In the Matter of Perlbinder Holdings, LLC, Appellant-Respondent,v.Meenakshi Srinivasan,, et al., Respondents-Appellants.BriefN.Y.February 17, 2016To be Argued by: HOWARD GRUN, ESQ. (Time Requested: 30 Minutes) APL-2014-00270 New York County Clerk’s Index No. 103231/12 Court of Appeals of the State of New York PERLBINDER HOLDINGS, LLC, Appellant-Respondent, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules, – against – MEENAKSHI SRINIVASAN, CHAIRPERSON, CHRISTOPHER COLLINS, VICE- CHAIRPERSON, DARA OTTLEY-BROWN, SUSAN M. HINKSON, R.A., and EILEEN MONTANEZ, P.E., COMMISSIONERS, constituting THE BOARD OF STANDARDS AND APPEALS OF THE CITY OF NEW YORK, THE NEW YORK CITY DEPARTMENT OF BUILDINGS, THE NEW YORK CITY ENVIRONMENTAL BOARD and THE CITY OF NEW YORK, Respondents-Appellants. REPLY BRIEF FOR APPELLANT-RESPONDENT IN FURTHER SUPPORT OF APPELLANT-RESPONDENT’S APPEAL AND IN OPPOSITION TO RESPONDENTS- APPELLANTS’ APPEAL KAUFMAN FRIEDMAN PLOTNICKI & GRUN, LLP By: HOWARD GRUN, ESQ. Attorneys for Appellant-Respondent 300 East 42nd Street, 8th Floor New York, New York 10017 Tel.: (212) 687-1700 Fax: (212) 687-3179 Date Completed: April 14, 2015 i TABLE OF CONTENTS Page Table of Cases and Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 POINT I THE PERMIT ISSUED TO APPELLANT TO CONSTRUCT THE REPLACEMENT SIGN WAS VALID, THEREBY JUSTIFYING APPELLANT’S GOOD FAITH RELIANCE THEREON SO AS TO ESTOP DOB FROM REVOKING THE PERMIT AND DEPRIVING APPELLANT OF ITS VESTED RIGHTS . . . . . . . . . . . . . . . . . . . . . . . . . . 4 POINT II THE APPELLATE DIVISION’S DETERMINATION THAT APPELLANT RELIED IN GOOD FAITH ON COMMISSIONER SANTILLI’S APPROVAL, AND DOB’S ISSUANCE, OF THE REPLACEMENT SIGN PERMIT, IS NOT SUBJECT TO ATTACK ON THIS APPEAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 ii TABLE OF CASES AND OTHER AUTHORITIES CASES PAGE Bayswater Health Related Facility v. Karagheuzoff, 37 N.Y. 2d 408, 335 N.E. 2d 282, 373 N.Y.S. 2d 49 (1975) . . . . . . . . . . . . 17 Bethlehem Steel Company v. Turner Construction Company, 2 N.Y. 2d 456, 141 N.E. 2d 590, 161 N.Y.S. 2d 90 (1957) . . . . . . . . . . . . . 22 Brennan v. New York City Housing Authority, 72 A.D. 2d 410, 424 N.Y.S. 2d 687 (1st Dept. (1980) . . . . . . . . . . . . . . . . . 5 Buchanan v. Espada, 88 N.Y. 2d 973, 671 N.E. 2d 538, 648 N.Y.S. 2d 426 (1996) . . . . . . . . . . . 22 City of Berea v. Wren, 818 S.W. 2d 274 (Ky. Ct. of Appeals 1991) . . . . . . . . . . . . . . . . . . . . . . . . . 9 Crow v. Board of Adjustment of Iowa City, 227 Iowa 324, 288 N.W. 145 (Sup. Ct. Iowa 1939) . . . . . . . . . . . . . . . . . . . 9 D’Amico v. Felten, 122 A.D. 2d 528, 504 N.Y.S. 2d 911 (4th Dept. 1986) . . . . . . . . . . . . . . . . . 19 Dour v. Village of Port Jefferson, 89 Misc. 2d 146, 390 N.Y.S. 2d 965 (Sup. Ct. Suffolk Co. 1976) . . . . . . . . 5 First International Bank of Israel, Ltd. v. L. Blankstein & Son, Inc., 59 N.Y. 2d 436, 452 N.E. 2d 1216, 465 N.Y.S. 2d 888 (1983). . . . . . . . . . 21 Gordon v. Board of Appeals of City of Schenectady, 131 Misc. 346, 225 N.Y.S. 680 (Sup. Ct., Schenectady Co. 1927) . . . . . . . 5 Hill v. Board of Adjustment of the Borough of Eatontown, 122 N.J. Super. 156, 299 A. 2d 737 (App. Div. 1972) . . . . . . . . . . . . . . . . . 6 Hunt v. Bankers and Shippers Ins. Co. of New York, 50 N.Y. 2d 938, 409 N.E. 2d 928, 431 N.Y.S. 2d 454 (1980) . . . . . . . . . . . 21 iii Incorporated Village of Cornwall v. Environmental Administration of the City of New York, 45 A.D. 2d 297, 358 N.Y.S. 2d 459 (2nd Dept. 1974) . . . . . . . . . . . . . . . . . . 5 Jantausch v. Borough of Verona, 41 N.J. Super. 89, 124 A. 2d 14 (Law Div.1956), affirmed, 24 N.J. 326, 131 A. 2d 881 (Supreme Court 1957) . . . . . . . . . . . . 6, 9 Jayne Estates, Inc. v. Raynor, 22 N.Y. 2d 417, 239 N.E. 2d 713, 293 N.Y.S. 2d 75 (1968) . . . . . . . . . . . . 19 Joseph E. Seagram & Sons, Inc. v. Tax Commission of the City of New York, 14 N.Y. 2d 314, 200 N.E. 2d 447, 251 N.Y.S. 2d 460 (1964) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Lefrak Forest Hills Corp. v. Galvin, 40 A.D. 2d 211, 338 N.Y.S. 2d 932 (2nd Dept. 1972), affirmed, 32 N.Y. 2d 796, 298 N.E. 2d 685, 345 N.Y.S. 2d 547 (1973), cert. den., 414 U.S. 1004, 94 S. Ct. 360, 38 L. Ed. 2d 240 (1973) . . . . . . . . . . . . . . . . 18 Mangold v. Neuman, 57 N.Y. 2d 627, 439 N.E. 2d 867, 454 N.Y.S. 2d 58 (1982) . . . . . . . . . . . . 23 Majewski v. Broadalbin-Perth Central School District, 91 N.Y. 2d 577, 696 N.E.2d 978, 673 N.Y.S.2d 966 (1998) . . . . . . . . . . . . 14 Martin v. City of Albany, 42 N.Y. 2d 13, 364 N.E. 2d 1304, 396 N.Y.S. 2d 612 (1977) . . . . . . . . . . . 22 Matter of Bockis v. Kayser, 112 A.D. 2d 222, 491 N.Y.S. 2d 438 (2nd Dept. 1985) . . . . . . . . . . . . . . . . . 16 Matter of Country Sam, Inc. v. Bennett, 192 A.D. 2d 448, 597 N.Y.S. 2d 13 (1st Dept. 1993) . . . . . . . . . . . . . . . . . . 16 Matter of Dutchess County Department of Social Services v. Day, 96 N.Y. 2d 149, 749 N.E.2d 733, 726 N.Y.S.2d 54 (2001) . . . . . . . . . . . . . 15 iv Matter of Frishman v. Schmidt, 61 N.Y. 2d 823, 426 N.E. 2d 134, 473 N.Y.S. 2d 957 (1984) . . . . . . . . . . 11, 16, 17 Matter of Lezette v Board of Educ., Hudson City School Dist., 35 N.Y. 2d 272, 319 N.E. 2d 189, 360 N.Y.S. 2d 869 (1974) . . . . . . . . . . . 16 Misicki v. Caradonna, 12 N.Y. 3d 511, 909 N.E. 2d 213, 882 N.Y.S. 2d 375 (2009) . . . . . . . . . . . 21 Mott v. Zoning Board of Adjustment of City of Ocean City, 2009 WL 3460397 (N.J. Super. Ct., App. Div. 2009) . . . . . . . . . . . . . . . . . 9 O’Neill v. Township of Tewksbury Land Used Board, 2010 WL 4026072 (N.J. Super. Ct., App. Div 2010) . . . . . . . . . . . . . . . . . . 