basement (Pet. Ex. 17b at box 1). In seeking Directive 14
review, respondent certified that the construction documents submitted and all construction
documents related to this application do not require a new or amended Certificate of Occupancy
as there is no change in use, exits, or occupancy (Pet. Ex. 17 at box 25). The application was
approved on February 28, 2014 and a permit issued for the entire job/work on July 21, 2014
(Pet. Ex. 17). Plans were submitted along with the application (Pet. Ex. 19). According to Ms.
Murillo, the plans for the basement show a self-closing door, represented by a diagonal in the
middle of the staircase (Tr. 443; Pet. Ex. 19). The plans also show the initials, S.C. to the left
of the stairs, which Ms. Murillo testified means self-closing (Tr. 445). The plans contain, on
top, the following heading, Scope of Work: Renovate Partitions in Existing Apartment, and
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they show existing partitions as well as partitions to be removed from the front portion of the
basement.
Ms. Murillo, who audited this application and found that it failed the audit, testified that
the building does not have a certificate of occupancy. The I-card for the building, dating to 1917
(Pet. Ex. 18), contains a typewritten list of the various stories, with what appears to be a hand-
drawn bracket linking the words basement and lst story. According to Ms. Murillo, this
hand-drawn bracket establishes that the basement and first floor were used as one duplex unit
(Tr. 440). On the I-card, the word, None is written next to the bracket, under a column
indicating, Part used for business. The description of the nature of business for the
bracketed basement and 1st Story is handwritten as No business, living only (Pet. Ex. 18).
According to Ms. Murillo, the plans show a proposed occupancy that differs from the I-
card. The I-card shows the legal use as a duplex between the basement and first floor. However,
the introduction of the self-closing door within the stair enclosure indicates the creation of a
single room occupancy at the basement level (Tr. 445). Thus, the self-closing door divides the
basement into two portions. The front portion of the basement, containing a bedroom, remains
part of the duplex with the first floor. The rear portion of the basement, containing an existing
kitchen and existing bathroom, becomes its own single room occupancy dwelling (Tr. 447, 449).
Ms. Murillo testified that there would be no way of getting from the bedroom to the kitchen
without going through the self-closing door (Tr. 444).
On March 31, 2014, about five weeks after filing the first application, respondent filed
application 320942165 (Pet. Ex. 20), showing work to be done on floors one through three, the
cellar, and the basement (Pet. Ex. 20, box 1) and the job description as, Occupy building as a
one family residence (Pet. Ex. 20, box 11). The application, an alt 1, sought standard plan
review and specified that there would be a change in the number of dwelling units (Pet. Ex. 20,
boxes 4, 5).
According to Ms. Murillo (Tr. 456), the plans that were submitted for the March 31
application (Pet. Ex. 21) show existing conditions that are different from the existing conditions
shown in the plans accompanying the initial application (Pet. Ex. 19). She testified that the
kitchen and bathrooms are shown as existing conditions on the March 31 plans, even though they
were not shown as existing conditions on the plans filed five weeks earlier (Tr. 456). Ms.
Murillo also testified that the existing stairs are shown in two different locations on the two sets
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of plans: on the earlier plans (Pet. Ex. 19), the stairs are shown as abutting the shared party wall
between the buildings, where on the newer plans (Pet. Ex. 21), the stairs are away from the party
wall (Tr. 457). The stairways are the main exits (Tr. 456). According to Ms. Murillo, moving
the stairway would require structural work, such as cutting and reinforcing of the joists, which is
not shown on the plans (Tr. 457).
Respondent testified that he chose to file an alt 2 application first for this job, in order to
obtain a permit to remove some partitions and do some minor renovation, and to then file an alt 1
application to change the use of the premises (Tr. 1060). He acknowledged that the location of
the stairs in the two sets of plans was different, but that the location shown in the first set of
plans (Pet. Ex. 19) was simply a draftsman error (Tr. 102). The error was corrected when the
second application and set of plans was filed, showing the proposed occupancy conversion (Tr.
1062, 1063). Respondent further contended that the I-card package, including a drawing from
1902 (Pet. Ex. 18, at 3) as well as the diagram showing the bracket between the first floor and
basement (Pet. Ex. 18 at 4) was not determinative of legal status (Tr. 1064, 1065).
The I-card from 1917 is controlling as to legal occupancy as there is no evidence of any
subsequent, authorized change to legal use. 345 West 70th Tenants Corp., 143 A.D.3d 654. The
I-card shows the legal occupancy of the basement as part of a duplex with the first floor.
Respondents plans show a self-closing door within the stair enclosure. Ms. Murillos testimony,
together with the plans, establishes that the self-closing door divides the basement, creating a
single room occupancy with its own kitchen in the back of the basement. Thus, the plans show a
change in occupancy of the basement.
However, petitioner failed to establish that respondent knowingly made a material false
statement in the application by asserting that there was no change to use or occupancy.
Respondent testified that he did not intend to alter the use, occupancy, or egress of this building
through the submission of the February 20 application, an alt 2, but only to do preliminary work
to remove partitions before filing an alt 1 to change the use of the premises. Both of petitioners
witnesses confirmed that it is permissible to file an alt 2 to do interior work, including work on
interior partitions, so long as that work does not change the occupancy, and to subsequently file
an alt 1 to change the use or occupancy (Murillo: Tr. 917, 918, 955; Wapniak: Tr. 165, 166).
Respondents testimony that he did not intend to change the use or occupancy on the
February 20 application is supported by the heading on the plans for this application, which
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reads, Scope of Work: Renovate Partitions in Existing Apartment. Respondents testimony is


