IN RE: EAST 85TH GARAGE LLC (2024)

Determinations of the Office of Administrative Trials and Hearings (OATH), dated March 17, 2021, which, after a hearing, affirmed five violations of Administrative Code § 28–105.1 issued by the New York City Department of Buildings (DOB), and assessed a penalty of $1,250 per violation, unanimously confirmed, the petition denied, and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of Supreme Court, New York County [Debra A. James, J.], entered on or about November 30, 2022), unanimously dismissed, without costs.

Substantial evidence supports OATH's determination that petitioners violated New York City Building Code [Administrative Code of City of NY] § 28–105.1 by displaying parking garage signs without a permit (see 300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 N.Y.2d 176, 180–182, 408 N.Y.S.2d 54, 379 N.E.2d 1183 [1978]).  The DOB summonses that were the basis of the OATH hearings were affirmed by DOB's investigating officer under the penalty of perjury;  the summonses described the parking garage signs and stated that the officer observed the violations in question.  The DOB's attorney also represented at the hearing that the photographs admitted into evidence came from the DOB's inspection unit.  Given these circumstances, OATH had a rational basis for finding that the evidence relied upon at the hearing was both reliable and credible (see Rules of OATH Hearings Division [48 RCNY] § 6–12[c];  Matter of Volpe v. New York City Dept. of Bldgs., 194 A.D.3d 459, 460, 149 N.Y.S.3d 8 [1st Dept. 2021]).

Nor were petitioners' due process rights violated because OATH did not require the investigating officer to appear and testify under penalty of perjury (see Gray v. Adduci, 73 N.Y.2d 741, 742, 536 N.Y.S.2d 40, 532 N.E.2d 1268 [1988]).  OATH had a rational basis for finding that the investigating officer's hearing testimony was not necessary to ensure a fair hearing, especially because no party contested that petitioners put up the signs in question and did so without permits (see 48 RCNY § 6–15[a]);  Matter of Umeokafor v. City of New York, 199 A.D.3d 435, 436, 153 N.Y.S.3d 859 [1st Dept. 2021]).

We reject petitioners' argument that there is no penalty available for the display of these signs, for the reasons set forth in West 81st Garage, LLC v. New York City Dept. of Bldgs., ––– A.D.3d ––––, ––– N.Y.S.3d ––––, 2024 WL 5126821 [1st Dept. 2024], decided simultaneously with this decision.

At the OATH hearing, petitioners failed to raise their arguments that any future fines would be arbitrary and capricious and that any penalty higher than zero is unconstitutional under the Eighth Amendment to the United States Constitution.  These arguments are therefore unpreserved for our review.  To the extent that the record permits review of petitioners' arguments regarding the ostensibly excessive nature of the penalties, we find that the penalties serve a remedial purpose, are not grossly disproportional to the gravity of the offense, and do not shock the conscience (see Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 N.Y.2d 222, 240, 356 N.Y.S.2d 833, 313 N.E.2d 321 [1974];  Matter of Tiwari v. City of New York, 190 A.D.3d 442, 443, 140 N.Y.S.3d 201 [1st Dept. 2021];  Prince v. City of New York, 108 A.D.3d 114, 119, 121, 966 N.Y.S.2d 16 [1st Dept. 2013]).