IN RE: Lourdes HERNANDEZ (2008)

Order, Supreme Court, New York County (Charles J. Tejada, J.), entered April 12, 2007, which denied the petition brought pursuant to CPLR Article 78 involving use of leased premises for a group family day care center, unanimously affirmed, without costs.

Petitioner seeks, inter alia, to vacate a determination of the Environmental Control Board (ECB) that denied her request to intervene in connection with a Notice of Violation (NOV) issued by the Department of Buildings (DOB) to the landlord of her non-fireproof multiple dwelling concerning the use of her second-floor residential premises for group family day care purposes. The landlord exercised its right to settle the NOV by stipulation and agreed to pay a fine and cure the condition, thereafter serving petitioner with a 10–day notice to cure the violation and commencing a holdover proceeding.

 DOB's enforcement of the residential certificate of occupancy against a licensed group family day care facility did not violate and was not preempted by state law.  Social Services Law § 390(12)(b) restrains a local government from prohibiting regulated group family day care facilities in fireproof multiple dwellings, and in ground-floor units of a multiple dwelling that is not classified as fireproof, clearly implying that there is no such immunity for facilities above the ground floor in a multiple dwelling that is not fireproof.  Paragraph a of subdivision 12 more generally restrains a local government from imposing additional “standards for sanitation, health, fire safety or building construction on a ․ multiple dwelling used to provide group family day care ․ than would be applicable were such child day care not provided on the premises.”  Petitioner's position is that these two paragraphs of subdivision 12 are contradictory, and that paragraph a, which postdates the passage of paragraph b, implicitly overrules the earlier enactment.  We reject this argument. Even though paragraph b is of prior vintage (formerly § 390[13][d];  see L. 1986, ch. 875, § 4), it was renumbered as paragraph b of subdivision 12 (L. 1990, ch. 750, § 2) at the same time as the Legislature added paragraph a of that subdivision (L. 1990, ch. 750, § 1).  We must assume that in juxtaposing these two paragraphs in the same subdivision, the Legislature intended that they be read consistently, with effect given to both (see McKinney's Statutes § 144;  Iazzetti v. City of New York, 94 N.Y.2d 183, 189, 701 N.Y.S.2d 332, 723 N.E.2d 81 [1999];  Foley v. Bratton, 92 N.Y.2d 781, 787, 686 N.Y.S.2d 359, 709 N.E.2d 100 [1999] ).

 ECB's denial of petitioner's request to intervene in connection with the NOV was rationally based.  As ECB found, petitioner did not qualify as one “directly and adversely affected” by ECB's order;  the NOV involved only the imposition of a monetary penalty against the named respondent, the landlord (see ECB Adjudication Procedures in 15 RCNY 31–35[a][1] ).  Moreover, regardless of whether considered as of right or discretionary, petitioner's request to intervene was untimely (§ 31–35[a][2],[b] ).  Therefore, ECB's denial of petitioner's request was neither arbitrary nor capricious, and no grounds exist upon which to vacate its determination (see Flacke v. Onondaga Landfill Sys., 69 N.Y.2d 355, 363, 514 N.Y.S.2d 689, 507 N.E.2d 282 [1987] ).  DOB's enforcement of the violation was not preempted by state law, and ECB would have acted properly within its discretion to deny the request to intervene had it been timely made.

 Having failed to avail herself of the available forms of intervention in a timely fashion, petitioner has no claim for a violation of due process of law (see Matter of Estate of Goldman v. New York State Div. of Hous. & Community Renewal, Off. of Rent Admin., 228 A.D.2d 192, 643 N.Y.S.2d 99 [1996], lv. denied 89 N.Y.2d 805, 653 N.Y.S.2d 917, 676 N.E.2d 499 [1996] ).

We have considered petitioner's remaining arguments and find them unavailing.