further corroborated by his filing of an alt 1 about five weeks later, to [o]ccupy [the] building as
a one family residence and change the number of dwelling units (Pet. Ex. 20, boxes 4, 5, 11).
The plans for the alt 1 application do not appear to include a self-closing door within the
stairwell from the basement to the first floor, which would suggest that the inclusion of the self-
closing door on the earlier plans was not intentional.
Although petitioner failed to prove that respondent knowingly made a false statement on
the February 20, 2014 application, petitioner established that respondent negligently made a false
statement by certifying on the February 20 application that there was no change in use,
occupancy, or egress.
The parties disputed the proof required to establish the liability under section 28.211.1 of
the Administrative Code for negligently making a false statement. Respondent urges that intent
to deceive, and knowledge that the statement is false, is required under the statute (Resp. Br. at
15-16). I disagree. This is not a criminal case, in which intent to deceive and and knowledge of
falsity is required. See, e.g., Penal Law 210.45 (A person is guilty of making a punishable
false written statement when he knowingly makes a false statement); Penal Law 210.00(5)
(A person swears falsely when he intentionally makes a false statement which he does not
believe to be true). Rather, to prove that respondent negligently made a false statement,
petitioner must show either that he knew the statement was false or that he should have known
the statement was false. Respondent acknowledges as much in his brief while also asserting that
the should have known standard is essentially meaningless (Resp. Br. at 17).
Respondents assertion at to meaninglessness is not supported. The First Department
has affirmed an administrative decision holding that a licensed engineer negligently submitted
doctored photographs to the Department in connection with two separate plans submitted for a
property. See Dept of Buildings v. Fekete, OATH Index No. 1118/07 & 1119/07 (Oct. 26,
2007), modified on penalty, Commr Dec. (Jan 14, 2008), modified sub nom. St. Clair Nation v.
City of New York, 60 A.D.3d 468 (1st Dept 2009), revd, 14 N.Y.3d 452 (2010). In that case,
even though there was no proof that the engineer took the photographs or visited the site, Judge
Kara Miller found that the photographs were so obviously suspicious that the engineer should
have been alerted to the need to visit the site to verify their accuracy, and concluded that he
failed to exercise the degree of care that a licensed professional of ordinary prudence would
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have exercised under the same circumstance. Fekete, OATH 1118/07 & 1119/07 at 12. The
Commissioner adopted Judge Millers findings, but increased her recommended penalty. The
First Department affirmed the Commissioners Determination, reversing only as to penalty, and
the Court of Appeals reversed the First Department as to penalty only. Thus, Judge Millers
original reasoning as to the negligent false filing stands.
Fekete did not involve Administrative Code 28-211.1. Rather, the charges in that case
were brought under section 21-02(a)(3) of Title 1 of the Rules of the City of New York.
However, the cases are analogous as that rule prohibits knowingly or negligently making false
statements, as does Administrative Code 28-211.1. Here, respondent certified that the
construction documents submitted did not require a new or amended Certificate of Occupancy
because there was no change in use or occupancy, or egress. The documents submitted included
the plans showing a self-closing door, demonstrating a change in use. Had respondent even
taken a cursory look at the plans, as a licensed professional of ordinary prudence, would have
been expected to do, Fekete, OATH 1118/07 & 1119/07, he would have been alerted to the self-
closing door and its effect upon the occupancy of the basement. As a licensed professional,
respondent cannot escape liability by placing blame on the draftsman. He was required to review
the plans for accuracy, as he acknowledged was his practice (Tr. 995). Respondent therefore
should have known that his certification that the application would not change use or occupancy
was inaccurate. See Velasquez, OATH 1557/10 at 11 (In sum, respondent knew, or should have
known, that his professional certifications were inaccurate.).
Accordingly, charge 1, specification 5, alleging that respondent made a material false
statement in the February 20, 2014, application, by certifying that there was no change to use,
egress, or occupancy, which was contrary to representations on the approved plans, is sustained,
insofar as petitioner established that respondent negligently made a material false statement.
Petitioner did not prove that respondent knowingly made a material false statement.
Charge 1, specification 6 alleges that respondent made a materially false statement in
one or both of the submitted plans, because the plans show different existing conditions that
could not have both been present within a one-month time period. Respondent contends that the
pleading is facially insufficient because it does not specify which plan falsely represents the
existing conditions. I disagree. Pleadings in administrative proceedings serve a notice-giving
function, and a petition is sufficient if it provides notice of the matters to be adjudicated.
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Specification 6 provided such notice, and thus respondent cannot be heard to assert that the
pleading must be dismissed as facially defective.
Ms. Murillo testified that the plans showed different conditions as to the kitchen and the
bathrooms. Yet both plans show an existing bathroom and kitchen to the rear of the basement
(Pet. Exs. 19, 21). The newer plans (Pet. Ex. 21) show a new pantry, closer to the front of the
basement, but this appears to denote proposed work, rather than an existing condition. It is true
that the newer plans also show an existing bathroom, to the front of the new pantry (Pet. Ex. 21),
that does not appear to exist on the older plans (Pet. Ex. 19). Respondents counsel, however,
asserted that standard practice in plan submission is to show only the conditions to be covered
by the application, which in this case was limited in scope to work on partitions in the basement
(Tr. 460). Although Ms. Murillo insisted that respondents counsel was incorrect (Tr. 461), she
did not explain the basis for her conclusion (Tr. 461). Petitioner did not present evidence as to
what type of information needs to be depicted on plans for an alt 2 application. Thus, petitioner
failed to meet its burden of establishing, as alleged, that respondent knowingly or negligently
made false statements on one or both plans by showing different existing conditions for the
bathrooms and kitchens.
Respondent acknowledged, however, that the stairs on the first set of plans (Pet. Ex. 19)
were in the wrong location and described this as a draftsman error, which was corrected when
he filed the second application and set of plans. There is no reason to doubt respondents
testimony. Thus, petitioner failed to establish that respondent, as alleged, knowingly made a
material false statement on the plan documents, which were submitted along with the February
20, 2014, application. (Pet. Ex. 17b). Petitioner established, however, that respondent
negligently made a false statement or allowed a false statement to be made on the plan
documents. Although certain errors are minor and would not rise to the level of negligence, see
Velazquez, OATH 1557/10 at 9 (Isolated, minor typographical errors are understandable), here
respondent submitted plans which showed the stairwell from the basement to the first floor
abutting a party wall where in fact they were situated away from the party wall. The incorrect
placement of the stairs was a significant, not a minor error, such that respondent, as a licensed
professional or ordinary prudence, Fekete, OATH 1118/07 & 1119/07 at 12, should have
noticed the error. Indeed, respondent acknowledged that he supervises the execution of the plans
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and reviews the plans before they are submitted to make sure they accurately reflect conditions
on the site (Tr. 995).
Hence, I find that respondent negligently made a false statement, within the meaning of
section 28-11.1 of the Administrative Code, when submitting plans with the February 20, 2014,
application showing the stairwell in the wrong location. I also find, however, that respondent
substantially mitigated his negligence by filing plans five weeks later which showed the stairwell
in the right place.

