Dep’t of Buildings v. Scarano OATH Index No. 2571/08 (Mar. 1, 2010), aff’d, 86 A.D.3d 444 (1st Dep’t), app. dism., 17

N.Y.3d 901 (2011)

Charges that architect knowingly made false statements in documents filed with Department of Buildings with respect to two properties sustained. ALJ recommends that Commissioner refuse to accept documents from this architect under the Construction Code and that he also exclude the architect from the Department’s programs for limited supervisory check and/or professional certification applications under Department rules.

______________________________________________________

NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

DEPARTMENT OF BUILDINGS Petitioner - against -

ROBERT M. SCARANO, JR. Respondent

_______________________________________________________

REPORT AND RECOMMENDATION

JOAN R. SALZMAN, Administrative Law Judge

This matter was referred to this tribunal pursuant to the rules of the Department of

Buildings (the “Department” or “DOB”) and the New York City Construction Code (the

“Code”), Admin. Code § 28-211.1.2, formerly found at section 26-124(c) of the Code, enacted

by the New York State Legislature, 2007 Laws of New York, Ch. 542 (effective Aug. 15, 2007).

The Department seeks to exclude respondent, a registered architect, from exercising limited

supervisory check privileges under Department rule 21-02, 1 RCNY § 21-02 (Lexis 2009) (filing

certain types of papers with limited Department supervision), and to bar him entirely from filing

any documents with the Department under section 28-211.1.2 of the Code, on the grounds that he

knowingly or negligently made false and misleading written submissions to the DOB. Second

Amended Petition (ALJ Ex. 4).

An eight-day trial on the merits was held at this tribunal. The record is voluminous. The

Department called its own employees as witnesses, as well as representatives from Consolidated

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Edison and the New York City Department of Transportation. Respondent called two architects

as experts and a Department inspector as witnesses, and also testified. Both sides submitted

extensive documentary evidence, including oversize architectural plans, an engineer’s

application and a land survey. The transcript of the record is more than 1,200 pages long. The

parties submitted lengthy closing briefs.

PRELIMINARY MATTERS

On March 18, 2009, I granted respondent’s pre-trial motion to dismiss the charges in part

and denied it in part as follows. I dismissed the specifications numbered 1, 2, 3 and 4 of Charge

3 only, from the Second Amended Petition, citing St. Clair Nation v. City of New York, 60

A.D.3d 468 (1st Dep’t), leave to appeal granted, 12 N.Y.3d 713 (2009), which controls here.

Those four specifications of Charge 3 alleged conduct that pre-dated August 15, 2007, the

effective date of section 28-211.1.2 of the Code. The allegations of conduct occurring before

August 15, 2007, remained in the case with respect to Charges 1 and 2, however, as those

charges were brought under Rule 21-02, 1 RCNY 21-02 (Lexis 2009), as to which there was no

assertion of improper application of that rule retroactively, and Code section 28-211.1.2 was not

at issue in those charges. In all other respects the motion to dismiss or for summary judgment

was denied for reasons to be set forth in this report and recommendation. See 48 RCNY § 1-50.

I also denied a pre-trial motion by respondent to sever Charges 1 and 2 from Charge 3, for the

reasons set forth in my Memorandum Decision.

As promised in my pre-trial Memorandum Decision, I turn now to the basis for my denial

of the motion to dismiss with respect to respondent’s claim that he is being unconstitutionally

deprived of his state-issued architect’s license. Respondent claims that only in the New York

State Department of Education could he have a fair trial and be judged by his peers, licensed

architects. However, this is not a license revocation proceeding and cannot result in the

revocation of that license by DOB. Rather, petitioner seeks here to restrict respondent’s ability

to file any papers with the Department in the five boroughs of New York City. Although

respondent claims that such an outcome will put him out of business, the Department is not

seeking to, nor is it empowered to, revoke his architectural privileges anywhere else in New

York State. Respondent contends that he has been denied due process of law because this

proceeding under the amended false filing provisions of the Construction Code has been litigated

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at the Office of Administrative Trials and Hearings (“OATH”), the City’s central administrative

tribunal, rather than at the State Education Department. This tribunal has not generally

functioned as the final arbiter of the constitutionality of legislation, but we do apply the law and

we have made preliminary assessments of questions of constitutionality, subject, of course, to

judicial review. Matter of Tenants of 51-55 West 28th Street, OATH Index No. 1019/05, mem.

