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FILED: QUEENS COUNTY CLERK 03/06/2019 05:41 PM INDEX NO. 703947/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/06/2019
SUPREME COURT OF THE CITY OF NEW YORK
COUNTY OF QUEENS
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In the Matter of the Application of
VERIFIED
THE CITY OF NEW YORK, THE NEW YORK CITY . PETITION
DEPARTMENT OF BUILDINGS AND THE NEW
YORK CITY FIRE DEPARTMENT,
Index No.
Petitioners,
FOR A COURT ORDER TO CONDUCT AN
ADMINISTRATIVE SEARCH UPON THE LAND AND
BUILDING LOCATED AT 93-12 202nd STREET,
HOLLIS, NEW YORK 11423, BLOCK 10475, LOT 374.
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Petitioners, THE CITY OF NEW YORK, THE NEW YORK CITY
DEPARTMENT OF BUILDINGS AND THE NEW YORK CITY FIRE DEPARTMENT, by
their attorney, ZACHARY W. CARTER, Corporation Counsel of the City of New York, as and
for their verified petition, allege as follows upon information and belief:
INTRODUCTION
1. By this proceeding, petitioners seek the issuance of a court order
authorizing an administrative inspection of the inside of the premises known as 93-12 202nd
Street, Hollis, New York 11423, Block 10475, Lot 374 ("the subject premises").
2. The purpose of the inspection is to determine whether the subject premises
is being occupied or maintained in violation of the New York City Building Code ("Building
Code"), the New York City Housing Maintenance Code ("Housing Maintenance Code"), the
New York City Fire Code ("Fire Code"), and the New York State Multiple Dwelling Law
("Multiple Dwelling Law"), and the inspection is to be undertaken pursuant to an administrative
plan and in furtherance of the public health, safety and welfare.
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3. As detailed in the accompanying Affidavit of Human Resources
Administration ("HRA")/Department of Social Services ("DSS") Associate Director of Data
Analytics for the Office of Program Accountability Morgan Neuwirth ("Neuwirth Aff."), which
"A,"
is attached hereto as part of Exhibit it issuspected that the subject premises is being used as
a three-quarter house. See Neuwith Aff. ¶¶ 5-7. As defined in the latest Three Quarter Housing
"B,"
Quarterly Report ("Quarterly Report"), a copy of which is attached hereto as Exhibit three
quarter houses "are unlicensed and unregulated two- or
buildings, generally three-family homes,
where many of the City's most vulnerable and economically disadvantaged residents live.
Residents include those discharged from hospital psychiatric or substance use treatment
programs, those reentering the community after serving time in jail or prison, and those on public
assistance left to find with a State-set shelter allowance of $215. The name 'three-
housing
house'
quarter is taken from the view that they exist somewhere between regulated halfway
homes."
houses and actual
4. As further detailed in the Quarterly Report, and in the Neuwirth Aff., in
June of 2015 Mayor de Blasio announced the formation of an interagency Task Force to review
the use of three-quarter houses in New York City. This Task Force is comprised of the Mayor's
Office of Operations, HRA/DSS, the New York City Department of Housing Preservation and
Development ("HPD"), the New York City Department of Buildings ("DOB") and the New
York City Fire Department ("FDNY"). The work of the Task Force began with a review of all
residences, identified by HRA, that housed 10 or more unrelated adults who receive the $215
State-set public assistance rent allowance. In addition to the addresses identified using the HRA
metric, the Task Force identified locations based on information provided by advocates and
through 311. Begiññiñg in June 2015, representatives from the interagency Task Force began to
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visit and inspect these residences to identify immediate health and safety issues and to relocate
some residents. S_ee Neuwirth Aff. ¶ 5 and Exhibit B. The inspection sought herein is in
furtherance of the work of this task force.
5. Petitioners seek the issuance of a Warrant of Inspection authorizing entry
upon the subject premises because there is reason to believe that the subject premises is being
occupied as a three-quarter house in violation of applicable law.
THE PARTIES
6. Petitioner THE CITY OF NEW YORK is a municipal corporation
incorporated under the laws of the State of New York.
7. Petitioner THE NEW YORK CITY DEPARTMENT OF BUILDINGS is
an agency empowered under the New York City Charter to, inter alia, enforce the provisions of
the Building Code, the Housing Maintenance Code and the Multiple Dwelling Law.
