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Supreme Court, Appellate Division, Fourth Department, New York.

Matter of Daniel J. CELANI and Ann E. Celani, Respondents-Appellants, v. Anthony A. MARCONI, Commissioner, City of Buffalo Department of Inspections and Community Revitalization, and Joseph Giambra, Commissioner, City of Buffalo Department of Public Works, Appellants-Respondents.  (Appeal No. 2.)

Decided: December 31, 1998

Present:  DENMAN, P.J., HAYES, WISNER, CALLAHAN and BOEHM, JJ. Corporation Counsel's Office (Michael Risman, of counsel), and Kevin J. Bauer, Buffalo, for defendants-appellants-respondents. Cohen, Swados, Wright, Hanifin, Bradford & Brett, LLP by Larry Kerman, Buffalo, for plaintiffs-respondents-appellants.

Plaintiffs were owners of a two-family dwelling in the City of Buffalo.   While attempting to sell their home in April 1993, plaintiffs were cited by defendants for maintaining an illegal apartment on the third floor.   That citation was issued despite the fact that in 1985 it was judicially determined that a previous owner's use of the third floor as an apartment was a prior nonconforming use.   Defendants, however, refused to correct their records and issue an updated certificate of occupancy because the premises did not comply with section 242-6(C) of the Code of the City of Buffalo (Code) with respect to required means of egress.

Plaintiffs were unable to sell the premises, and they commenced a CPLR article 78 proceeding in January 1995 for declaratory and injunctive relief and money damages.   In July 1995 judgment was entered directing defendants to correct their records and directing plaintiffs to make the required structural modifications.   Supreme Court also converted plaintiffs' money claim to a plenary action for damages.   In September 1995 plaintiffs sold the premises at a reduced price.   Defendants appeal from a judgment entered in the plenary action awarding plaintiffs damages in the amount of $218,487.

 The essence of plaintiffs' claim is that for over two years defendants acted in an arbitrary and capricious manner in the performance of their ministerial duties, wrongfully frustrating the attempt by plaintiffs to sell their home as a two-family dwelling.   It is undisputed, however, that plaintiffs were never in compliance with section 242-6(C) of the Code. We reject the argument of plaintiffs that they did not have to comply with that provision because it came into existence after construction of their home.   “[I]n the exercise of its police power, the state or a municipality * * * may require reasonable changes in buildings previously erected in order for them to comply with new requirements and standards for the protection of health and safety, notwithstanding the fact that such buildings, at the time of erection, complied with regulations then in effect” (12 N.Y. Jur. 2d, Buildings, Zoning, and Land Controls, § 3, at 25;  see, Code of City of Buffalo § 242-1).

 Plaintiffs also argue that the 1985 decision is res judicata on the issue whether the premises are in compliance with the Code. Building codes, however, are an exercise of a municipality's general police power to regulate conduct that may endanger public health, safety or welfare.   While the 1985 decision may be res judicata on the issue whether the premises are a prior nonconforming use, which is a land use question, it is not res judicata on the issue whether the premises meet building code requirements, which is a question of public safety.

 Plaintiffs further argue that they were entitled to a certificate of occupancy when they passed an inspection in December 1993.   It is undisputed, however, that the premises remained in violation of section 242-6(C) of the Code. Upon reinspection, defendants again cited that noncompliance.  “[I]t is well settled that an individual employee's statements or actions will not bind a municipality to a course of conduct in violation of its own ordinances” (International Merchants v. Village of Old Field, 203 A.D.2d 247, 248, 609 N.Y.S.2d 341;  see, Matter of Parkview Assocs. v. City of New York, 71 N.Y.2d 274, 282, 525 N.Y.S.2d 176, 519 N.E.2d 1372, rearg. denied 71 N.Y.2d 995, 529 N.Y.S.2d 278, 524 N.E.2d 879, appeal dismissed and cert. denied 488 U.S. 801, 109 S.Ct. 30, 102 L.Ed.2d 9).

 The decision to grant a certificate of occupancy is a discretionary act (see, Rottkamp v. Young, 21 A.D.2d 373, 377, 249 N.Y.S.2d 330, affd. 15 N.Y.2d 831, 257 N.Y.S.2d 944, 205 N.E.2d 866;  Okie v. Village of Hamburg, 196 A.D.2d 228, 231, 609 N.Y.S.2d 986) dependent upon full compliance with all laws (see, Code of City of Buffalo § 511-119).   Any delay in the issuance of a certificate of occupancy does not give rise to a claim for damages (see, City of New York v. 17 Vista Assocs., 84 N.Y.2d 299, 307, 618 N.Y.S.2d 249, 642 N.E.2d 606).   Because plaintiffs were in violation of section 242-6(C) of the Code, the certificate of occupancy was properly denied (see, International Merchants v Village of Old Field, supra, at 248, 609 N.Y.S.2d 341).

We therefore reverse the judgment and dismiss the complaint.

Judgment unanimously reversed on the law without costs and complaint dismissed.