dec. at 5-6 (Nov. 7, 2005), later proceeding, Matter of Jo-Fra Properties, Inc., 27 A.D.3d 298

(1st Dep’t 2006) (affirming unpublished decision of Hon. Howard B. Beeler, J., denying

application to remove and transfer OATH proceeding to Supreme Court), appeal denied, 8

N.Y.3d 801 (2007); Dep’t of Buildings v. 31 West 11th Street, New York, OATH Index No.

990/94 at 3-5 (Aug. 26, 1994), aff’d, Comm’r Dec. (Sept. 23, 1994), aff’d, BSA No. 165-94-A

(Apr. 25, 1995), reprinted in, 80 Bulletin of Bd. of Stds. and Apps. 193 (May 4, 1995), aff’d sub

nom. Hiesiger v. City of New York, NYLJ, Nov. 6, 1996, at 26, col. 1 (Sup. Ct. N.Y. Co.) (owner

failed to meet its heavy burden of showing that Department was guilty of selective enforcement

of padlock law, as there was no showing of disproportionate nonenforcement against others or of

enforcement based on a deliberate use of an impermissible standard).

The Department has the burden of proving its case by a preponderance of the credible

evidence. That burden is defined as the burden of persuading the trier of fact “that the existence

of [a] fact is more probable than its non-existence.” See, e.g., Dep’t of Buildings v. Stallone

Testing Laboratories, Inc., OATH Index No. 362/10 at 7 (Aug. 26, 2009), aff’d, Comm’r Dec.

(Aug. 27, 2009) (citing Prince, Richardson on Evidence § 3-206 (Lexis 2008)). Final agency

action (in this case by the Commissioner of the Department of Buildings) is subject to review in

the courts under Article 78 of the CPLR, must not be “arbitrary and capricious or an abuse of

discretion,” and must be supported by substantial evidence. CPLR § 7803(3) (Lexis 2010).

Respondent has been given a full opportunity to defend himself in these evidentiary

proceedings. The Department supplied him with pre-trial discovery. He submitted documents

and called expert witnesses on his behalf, over the strenuous objection of the Department, and

testified himself. His experienced attorney was given full latitude to examine these witnesses

and to cross-examine all the Department’s witnesses at length. In addition, respondent has been

afforded the opportunity to submit both pre-trial and post-trial briefs; his attorney’s briefing was

exhaustive, and included at least 50 pages of pre-trial briefing and a 114-page Post-Trial

Memorandum. OATH has functioned since 1979 as the City’s central administrative tribunal

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with the authority to conduct administrative hearings for any City agency, board or commission.

OATH was established by Executive Order No. 32 in 1979, to professionalize the administrative

hearing system serving City government. As noted in 31 West 11th Street, New York, OATH

990/94 at 3-4, the full-time judges of OATH, according to the mandates of the New York City

Charter, are not employed by the agencies which refer matters to be heard here. Their

independence derives in part from their Charter-mandated, five-year terms. NYC Charter,

Chapter 45-A, §§ 1048-49 (Lexis 2009). OATH was meant to function as an independent

agency of government so that its judges would not be unduly influenced by the prosecutor or

petitioning agency. OATH was made a Charter agency in 1988, as part of the Charter revisions

which enacted the City Administrative Procedure Act (CAPA), and the tribunal’s rules and

procedures conform to CAPA. NYC Charter Chapter 45. The tribunal follows the due process

requirements of CAPA, including notice, a reasonable opportunity to be heard, “the opportunity

to be represented by counsel, to issue subpoenas or request that a subpoena be issued, to call

witnesses, to cross-examine opposing witnesses and to present oral and written arguments on the

law and facts.” NYC Charter § 1046. Charter section 1048, part of CAPA, states that OATH

“shall conduct adjudicatory hearings for all agencies of the city, unless otherwise provided for by

executive order, rule, law or collective bargaining agreements.”1

As noted, this report and recommendation is subject to another level of administrative

review before final agency action is taken by the Commissioner of the Department, and to