8. Petitioner THE NEW YORK CITY FIRE DEPARTMENT is an agency
empowered under the New York City Charter to, inter alia, enforce the provisions of the Fire
Code.
9. The land and building that are the subject of this application are located at
93-12 202nd Street, Hollis, New York 11423, Block 10475, Lot 374.
APPLICABLE PROVISIONS OF LAW
10. Section 28-103.13 of the New York City Administrative Code
Entry"
("Administrative Code") entitled "Right of authorizes DOB to enter buildings for the
purpose of conducting inspections and provides, in relevant part:
The commissioner or his or her authorized
representatives, in the discharge of their duties,
shall have the right to enter upon and inspect, at all
reasonable times, any buildings, enclosure,
premises, or any part thereof, or any signs or service
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equipment contained therein or attached thereto for
the purpose of determining compliance with the
provisions of the code and other applicable building
laws and rules.
11. Section 104.4 of the New York City Fire Code likewise authorizes FDNY
personnel to conduct inspections for the purposes of determining compliance with the Fire Code
and other applicable laws enforced by FDNY.
12. Section 28-205.1 of the Administrative Code is entitled "Civil judicial
enforcement"
and authorizes the Office of the Corporation Counsel to institute a judicial
proceeding to restrain, correct or abate a violation of, among other things, the Administrative
Code. Implicit in this section of the Administrative Code is the authority of the Supreme Court of
the State of New York to issue any order necessary to allow DOB to enforce the provisions of
the Administrative Code. That section provides, in relevant part, as follows:
The owner, lessee, person in charge, or
occupant of any building, structure, premises,
equipment or part thereof, where a violation of this
code, the 1968 building code, the zoning resolution
or of other laws or rules enforced by the department
or any order issued by the commissioner shall exist
... shall be subject to an action or proceeding to
restrain, correct or abate such violation, or to
compel compliance with such order. Upon request
of the commissioner, the corporation counsel may
institute judicial actions or proceeding seeking such
relief.
13. Moreover, Section 398 of the New York City Charter provides that the
Office of the Corporation Counsel may make an ex parte application to the court for an order
directing the entry and inspection of premises. New York City Charter § 398 states, in relevant
part, as follows:
Ex parte warrants. Ifentry to a location or premises
to be inspected pursuant to an agency's powers and
duties is not gained on consent, or if circumstances
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call for entry without prior notice the commissioner
of such agency, or his or her authorized
representative, may request the corporation counsel
to make an application, ex parte, in any court of
competent jurisdiction for an order directing the
entry and inspection of such premises or location....
14. In addition, Section 140-b of the Judiciary Law sets forth the power of the
Supreme Court of the State of New York to issue search warrants based upon ex parte
applications.
RELEVANT FACTS
15. The current records of the New York City Department of Finance indicate
that Kensington Construction Corp. is the current owner of the subject premises. S_ee DOB
Property Profile Overview attached hereto as part of Exhibit "C". The HPD document entitled
Violation" two-
"HPD Building, Registration & indicates that the subject premises is legally a
units."
story building containing two "A See copy of document entitled "HPD Building,
Violation"
Registration & attached hereto as part of Exhibit "C", and the Affidavit of DOB
Inspector John Rosato ("Rosato Aff.") ¶ 4, the Affidavit of DOB Inspector Richard Adams
("Adams Aff.") ¶ 4, and the Affidavit of DOB Supervising Inspector Victor Foye ("Foye Aff.")
¶ 4, (collectively "DOB Inspector Affidavits") which are also attached hereto as part of Exhibit
"A." "family"
As detailed in the DOB Inspector Affidavits, a is defined as no more than three
unrelated persons living together and maintaining a common household. See id.
16. Upon information and belief, the subject premises is being occupied by
more than the legally allowed number of families in violation of the Building Code, the Housing
Maintenance Code, and the Multiple Dwelling Law. Specifically, as detailed in the Neuwirth
Aff., it appears that there are 19 individuals with 19 different surnames residing at the subject
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premises. Seee Neuwirth Aff. ¶ 7. This suspected occupancy is far above the legally permitted
two families.
