Published on:

Failure to Exhaust Adminstrative Remedies Bars Claim for Certificate of Occupancy

In an action to compel issuance of a certificate of occupancy, the Appellate Division upheld the action of a building inspector on the grounds that the property owner had failed to appeal to the zoning board of appeals before starting an action, thereby failing to exhaust its administrative remedies. In Matter of Vinrus v. the Village of Pelham Manor Building Inspector, the building inspector had issued a notice that the property owner was required to obtain a certificate of occupancy for a new tenant. The property owner brought an article 78 proceeding challenging the direction of the building inspector on various grounds.

The Village, which was defended by Silverberg Zalantis LLC, argued that the building inspector had acted properly but that, irrespective of that fact, a precondition to a suit challenging the actions of a building inspector’s interpretation of the zoning ordinance is that an appeal must be submitted to the zoning board of appeals to review the determination of the building inspector. Further, such an appeal must be made to the zoning board of appeals within 60 days of the challenged decision pursuant to Village Law section 7-712-a (5)(b). The lower court dismissed the action and the appellate division affirmed simply stating “the petitioner failed to exhaust its administrative remedies before commencing this proceeding (see Village Law § 7-712-a[5][b]; Matter of White v Incorporated Vil. of Plandome Manor, 190 AD2d 854; see also Matter of Capitol Distribs. Corp. v Jones, 2 Misc 2d 816, 817; cf. Matter of Goldberg v Incorporated Vil. of Roslyn Estates, 61 AD3d 756).”

The brief on appeal was written by Katherine Zalantis and the appeal was argued by Steven Silverberg.

Contact Information