1 Respondent claims that the administrative procedure set up here, with final action by the Department of Buildings Commissioner, reduces OATH to a “rubber stamp” for the Department, and is a “modern take on the Wild West notion of, ‘Let’s give him a fair trial, then hang him’” (Resp. Reply Mem. in Further Support of Motion to Dismiss/Summary Judgment at 21, emphasis in the original). In fact, OATH follows the due process mandates of the City Administrative Procedure Act. See NYC Charter Chapter 45 §§ 1046, 1049(3)(f) (Lexis 2008). OATH is a separate, independent entity from the Department of Buildings. The Commissioner of the Department of Buildings performs an adjudicatory function, after Department staff investigate and prosecute the case, and after OATH issues a report and recommendation. That is the way administrative agencies have functioned under administrative procedure acts for decades in this country. It is settled that there is no constitutional violation in the investigative, prosecutorial, and adjudicative functions being combined even in a single administrative agency. The United States Supreme Court ruled unanimously 35 years ago that the combination of investigative and adjudicative functions within an administrative agency does not, without more, constitute a due process violation. New York City administrative procedure comports with bedrock principles of administrative law and due process. Withrow v. Larkin, 421 U.S. 35, 47, 52, 54, 57-58 (1975); accord Karpova v. Snow, 497 F.3d 262, 271 (2d Cir. 2007), cert. denied, __ U.S. __, 128 S. Ct. 2483(2008); Greenberg v. Bd. of Governors of Fed. Reserve Sys., 968 F.2d 164, 167 (2d Cir. 1992); 2 K. Davis, Administrative Law Treatise § 13.02 at 175 (1958), cited in, Withrow, 421 U.S. at 52, updated in II R.J. Pierce, Administrative Law Treatise § 9.8 at 868-69 (5th ed. 2010).

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judicial review in the courts. There was no actual bias shown in the Department’s investigation

of Mr. Scarano, and there are no grounds upon which to find that the Commissioner’s

institutional role as reviewer of this record violates established principles of administrative law

or procedure.2

To the extent that respondent is seeking a recommendation as to whether the procedure

here, trial at OATH with final agency action by the Commissioner of Buildings, violated

constitutional principles, I recommend a finding that there was no denial of due process.

Matthews v. Eldridge, 424 U.S. 319 (1976); Miller v. DeBuono, 90 N.Y.2d 783, 792-94 (1997);

Pringle v. Wolfe, 88 N.Y.2d 426, 434, cert. denied, 519 U.S. 1009 (1996) (Due Process clause

does not require assurance of perfect, error-free determinations).

In his briefs, respondent relies heavily on dicta in a 35-page, preliminary injunction

ruling issued from the bench by then-U.S. District Judge Gerald E. Lynch, in the St. Clair Nation

2 Despite respondent’s attorney’s assertion that the Department has a vendetta or conducted a “crusade” (Tr. 246) against Mr. Scarano, there was no credible evidence of bias in the Department against respondent. Respondent made much of Douglas J. McDonald’s answers on cross-examination. Mr. McDonald, a professional engineer and auditor of the Department, was assigned to the Special Enforcement Unit at the Department; it was his job to audit some of respondent’s professionally certified applications. Respondent attempts to find bias in Mr. McDonald’s candid response that his position in the Department would be helped if he ultimately was successful in preparing a case against Mr. Scarano as a result of his audit work (Tr. 246-52). But Mr. McDonald added that he was not seeking to find fault or amass quantities of frivolous objections. He also testified on redirect that he was given no special instructions to find problems with Mr. Scarano’s drawings (Tr. 309-10). These answers revealed nothing more than would be true of any investigator who was able to prepare any case; they do not prove that Mr. McDonald did anything other than diligently carry out his duties. The gist of this testimony, the product of questions calculated to manufacture bias where there was none, was that Mr. McDonald wanted to do a good job. I found no evidence of prejudice on or lurking below the surface, and no reason was tendered for which the agency would arbitrarily single respondent out of all the architects in New York City. On redirect examination, Mr. McDonald clarified his answers about why he was auditing Mr. Scarano’s work. The Deputy Borough Commissioner, Thomas Fariello, assigned him this audit work because there had been complaints about the jobs under investigation and because serious allegations of Building Code and Zoning Resolution violations were the subject of those complaints arising against Mr. Scarano. Mr. McDonald clearly testified that his work was “complaint-driven,” meaning, for example, that community boards and residents of Brooklyn forwarded complaints to the Department of Buildings about professionally certified applications, including some of Mr. Scarano’s jobs (Tr. 94-96, 244-45, 298, 309). He also testified that as an experienced auditor with more than 10 years’ experience, he needed no instruction, and received none with respect to his audit of Mr. Scarano’s work, as to how to conduct an investigation. More importantly, he added that if he found no objections in his audit, he would send no objections, say that a job was “audit accepted” and move on to another application (Tr. 310). I find that Mr. McDonald did the work assigned to him and the Department scrutinized Mr. Scarano’s work because it was duty-bound to respond to complaints from the public about that work. I found Mr. McDonald a credible witness in that he was straightforward, immersed in the technical aspects of his craft, and so earnest a professional that he answered candidly, rather than reflexively issuing self-serving denials that might have been defensive and inauthentic. There was no proof of inherent or actual bias against respondent, either due to any personal animus of any employee or official of the Department, or as an institutional matter.