17. In light of the suspected occupancy far above the legally permissible use,
DOB and FDNY attempted to inspect the subject premises on multiple occasions to determiñe
whether violations of the codes detailed above exist therein. h, generally, DOB Inspector
Affidavits. In addition, FDNY attempted an inspection of the subject premises on two separate
occasions. h, geñerally, Affidavit of FDNY Supervising Inspector Tunded Oluseye ("Oluseye
"A."
Aff."), which is also annexed hereto as part of Exhibit
18. On Wednesday, December 12, 2018 at approximately 8:30 p.m., DOB
Inspector Rosato visited the subject premises in an attempt to conduct an inspection and was
denied access to the premises by a male occupant. In response, Inspector Rosato gave the
Inspection,"
occupant an LSF "Notice to Call for requesting that someone contact DOB and
schedule an appointment for inspection. h Rosato Aff. ¶¶ 6-7.
19. On Wednesday, December 19, 2018 at approximately 6:30 p.m., DOB
Inspector Adams visited the subject premises in an attempt to conduct an inspection and no one
responded to doorbells or knocks on the front door of the subject premises. In response,
Inspection"
Inspector Adams posted an LSF "Notice to Call for on the front door of the subject
premises, requesting that someone contact DOB and schedule an appointment for inspection.
h Adams Aff. 11 6-7.
20. On Wednesday, February 6, 2019 at approximately 8:35 p.m., FDNY
Supervising Inspector Oluseye, accompanied by FDNY Supervising Inspectors Cornish and
Mungin, visited the subject premises and was denied access to the premises by a man named Mr.
Diamond and representing himself as a house ina11aso1. S_ee Oluseye Aff. ¶¶ 5-6.
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21. Also on Wednesday, February 6, 2019, at 8:50 p.m., DOB Inspector Foye
visited the subject premises. When Inspector Foye arrived at the subject premises, a male
mañager"
occupant who identified himself as the "house was standing in front of the building.
The male occupant denied Inspector Foye access to conduct an inspection. After being denied
Inspection."
access to inspect, Inspector Foye gave the male occupant an LS4 "Notice to Call for
See Foye Aff. ¶¶ 6-7.
22. On Wednesday, February 20, 2019 at approximately 6:00 p.m., FDNY
Supervising Inspector Oluseye, accompanied by FDNY Supervising Inspectors Cornish and
Mungin, visited the subject premises. No one responded when he knocked on the front door and
rang the bell. Inspector Oluseye observed the lights on the first floor turn off after he began
knocking. S_ee Oluseye Aff. ¶¶ 7-8.
DENIAL OF ACCESS FOR INSPECTION
23. DOB and FDNY have sought to inspect the subject premises to determine
if violations of the New York City Building Code, New York City Housing Maintenance Code,
New York City Fire Code, and New York State Multiple Dwelling Law exist therein.
24. As is reflected in the DOB and FDNY Inspector Affidavits (s_ee Exhibit
"A"), DOB and FDNY have been unable to obtain access to the subject premises on four
separate dates.
25. On each of those occasions, an occupant either actively denied the
Inspectors access to the premises or no one responded to the front door. Official notices were
left at the premises for the owner and/or tenant(s) of the subject premises directing them to
Inspection"
contact DOB to schedule an inspection. The DOB "Notice to Call for specifically
stated that "FAILURE TO COMPLY WITH THIS NOTICE MAY RESULT IN THE
DEPARTMENT OBTAINING AN ACCESS WARRANT AUTHORIZING THE INSPECTION
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PREMISES."
OF THE See DOB Inspector Affidavits at ¶ 7; and LS4 Notices, attached hereto
as Exhibit "D". Upon information and belief, neither the owner nor the tenant(s) of the subject
premises has contacted DOB to schedule an inspection. S_ee DOB Inspector Affidavits at ¶ 8.
26. To date, no further inspection of the subject premises has been made.
CAUSE OF ACTION
27. Petitioners repeat and reallege each and every allegation contained in the
preceding paragraphs as if fully set forth herein.
28. The above facts indicate the following: 1) that there is reasonable and
probable cause to believe that there are 19 occupants with 19 different surnames residing at the
subject premises and thus, that the current occupancy of the building is inconsistent with the
legal use of the building as a two-family residence; 2) DOB and FDNY have been unable to gain
access to the subject premises to inspect and determine code compliance; and 3) it is necessary
for the City to obtain an Access Order from this Court in order to enter the premises and enforce
relevant code provisions.