VIII. 178 5th Avenue (charge 1, specifications 7 and 8; charge 2, specification 6)


Charge 1, specifications 7-8, alleges that respondent knowingly or negligently made
materially false statements, in violation of Administrative Code sections 28-211.1 and 28-
211.1.2, on an alt 2 application filed with the Department on April 29, 2014, under job number
320996678, pursuant to the Departments Directive 14 acceptance procedures. Specification 7
alleges that respondent falsely stated in the application there was no change in use or occupancy,
contrary to the approved plans, which show a new cellar story being created contrary to the
certificate of occupancy. Specification 8 alleges that respondent falsely stated in the application
that there was no change in egress, contrary to the approved plans, which indicate a major
change in egress from the newly created cellar level. Charge 2, specification 6, alleges that
respondent displayed incompetence or negligence, or lack of knowledge of pertinent laws or
regulations, in that the April 29, 2014, application violates section 26-291 of the Administrative
Code, because the approved plans show that the vertical exits do not extend in a continuous
enclosure to the street level or discharge into an exit passageway.
Respondent filed application 320996678, an alt 2, for this property on April 29, 2014,
seeking Directive 14 acceptance (Pet. Ex. 22, boxes 5, 5a, Pet. Exs. 23a, 23b). The work
described is lower ex. Cellar floor. No change to egress, use of occupancy (Pet. Ex. 22, box
11). Respondent certified that the construction documents submitted and all construction
documents related to this application do not require a new or amended Certificate of Occupancy
as there is no change in use, exits, or occupancy (Pet. Ex. 22, box 25).
The plans which respondent filed with the April 29 application, and which were found
acceptable for permit under Directive 14 on May 13, 2014, show an existing cellar, by virtue of
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solid lines denoting existing partitions, as well as an existing boiler room and bathroom (Pet. Ex.
26: Murillo: Tr. 485). The plans also show proposed work to lower the cellar floor (Pet. Ex. 26).
Respondent acknowledged that when he filed application 320996678, the last known
certificate of occupancy for the premises indicated that the premises was a one-story building, on
the ground floor (Pet. Ex. 24; Tr. 1189). The certificate of occupancy (Pet. Ex. 24) made no
mention of a cellar story. However, respondent asserted that the certificate of occupancy was
wrong, in that the building had a space dug under the first floor that was five to six feet high (Tr.
1169, 1182). He concluded that the space, physically, was borderline between a cellar and a
crawl space (Tr. 1184). But respondent also acknowledged that although some people might
say its a crawl space . . .its really a cellar (Tr. 1170). He candidly acknowledged that the
space should have been included on the certificate of occupancy (Tr. 1184). Moreover, he
admitted that lowering the cellar floor, as his client sought to do, required changing the
certificate of occupancy to show the cellar (Tr. 1186). He contended that when he filed the alt 2,
he had already filed an alt 1, which was pending, to change the certificate of occupancy (Tr.
1188).
The Departments job overview for 178 5th Avenue (Pet. Ex. 23) corroborates
respondents testimony that he filed an alt 1 to do work on 178 5th Avenue on March 14, 2014,
about six weeks before he filed the alt 2 in question. The alt 1 application is shown on the job
overview as an application to erect 3 story vertical enlargement and occupy building as store
and 3 fami (Pet. Ex. 23). Although the description of the work did not mention the cellar, the
job overview stated that the application showed work from the cellar through the fourth floor
(Pet. Ex. 23). Respondent testified that the alt 1 was filed for two purposes to put the cellar on
the certificate of occupancy and to put floors on top of the building (Tr. 1069). He indicated that
the plans were examined and they were close to getting approval when his client decided not to
proceed with the work and hired a separate contractor to lower the cellar floor rather than work
on the upstairs floor (Tr. 1067, 1068). This led respondent to file the alt 2 application. The
Departments job overview showed the job status as of March 17, 2014 was H P/E in process,
meaning that the plans examination was in process (Pet. Ex. 23). Respondent acknowledged,
however, that the job was placed in incomplete status as there was paperwork to fix (Tr.
1175). Thus, at the time respondent filed the alt 2 application, the alt 1 application was pending,
albeit in incomplete status. Respondent testified that he did not list the alt 1 application as a
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related DOB Job number on application 320996678, because that is for related job numbers
when you file something conjunctively, and is not required where there is a previously filed alt
1 application (Tr. 1177).
Petitioner contends that respondent knowingly or negligently made a false statement
when he certified on the April 29, 2014, application that there was no change in use, exits, or
occupancy, because he filed plans showing a new cellar floor is being created contrary to the
certificate of occupancy. The plans (Pet. Ex. 26), however, show pre-existing conditions,
including an existing cellar floor, with partitions, a boiler room, and bathroom, along with
proposed work to lower the existing cellar floor. Thus, it is not fair to characterize the plans as
representing that respondent was adding an entirely new cellar floor.
Moreover, I was not persuaded by petitioners argument that respondent should be found
incredible in asserting that there was already a cellar, or crawl space, or something in between,
because he did not include the cellar in plans for another alt 1 application which he filed in 2009
(Pet. Post-Tr. Br. at 17). According to the Departments job overview (Pet. Ex. 25), respondent
filed an alt 1 application in 2009 for Temporary wood construction Fence filed in conjunction
with Alt II, and for Work on Floor(s): 001 (Pet. Ex. 23). The plans which respondent
submitted along with the application (Pet. Ex. 25) were for the first floor only (Pet. Ex. 25).
However, this is consistent with the 2009 application, the scope of work for which was for the
first floor only.
Petitioners better argument is that by including cellar drawings on the plans submitted
with the April 29 application, respondent changed the occupancy of the building because the
certificate of occupancy showed only a first floor, and that he therefore falsely certified that there
was no change in use or occupancy. Respondent conceded he would need to change the
certificate of occupancy in order to lower the cellar floor. He contended that he had already
attempted to change the certificate of occupancy by filing an alt 1 application on March 14,
2014, about six weeks before. The March 14, 2014 alt 1 application and plans are not in
evidence, so it is unclear whether they would support respondents testimony that the alt 1 had
been filed partly to correct the certificate of occupancy to show the existing cellar space.
Ultimately, this does not matter. Respondent acknowledged that the alt 1 application was in
incomplete status because of paperwork issues. He did not contend that he worked on resolving
those issues. It appears that the alt 1 application was essentially left in limbo status, while
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respondent filed an alt 2 application to lower the cellar floor. Nor did respondent make any
representation on the alt 2 application that he had filed a prior alt 1 application. Under these
circumstances, respondent cannot rely upon the abandoned alt 1 application to defend against his
certification in the subsequently filed alt 2 application that the alt 2 application did not change
use or occupancy. The fact is that the alt 2 changed the occupancy because the existing
certificate of occupancy did not include a cellar floor.
However, given that respondent had filed an alt 1 previously listing the cellar floor, and
that he testified that he intended to correct the certificate of occupancy through the alt 1, I do not
believe that petitioner has met its burden of establishing that respondent made a knowing false
statement through his certification. Rather, respondents certification of no change to use or
occupancy was made negligently that is, respondent should have known, because his alt 1
application was pending, that his certification of no change in use or occupancy on the alt 2
application was false. Thus, charge 1, specification 7, is sustained to the extent that respondent
negligently made a false statement in stating on the April 29, 2014, application that there was no
change in use or occupancy.
Charge 1, specification 8, alleges that respondent made another false statement in the
same application by stating that there was no change in egress, which petitioner contends was
contrary to the approved plans, which indicated a major change in egress from the newly
created cellar level.
According to Ms. Murillo, the plans (Pet. Ex. 26) showed an exit from the cellar in the
stairwell, marked F.P.S.C., for fireproof self-closing door (Tr. 496). The stairs appear to be
going up from the cellar (Pet. Ex. 26). Ms. Murillo did not, however, testify that the stairs
showed egress from the cellar to the exterior of the building. Respondent acknowledged that the
owner was going to add new stairs as part of the planned work (Tr. 1161). He testified that the
stairs on the plans were not stairs to the cellar (Tr. 1160). Rather, the only existing access to the
cellar was from the street, via a hatch over the property line (Tr. 1160, 1161, 1185). This is
visible on the section of the plans marked by a diagonal, enclosed within existing cellar walls
(Pet. Ex. 26). Accordingly, on this record petitioner did not establish that the approved plans
showed a major change in egress from the cellar level, and this specification should be
dismissed.
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Charge 2, specification 6, should also be dismissed. This specification alleges that the
approved plans for application 320996678 proposed work in violation of Administrative Code
26-291 (referring to section 26-291 of the 1938 Code).
Ms. Murillo testified that the plans did not comply with section 26-1961 of the 1938
Building Code, under which respondent sought review (Tr. 492, 494; Pet. Ex. 22, box 4). She
characterized section 26-291 as requiring that vertical access must lead in a continuing
enclosure to street level (Tr. 494). However, section 26-291 does not seem to address vertical
access but only [o]utlets from exits at grade.
Additionally, respondent testified that there were no stairs leading from the cellar to the
first floor. And even if Ms. Murillos testimony to the contrary were credited, she acknowledged
that she was unable to verify compliance whether it is a continuous enclosure to the stair level
(Tr. 495). For all these reasons, petitioner failed to meet its burden of proof as to charge 2,
specification 6.