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litigation, St. Clair Nation v. City of New York, Slip Op., 08 Civ. 862 (S.D.N.Y. 2008) (appended

as Exhibit A to Respondent’s Reply Memorandum in Further Support of Motion to

Dismiss/Summary Judgment; Resp. Post-Trial Mem., “Resp. Brief,” at 112). In that case, Mr.

St. Clair Nation, a professional engineer, sought a preliminary injunction in federal court to

enjoin the Department from depriving him of his ability to file any documents with the

Department under Administrative Code section 26-124(c), renumbered as section 28-211.1.2,

prohibiting false filings with the Department, one of the code provisions under which respondent

was charged in the instant case.3 Mr. St. Clair Nation asserted that the application of that law to

him was impermissibly retroactive and a violation of his due process rights.

The federal proceedings in St. Clair Nation arose in circumstances that are readily

distinguishable from those here. Judge Lynch stated in dicta at page 17 of his ruling that it

seemed to him that Mr. St. Clair Nation would be irreparably harmed because he would, in

effect, be put out of business if he were barred from filing papers with DOB in New York City,

where his business was based. But Judge Lynch also wrote, at pages 26-29 of his ruling, that he

was troubled by the fact that Mr. St. Clair Nation was not aware, at the time of pre-trial

settlement negotiations in that case that the penalty of preclusion from filing any papers with the

Department could be imposed upon him and that he had opted to go to trial based on that

understanding and the state of the law at the time of his challenged conduct. In short, he did not

know he could lose all filing privileges in New York City if he proceeded to trial. Thus,

retroactivity was the crux of the federal court’s concern about the fairness of what amounted to a

two-year suspension, imposed by the former Commissioner of Buildings, of Mr. St. Clair

Nation’s filing privileges, after the hearing and without notice in the pleadings pre-trial that he

faced that outcome if he opted for trial, as he ultimately did. The operative law changed and was

applied to him after his hearing. The same is not true here, as the second amended petition

clearly did plead the new law provision in this case. In addition, the federal court did not grant

injunctive relief; instead, Judge Lynch directed the parties in that case into the state court system,

3 The New York City Council, in 2007, passed Local Law 33 of 2007, which substantially revised and renumbered the NYC Building Code. That law was followed by New York City Local Law 8 of 2008, making technical corrections, which added a renumbered Code section 28-211.1.2. The new section at issue here is virtually identical to former Code section 26-124(c), which was the subject of the appeal in St. Clair Nation v. City of New York, 60 A.D.3d 468 (1st Dep’t), leave to appeal granted, 12 N.Y.3d 713 (2009). NYC Local Law 8 of 2008, section 21.

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based on principles of abstention. The St. Clair Nation matter is making its way through the

state courts and is now pending before the New York State Court of Appeals.

In St. Clair Nation, the respondent had never been charged with violating the new code

provision, and the administrative law judge, after the hearing at OATH, had not even mentioned

in her decision that new section, which was not placed in issue at OATH. Nonetheless, the

former Commissioner, after the hearing on the merits, imposed the penalty of refusal to accept

papers from Mr. St. Clair Nation under the new false filing provision of the Construction Code.