29. Pursuant to City Charter § 398, the City is authorized to seek an access
consent."
order g p_a by demonstrating that entry has not been "gained on City Charter § 398
does not require the City to also demonstrate that the "circumstances call for entry without prior
notice." occupants'
However, in light of the past efforts to deny access for inspection and
disregard of the LS4 notices itis important to attempt this administrative search without giving
prior notice to the owner or occupant. If the order is served on the owner or occupant prior to the
inspection, then the owner or occupant will know that the inspection can only occur on certain
surprise"
days and the "element of that is necessary to conduct these inspections is lost. For
example, the owner or occupant can avoid the inspection by simply not opening the door when
the DOB or FDNY inspectors arrive and ring the bell. As it is not DOB or FDNY's policy or
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practice to use force to gain entry to conduct these inspections, the inspectors will not be able to
gain access because no one will respond to the doorbell, as was the case on one of DOB's prior
"warned"
inspection attempts, having been essentially that the inspector is coming on certain
days. In addition, it may be possible that, having been warned of the upcoming inspection, an
owner or occupant could remove the indicia of an illegal occupancy, allow the inspection to be
made, and then revert to the illegal occupancy after the inspection. The reasonable goals of
protecting the health, safety and welfare of the inhabitants of the subject premises will be
thwarted by giving advance notice of the inspection.
30. In 2010, the Supreme Court, Richmond County declined to sign an ex
parte application for an order allowing an inspection and found the City's "argument that the
occupants may correct any illegal condition, if an application is made by notice ... to be without
merit". In vacating that Supreme Court order, the Appellate Division, Second Department,
implicitly recognized that no prior notice to the owner/occupant of an inspection is required and,
indeed, that prior notice essentially undermines the purpose of the inspection. A copy of the
Order of the Second Department, dated June 2, 2010, and the Order of the Supreme Court, dated
"E."
April 29, 2010, is attached hereto as Exhibit
31. Also in 2010, the Second Department modified three Warrants of
Inspection by removing the requirement of prior service of the warrants on the owners and
occupants of the premises that the Supreme Court, Kings County had imposed. A copy of those
"F."
Warrants of Inspection as modified by the Second Department is attached hereto as Exhibit
32. The proposed administrative search is part of the attempt to enforce the
medates of the codes detailed above and in the accompanying Affidavits, to require compliance
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with the document showing legal occupancy which allows for only two dwelling units at the
subject premises.
33. These laws cannot be enforced in the absence of an order issued by this
Court.
34. No prior application for the same or similar relief has been made by the
petitioners in this proceeding.
WHEREFORE, it is respectfully requested that a Warrant of Inspection be
issued by this Court authorizing petitioners to enter the subject premises for an administrative
inspection.
Dated: New York, New York
March 4, 2019
AVE MARIA BRENN N
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VERIFICATION PURSUANT TO CPLR 3020(a) and (d)(1)
SHERYL NEUFELD, an attorney admitted to practice before the Courts of the State of
New York, hereby affirms the following to be true, under penalties of perjury, pursuant to CPLR
2016:
I have been duly designated as an Acting Corporation Counsel of the City of New York
and, as such, I am an Officer of the City of New York, a petitioner in the within proceeding. The
reason why this verification is not made by the City of New York is that itis a corporation.
I have read the foregoing petition and know the contents thereof. I believe the same to be
true upon information and belief. My belief as to all matters is based upon books and records
maintained by various City governmental agencies, and upon statements made by City personnel
in their official capacity.