9 Parkview Assocs. v. City of N.Y., 71 N.Y. 2d 274, 519 N.E. 2d 1372, 525 N.Y.S. 2d 176 (1988), cert. den., 488 U.S. 801, 109 S. Ct. 30, 102 L. Ed. 2d 9 (1988) . . . . . . . . . . 4, 18 People v. Gomcin, 8 N.Y. 3d 899, 865 N.E. 2d 1222, 834 N.Y.S. 2d 56 (2007) . . . . . . . . . . . . 22 People v. Scarpetta, 28 N.Y. 2d 185, 269 N.E. 2d 787, 321 N.Y.S. 2d 65 (1971) . . . . . . . . . . . . 22 People v. Wheeler, 2 N.Y. 3d 370, 811 N.E. 2d 531, 779 N.Y.S. 2d 164 (2004). . . . . . . . . . . . . 22 Permanent Financial Corporation v. Montgomery County, 308 Md. 239, 518 A. 2d 123 (Md. Ct. of Appeals 1986) . . . . . . . . . . . . . . . 9 Reichenbach v. Winward at Southampton, 80 Misc. 2d 1031, 364 N.Y.S. 2d 283 (Sup. Ct., Suffolk Co. 1975), affirmed, 48 A.D. 2d 909, 372 N.Y.S. 2d 985 (2nd Dept. 1975), appeal dismissed, 38 N.Y. 2d 912, 346 N.E.2d 557, 382 N.Y.S.2d 757 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Rosner v. Metropolitan Property & Liability Insurance Company, 96 N.Y. 2d 475, 754 N.E. 2d 760, 729 N.Y.S. 2d 658 (2001) . . . . . . . . . . . 14 v Salmon v. Rochester & Lake Ontario Water Co., 120 Misc. 131, 197 N.Y.S. 769 (Sup. Ct., Monroe Co. 1923) . . . . . . . . . . . 6 Scardigli v. Borough of Haddonfield Zoning Board of Adjustment, 300 N.J. Super. 314, 692 A. 2d 1012 (App. Div. 1997) . . . . . . . . . . . . . . . . 9 Simon v. Electrospace Corporation, 28 N.Y. 2d 136, 269 N.E. 2d 21, 320 N.Y.S. 2d 225 (1971) . . . . . . . . . . . . 23 Sorrentino v. Mierzwa, 25 N.Y. 2d 59, 250 N.E. 2d 58, 320 N.Y.S. 2d 565 (1969) . . . . . . . . . . . . . 23 Tall Trees Const. Corp. v. Zoning Bd. of Appeals of Town of Huntington, 97 N.Y. 2d 86, 761 N.E.2d 565, 735 N.Y.S.2d 873 (2001) . . . . . . . . . . . . . 14 Telaro v. Telaro, 25 N.Y. 2d 433, 255 N.E. 2d 158, 306 N.Y.S. 2d 920 (1969) . . . . . . . . . . . 21 Town of Hempstead v. Little, 22 N.Y. 2d 432, 239 N.E. 2d 722, 293 N.Y.S. 2d 88 (1968) . . . . . . . . . . . . 22 Town of Massena v. Niagara Mowhawk Power Corporation, 45 N.Y. 2d 482, 382 N.E. 2d 1139, 410 N.Y.S. 2d 276 (1978) . . . . . . . . . . 21, 22 Town of West Hartford v. Rechel, 190 Conn. 114, 459 A. 2d 1015 (Sup. Ct. Conn. 1983) . . . . . . . . . . . . . . . . 9 Village of Wappinger Falls v. Tomlins, 87 A.D. 3d 630, 928 N.Y.S. 2d 353 (2nd Dept. 2011) . . . . . . . . . . . . . . . . . . 19 Wellisch v. John Hancock Mut. Life Ins. Co., 293 N.Y. 178, 56 N.E. 2d 540 (1944) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Wood v. Borough of Wildwood Crest, 319 N.J. Super. 650, 726 A. 2d 310 (App. Div. 1999) . . . . . . . . . . . . . . . . . 9 vi OTHER AUTHORITIES CPLR 5501(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 New York City Charter §641 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 New York City Charter §645(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 16 New York City Charter §666 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 New York City Charter §668 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Zoning Resolution §12-10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 15 Zoning Resolution §52-83 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 15, 16 4 Rathkopf’s The Law of Zoning and Planning §69-20 (4th Ed.) . . . . . . . . . 5 1 STATE OF NEW YORK COURT OF APPEALS PERLBINDER HOLDINGS, LLC, Appellant-Respondent, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules, -against- MEENAKSHI SRINIVASAN, CHAIRPERSON, CHRISTOPHER COLLINS, VICE– CHAIRPERSON, DARA OTTLEY–BROWN, SUSAN M. HINKSON, R.A., and EILEEN MONTANEZ, P.E., COMMISSIONERS, constituting THE BOARD OF STANDARDS AND APPEALS OF THE CITY OF NEW YORK, THE NEW YORK CITY DEPARTMENT OF BUILDINGS, THE NEW YORK CITY ENVIRONMENTAL CONTROL BOARD and THE CITY OF NEW YORK, Respondents-Appellants. Index No. 103231/2012 APL-2014-00270 REPLY BRIEF OF APPELLANT-RESPONDENT PERLBINDER HOLDINGS, LLC IN FURTHER SUPPORT OT ITS APPEAL AND IN OPPOSITON TO THE APPEAL OF RESPONDENTS-APPELLANTS This reply brief is respectfully submitted on behalf of Appellant- Respondent Perlbinder Holdings, LLC (“Appellant”) in further support of Appellant’s appeal from the Decision and Order of the Appellate Division, First 2 Department dated February 13, 2014 (R. 394-397)1 (the “Appellate Division Order”). The Appellate Division Order granted Appellant’s appeal, but only to the extent of finding that Appellant expended substantial monies to construct and erect the replacement sign at issue in good faith reliance on its approval by Department of Buildings (“DOB”) Commissioner Santulli, as well as DOB’s subsequent issuance of the required construction permit. The Appellate Division, however, did not reinstate the permit at issue under the doctrines of “vested rights” or “estoppel,” but merely deemed Appellant’s underlying appeal to the Board of Standards and Appeals (“BSA”), from which the underlying Article 78 Petition was commenced, to be an application for a variance under New York City Charter §666. It, therefore, remanded the matter to BSA for consideration in light of the Appellate Division’s finding of “good faith reliance.” This brief is also submitted in opposition to the appeal of Respondents-Appellants BSA, DOB, and the City of New York (“Respondents”) from the Appellate Division Order. Respondents’ appeal seeks reversal of the Appellate Division’s finding of “good faith reliance” by Appellant, as well as a reversal of the Appellate Division’s determination which deemed Appellant’s appeal from the revocation of its replacement sign permit to be a variance 1Numbers in parenthesis followed by “R.” refer to pages from the Record on Appeal. 