That hearing had been completed in May 2007, before the effective date of the new law in

August 2007. Dep’t of Buildings v. Fekete and St. Clair Nation, OATH Index Nos. 1118-19/07

(Oct. 26, 2007). On December 4, 2007, the former Commissioner of Buildings adopted the

administrative law judge’s finding that Mr. St. Clair Nation had negligently submitted false

photographs and documents to the Department for three properties and revoked his professional

certification privileges. In addition to accepting the judge’s recommendation that Mr. St. Clair

Nation be excluded from the Department’s limited supervisory review procedures, the

Commissioner directed Mr. St. Clair Nation to submit in writing a statement of reasons for which

the Commissioner should not impose the additional sanction of departmental refusal to accept

any documents bearing his signature. On January 2, 2008, Mr. St. Clair Nation’s lawyer filed an

objection, on constitutional grounds, to the imposition of the additional false filing penalty. On

January 15, 2008, having considered the objection, the Commissioner imposed the additional

penalty under section 26-124(c), of refusal by the Department to accept any documents from Mr.

St. Clair Nation for a period of two years, to be followed by a three-year probation. The Code

empowers the Commissioner to impose a permanent refusal to accept papers. However, in an

exercise of discretion, the Commissioner engrafted onto the penalty a time limit, expressly

“because this remedy was not in place when Mr. Nation committed these acts.” Letter of

Commissioner Patricia J. Lancaster, dated Jan. 15, 2008 (appended, along with December 4,

2007 letter of Commissioner Lancaster, at my request via email of March 4, 2009, to reply letter

dated March 11, 2009, of Phyllis Arnold, Deputy Commissioner of DOB, in this matter).4

4 The record of correspondence, including emails among the attorneys and the tribunal, and the briefs submitted herein, whether in letter or e-mail or memorandum form, are hereby made part of the record of this matter.

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Thus, while Judge Lynch spoke in his preliminary bench ruling of the seriousness of the

deprivation of Mr. St. Clair Nation’s filing privileges, the Judge did not rule on the merits of the

due process challenges, and the record of the federal court in St. Clair Nation is entirely different

from this one. While one of the penalties sought falls under the same Code provision there as

here, respondent here -- unlike Mr. St. Clair Nation -- was on notice of that particular penalty

provision being at issue here, and, significantly, his motion to bar any retroactive application of

the new Code provision was granted in this case. Thus, any question of retroactive application of

a new law was mooted by the grant of his motion to dismiss the Second Amended Petition on

retroactivity grounds, in relevant part, at the pre-trial stage. In short, there is no retroactive

application of any law here.

The motions made before, during, and after trial to dismiss the remaining charges are

denied. Specifications 1-13 are duplicated in Charges 1, 2, and 3 of the Second Amended

Petition with different legal bases claimed for relief. For the reasons set forth below, I find that

Specifications 1-13 of Charge 2 and Specifications 5-13 of Charge 3 are sustained, as the

Department has proved that respondent knowingly filed falsified statements with the

Department, but Charge 1 should be dismissed in full, as it alleges an alternative, inconsistent

theory of negligence or incompetence, and the record does not support a finding that respondent

was ignorant of the applicable rules and procedures he must follow or that he was inept. To the

contrary, I find that he knew the rules very well,5 but deliberately flouted them. Specifications 1-

4 of Charge 3 were dismissed previously in the pre-trial phase.

ANALYSIS

Upon full consideration of the voluminous record and the applicable law, I note at the

outset that the thrust of this report and recommendation is to hold a professional architect to

account under the law for the deliberate subterfuge the Department proved in his dealings with

DOB. This case is not about honest or harmless error, nor is it about changes that may be made

5 Respondent emphasized in closing briefing Manhattan Borough Commissioner Magdi Mossad’s testimony on cross-examination that respondent was knowledgeable about the Building Code and the Zoning Resolution (Tr. 65). Respondent’s Brief at 21 (“throughout his testimony, Mr. Scarano confirmed Commissioner Mossad’s opinion by evincing an incredible knowledge of both the Zoning Resolution and the Building Code”). It is respondent’s undisputed knowledge of these regulations that tends to exonerate him on the incompetence charges, but to inculpate him on the false statement charges in the case. Respondent did not claim he had overlooked anything. Rather, he disagreed with the Department’s application of the pertinent regulations.