IX. 197 Patchen Avenue (charge 1, specification 9; charge 2, specifications 7-8).


Charge 1, specification 9, alleges that respondent knowingly or negligently made
materially false statements, in violation of Administrative Code sections 28-211.1 and 28-
211.1.2, on an alt 2 application filed with the Department on December 3, 2014, under job
number 320920312, pursuant to the Departments Directive 14 acceptance procedures.
Respondent is alleged to have falsely stated in the application that there was no change in use,
occupancy, or egress, contrary to the approved plans, which showed a change in use and
occupancy from a two-family dwelling to a two-family dwelling with a store. Charge 2,
specifications 7 and 8, alleges that respondent, by filing the December 3 application, displayed
incompetence or negligence, or lack of knowledge of pertinent laws or regulations. Specification
7 alleges that the application violates sections 26-441 and 26-632 of the Administrative Code
because the approved plans indicate an illegal opening was created in an existing party wall.
Specification 8 alleges that the application violates section 22-10 of the Zoning Resolution
because the approved plans indicate a Use Group 6 store at the premises, where the approved
zoning is for a two-family residence only.
Application 320920312 was in fact filed on March 11, 2014 (Pet. Ex. 27, 28), not
December 3, 2014. The December 3, 2014, date is in error. However, the specification
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referenced the correct application number. The March 11, 2014, application was placed into
evidence and there was no prejudice to respondent. Accordingly, the charge is conformed to the
proof. See Dep't of Correction v. Sostre-Valentin, OATH Index No. 1923/99 (Sept. 22, 1999)
(conforming charge to the proof where the petition alleged misconduct on the wrong date, but
respondent was aware of the incident charged and suffered no prejudice); Health and Hospitals
Corp. (North Central Bronx Hospital) v. Cross, OATH Index No. 315/97 at 7-8 (Jan. 27, 1997)
(same).
The March 11, 2014 application is an alt 2 (Pet. Exs. 27, 28). The work described is,
Renovate eating and drinking place. No change to use, egress or occupancy (Pet. Ex. 27, box
11). Respondent sought limited review under Directive 14 acceptance (Pet. Ex. 27, box 5A).
The occupancy classification of the building is indicated as COM, or commercial (Pet. Ex 27,
box 13C; Murillo: Tr. 526). The building is listed as having two dwelling units (Pet. Ex. 27, box
13E). The zoning district is described as R6B, which is residential (Pet. Ex. 27, box 12A;
Murillo: Tr. 526). Respondent certified on the application that the construction documents
submitted and all construction documents related to the application do not require a new or
amended certificate of occupancy as there is no change in use, exits, or occupancy (Pet. Ex. 27,
box 25).
Respondent filed plans with the application (Pet. Ex. 32, p.1), as well as amended plans
(Pet. Ex. 32, p., 2). The amended plans, which superseded the original plans, bear a stamp
indicating they were reviewed for zoning egress and fire prevention only, as well as a stamp
from Ms. Murillo indicating the audit status was failed (Pet. Ex. 32). The plans depict an
Eating and Drinking Place U.G.6 on the first floor (Pet. Ex. 32).
The plot plan, which is on both the original and the amended plans, is designated as for
197 Patchen Avenue, block 1663, lot 2 (Pet. Ex. 32). Ms. Murillo testified, however, based upon
a digital tax map for block 1663 (Pet. Ex. 31), as well as the deeds for 197 Patchen Avenue (Pet.
Ex. 33) and 199 Patchen Avenue (Pet. Ex. 34), that the plot plan actually showed both 197 and
199 Patchen Avenue (Tr. 578, 579).7 Respondent acknowledged that the plot plan depicted the
first floors of both 197 and 199 Patchen Avenue (Tr. 1190). He testified that although there are

7
As Ms. Murillo noted, the plot plan for 197 Patchen Avenue shows a building with the dimensions of 42 feet 8
inches, by 75 inches (Pet. Ex. 32; Tr. 578). However, the deed for 197 Patchen Avenue (lot 2) shows a building
width of only 18 feet, 8 inches (Pet. Ex. 33). In order to get a building width of 42 feet, 8 inches, lot one, the
building would have to include lot one, 199 Patchen Avenue, which has a building width of 24 feet (Pet. Ex. 34).
- 36 -

two separate buildings at the addresses, the first floors of the buildings are completely open and
are used together (Tr. 1204). When he went to look at the space, he saw that the first floors of
197 Patchen Avenue and 199 Patchen Avenue were being used together as a deli/grocery, one
open use (Tr. 1074). Respondent acknowledged that the deeds and the digital tax maps show
two different pieces of property, and two different tax lots, but indicated that many times, there is
property which overlaps different lots and you have to merge the lots (Tr. 1208). When asked
why he did not list both 199 Patchen Avenue and 197 Patchen Avenue on the plot plan,
respondent testified that he did not have to, because the proposed work was to take place in the
portion of the space that was within 197 Patchen Avenue (Tr. 1196). Ms. Murillo corroborated
respondents testimony that the proposed work was within 197 Patchen Avenue (Tr. 613).
Ms. Murillo also testified, based upon the deeds for 197 Patchen and 199 Patchen, that
respondents plan fails to show the entirety of the party wall between the premises. Ms. Murillo
defined a party wall as a structural wall shared between two properties (Tr. 608). The deeds,
which date to 1971 and 1968, respectively (Pet. Exs. 33, 34), show that there is a party wall
which is 75 feet deep, the depth of the lot, between the two buildings (Pet. Exs. 33, 34).
According to the deeds, therefore, the party wall extends from the street to the back of the
buildings (Tr. 601-02, 605-06). Ms. Murillo testified that the plans which respondent submitted
(Pet. Ex. 32) showed only part of the party wall, as indicated by her notation (Pet. Ex. 32; Tr.
597). The remainder of the party wall, toward the front of the building, is missing (Tr. 583, 600,
603). Ms. Murillo drew a dotted line on the plot plan to indicate that portion of the party wall
which she believed respondent had omitted (Pet. Ex. 32; Tr. 587-88, 603).
Respondent testified, however, that the plans accurately depicted the condition of the
building. He testified that although there may have been a party wall between the two buildings
probably a very long time ago (Tr. 1204), there was not currently a party wall in place, with
the exception of a party wall shown on the plot plan between the yard and the one-story
extension on the rear of the building (Pet. Ex. 32; Tr. 1080, 1205). According to respondent, the
two properties are used together as one open space. Thus, the wall shown on his plan drawing is
not a party wall.
The false filing charge (charge 1, specification 9) is predicated upon respondent
certifying that there is no change in use, occupancy, or egress, while purportedly changing the
use and occupancy of the building from a two-family dwelling to a two-family dwelling with a
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store. On the application (Pet. Ex. 27 at box 13), respondent noted the occupancy classification
of the building as commercial. There is no certificate of occupancy on file for 197 Patchen
Avenue (Resp. Ex. K), or for that matter, 199 Patchen Avenue (Resp. Ex. L). Thus, to dispute
respondents characterization of the building, petitioner relies upon I-cards for 197 Patchen
Avenue (Pet. Ex. 29). I-cards from 1938 show that in 1938, 197 Patchen was occupied as a class
A multiple dwelling, even though it was originally erected as a two-family dwelling (Pet. Exs.
29d, 29f). In 1941, a Department inspector issued a violation against the building for illegal
occupancy as a class A multiple dwelling (Pet. Ex. 29f). In 1944, the Acting Chief Inspector of
the Division of Housing found that [t]he classification of the . . . premises . . . is hereby changed
from a Converted Dwelling Class A, to a two family dwelling (Pet. Ex. 29g). Further, he
wrote that an affidavit signed by the owner further substantiates the two family occupancy and
guarantees the continuance of existing two family arrangement and occupancy (Pet. Ex. 29g).
The I-card from 1938 is not dispositive of legal occupancy, because occupancy as a class
A multiple dwelling was found illegal as contrary to the original occupancy of the building as a
two-family dwelling. Instead, the 1944 statement by the Acting Chief Inspector of the Division
of Housing establishes the legal occupancy of the building as a two-family dwelling. 345 West
70th Tenants Corp., 143 A.D.3d at 654.
Respondent testified that he did not need to file an alt 1 to change the occupancy because
for many years the first floor of 197 Patchen had been used as a store or deli together with 199
Patchen (Tr. 1072). According to respondent, a store is a use group six, as is the proposed bar or
restaurant (Tr. 1072). Further, respondent testified that he had consulted the 1929 Belcher Hyde
desk atlas, which indicated the existence of a store in both properties (Tr. 1075). The owner of
the property, as well as other people to whom respondent spoke, also told him that the two
properties were used together for a very, very, very long time as one space (Tr. 1196).
Respondent also highlighted that Department records relating to 199 Patchen Avenue show the
existence of a laundromat on the first floor in 2012 and 2013 (Resp. Ex. M).
Respondent did not produce the actual Belcher-Hyde atlas to substantiate his testimony
that 197 Patchen, as well as 199 Patchen, had been used as a deli or restaurant in 1929.
However, even if 197 Patchen Avenue and 199 Patchen Avenue were used as a deli or restaurant
in 1929, that use appears to have been illegally created, given the violation issued against the
building in 1941 for illegal occupancy as a class A multiple dwelling. There is also no evidence
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that the use of the premises as a laundromat constituted a legal, nonconforming use which
predated the Zoning Resolution and which, if continuously occupied without interruption for two
or more years, would establish the legal occupancy of the premises. See Town of Virgil v. Ford,
160 A.D.2d 1073 (3d Dept 1990); Besthoff v. Zoning Bd. of Appeals, 34 A.D.2d 782 (2d Dept
1970). Thus, even if respondents testimony were credited, it would not establish that the legal
use of 197 Patchen was commercial rather than residential. Accordingly, respondents
application to renovate eating and drinking place falsely stated that there was no change in use,
occupancy, or egress to 197 Patchen Avenue.
However, I find respondents false certification to be negligently rather than knowingly
made. The Departments own records indicate that the first floor of 199 Patchen Avenue was
used commercially as a laundromat just a few years ago. Respondent testified that the first floor
of 197 and 199 Patchen were used together as one open space, as a deli or store. Petitioner did
not present photographs or testimony, such as a report from an inspector who visited the
premises, to contradict respondents testimony. Accordingly, on this record I find that petitioner
established that respondent negligently made a false statement on the March 11, 2014 application
in certifying that there was no change in use, occupancy, or egress, as alleged in charge 1,
specification 9 (as amended to conform to the proof of the actual file date). I find that petitioner
failed to establish that respondent made a knowing false statement on the March 11 application.
Further, I find that petitioner failed to establish that respondent was negligent,
incompetent, or displayed a lack of knowledge of applicable laws, by submitting plans showing
an illegal opening in an existing party wall, as alleged in charge 2, specification 7. Respondent
testified that the party wall no longer existed. Petitioner relied upon deeds from over 40 years
ago to argue otherwise. This proof was insufficient to establish the existence of a party wall.
Charge 2, specification 7, therefore, was not proven and should be dismissed.
Charge 2, specification 8, alleging that respondent was negligent, incompetent, or
displayed a lack of knowledge of applicable laws, by submitting plans showing a use group 6
store at the premises, in violation of section 22-10 of the Zoning Resolution, is sustained. The
premises are located in a residential district. The legal occupancy of the premises is a two-
family dwelling, as shown by the I-cards (Pet. Exs. 29f, 29g). The work proposed by
respondents application falls into use group 6, which is a commercial use not permitted as of
right in a residential district. Accordingly, the work proposed by the application violated section
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22-10 of the Zoning Resolution. Respondent should have been more careful in submitting this
application, rather than relying upon observations of the premises. Accordingly, I find that
respondent was negligent in submitting this application. I do not find, however, that respondent
was incompetent, or that he displayed a lack of knowledge of existing laws, given the evidence
of a pre-existing commercial use at 199 Patchen Avenue, along with respondents unrebutted
testimony that the first floors of 197 Patchen Avenue and 199 Patchen Avenue were used
together as one open, commercial space.