Dated: New York, New York
March 4, 2019
Sheryl eufeld
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Preview
FILED: QUEENS COUNTY CLERK 03/06/2019 05:41 PM INDEX NO. 703947/2019 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/06/2019 SUPREME COURT OF THE CITY OF NEW YORK COUNTY OF QUEENS -----------------------------------------------------------------------------x In the Matter of the Application of VERIFIED THE CITY OF NEW YORK, THE NEW YORK CITY . PETITION DEPARTMENT OF BUILDINGS AND THE NEW YORK CITY FIRE DEPARTMENT, Index No. Petitioners, FOR A COURT ORDER TO CONDUCT AN ADMINISTRATIVE SEARCH UPON THE LAND AND BUILDING LOCATED AT 93-12 202nd STREET, HOLLIS, NEW YORK 11423, BLOCK 10475, LOT 374. -----------------------------------------------------------------------------x Petitioners, THE CITY OF NEW YORK, THE NEW YORK CITY DEPARTMENT OF BUILDINGS AND THE NEW YORK CITY FIRE DEPARTMENT, by their attorney, ZACHARY W. CARTER, Corporation Counsel of the City of New York, as and for their verified petition, allege as follows upon information and belief: INTRODUCTION 1. By this proceeding, petitioners seek the issuance of a court order authorizing an administrative inspection of the inside of the premises known as 93-12 202nd Street, Hollis, New York 11423, Block 10475, Lot 374 ("the subject premises"). 2. The purpose of the inspection is to determine whether the subject premises is being occupied or maintained in violation of the New York City Building Code ("Building Code"), the New York City Housing Maintenance Code ("Housing Maintenance Code"), the New York City Fire Code ("Fire Code"), and the New York State Multiple Dwelling Law ("Multiple Dwelling Law"), and the inspection is to be undertaken pursuant to an administrative plan and in furtherance of the public health, safety and welfare. 1 of 11 FILED: QUEENS COUNTY CLERK 03/06/2019 05:41 PM INDEX NO. 703947/2019 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/06/2019 3. As detailed in the accompanying Affidavit of Human Resources Administration ("HRA")/Department of Social Services ("DSS") Associate Director of Data Analytics for the Office of Program Accountability Morgan Neuwirth ("Neuwirth Aff."), which "A," is attached hereto as part of Exhibit it issuspected that the subject premises is being used as a three-quarter house. See Neuwith Aff. ¶¶ 5-7. As defined in the latest Three Quarter Housing "B," Quarterly Report ("Quarterly Report"), a copy of which is attached hereto as Exhibit three quarter houses "are unlicensed and unregulated two- or buildings, generally three-family homes, where many of the City's most vulnerable and economically disadvantaged residents live. Residents include those discharged from hospital psychiatric or substance use treatment programs, those reentering the community after serving time in jail or prison, and those on public assistance left to find with a State-set shelter allowance of $215. The name 'three- housing house' quarter is taken from the view that they exist somewhere between regulated halfway homes." houses and actual 4. As further detailed in the Quarterly Report, and in the Neuwirth Aff., in June of 2015 Mayor de Blasio announced the formation of an interagency Task Force to review the use of three-quarter houses in New York City. This Task Force is comprised of the Mayor's Office of Operations, HRA/DSS, the New York City Department of Housing Preservation and Development ("HPD"), the New York City Department of Buildings ("DOB") and the New York City Fire Department ("FDNY"). The work of the Task Force began with a review of all residences, identified by HRA, that housed 10 or more unrelated adults who receive the $215 State-set public assistance rent allowance. In addition to the addresses identified using the HRA metric, the Task Force identified locations based on information provided by advocates and through 311. Begiññiñg in June 2015, representatives from the interagency Task Force began to - 2 - 2 of 11 FILED: QUEENS COUNTY CLERK 03/06/2019 05:41 PM INDEX NO. 703947/2019 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/06/2019 visit and inspect these residences to identify immediate health and safety issues and to relocate some residents. S_ee Neuwirth Aff. ¶ 5 and Exhibit B. The inspection sought herein is in furtherance of the work of this task force. 