3 application which must be reconsidered by BSA in light of the “good faith reliance” finding of the Appellate Division. 4 ARGUMENT POINT I THE PERMIT ISSUED TO APPELLANT TO CONSTRUCT THE REPLACEMENT SIGN WAS VALID, THEREBY JUSTIFYING APPELLANT’S GOOD FAITH RELIANCE THEREON SO AS TO ESTOP DOB FROM REVOKING THE PERMIT AND DEPRIVING APPELLANT OF ITS VESTED RIGHTS Respondents’ opposition to Appellant’s appeal takes no issue with the “vested rights” doctrine as it applies to landowners in the realm of zoning regulation. Indeed, Respondents recognize the applicability of the doctrine under the right circumstances, but argue that such circumstances are absent at bar because the permit issued to Appellants was “not valid.” Citing to Parkview Assocs. v. City of N.Y., 71 N.Y. 2d 274, 519 N.E. 2d 1372, 525 N.Y.S. 2d 176 (1988), cert. den., 488 U.S. 801, 109 S. Ct. 30, 102 L. Ed. 2d 9 (1988), Respondents argue that estoppel cannot be used against DOB to challenge its revocation of the permit, even if harsh results followed, including the denial to Appellant of its “vested rights” in the replacement sign. Respondent’s argument, however, assumes the wrong inquiry with respect to the validity of the permit. The proper inquiry must necessarily be made in the context of the equitable claims of “estoppel” and “vested rights” made by Appellant. In that regard, the Courts in this State and other jurisdictions have 5 employed the “honest error” test in determining the validity of a permit such as the one at issue. Under such a test, the inquiry is not whether the determination made by the municipality was a proper or improper interpretation of law, but only whether the municipal official acted within the scope of his or her authority in rendering the determination, debatable as it may be, so that the permitee could justifiably rely upon by the grant of the permit. Incorporated Village of Cornwall v. Environmental Protection Administration of the City of New York, 45 A.D. 2d 297, 358 N.Y.S. 2d 459 (2nd Dept. 1974); Gordon v. Board of Appeals of City of Schenectady, 131 Misc. 346, 225 N.Y.S. 680 (Sup. Ct., Schenectady Co. 1927); 4 Rathkopf’s The Law of Zoning and Planning §69-20 (4th Ed.). As stated by the Court in Brennan v. New York City Housing Authority, 72 A.D. 2d 410, 424 N.Y.S. 2d 687 (1st Dept. 1980): “However, where there has been an authoritative interpretation of the law by a duly authorized officer, as here by the Director of Personnel of the City of New York, a mistake of law should estop the government.” Indeed, in analyzing the issue, the Courts of this State have employed the analysis frequently utilized in the corporate sector, to wit, whether the action of the municipal officer was so beyond the scope of his or her authority as to be an ultra vires act for which the municipality could not be responsible under any circumstance. Dour v. Village of Port Jefferson, 89 Misc. 2d 146, 390 N.Y.S. 2d 6 965 (Sup. Ct. Suffolk Co. 1976); Salmon v. Rochester & Lake Ontario Water Co., 120 Misc. 131, 197 N.Y.S. 769 (Sup. Ct., Monroe Co. 1923). In Reichenbach v. Winward at Southampton, 80 Misc. 2d 1031, 364 N.Y.S. 2d 283 (Sup. Ct., Suffolk Co. 1975), affirmed, 48 A.D. 2d 909, 372 N.Y.S. 2d 985 (2nd Dept. 1975), appeal dismissed, 38 N.Y. 2d 912, 346 N.E.2d 557, 382 N.Y.S.2d 757 (1976), the Court recognized these concepts, and it referenced the history of decisions by “the neighboring jurisdiction of New Jersey where zoning estoppel has a longer history.” In so doing, it stated that “[i]n New Jersey, an estoppel may be asserted against a municipality where a public official acting within the scope of his duty makes an erroneous but debatable determination and the property owner in good faith relies upon it . . .” Id. at 80 Misc. 2d 1040. Examination of New Jersey case law on the issue at bar quite clearly compels adoption of estoppel against DOB under the circumstances of this case. The leading New Jersey case on the issue is Jantausch v. Borough of Verona, 41 N.J. Super. 89, 124 A. 2d 14 (Law Div.1956), affirmed, 24 N.J. 326, 131 A. 2d 881 (Supreme Court 1957). There, the Court held that estoppel against a municipality will arise where the administrative official in good faith, and within the ambit of his or her duty, makes an erroneous but debatable interpretation of the ordinance, and the property owner in like good faith relies on such determination. In explaining the Jantausch holding, the Court in Hill v. Board of Adjustment of the 7 Borough of Eatontown, 122 N.J. Super. 156, 299 A. 2d 737 (App. Div. 1972) stated as follows: “A reading of the cases cited by the court in Jantausch as being examples of the ‘void’ class demonstrates what is meant by that characterization. Thus in V. F. Zahodiakin &c., Corp. v. Bd. of Adjustment, Summit, 8 N.J. 386, 86 A.2d 127 (1952), it was said of the ‘void’ action under review that it was ‘not professed to be an exercise of the statutory power’ (Id. at 393, 86 A.2d at 131); there was ‘no pretense of adherence to the statutory principle’ (Id. at 394, 86 A.2d at 131); it was ‘not within the province of the local authority’ (Id. at 395, 86 A.2d at 131); and it was ‘not a mere irregular exercise of the quasi-judicial function residing in the local authority.’ (Id.) In Zahodiakin, Justice Heher cited, among other cases, Bauer v. City of Newark, 7 N.J. 426, 81 A.2d 727 (1951), as illustrative of what he meant by an act so ultra vires as to be Coram non judice and ‘utterly void,’ and thus beyond the power of resuscitation by reason of estoppel. In Bauer, Justice Heher described the distinction between an act which a municipality is ‘utterly without capacity to make under any and all circumstances' and an act ‘merely voidable for want of authority or for an irregularity in the exercise of the contractual power.’ Id. at 434, 81 A.2d at 730. In Summer Cottagers’ Ass’n of Cape May v. City of Cape May, 19 N.J. 493, 117 A.2d 585 (1955), the Supreme Court, again through Justice Heher, said: There is a distinction between an act utterly beyond the jurisdiction of a municipal corporation and the irregular exercise of a basic power under the legislative grant in matters not in themselves jurisdictional. The former are ultra vires in the primary sense and void; the latter, ultra vires only in a secondary sense which does not preclude ratification or the application of the doctrine of estoppel 8 in the interest of equity and essential justice. (Id. at 504, 117 A.2d at 590.) Further, in Jantausch, Judge Weintraub adverted to Marini v. Borough of Wanaque, 37 N.J. Super. 32 at 40, 116 A.2d 813 (App.Div.1955), wherein the court, speaking of what it assumed to be an unauthorized issuance of a building permit, said ‘If anything, it was a mistaken or irregular exercise of a ministerial function,’ rather than an action which is utterly void as in V. F. Zahodiakin &c., Corp., supra, and, as it was characterized in Donovan v. Gabriel and Gruber, 57 N.J. Super. 542, 547, 155 A.2d 140, 143 (App. Div.1959): ‘* * * a mistaken action on the part of the building inspector * * *’ and therefore not ‘void.’ Thus the essential intent of Jantausch was that, if a permit was ‘irregularly’ issued, but in good faith and within the ambit of the building inspector's duty, it is not ‘utterly void’ and estoppel is permissible with proper good faith reliance thereon. And so Jantausch was interpreted in Schultze v. Wilson, 54 N.J. Super. 309, 148 A.2d 852 (App. Div.), certif. denied 29 N.J. 511, 150 A.2d 520 (1959), where the court said at 323—324, 148 A.2d at 860: Although Judge Weintraub was concerned with an ordinance situation and not a building permit case, a reasonable interpretation of his ‘intermediate’ category applies to the instant situation where the officer issues a permit ‘within the ambit of his duty’ in the utmost good faith (there is no proof to the contrary herein) and the property owner accepts it in good faith and relies thereon. As the permit was within the jurisdiction of the inspector to issue even if it was issued irregularly, it was not utterly void. (Emphasis added). 9 So here, the issuance of the building permit to the Cerans was within the province of the general duties of the building inspector. It was not an act which he was ‘without capacity to make under any and all circumstances.’ (Emphasis added). Rather it was a ‘mistaken or irregular exercise of a ministerial function’ (Marini at 40, 116 A.2d at 817) and ‘within the purview of his jurisdiction.’ (Donovan at 547, 155 A.2d at 143). Therefore it came within the ‘intermediate situation’ referred to in Jantausch and estoppel is not precluded.” More recent cases in New Jersey make it clear that the Jantausch analysis is in full operation in New Jersey. O’Neill v. Township of Tewksbury Land Used Board, 2010 WL 4026072 (N.J. Super. Ct., App. Div 2010); Mott v. Zoning Board of Adjustment of City of Ocean City, 2009 WL 3460397 (N.J. Super. Ct., App. Div. 2009); Wood v. Borough of Wildwood Crest, 319 N.J. Super. 650, 726 A. 2d 310 (App. Div. 1999); Scardigli v. Borough of Haddonfield Zoning Board of Adjustment, 300 N.J. Super. 314, 692 A. 2d 1012 (App. Div. 1997). Other jurisdictions have adopted this approach as well. See, e.g., Crow v. Board of Adjustment of Iowa City, 227 Iowa 324, 288 N.W. 145 (Sup. Ct. Iowa 1939); Town of West Hartford v. Rechel, 190 Conn. 114, 459 A. 2d 1015 (Sup. Ct. Conn. 1983); City of Berea v. Wren, 818 S.W. 2d 274 (Ky. Ct. of Appeals 1991); Permanent Financial Corporation v. Montgomery County, 308 Md. 239, 518 A. 2d 123 (Md. Ct. of Appeals 1986). 10 At bar, the broad scope of DOB Commissioner Santulli’s powers in the realm of reviewing and granting permits is well ensconced in the New York City Charter. For example, New York City Charter §641 provides as follows: “There shall be a department of buildings, the head of which shall be the commissioner of buildings. The commissioner or the first deputy commissioner shall be a registered architect or a licensed professional engineer in good standing under the education law.” In addition, New York City Charter §645(b) provides as follows: “With respect to buildings and structures, the commissioner shall have the following powers and duties exclusively, subject to review only by the board of standards and appeals as provided by law: (1) to examine and approve or disapprove plans for the construction or alteration of any building or structure, including the installation or alteration of any service equipment therein, and to direct the inspection of such building or structure, and the service equipment therein, in the course of construction, installation or alteration; (2) to require that the construction or alteration of any building or structure, including the installation or alteration of any service equipment therein, shall be in accordance with the provisions of law and the rules, regulations and orders applicable thereto; but where there is a practical difficulty in the way of carrying out the strict letter of any provision of law relating to buildings in respect to the use of prescribed materials, or the installation or alteration of service equipment, or methods of construction and where equally safe and proper materials or forms of construction may be employed in a specific case, he may permit the use of such materials or of such forms of construction, provided that the spirit of the law