X. 152 Hinsdale Street (charge 1, specifications 10-11, charge 2, specification 9)


Charge 1, specifications 10 and 11, allege that respondent knowingly or negligently made
materially false statements, in violation of Administrative Code sections 28-211.1 and 28-
211.1.2 on two alt 3 applications filed with the Department under its Directive 14 acceptance
procedures on October 9, 2013 (application number 320906980, specification 10) and February
3, 2014 (application number 320859317, specification 11). Respondent is alleged to have falsely
stated in both applications that the applications conformed to all applicable laws, or regulations,
even though a previous application filed on August 30, 2013, for the identical work had been
disapproved for zoning violations. Charge 2, specification 9, alleges that respondent, by filing
application 320856702 on August 30, 2013, displayed incompetence or negligence, or lack of
knowledge of pertinent laws and regulations, in that the plans submitted with the application
show a curb cut located less than 50 feet from the intersection of any two street lines, in violation
of Zoning Resolution 44-43 and 44-582.
Petitioner introduced the three applications in issue: the August 30 application (Pet. Exs.
36, 37); the October 9 application (Pet. Exs. 36, 39); and the February 3 application (Pet. Exs.
36, 41). These are all alt type 3 applications, filed under Directive 14 (Pet. Exs. 37, 39, 41,
boxes 5, 5A). The applications indicate that the zoning district is manufacturing, M1-M4 (Pet.
Exs. 37, 39, 41, box 12A). On each application respondent stated that to the best of his
knowledge, the construction documents and work shown comply with the provisions of the
Administrative Code and other applicable laws and rules (Pet. Exs. 37, 39, 41, box 25). Each
application was for the same work, with this job description: Curb cut on West Side of Hinsdale
Street, 40 North of Pitkin Ave. No change to use, egress or occupancy (Pet. Exs. 37, 39, 41,
box 11). Further, under Curb Cut Description, each application stated that the size of the cut
- 40 -

was 15 feet and the distance to the nearest corner, to Pitkin Avenue, was 40 feet (Pet. Exs. 37,
39, 41, box 16). On each application respondent left box 12C, proposed use information, blank
(Pet. Exs. 37, 39, 41, box 12C). In sum, all three applications were identical, which respondent
acknowledged (Tr. 1218, 1219).
Respondent filed the October 9 application about a month after he received an objection
sheet for the first application (320856702). The objection sheet for the first application,
generated on September 6, 2013, indicated that ZR 44-43 and 44-582 require that curb cuts
be located not less than 50 feet from the intersection of any two street lines (Pet. Ex. 38). The
notice informed respondent to schedule an appointment [t]o discuss and resolve these
objections (Pet. Ex. 38).
Respondent testified that he filed the October 9 application rather than meet with the first
plans examiner because the plans examiner in question was, at the time, pretty new to the
Department and wasnt approving any jobs, and that, . . . sometimes you just have to cut bait
so you can move on for your clients (Tr. 1214). Indeed, he stated that Mr. Adler, who used to
be the chief engineer in Brooklyn, had advised him to follow this protocol (Tr. 1216-17). The
plans examiner who reviewed the second application generated an objection sheet on October 21,
2013, indicating, Similar application was filed under job number 320856702 with the same
scope of work. Refer the objection sheet issued for that application and withdraw this
application (Pet. Ex. 40). About three months later, respondent instead filed the February 3
application, hoping for a better examiner (Tr. 1219). The February 3 application also generated
an objection sheet (Pet. Ex. 42).
Petitioner contends that in the October 9 application, respondent falsely stated that the
application conformed with all applicable laws, rules, and regulations, because he had
knowledge of the violations of the Zoning Resolution that were cited in the first objection sheet.
Similarly, petitioner asserts that respondent made the same false representation in the February 3
application, because he had knowledge of the Zoning Resolutions referenced in both objection
sheets (Pet. Post-Tr. Br. at 22-23). Respondent argued, however, that petitioner failed to
establish that applications proposed work in violation of ZR 44-43 and 44-582. Respondent
also asserts that the curb cut was a pre-existing condition, and thus should have been
grandfathered in (Tr. 1083).
- 41 -