5. Petitioners seek the issuance of a Warrant of Inspection authorizing entry upon the subject premises because there is reason to believe that the subject premises is being occupied as a three-quarter house in violation of applicable law. THE PARTIES 6. Petitioner THE CITY OF NEW YORK is a municipal corporation incorporated under the laws of the State of New York. 7. Petitioner THE NEW YORK CITY DEPARTMENT OF BUILDINGS is an agency empowered under the New York City Charter to, inter alia, enforce the provisions of the Building Code, the Housing Maintenance Code and the Multiple Dwelling Law. 8. Petitioner THE NEW YORK CITY FIRE DEPARTMENT is an agency empowered under the New York City Charter to, inter alia, enforce the provisions of the Fire Code. 9. The land and building that are the subject of this application are located at 93-12 202nd Street, Hollis, New York 11423, Block 10475, Lot 374. APPLICABLE PROVISIONS OF LAW 10. Section 28-103.13 of the New York City Administrative Code Entry" ("Administrative Code") entitled "Right of authorizes DOB to enter buildings for the purpose of conducting inspections and provides, in relevant part: The commissioner or his or her authorized representatives, in the discharge of their duties, shall have the right to enter upon and inspect, at all reasonable times, any buildings, enclosure, premises, or any part thereof, or any signs or service - 3 - 3 of 11 FILED: QUEENS COUNTY CLERK 03/06/2019 05:41 PM INDEX NO. 703947/2019 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/06/2019 equipment contained therein or attached thereto for the purpose of determining compliance with the provisions of the code and other applicable building laws and rules. 11. Section 104.4 of the New York City Fire Code likewise authorizes FDNY personnel to conduct inspections for the purposes of determining compliance with the Fire Code and other applicable laws enforced by FDNY. 12. Section 28-205.1 of the Administrative Code is entitled "Civil judicial enforcement" and authorizes the Office of the Corporation Counsel to institute a judicial proceeding to restrain, correct or abate a violation of, among other things, the Administrative Code. Implicit in this section of the Administrative Code is the authority of the Supreme Court of the State of New York to issue any order necessary to allow DOB to enforce the provisions of the Administrative Code. That section provides, in relevant part, as follows: The owner, lessee, person in charge, or occupant of any building, structure, premises, equipment or part thereof, where a violation of this code, the 1968 building code, the zoning resolution or of other laws or rules enforced by the department or any order issued by the commissioner shall exist ... shall be subject to an action or proceeding to restrain, correct or abate such violation, or to compel compliance with such order. Upon request of the commissioner, the corporation counsel may institute judicial actions or proceeding seeking such relief. 13. Moreover, Section 398 of the New York City Charter provides that the Office of the Corporation Counsel may make an ex parte application to the court for an order directing the entry and inspection of premises. New York City Charter § 398 states, in relevant part, as follows: Ex parte warrants. Ifentry to a location or premises to be inspected pursuant to an agency's powers and duties is not gained on consent, or if circumstances - 4- 4 of 11 FILED: QUEENS COUNTY CLERK 03/06/2019 05:41 PM INDEX NO. 703947/2019 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/06/2019 call for entry without prior notice the commissioner of such agency, or his or her authorized representative, may request the corporation counsel to make an application, ex parte, in any court of competent jurisdiction for an order directing the entry and inspection of such premises or location.... 14. In addition, Section 140-b of the Judiciary Law sets forth the power of the Supreme Court of the State of New York to issue search warrants based upon ex parte applications. RELEVANT FACTS 15. The current records of the New York City Department of Finance indicate that Kensington Construction Corp. is the current owner of the subject premises. S_ee DOB Property Profile Overview attached hereto as part of Exhibit "C". The HPD document entitled Violation" two- "HPD Building, Registration & indicates that the subject premises is legally a units." story building containing two "A See copy of document entitled "HPD Building, Violation" Registration & attached hereto as part of Exhibit "C", and the Affidavit of DOB Inspector John Rosato ("Rosato Aff.") ¶ 4, the Affidavit of DOB Inspector Richard Adams ("Adams Aff.") ¶ 4, and the Affidavit of DOB Supervising Inspector Victor Foye ("Foye Aff.") ¶ 4, (collectively "DOB Inspector Affidavits") which are also attached hereto as part of Exhibit "A." "family" As detailed in the DOB Inspector Affidavits, a is defined as no more than three unrelated persons living together and maintaining a common household. See id. 16. Upon information and belief, the subject premises is being occupied by more than the legally allowed number of families in violation of the Building Code, the Housing Maintenance Code, and the Multiple Dwelling Law. Specifically, as detailed in the Neuwirth Aff., it appears that there are 19 individuals with 19 different surnames residing at the subject - 5 - 5 of 11 FILED: QUEENS COUNTY CLERK 03/06/2019 05:41 PM INDEX NO. 703947/2019 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/06/2019 premises. Seee Neuwirth Aff. ¶ 7. This suspected occupancy is far above the legally permitted two families. 