shall be observed, safety secured and substantial justice done, but 11 he shall have no power to allow any variance from the provisions of any law in any respect except as expressly allowed therein, or from any appellate ruling of the board of standards and appeals; (3) to issue certificates of occupancy for any building or structure situated in the city, provided that: a. no building or structure hereafter constructed may be occupied or used in whole or in part for any purpose until a certificate of occupancy has been issued; b. no building or structure or part thereof for which a certificate of occupancy has not been previously issued or required shall be occupied or used for any purpose whatever in case such building shall hereafter be altered or converted so as to decrease or increase the number of living rooms or apartments, until a certificate of occupancy has been issued, except that this requirement shall not apply to any old law or new law tenement wherein two or more apartments are combined creating larger residential units, the total legal number of families within the building is being decreased, and the bulk of the building is not being increased.” Given this broad swath of power granted to DOB’s Commissioner, it is beyond peradventure that Commissioner Santulli absolutely acted within the ambit and scope of his express authority in making his determination that Appellant was permitted to construct the replacement sign. This is especially so in light of the reasonable amount of discretion afforded to someone like a DOB Commissioner who administers ordinances. See, Matter of Frishman v. Schmidt, 61 N.Y. 2d 823, 426 N.E. 2d 134, 473 N.Y.S. 2d 957 (1984). Specifically, Commissioner Santulli was tasked with determining whether the replacement sign was acceptable in its place as a legal nonconforming use under the Zoning Resolution. As was detailed to BSA by Appellant’s engineer, 12 Edward Lauria (R. 279-287), the application to install the replacement sign detailed exactly what would be constructed, its size, where it would be constructed,1 and what it would look like upon completion (R. 281). Mr. Lauria met with Commissioner Santulli after DOB’s review of the application, and he reviewed with the Commissioner the replacement sign’s plans, and the various objections then raised by DOB, including the very objections now being raised by Respondents as evidence of the alleged “illegality” of the replacement sign (R. 49- 52). To that end, the Record reflects that they discussed, among other things, that the replacement sign would be two sided, would be lower, and would be located further south on the subject property (R. 282-283). Given the facts and circumstances placed before him, Commissioner Santulli’s conclusion that Appellant’s application and supporting documentation established compliance with Zoning Resolution §52-83 was reasonable so as to warrant issuance of the construction permit. In that regard, Zoning Resolution §52- 83, which came into play upon the demolition of the subject building and the removal of the original sign, provides as follows: 1 Mr. Lauria’s affidavit explains that the permit application listed lot 28, not lots 26 and 27 on which the replacement sign was to be constructed, because the original sign was located on lot 28. In addition, the application provided room for only one lot number. However, the plans accompanying the application expressly showed that the replacement sign would be located not on lot 28, but on lots 26 and 27 (R. 281). 13 “Non-Conforming Advertising Signs In all Manufacturing Districts, or in C1, C2, C4, C5-4, C6, C7 or C8 Districts, except as otherwise provided in Sections 32-66 (Additional Regulations for Signs Near Certain Parks and Designated Arterial Highways) or 42- 55, any non-conforming advertising sign except a flashing sign may be structurally altered, reconstructed or replaced in the same location and position, provided that such structural alteration, reconstruction or replacement does not result in: (a) the creation of a new non-conformity or an increase in the degree of non-conformity of such sign; (b) an increase in the surface area of such sign; or (c) an increase in the degree of illumination of such sign.” As written, the Zoning Resolution provides clear power to reconstruct or replace the original sign, as was the case here, so that the replacement sign stood in the shoes of the original sign as a legal nonconforming use. While the Zoning Resolution goes on to provide a general direction that the replacement sign be located in the same “location” and “position” as was the original sign, neither the term “location” nor the term “position” is defined by the Zoning Resolution. However, in reading the more specific limitations of subsections (a)- (c) of the Zoning Resolution, its scope becomes clearer, as it provides express guidelines and limitations that the replacement sign not create new non- conformities, increase existing non-conformities, or increase surface area or degree of illumination. The Zoning Resolution, thus, contemplates that the replacement 14 sign may, in fact, be different from the original sign and still qualify for grandfathered rights, for if this were not the case, and if a precise replacement / replica of the original sign were contemplated, the criteria enumerated in subsections (a) - (c) would be wholly unnecessary and superfluous, a result wholly contrary to established rules of statutory construction. Tall Trees Const. Corp. v. Zoning Bd. of Appeals of Town of Huntington, 97 N.Y. 2d 86, 761 N.E.2d 565, 735 N.Y.S.2d 873 (2001); Rosner v. Metropolitan Property & Liability Insurance