OWNER'S LIABILITY FOR AIRBNB FINE

Richard Breslaw Family LP v. NYC Dep't of Bldgs, NYLJ February 26, 2020,  Date filed: 2020-02-14, Court: Supreme Court, New York, Judge: Justice Laurence Love, Case Number: 152499/2019:


"......One who objects to the act of an administrative agency must exhaust all available administrative remedies before being permitted to litigate in a court of law (see Lehigh Portland Cement Co v. NY State Dept of Envtl Conservation, 87 NY2d 136, 140 [1995]). Per 48 RCNY §6-19(a)(1)(iii), before appealing, petitioner was required to pay the penalties imposed on it by hearing officer Roake’s Order. Petitioner failed to perfect an appeal of OATH hearing officer Roake’s decision and order because petitioner did not submit proof of payment of the penalty imposed or a waiver from OATH of prior payment due to financial hardship.


As petitioner failed to exhaust all administrative remedies by not perfecting a proper and timely appeal, the Court finds this matter should be dismissed for lack of subject matter jurisdiction.

If the Court was considering the merits of said petition, the Court notes that petitioner alleges OATH’s decision was arbitrary and capricious. In deciding whether an agency’s determination was arbitrary, capricious, or an abuse of discretion, courts are limited to an assessment of whether a rational basis exists for the administrative determination and their review ends when a rational basis has been found (see Heintz v. Brown, 80 NY2d 998, 1001 [1992]). An action or determination is arbitrary if it was made without sound basis in reason and without regard to the facts (id. at 1001).

Petitioner represents it was the tenant who operated the subject premises as an illegal short-term rental of the two units within their property. This is not a defense to the violations charged in the 2018 summonses. Courts have also upheld a building owner’s non-delegable responsibility to maintain its building in a code-compliant manner and found building owners vicariously liable for breaching this obligation (see Guzman v. Haven Plaza Housing Dev Fund Co, 69 NY2d 559 [1987]).


Petitioner admits that as early as November 2017, when it was issued the November 2017 summons, that it was aware of the use of the subject premises for short-term rental. Petitioner waited four months to commence eviction proceedings against the offending tenant and offered no proof that any of the violations had been corrected.


The subject premise is classified for permanent residence, and violations of the building code occurred when the apartments were illegally converted into short-term rental units as advertised on AirBNB. The hearing officers properly applied the appropriate building code violations and did not make an arbitrary nor capricious decision."