17. In light of the suspected occupancy far above the legally permissible use, DOB and FDNY attempted to inspect the subject premises on multiple occasions to determiñe whether violations of the codes detailed above exist therein. h, generally, DOB Inspector Affidavits. In addition, FDNY attempted an inspection of the subject premises on two separate occasions. h, geñerally, Affidavit of FDNY Supervising Inspector Tunded Oluseye ("Oluseye "A." Aff."), which is also annexed hereto as part of Exhibit 18. On Wednesday, December 12, 2018 at approximately 8:30 p.m., DOB Inspector Rosato visited the subject premises in an attempt to conduct an inspection and was denied access to the premises by a male occupant. In response, Inspector Rosato gave the Inspection," occupant an LSF "Notice to Call for requesting that someone contact DOB and schedule an appointment for inspection. h Rosato Aff. ¶¶ 6-7. 19. On Wednesday, December 19, 2018 at approximately 6:30 p.m., DOB Inspector Adams visited the subject premises in an attempt to conduct an inspection and no one responded to doorbells or knocks on the front door of the subject premises. In response, Inspection" Inspector Adams posted an LSF "Notice to Call for on the front door of the subject premises, requesting that someone contact DOB and schedule an appointment for inspection. h Adams Aff. 11 6-7. 20. On Wednesday, February 6, 2019 at approximately 8:35 p.m., FDNY Supervising Inspector Oluseye, accompanied by FDNY Supervising Inspectors Cornish and Mungin, visited the subject premises and was denied access to the premises by a man named Mr. Diamond and representing himself as a house ina11aso1. S_ee Oluseye Aff. ¶¶ 5-6. - 6 - 6 of 11 FILED: QUEENS COUNTY CLERK 03/06/2019 05:41 PM INDEX NO. 703947/2019 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/06/2019 21. Also on Wednesday, February 6, 2019, at 8:50 p.m., DOB Inspector Foye visited the subject premises. When Inspector Foye arrived at the subject premises, a male mañager" occupant who identified himself as the "house was standing in front of the building. The male occupant denied Inspector Foye access to conduct an inspection. After being denied Inspection." access to inspect, Inspector Foye gave the male occupant an LS4 "Notice to Call for See Foye Aff. ¶¶ 6-7. 22. On Wednesday, February 20, 2019 at approximately 6:00 p.m., FDNY Supervising Inspector Oluseye, accompanied by FDNY Supervising Inspectors Cornish and Mungin, visited the subject premises. No one responded when he knocked on the front door and rang the bell. Inspector Oluseye observed the lights on the first floor turn off after he began knocking. S_ee Oluseye Aff. ¶¶ 7-8. DENIAL OF ACCESS FOR INSPECTION 23. DOB and FDNY have sought to inspect the subject premises to determine if violations of the New York City Building Code, New York City Housing Maintenance Code, New York City Fire Code, and New York State Multiple Dwelling Law exist therein. 24. As is reflected in the DOB and FDNY Inspector Affidavits (s_ee Exhibit "A"), DOB and FDNY have been unable to obtain access to the subject premises on four separate dates. 25. On each of those occasions, an occupant either actively denied the Inspectors access to the premises or no one responded to the front door. Official notices were left at the premises for the owner and/or tenant(s) of the subject premises directing them to Inspection" contact DOB to schedule an inspection. The DOB "Notice to Call for specifically stated that "FAILURE TO COMPLY WITH THIS NOTICE MAY RESULT IN THE DEPARTMENT OBTAINING AN ACCESS WARRANT AUTHORIZING THE INSPECTION - 7 - 7 of 11 FILED: QUEENS COUNTY CLERK 03/06/2019 05:41 PM INDEX NO. 703947/2019 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/06/2019 PREMISES." OF THE See DOB Inspector Affidavits at ¶ 7; and LS4 Notices, attached hereto as Exhibit "D". Upon information and belief, neither the owner nor the tenant(s) of the subject premises has contacted DOB to schedule an inspection. S_ee DOB Inspector Affidavits at ¶ 8. 26. To date, no further inspection of the subject premises has been made. CAUSE OF ACTION 27. Petitioners repeat and reallege each and every allegation contained in the preceding paragraphs as if fully set forth herein. 28. The above facts indicate the following: 1) that there is reasonable and probable cause to believe that there are 19 occupants with 19 different surnames residing at the subject premises and thus, that the current occupancy of the building is inconsistent with the legal use of the building as a two-family residence; 2) DOB and FDNY have been unable to gain access to the subject premises to inspect and determine code compliance; and 3) it is necessary for the City to obtain an Access Order from this Court in order to enter the premises and enforce relevant code provisions. 