I agree with respondent, but only partially. The premises are located in a manufacturing
district. ZR 44-43 provides that in such manufacturing districts, the entrances and exits of all
permitted or requited accessory group parking facilities and all permitted public parking lots or
public parking garages with 10 or more spaces, shall be located not less than 50 feet from the
intersection of any two street lines. Ms. Murillo acknowledged that respondents application
did not indicate whether the premises has accessory group parking facilities or is a public
parking lot or public parking garage (Tr. 931). Ms. Murillo noted that respondent had not
submitted proposed use information8 but surmised that the examiner must have done research
(Tr. 931). That may be the case. However, on this record, there is no evidence that the premises
constitute an accessory group parking facility or public lot or garage. The objection sheet alone
does not establish a violation of ZR 44-43. Thus, respondent cannot be found to have made a
false filing on the theory that his application violated ZR 44-43, and that he knew or should
have known of the violation.9
There was sufficient evidence, however, regarding the applicability of ZR 44-582 to the
curb cut. ZR 44-582 provides that in manufacturing districts, no permitted or required
accessory off-street loading berth, and no entrance or exit thereto, shall be located less than 50
feet from the intersection of any two street lines. Ms. Murillo acknowledged that respondents
application did not show whether the premises had off-street loading berths, or entrances and
exits from off-street loading berths (Tr. 933). But respondent testified that he filed for a curb cut
because the properties had existing loading berths, with existing curb cuts (Tr. 1082). His
acknowledgment that there was a curb cut leading to the loading berths places his application
within the ambit of ZR 44-582. Under this provision, curb cuts must be located 50 feet or
more from the intersection of any two street lines. The job description on the Hinsdale Street
applications described the proposed curb cut as located 40 feet from the intersection of Hinsdale
Street and Pitkin Avenue.

8
Ms. Murillo testified that on alt 3 applications the use information should be completed (Tr. 978), but both Mr.
Schnall and Mr. Maffei testified that it is not required (Schnall: Tr. 978; Maffei: Tr. 1257-1262).
9
This does not mean that respondent should have forum-shopped for examiners. Respondent did not present any
evidence to corroborate his testimony that this procedure was appropriate. For example, he did not call Mr. Adler to
testify, despite the latter sitting in the courtroom for much of the trial. Moreover, Mr. Wapniak testified that it is not
proper procedure to refile an identical application rather than answer plan objections (Tr. 171, 172, 173), and that
there is no rule which permits this practice (Tr. 173). However, respondent is not charged with failing to follow
Department procedures. Rather, he is charged with making a false statement by asserting on the October 9, 2013,
and February 3, 2014, applications that the applications conformed to all applicable laws.
- 42 -

Moreover, respondents argument that the curb cut was a legal grandfathered use was not
compelling. Respondent testified that the owner had subdivided the property into two properties,
each with existing loading berths. Because of the subdivision, there was some confusion with
the Department of Transportation and the existing curb cut had not been inputted into the
system (Tr. 1083). Thus, respondent maintained, the Department of Transportation had asked
him to file an alt 3 application for the existing curb cut so they could get it into their system
(Tr. 1082). Even if respondents testimony that the curb cut was a pre-existing condition is
credited, respondent did not establish that the curb cut was a pre-existing legal condition, or even
that he had a reasonable basis to believe that its placement 40 feet away from the intersection of
Hinsdale Street and Pitkin Avenue was legal.
Thus, I find that the Hinsdale Street applications proposed work in violation of section
44-582 of the Zoning Resolution, specifically the placement of the curb cut 40 feet away from
the intersection of two streets. When respondent filed the October 9, 2013, application, he was
already on notice of the issue, having received an objection for the curb cut after filing the first
application. Respondent lacked a reasonable basis to believe that the curb cut comported with
ZR 44-582. I therefore find that respondent knowingly made a false statement when he stated
that the work shown on the October 9, 2013, application comported with all applicable laws and
rules. Accordingly, charge 1, specification 10, is sustained.
For similar reasons, charge 1, specification 11, alleging that respondent falsely stated on
the February 3, 2014, application that the work conformed to all applicable laws and rules, is
sustained. When respondent filed this application, he had received two sets of objections for the
curb cut, one after the first application and one after the second application. Respondent
disregarded both sets of objections and instead filed a third application, for the same curb cut, 40
feet away from the intersection of two street lines. Thus, I find that he knowingly made a false
statement in the February 3, 2014 application, when stating that work on that application
conformed to all applicable laws.
Charge 2, specification 9, alleging that respondent was negligent, incompetent, or lacked
knowledge of applicable laws in filing the first application (320856702) is also sustained, to the
extent that the proposed work in the application violated ZR 44-582. Even if the curb cuts
predated the application, there is no evidence to support respondents conclusion that they were a
legal pre-existing condition. As a licensed professional, respondent should have been aware of
- 43 -

those provisions of the Zoning Resolution relating to the curb cut application, including the
requirement that a curb cut be more than 50 feet away from any intersection.
For the reasons discussed, I do not find, as also alleged in charge 3, specification 9, that
the proposed work violated ZR 44-43.

FINDINGS AND CONCLUSIONS


1. Petitioner established that respondent knowingly made a
material false statement, in violation of Administrative Code
28-211.1, on application 320200117, filed August 12, 2010,
as alleged in charge 1, specification 1, which is sustained.

2. Petitioner established that respondent showed negligence or


incompetence with regard to, or lack of knowledge of the
Building Code, Zoning Resolution, or other applicable laws
and regulations, in violation of 1 RCNY 21-02(a)(1), through
the submission of application 320185232 on July 13, 2010, as
alleged in charge 2, specification 1, which is sustained.

3. Petitioner established that respondent showed negligence or


incompetence with regard to, or lack of knowledge of the
Building Code, Zoning Resolution, or other applicable laws
and regulations, in violation of 1 RCNY 21-02(a)(1), through
the submission of application 320200117 on August 9, 2010, as
alleged in charge 2, specification 2, which is sustained.

4. Petitioner did not establish that respondent knowingly or


negligently made material false statements, in violation of
Administrative Code 28-211.1, on application 321006727,
filed on May 28, 2014, as alleged in charge 1, specification 2,
which is not sustained.

5. Petitioner did not establish that respondent knowingly or


negligently made material false statements, in violation of
Administrative Code 28-211.1, on application 321033387,
filed on December 3, 2014, as alleged in charge 1,
specifications 3 and 4, which are not sustained.

6. Petitioner did not establish that respondent showed negligence


or incompetence with regard to, or lack of knowledge of the
Building Code, Zoning Resolution, or other applicable laws
and regulations, in violation of 1 RCNY 21-02(a)(1), through
the submission of application 321033387, filed December 3,
- 44 -

2014, as alleged in charge 2, specifications 4 and 5, which are


not sustained.

7. Petitioner established that respondent negligently made a


material false statement, in violation of Administrative Code
28-211.1, on application 320962963, submitted February 20,
2014, by certifying that there was no change to use, egress or
occupancy, as alleged in charge 1, specification 5. Petitioner
did not establish that respondent knowingly made a material
false statement on application 320962963, as also alleged in
charge 1, specification 5. Charge 1, specification 5, is
sustained as to a negligent false statement only.

8. Petitioner established that respondent negligently made a


material false statement, in violation of Administrative Code
28-211.1, on the plans submitted with application 320962963,
submitted February 20, 2014, as alleged in charge 1,
specification 6. Petitioner did not establish that respondent
knowingly made a material false statement on the February 20,
2014 plans, or that he made a false statement on the plans for
application 320942165, filed on March 31, 2014, as also
alleged in charge 1, specification 6. Charge 1, specification 6,
is sustained as to a negligent false statement on the plans
submitted with application 320962963 only.

9. Petitioner established that respondent negligently made a


material false statement, in violation of Administrative Code
28-211.1, on application 320996678, filed April 29, 2014, by
stating that there was no change in use or occupancy, as alleged
in charge 1, specification 7. Petitioner did not establish that
respondent knowingly made a material false statement in so
stating, as also alleged in charge 1, specification 7. Charge 1,
specification 7, is sustained only as to a negligent false
statement.