Company, 96 N.Y. 2d 475, 754 N.E. 2d 760, 729 N.Y.S. 2d 658 (2001); Majewski v. Broadalbin-Perth Central School District, 91 N.Y. 2d 577, 696 N.E.2d 978, 673 N.Y.S.2d 966 (1998). In addition, Zoning Resolution §12-10 states as follows: “Surface area (of a sign) (4/8/98) The “surface area” of a sign shall be the entire area within a single continuous perimeter enclosing the extreme limits of writing, representation, emblem, or any figure of similar character, together with any material or color forming an integral part of the display or used to differentiate such sign from the background against which it is placed. In any event, the supports or uprights on which such sign is supported shall not be included in determining the surface area of a sign. When two signs of the same shape and dimensions are mounted or displayed back to back and parallel on a single free-standing structural frame, only one of such signs shall be included in computing the total surface area of the two signs. When a double-faced sign projects from the wall of a building, and its two sides are located not more than 28 inches apart at the widest point and not more than 18 15 inches apart at the narrowest point, and display identical writing or other representation, the surface area shall include only one of the sides. Any additional side of a multi-faced sign shall be considered as a separate sign for purposes of computing the total surface area of the sign.” Read together with Zoning Resolution §52-83, as it must so as to make the two Zoning Resolution Sections internally compatible, Matter of Dutchess County Department of Social Services v. Day, 96 N.Y. 2d 149, 749 N.E.2d 733, 726 N.Y.S.2d 54 (2001), Zoning Resolution §12-10’s language that “[w]hen two signs of the same shape and dimensions are mounted or displayed back to back and parallel on a single free-standing structural frame, only one of such signs shall be included in computing the total surface area of the two signs,” must lead to the conclusion that under Zoning Resolution §52-83 the surface area of the original sign had not changed simply because the replacement sign was double-sided. Moreover, since the replacement sign was actually installed in an area lower than the original sign, the inescapable conclusion is that the replacement sign did not result in any increase in the degree of non-conformance. Instead, the non-conforming replacement sign fell well within the ambit of Zoning Resolution §52-83, as it constituted a continuation of the legal nonconforming use of the original sign. As such, Commissioner Santulli’s determination that “OK to accept prior sign as grandfathering of existing non-conforming sign. OK to accept lower sign as 16 no increase in degree of noncompliance” (R. 135) was a reasonable and rational assessment of the facts and circumstances set forth before him based upon his expertise and his high level of office. It did not exceed the ambit of his power, authority or duties in interpretation Zoning Resolution §52-83, and it was entitled to great weight. Matter of Lezette v Board of Educ., Hudson City School Dist., 35 N.Y. 2d 272, 319 N.E. 2d 189, 360 N.Y.S. 2d 869 (1974). Matter of Country Sam, Inc. v. Bennett, 192 A.D. 2d 448, 597 N.Y.S. 2d 13 (1st Dept. 1993); Matter of Bockis v. Kayser, 112 A.D. 2d 222, 491 N.Y.S. 2d 438 (2nd Dept. 1985). Certainly, Appellant had no reason to doubt that the Commissioner’s decision exceeded the scope of his authority “to examine and approve or disapprove plans for the construction or alteration of any building or structure” as set forth in New York City Charter §645(b). DOB Commissioner Santulli’s successor may have reached a different conclusion some twenty five months later, and he may have determined that Appellant’s legal nonconforming use ceased because, in his view, the original sign was changed from a single 14’ by 48’ sign located on a building wall 35 feet above curb level, to a double-sided sign with the same dimensions at a height 10 feet above curb level, thereby resulting in a new location for the replacement sign with an increased surface area. Such a finding, however, merely renders Commissioner Santulli’s determination “debatable,” but by no means illegal, invalid or beyond 17 the scope of his authority and duties. This is especially the case since any ambiguity in such matters must be resolved in favor of the property owner and against the municipality. Matter of Frishman v. Schmidt, supra. This Court in Bayswater Health Related Facility v. Karagheuzoff, 37 N.Y. 2d 408, 335 N.E. 2d 282, 373 N.Y.S. 2d 49 (1975) recognized that in such cases it is appropriate to estop a municipality. In language equally fitting to the circumstances of this case, this Court held as follows: “So far as appears from the record, these petitioners have been faultless in their relationship with the city, whether in this transaction or otherwise. Their applications appear to have been completely truthful. We, therefore, consider it irrelevant to concern ourselves here with the transgressions of others, whether in or out of government. It certainly should not prejudice those whose hands are clean and whose conduct is above reproach. No representative of the city, at any level, has, in the course of these litigations, even hinted that those are not the cases here. Accordingly, as in Matter of Temkin v. Karagheuzoff, 34 N.Y.2d 324, 357 N.Y.S.2d 470, 313 N.E.2d 770, supra, each of the unanimous Appellate Divisions was justified in finding that respondents were estopped from barring each of these petitioners from the opportunity to complete the vesting of its respective right to complete construction. Though Temkin did not involve a State Certification Question, its opinion is equally applicable here when it states (p. 329, 357 N.Y.S.2d p. 473, 313 N.E.2d p. 772) ‘the work had been commenced not only with the approval, but with the actual permission of the respondents. As a result of such permission and approval, petitioners had changed their position to their detriment.’” 