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to architectural plans during the ordinary course of building projects. Part I of this ruling

involves written representations of an architect concerning a Brooklyn property that were so

deceptive that they call to mind out-and-out fraud. Part II involves a subtler form of deception

over 8 years that required a review of multiple sets of plans and amendments respondent filed

with DOB between 2000 and 2008. This scheme concerns false, written representations about

another property in Brooklyn that go to the very heart and purpose of the zoning regulations in

this City. Respondent is accused of deliberately overbuilding in violation of the zoning law.

With limitations on available space in New York City, the zoning regulations have as their

purpose the careful districting of neighborhoods, so that the character of neighborhoods is

preserved and protected from encroachments on legal uses, including defined restrictions on the

size of and bulk6 of buildings, the provision of adequate parking spaces, as well as the

maintenance of the proper density of residential housing. See generally Zoning Resolution

section 21-00 (1961) (Statement of Legislative Intent), which provides that the purposes of the

resolution were, inter alia, “to promote and protect health, safety, and general welfare,”7 to

provide sufficient residential space to meet the housing needs of the City’s population, to protect

against fire, explosions, offensive noise, vibration, smoke, odor, and other objectionable

influences, and

To protect residential areas against congestion, as far as possible, by regulating the density of population and the bulk of buildings in relation to the land around them and to one another, and by providing for off-street parking spaces; to require the provision of open space in residential areas wherever practicable; and to encourage the provision of additional open space by permitting moderately higher

6 “Bulk” is the term used to describe the size of buildings or other structures and their relationships to each other and to open areas and lot lines, and therefore includes:

(a) the size (including height and floor area) of buildings or other structures; (b) the area of the zoning lot upon which a residential building is located, and the number of dwelling

units or rooming units within such building in relation to the area of the zoning lot; [and] (c) the shape of buildings or other structures . . . .

Zoning Resolution § 12-10 (July 26, 2001). 7 Robert E. Kurzius, Inc. v. Upper Brookville, 51 N.Y.2d 338, 343-44 (1980), cert. denied, 450 U.S. 1042 (1981) (“In general, the enactment of a zoning ordinance is a valid exercise of the police power if its restrictions are not arbitrary and they bear a substantial relation to the health, welfare and safety of the community”; noting that such purposes may include the preservation of “open-space land and the protection of a municipality’s residents from the ill-effects of urbanization”).

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bulk and density with better standards of open space, in order to open up residential areas to light and air, to provide open areas for rest and recreation, and to break the monotony of continuous building bulk, and thereby to provide a more desirable environment for urban living in a congested metropolitan area; . . . . [and] To promote the most desirable use of land and direction of building development in accord with a well-considered plan, to promote stability of residential development, to protect the character of the district and its peculiar suitability for particular uses . . . .

Zoning Resolution, Art. II, Ch. 1, Statement of Legislative Intent, § 21-00 (1967). The courts have long recognized the importance of the zoning regulations. Raritan

Development Corp. v. Silva, 91 N.Y.2d 98, 105 (1997) (floor area ratio regulation in New York

City Zoning Resolution relates to the density of land use). The floor area ratio, or FAR, is the

total floor area within a building divided by the total area of the lot containing the building.

“Since residential areas have lower FAR [floor area ratio], more lot is required to build larger

buildings. Such concerns restrict the physical development within a neighborhood.” Id.

(emphasis in original). The floor area ratio “is widely used today to establish the gross

maximum size of a building in terms of the amount of floor area permitted therein.” Id. The

Court in Silva went on to note that many ordinances have followed New York City in limiting

building to a fraction of the lot area. “Indeed, the area regulations of New York City were

originally enacted to regulate the bulk in building development.” Id. The dissenting judges in

Raritan likewise recognized that “the primary effect of restricting the amount of buildable floor

space for each building lot in a residential district, through a FAR, will be to limit the aggregate

habitable space occupied by people within the zoning district, i.e., its population density.” Id. at