10. Petitioner did not establish that respondent negligently made a


material false statement, in violation of Administrative Code
28-211.1, on application 320996678, filed April 29, 2014, by
stating that there was no change in egress, as alleged in charge
1, specification 8, which is not sustained.

11. Petitioner did not establish that respondent showed negligence


or incompetence with regard to, or lack of knowledge of the
Building Code, Zoning Resolution, or other applicable laws
and regulations, in violation of 1 RCNY 21-02(a)(1), through
- 45 -

the submission of application 320996678, filed April 29, 2014,


as alleged in charge 2, specification 6, which is not sustained.

12. Petitioner established that respondent negligently made a


material false statement, in violation of Administrative Code
28-211.1, on application 320920312, filed March 11, 2014, as
alleged in charge 1, specification 9, as amended to conform to
the proof of the correct filing date. Petitioner did not establish
that respondent knowingly made a material false statement on
application 320920312. Charge 1, specification 9, is sustained
only as to a negligent false statement.

13. Petitioner did not establish that respondent showed negligence


or incompetence with regard to, or lack of knowledge of the
Building Code, Zoning Resolution, or other applicable laws
and regulations, in violation of 1 RCNY 21-02(a)(1),
through the submission of plans with application 320920312
which showed an illegal opening in an existing party wall, as
alleged in charge 2, specification 7, which is not sustained.

14. Petitioner established that respondent showed negligence or


incompetence with regard to, or lack of knowledge of the
Building Code, Zoning Resolution, or other applicable laws
and regulations, in violation of 1 RCNY 21-02(a)(1), through
the submission of plans with application 320920312 which
showed a use group 6 store at the premises, as alleged in
charge 2, specification 8, which is sustained.

15. Petitioner established that respondent knowingly made a


material false statement, in violation of Administrative Code
28-211.1, on application 320906980, filed October 9, 2013, as
alleged in charge 1, specification 10, which is sustained.

16. Petitioner established that respondent knowingly made a


material false statement, in violation of Administrative Code
28-211.1, on application 320859317, filed February 3, 2014,
as alleged in charge 1, specification 11, which is sustained.

17. Petitioner established that respondent showed negligence or


incompetence with regard to, or lack of knowledge of the
Building Code, Zoning Resolution, or other applicable laws
and regulations, in violation of 1 RCNY 21-02(a)(1), through
the submission of application 320856702, filed August 30,
2013, as alleged in charge 2, specification 9, which is
sustained.
- 46 -

RECOMMENDATION
At issue is the appropriate penalty to be assessed against respondent for his false and
negligent filings. Administrative Code 28-211.1.2 permits the Commissioner to refuse to
accept any filings from a person found to have made false filings to the Department, whether
negligently or knowingly made. 1 RCNY 21-02 permits the Commissioner to exclude an
architect or engineer from the Departments limited review or supervisory programs based upon
a finding of negligence, incompetence, or lack of knowledge of applicable laws.
Here, respondent has been found to have knowingly made material false statements on
three applications: the August 12, 2010, Coffey Street application; and the October 9, 2013, and
February 3, 2014, Hinsdale Street applications, in violation of Administrative Code section 28-
211.1.1. The Hinsdale Street applications were filed under Directive 14 and the August 12
Coffey Street application was professionally certified. Respondent has also been found to have
negligently made four false statements on three other applications filed under Directive 14: the
February 20, 2014, Sackett Street application; the April 29, 2014, 5th Avenue application; and
the March 11, 2014, Patchen Avenue application. In related charges, respondent has also been
held to have been negligent through his submission of four applications for Coffey Street,
Patchen Avenue, and Hinsdale Street, in violation of 1 RCNY 21-02(a)(1).
Petitioner asserted in its post-trial brief that respondent is careless and lacks integrity, and
that it has an abiding and continuing interest in protecting the public by preventing parties, such
as Respondent, from submitting documents to the Department that contain false statements
(Post-Tr. Br. at 20-21). Respondents submission of three knowingly false applications, under
Directive 14 as well as professional self-certification, shows that he cannot be trusted under
either of these limited review programs, both of which rely upon the honesty and integrity
architects and engineers to certify plans. See Dept of Buildings v. Scarano, OATH Index No.
2571/08 at 65 (Mar. 1, 2010), adopted, Commr Dec. (Mar. 3, 2010), affd, 86 A.D.3d 444 (lst
Dept 2011) (recommending that architect who knowingly made false statements in submissions
filed with the Department, including a false and misleading land survey and misleading
photographs, be excluded from programs for limited supervisory check and/or professional
certification under 1 RCNY 21-02(a), and that the Commissioner refuse to adopt any
documents from him under Administrative Code 28-211.1.2. Indeed, respondents submission
of filings which were negligent would alone justify revocation of his privileges to file under
- 47 -

professional self-certification and limited review. See Dept of Buildings v. Velasquez, Commr
Dec. (Dec. 2, 2010), modifying, OATH Index No. 1557/10 (Nov. 24, 2010) (engineers
professional self-certification privileges revoked for negligence, with respondent having the right
to seek reinstatement of privileges after one year); Dept of Buildings v. Fernando, OATH Index
No. 2423/10 (Sept. 9, 2010), adopted, Commr Dec. (Sept. 14, 2010) (engineers limited review
and professional certification privileges revoked for negligence). Respondents privileges to file
under the limited review and professional certification programs should be revoked.
The harder question is whether respondent should lose the ability to submit any filings to
the Department, under Administrative Code 28-211.1.2. Judge Spooner recently addressed this
issue in Dept of Buildings v. Ali, OATH Index No. 2751/15 (Mar. 16, 2016), modified on
penalty, Commr Dec. (Mar. 21, 2016). There, a professional engineer filed six alteration
applications that were negligent under 1 RCNY 21-02, as well as two applications which were
materially false under Administrative Code 28-211.1, because they contained representations
contrary to the accompanying plans, including the representation that there was no change to use,
egress, and occupancy. However, most of the applications were more in the nature of negligence
than deliberate falsity. Thus, rather than displaying deceit, respondents submissions
demonstrated a remarkable lack of knowledge as to various portions of the Zoning Resolution,
the Building Code, and the Administrative Code. Ali, OATH 2751/15 at 22-23. Accordingly,
Judge Spooner recommended revocation of the engineers self-certification privileges but
declined to recommend revocation of all his filing privileges. The Commissioner reversed as to
penalty, finding that the professional engineers making of material false statements merited
revocation of all his filing privileges. Commr Dec. at 1-2.
Here, many of respondents false statements were negligently made, rather than
knowingly made. These filings alone should not result in the revocation of all of his filing
privileges. Respondents knowing false statements are much more problematic. On the Coffey
Street application, respondent professionally certified that the application conformed to all
applicable laws even though he had received objections from an identical, previously filed
application which stated that the proposed two-family house was not permitted as of right in a
manufacturing zone and directed him to submit proof of existing nonconforming use which had
not been discontinued for two or more years. On the Hinsdale street applications, which were
filed under Directive 14, respondent stated that the work conformed to all applicable laws, even
- 48 -