29. Pursuant to City Charter § 398, the City is authorized to seek an access consent." order g p_a by demonstrating that entry has not been "gained on City Charter § 398 does not require the City to also demonstrate that the "circumstances call for entry without prior notice." occupants' However, in light of the past efforts to deny access for inspection and disregard of the LS4 notices itis important to attempt this administrative search without giving prior notice to the owner or occupant. If the order is served on the owner or occupant prior to the inspection, then the owner or occupant will know that the inspection can only occur on certain surprise" days and the "element of that is necessary to conduct these inspections is lost. For example, the owner or occupant can avoid the inspection by simply not opening the door when the DOB or FDNY inspectors arrive and ring the bell. As it is not DOB or FDNY's policy or - 8 - 8 of 11 FILED: QUEENS COUNTY CLERK 03/06/2019 05:41 PM INDEX NO. 703947/2019 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/06/2019 practice to use force to gain entry to conduct these inspections, the inspectors will not be able to gain access because no one will respond to the doorbell, as was the case on one of DOB's prior "warned" inspection attempts, having been essentially that the inspector is coming on certain days. In addition, it may be possible that, having been warned of the upcoming inspection, an owner or occupant could remove the indicia of an illegal occupancy, allow the inspection to be made, and then revert to the illegal occupancy after the inspection. The reasonable goals of protecting the health, safety and welfare of the inhabitants of the subject premises will be thwarted by giving advance notice of the inspection. 30. In 2010, the Supreme Court, Richmond County declined to sign an ex parte application for an order allowing an inspection and found the City's "argument that the occupants may correct any illegal condition, if an application is made by notice ... to be without merit". In vacating that Supreme Court order, the Appellate Division, Second Department, implicitly recognized that no prior notice to the owner/occupant of an inspection is required and, indeed, that prior notice essentially undermines the purpose of the inspection. A copy of the Order of the Second Department, dated June 2, 2010, and the Order of the Supreme Court, dated "E." April 29, 2010, is attached hereto as Exhibit 31. Also in 2010, the Second Department modified three Warrants of Inspection by removing the requirement of prior service of the warrants on the owners and occupants of the premises that the Supreme Court, Kings County had imposed. A copy of those "F." Warrants of Inspection as modified by the Second Department is attached hereto as Exhibit 32. The proposed administrative search is part of the attempt to enforce the medates of the codes detailed above and in the accompanying Affidavits, to require compliance - 9 - 9 of 11 FILED: QUEENS COUNTY CLERK 03/06/2019 05:41 PM INDEX NO. 703947/2019 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/06/2019 with the document showing legal occupancy which allows for only two dwelling units at the subject premises. 33. These laws cannot be enforced in the absence of an order issued by this Court. 34. No prior application for the same or similar relief has been made by the petitioners in this proceeding. WHEREFORE, it is respectfully requested that a Warrant of Inspection be issued by this Court authorizing petitioners to enter the subject premises for an administrative inspection. Dated: New York, New York March 4, 2019 AVE MARIA BRENN N - 10 - 10 of 11 FILED: QUEENS COUNTY CLERK 03/06/2019 05:41 PM INDEX NO. 703947/2019 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/06/2019 VERIFICATION PURSUANT TO CPLR 3020(a) and (d)(1) SHERYL NEUFELD, an attorney admitted to practice before the Courts of the State of New York, hereby affirms the following to be true, under penalties of perjury, pursuant to CPLR 2016: I have been duly designated as an Acting Corporation Counsel of the City of New York and, as such, I am an Officer of the City of New York, a petitioner in the within proceeding. The reason why this verification is not made by the City of New York is that itis a corporation. I have read the foregoing petition and know the contents thereof. I believe the same to be true upon information and belief. My belief as to all matters is based upon books and records maintained by various City governmental agencies, and upon statements made by City personnel in their official capacity. Dated: New York, New York March 4, 2019 Sheryl eufeld - 11 - 11 of 11