18 While there is no “fixed formula which measures the content of all the circumstances whereby a party is said to possess a ‘vested right,’ it is a term . . . which sums up a judicial determination that the facts of the case render it inequitable that the State impede the individual from taking certain action.” Lefrak Forest Hills Corp. v. Galvin, 40 A.D. 2d 211, 338 N.Y.S. 2d 932 (2nd Dept. 1972), affirmed, 32 N.Y. 2d 796, 298 N.E. 2d 685, 345 N.Y.S. 2d 547 (1973), cert. den., 414 U.S. 1004, 94 S. Ct. 360, 38 L. Ed. 2d 240 (1973). At bar, the confluence of facts and circumstances before this Court are so compelling that application of the “honest error” doctrine to Commissioner Santulli’s determination, as recognized by the Courts in New Jersey and several other states, is warranted. Utilizing such an approach, Commissioner Santulli’s determination must be recognized for exactly what it is - - a determination made entirely within the scope of his authority, not invalid, ultra vires or illegal in any respect as argued by Respondents. Parkview recognized that estoppel will be used against a municipality, albeit in rare circumstances. It did not, however, opine as to the core issue now before this Court, to wit, the nature of the circumstances which will render a permit “invalid” so as to bar the employ of estoppel to avoid a harsh result. It is respectfully submitted that this case presents an opportunity for this Court to make clear, as have the Courts in our sister State of New Jersey and in several other 19 jurisdictions, that a DOB’s Commissioner’s determination made within the full scope of his authority and duties, and not so utterly without any semblance of rationale or logic as to be ultra vires or not worthy of reliance, will set forth a basis for estopping a municipality when a permitee expends substantial monies in good faith reliance on such determination to his or her detriment. See also, Village of Wappinger Falls v. Tomlins, 87 A.D. 3d 630, 928 N.Y.S. 2d 353 (2nd Dept. 2011); D’Amico v. Felten, 122 A.D. 2d 528, 504 N.Y.S. 2d 911 (4th Dept. 1986). To paraphrase this Court’s language in Jayne Estates, Inc. v. Raynor, 22 N.Y. 2d 417, 239 N.E. 2d 713, 293 N.Y.S. 2d 75 (1968), if Appellant is held to have been required to foresee that Commissioner Santulli’s approval, and DOB’s permit, procured in good faith, would be revoked more than two years after the fact, thereby rendering the replacement sign illegal and Appellant’s substantial investment a nullity, there may never be a case where estoppel should apply. From a policy perspective, to hold otherwise would effectively render irrelevant the Commissioner’s power “to examine and approve or disapprove plans for the construction or alteration of any building or structure,” as set forth in the New York City Charter, a result which patently defies the intent of the Charter or common sense. 20 POINT II THE APPELLATE DIVISION’S DETERMINATION THAT APPELLANT RELIED IN GOOD FAITH ON COMMISSIONER SANTILLI’S APPROVAL, AND DOB’S ISSUANCE, OF THE REPLACEMENT SIGN PERMIT, IS NOT SUBJECT TO ATTACK ON THIS APPEAL Appellant’s underlying application to BSA was submitted under the auspices of New York City Charter §666, not the variance provisions of New York City Charter §668. As pointed out in Appellant’s main brief and in Point I, infra, Appellant believes no variance is required given its “good faith reliance” on the approval and permit of DOB and its Commissioner so as to justify estopping Respondents from depriving Appellant of its vested rights in the replacement sign. Nevertheless, should this Court determine that estoppel is inappropriate under the circumstances of this case, and that Appellant must seek a variance,2 as provided by the Appellate Division Order, it is respectfully submitted that the portion of the Appellate Division Order which affirmed Appellant’s “good faith reliance” should not be disturbed, as sought by Respondents on their appeal. 2 As a practical matter, if this Court determines that estoppel against Respondents is not an appropriate remedy under the facts of this case, there is no reason that Appellant’s underlying BSA application cannot be remanded to BSA, as held by the Appellate Division, for consideration as a variance application subject to the finding of Appellant’s “good faith reliance.” The reality is that any items of information required on a variance application not yet provided by Appellant to BSA could be provided on remand so as to comply with the variance application requirements of the New York City Charter. This would certainly save much replication and duplication of the record before BSA, and expedite consideration of Appellant’s request for BSA’s approval of the replacement sign as is. 21 Specifically, Respondents argue that a disputed factual issue exists as to Appellant’s good faith reliance which should not have been conclusively determined by the Appellate Division. Respondents’ position, however, is flawed in two respects. First, Respondents never made any argument as to the existence of a factual dispute over the issue of Appellant’s “good faith reliance.” The Record merely reflects their argument that Appellant’s “good faith reliance” on the DOB’s approval does not estop the agency from enforcing the law (R. 388), as noted