though he had received objections from a previously filed, identical application, advising that the
curb cut was located too close to the intersection of two street lines and directing him to schedule
an appointment to resolve the objections. On the applications for both premises, respondent
simply ignored the objections and refiled identical applications. Rather than accept
responsibility, respondent blamed inexperienced examiners for his conduct, testifying that
otherwise he was afraid the applications would not be approved. It appeared that he was more
interested in expediting the jobs than in ensuring that his filings were accurate and truthful.
Deliberate false filings also led to loss of all filing privileges in Scarano, OATH 2571/08.
In affirming the Commissioners determination, the First Department found that the architects
actions in submitting misleading photographs, falsely certifying that all objections had been
resolved, and claiming entitlement to extra floor area resulting from a nonexistent community
facility . . . warrant the finding that DOB can no longer rely on him to submit honest
paperwork, and thus, constitute a basis for prohibiting him from submitting further documents
to DOB. Scarano, 86 A.D.3d at 445. Respondents actions here may not rise to the level of
deviousness in Scarano, but they give reason for concern about the accuracy of his future filings.
However, not every deliberate false statement merits a lifetime ban on filing. In Benlevi
v. NYC Dept of Buildings, 116 A.D.3d 482 (lst Dept 2014), the First Department held that
imposition of a permanent ban on an architects ability to file submissions was an excessive
penalty and remanded for imposition of a lesser sanction. Mr. Benlevi was a licensed architect
who was suspended from practice by the State Education Department for six months, during
which time he continued to file documents using his professional seal and self-certification
privileges. The Commissioner adopted OATHs recommendation that his filing privileges be
revoked. Dept of Buildings v. Benlevi, OATH Index No. 395/09 (Jan. 9, 2009), adopted,
Commr Dec. (Jan. 22, 2009), modified, 116 A.D.3d 482 (lst Dept 2014). The First Department
concluded that a permanent ban was excessive, noting that: the Department did not explain why
a permanent rather than a more limited penalty was imposed; the permanent penalty would
essentially end the architects independent architectural business, depriving him of his
livelihood; and, the Department did not allege or establish that the false filing pertained to the
substance or content of the building plans and thus presented potential safety risks.
Here, unlike Benlevi, respondents knowing false statements involved the substance of
the building plans. Despite this difference, the First Departments concerns about the
- 49 -

implications of a lifetime ban upon a persons livelihood resound, and suggest that a more time-
limited ban would be appropriate if sufficiently tailored to address considerations of public
safety. Hence, I recommend that, under Administrative Code 28-211.1.2, respondents filing
privileges be revoked, but that respondent be given the opportunity to seek reinstatement of those
privileges after a year upon the imposition of appropriate conditions, such as probation. See,
e.g., St. Clair Nation, 14 N.Y.3d 452 (2010) (penalty imposed was preclusion from filing any
application or document for two years, to be followed by a three-year probationary period);
Velasquez, Commr Dec. at 1 (reinstatement of respondents privileges after a years ban at the
Commisioners discretion and contingent upon probation and additional training). I also
recommend, considering respondents negligence in filing many applications, that his limited
review and professional self-certification filing privileges be revoked.

Faye Lewis
Administrative Law Judge
February 10, 2017

SUBMITTED TO:

RICK D. CHANDLER, P.E.


Commissioner

APPEARANCES:

MICHAEL MORELLI, ESQ.


RONALD PARK, ESQ.
Attorneys for Petitioner

KLEIN SLOWIK PLLC


Attorneys for Respondent
BY: STUART A. KLEIN, ESQ.
MICHAEL S. FARBER, ESQ.
February 21, 2017

Dear Mr. Schnall:


I have completed my review of the Report and Recommendation (R&R) in OATH
Case Index No. 2750/15, dated February 10, 2017, of Administrative Law Judge Faye Lewis,
who was designated to conduct a hearing on charges and specifications that were served upon
you on June 26, 2015 and amended in February 2016. Hearings were held on five days between
March 7, 2016 and May 17, 2016 before Judge Lewis.

In her February 10, 2017 R&R, Judge Lewis found that you knowingly made material
false statements on three applications . . . and negligently made four false statements on three
other applications (R&R, p. 46) filed with the New York City Department of Buildings
(Department) in violation of Administrative Code 28-211.1, and recommended that your
filing privileges be revoked, but that respondent be given the opportunity to seek reinstatement
of these privileges after a year upon the imposition of appropriate conditions, such as probation
. . . and also recommend[ed], considering respondents negligence in filing many applications,
that his limited review and professional self-certification filing privileges be revoked. (R&R, p.
49).

Speaking to your participation in the Professional Certification and Directive 14 limited


review programs, Judge Lewis noted you cannot be trusted under either of these limited review
programs, both of which rely upon the honesty and integrity architects [sic] and engineers to
certify plans. (R&R, p. 46).

Judge Lewis R&R also spoke in particular depth of how you knowingly and negligently
made material false statements in applications filed with the Department.

Specifically, with regard to 164 Coffey Street, Brooklyn, New York, and 152 Hinsdale
Street, Brooklyn, New York, Judge Lewis found that you simply ignored the objections and
refiled identical applications. Rather than accept responsibility, respondent blamed inexperienced
examiners for his conduct, testifying that otherwise he was afraid the applications would not be
approved. It appeared that he was more interested in expediting the jobs than in ensuring that his
filings were accurate and truthful. (R&R, p. 48).

Further, in regard to 384 Sackett Street, Brooklyn, New York, Judge Lewis notes, [a]s a
licensed professional, respondent cannot escape liability by placing blame on the draftsman. He
was required to review the plans for accuracy, as he acknowledged was his practice. Respondent
therefore should have known that his certification that the application would not change use or
occupancy was inaccurate. (R&R p. 28)

Finally, in regard to 178 51th Avenue, Brooklyn, New York and 197 Patchen Avenue,
Brooklyn, New York, Judge Lewis found in both instances that you negligently made a false
statement in certifying there was no change in use, occupancy or egress on the applications you
filed with the Department. (R&R pgs. 33 and 38).
-2-

I hereby fully adopt Judge Lewis findings of fact in her February 10, 2017 R&R.

In adopting Judge Lewis findings of fact, I modify her penalty recommendation as it


relates to the opportunity to seek reinstatement of these privileges after a year upon the
imposition of appropriate conditions, such as probation.

The facts in this case are more analogous to Dept of Buildings v. Scarano, OATH Index
No. 2571/08, affd, 86 A.D. 3d 444 (1st Dept 2011) than Benlevi v. NYC Dept of Buildings, 116
A.D. 3d 482 (1st Dept 2014) or St. Clair Nation v. Dept of Buildings, 14 N.Y.3d 452 (2010).
In Scarano, such as in this case, Respondent consistently took advantage of the Departments
programs for limited supervisory check, programs which rely upon the honesty and integrity of
the registered design professional. In seven instances, you made false statements regarding the
substance of plans in applications submitted to the Department in order to avoid obtaining a new
or amended Certificate of Occupancy. Based on this pattern and the sheer number of false
statements made in violation of 28-211.1 of the New York City Administrative Code, as well
as the gross negligence shown in all your applications, the Department can no longer rely on you
to submit honest applications or documents.

Additionally, the First Departments concerns regarding Benlevi do not arise here.
Benlevis case was not about the substance of his plans, but related to his filing of plans with the
Department while he was not registered to do so. The false statements in your case all pertained
to the substance of the plans, as noted above.

Finally, a permanent ban would not deprive you of your livelihood, as you have the
opportunity to submit applications or documents in any other jurisdiction outside that of the New
York City Department of Buildings.

THEREFORE, effective immediately, you are excluded from the Departments


programs for limited supervisory check and/or professional certification of applications,
plans and removal of objections pursuant to 1 RCNY 21-02(a)(1) & (a)(3) and
Administrative Code 28-104.2.1.3.2. Furthermore, based on your false filings and
pursuant to Administrative Code 28-211.1.2, the Department will not accept any
application or other document submitted by you pursuant to or in satisfaction of a
requirement of the Construction Codes or of a rule of any agency, nor shall you appear
pursuant to any application or document submitted to the Department that bears your
signature or seal. This determination applies to both new and pending applications.

Sincerely,

Rick D. Chandler, P.E.