113-14 (emphasis in original). Another expression of this principle is that the zoning restrictions

are tied to overall lot size, the protection of the public health and safety and the prevention of

overcrowding and traffic congestion. Id. (citations omitted). See also 7 Rohan, Zoning and

Land Use Controls § 42.01; 42.01[c]; 42.02; 42.05, 42.06 (updated 2005 by E. D. Kelly,

incorporating prior material prepared by G.L. Ohlsson) (Lexis 2009) (noting the historical

impetus for the regulation of building size and shape since the Equitable Life Insurance

Company completed its new headquarters in lower Manhattan in 1902, and there was a

“tremendous public outcry” that the building was enormous, built out to the limit of its lot line;

zoning controls were “designed to avoid overcrowding and loss of access to light and air”;

zoning regulates density and protects open space in urban areas, by, for example, controlling

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percentage of lot which may be used for a building); Matter of Chinese Staff & Workers Assn. v

Bloomberg, 2009 NY Slip Op. 29521, 2009 N.Y. Misc. LEXIS 3469 at **7 & n. 10 (N.Y. Sup.

Ct. Dec. 24, 2009) (floor area ratio or “FAR” is a means of determining “total zoning floor area

permitted to be built on a zoning lot.” The FAR is multiplied by the lot area of the zoning lot to

generate the maximum amount of floor area allowable in a building on the zoning lot. “The

higher the FAR, the greater the bulk allowed.”) (internal quotation marks omitted).

This issue of overbuilding is no small matter, and Part II of the case is not about a set of

insignificant mathematical calculations. Broadway, Laguna, Vellejo Ass’n v. Board of Permit

Appeals, 59 Cal. Rptr. 146, 149, 154 & n. 10 (1967) (measurement controls such as FAR’s

restricting the ratio of a building’s rentable floor space to the size of the lot on which it is

constructed are not hypertechnical or unimportant; they are “uniquely valuable” regulations

which have “become a cornerstone of contemporary building codes,” as they control population

density and structural congestion, ensure optimum height of buildings, and permit construction

of smaller, less expensive apartment units than would limits on the number dwelling units per

unit of land area; comprehensive zoning codes combat urban blight and municipal congestion).

Deviating from the zoning requirements places burdens on the community and upsets the

regulatory scheme to maintain legally prescribed living conditions and land uses. This heavily

detailed part of the case, which depends on reading a set of inconsistent representations in

architectural submissions respondent made in 2000, 2002, 2004, 2007, and 2008, involves

intentional misrepresentations, deliberate efforts by respondent to thwart zoning restrictions on

the size, bulk and density of permissible development in his client’s residential neighborhood in

Brooklyn. These were not inadvertent errors. Rather, respondent knew what he was doing. I

find that respondent’s deliberate scheme was to build a bigger building, using more of the lot

area and creating more dwelling units than were legally permitted in the residential district where

his client’s property is located, and to avoid the trouble and expense for his client of building

adequate parking spaces required by law. Contrary to respondent’s theory that the Department

was out to get him for any petty infraction or for no reason at all, I find that the Department

acted, in response to complaints from the community, to audit his work, and uncovered his

scheme to flout the zoning regulations. This was no trivial pursuit, nor was it the product of

animus or bias against him. Respondent was aggressively claiming benefits to which he knew

his client was not entitled, until an audit revealed the falsity of the claims he was making in the

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complex plans, correspondence and applications he submitted to the Department with respect to

his ever-changing, inconsistent descriptions of this property.

Part I

Charges 1-3, Specifications 9-13: 145 Snediker Avenue, Brooklyn: The False Affidavit A Lamppost Remained Embedded in the Driveway in Front of 145 Snediker Avenue, but in Seeking a Final Approval for that Sidewalk, Respondent Misrepresented to the Department that the Post had been Moved to a Safe Location The Department alleges that respondent submitted a false, sworn affidavit and

certification seeking an official, final construction sign-off from the Department for the sidewalk

in front of 145 Snediker Avenue, Brooklyn, knowing that his client, the owner of the property,

was not entitled to such approval. The Department contends that respondent’s paperwork was

false and misleading in that he made sworn representations to the Department about the

condition of the sidewalk, obfuscating the fact that there was a lamppost in the middle of the

curb in the driveway leading to the property. The Department alleges that respondent’s