by the lower court (R. 11). As the issue of good faith reliance is essentially a factual issue, Town of Massena v. Niagara Mowhawk Power Corporation, 45 N.Y. 2d 482, 382 N.E. 2d 1139, 410 N.Y.S. 2d 276 (1978), Respondents’ failure to argue the existence of a factual dispute, at either the lower court or the Appellate Division levels, bars them from blindsiding Appellant with the argument at this time. Misicki v. Caradonna, 12 N.Y. 3d 511, 909 N.E. 2d 213, 882 N.Y.S. 2d 375 (2009); First International Bank of Israel, Ltd. v. L. Blankstein & Son, Inc., 59 N.Y. 2d 436, 452 N.E. 2d 1216, 465 N.Y.S. 2d 888 (1983); Telaro v. Telaro, 25 N.Y. 2d 433, 255 N.E. 2d 158, 306 N.Y.S. 2d 920 (1969). Second, it is fundamental that this Court, as the State’s highest court, sits in an appellate capacity primarily to review questions of law. Hunt v. Bankers and Shippers Ins. Co. of New York, 50 N.Y. 2d 938, 409 N.E. 2d 928, 431 N.Y.S. 22 2d 454 (1980); Town of Massena v. Niagara Mowhawk Power Corporation, supra. Thus, where the Appellate Division has reviewed and determined a factual finding of the lower court on the law, the Court of Appeals is bound by the Appellate Division’s finding, and must accept the facts before it. Town of Massena v. Niagara Mowhawk Power Corporation, supra; Martin v. City of Albany, 42 N.Y. 2d 13, 364 N.E. 2d 1304, 396 N.Y.S. 2d 612 (1977); People v. Scarpetta, 28 N.Y. 2d 185, 269 N.E. 2d 787, 321 N.Y.S. 2d 65 (1971); Bethlehem Steel Company v. Turner Construction Company, 2 N.Y. 2d 456, 141 N.E. 2d 590, 161 N.Y.S. 2d 90 (1957). In contrast, where new findings of fact are made by the Appellate Division, the Court of Appeals is empowered to review the Appellate Division’s factual determination. CPLR 5501(b); Town of Hempstead v. Little, 22 N.Y. 2d 432, 239 N.E. 2d 722, 293 N.Y.S. 2d 88 (1968). Where, however, the Appellate Division issues a determination “on the law and the facts,” the standard of review is limited to whether evidence exists in the record before the Appellate Division to support the Appellate Division’s factual determination. If such evidence exists, this Court is bound by the Appellate Division’s factual finding. People v. Gomcin, 8 N.Y. 3d 899, 865 N.E. 2d 1222, 834 N.Y.S. 2d 56 (2007); People v. Wheeler, 2 N.Y. 3d 370, 811 N.E. 2d 531, 779 N.Y.S. 2d 164 (2004); Buchanan v. Espada, 88 N.Y. 2d 973, 671 N.E. 2d 538, 648 23 N.Y.S. 2d 426 (1996); Mangold v. Neuman, 57 N.Y. 2d 627, 439 N.E. 2d 867, 454 N.Y.S. 2d 58 (1982); Simon v. Electrospace Corporation, 28 N.Y. 2d 136, 269 N.E. 2d 21, 320 N.Y.S. 2d 225 (1971); Sorrentino v. Mierzwa, 25 N.Y. 2d 59, 250 N.E. 2d 58, 320 N.Y.S. 2d 565 (1969); Joseph E. Seagram & Sons, Inc. v. Tax Commission of the City of New York, 14 N.Y. 2d 314, 200 N.E. 2d 447, 251 N.Y.S. 2d 460 (1964); Wellisch v. John Hancock Mut. Life Ins. Co., 293 N.Y. 178, 56 N.E. 2d 540 (1944). At bar, the Appellate Division Order expressly states that it is “on the law and the facts.”3 As such, the only inquiry which this Court is empowered to make is whether the Record reflects any evidence to support the Appellate Division’s conclusion. The Record which was before the Appellate Division was replete with the ample facts described in Appellant’s main brief and in Point I, infra, upon which the Appellate Division could rely in making it determination. These facts include, among other things, the entire application made by Appellant to BSA for reversal of the permit revocation, the entire record submitted to the lower court in connection with the underlying Article 78 Proceeding, the entire chronology of the events outlined in such documents, the specific plans filed for 3 Given the fact that the Appellate Division’s finding of Appellant’s “good faith reliance” followed the lower court’s finding that “BSA noted that [Appellant’s] good faith reliance on the DOB’s approvals does not estop the agency from enforcing the law” (R. 11), there is every indication that the lower court made a finding of fact as to Appellant’s “good faith reliance” which was already reviewed by the Appellate Division. Accordingly, and under the authorities cited above, this Court would be precluded in the first instance from reviewing in any manner the Appellate Division’s holding as to Appellant’s “good faith reliance.” 24 the replacement sign and examined by Commissioner Santulli, the amount of money spent by Appellant to construct the replacement sign after receiving the Commissioner’s approval and the DOB permit, and the sworn statements of Appellant’s principal and engineer. Accordingly, the Appellate Division’s finding of Appellant’s “good faith reliance” as a matter of law may not be attacked by Respondents on this appeal. Any remand to BSA for a determination of a variance application must, therefore, accept and apply Appellant’s “good faith reliance” when considering the application. CONCLUSION For all of the foregoing reasons and the reasons set forth in Appellant's main brief, it is respectfully requested that this Court enter an order (i) granting Appellant's appeal in all respects, (ii) ordering DOB to rescind the Intent to Revoke, (iii) ordering DOB to reinstate the permits for the erection and installation of the Replacement Sign, (iv) declaring the ECB Violations to be null and void and dismissed, (v) denying Respondents' appeal, (vi) awarding Appellant the costs and disbursements of this appeal, and (vii) awarding Appellant such other and further relief as is deemed just and proper. Dated: New York, New York April 13, 2015 By: Respectfully Submitted, Kaufman Friedman Plotnicki & Grun, LLP Attorneys for Appellant-Respondent 300 East 42nd Street - gth Floor ork 10017 25