paperwork gave the misimpression that the post had been moved as required by law when in fact

it had not been. Respondent raises a number of defenses to these charges. I find the defenses to

these charges to be without merit, and, in part, disingenuous and incredible. The Department has

amply proved that respondent’s written submissions were misleading and were intended to elicit

a Department of Buildings approval to which respondent knew his client was not entitled. In

simple terms, the lamppost was in the driveway. This was a violation of the applicable law and

he knew it. Respondent’s submission seeking a final construction sign-off indicated falsely that

the post had been moved. Despite respondent’s denial that this was a public safety issue, it was

exactly that. His inconsistent claim that he alone was the champion of the public safety with

respect to this property was a sham.

Respondent was the architect who designed the building at 145 Snediker Avenue for his

client, Joseph Tartamella, himself a building contractor (Scarano: Tr. at 983-84). An engineer,

William J. Durden, P.E., filed the “Builders Pavement Plan” (the “BPP”) for the sidewalk (Pet.

Ex. 43; Tr. 459-61, 463).8 Although respondent insists that his own later submission to the

8 Respondent testified without contradiction that he did not originally design the building to have the lamppost and curb cut in front of the garage. He designed the building’s mirror image, with the workspace on the left and the

(footnote continued…)

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Department should not be held against him because he was the architect of record only for the

building, not for the sidewalk, respondent actively injected himself into the approval process for

the sidewalk and lamppost. He was not free to misrepresent the conditions at the site once he

took it upon himself to intervene and seek approval for the sidewalk conditions.

It is undisputed that the placement of the lamppost on the sidewalk is governed by New

York City Department of Transportation (“DOT”) Guidelines for the Design of Sidewalks,

Curbs, Roadways and Other Infrastructure Components (the “DOT Guidelines”). The DOT

Guidelines require that the minimum distance between a utility or light pole and the edge of the

splay (or curved endpoint) of a driveway is seven feet, meaning the post must be at least seven

feet away from, and not within, the curb cut, for safety reasons. A waiver may be obtained for a

five-foot distance, but there was no request here for such a waiver and a pole in a driveway or

curb cut would never be approved (Pet. Ex. 39, at page 10; Tr. 407-09; John Gallagher, Acting

DOB Deputy Borough Commissioner, Brooklyn: 470; Ghanshyan Patel, P.E., DOT Director of

Street Lighting; Yelena Minevich, Director of DOT’s BPP Waiver Unit). Mr. Scarano had never

seen a DOB approval to keep a utility pole four feet into a driveway: “No, this probably

would’ve been a first” (Tr. 1121-22). The DOT Guidelines are safety rules; if the pole is too

close to the driveway, the pole could obstruct the driver’s view of the available space for turning

into the driveway, and if a driver turned too sharply, he or she could hit the utility pole or a

pedestrian. The view of the driveway, therefore, must be unobstructed (Tr. 407-08, 470). It

cannot seriously be disputed that it is unsafe to have a lamppost in the middle of a driveway

because of the risk that motorists could crash into the post by misjudging the clearance or they

could hit pedestrians they might not see because of the pole.

Mr. Patel of DOT received a request from respondent in December 2006 to move the

street light at issue here (Pet. Ex. 37; Tr. 390-91). Mr. Patel then sent out one of DOT’s

engineers to the field to survey the location and process the request. DOT gave preliminary

approval to respondent to move the light, but the approval letter was conditional (Pet. Ex. 38),

_______________________________ (footnote continued from previous page) garage on the right side. It was undisputed that his client wanted to reverse the design because of the flow of traffic (Tr. 1003, 1005, 1016-17, 1029; Pet. Exs. 39, 43, 44). There was no dispute that as a result of this design change, the lamppost had to be moved.

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and the pole had to be moved 21 feet from the existing one at the private expense of the owner or

sponsor (Tr. 394-95, 398). That kind of move required underground service by Con Edison

(“Con Ed”), payment to Con Ed, and foundation work to hold the pole in the ground (Pet. Ex. 38;

Tr. 396-97).

Thereafter, DOB objected to the condition of the sidewalk after an inspection at the site

on August 29, 2008 (Pet. Ex. 45). In his Affidavit, sworn to, October 6, 2008, and submitted

about that time, respondent wrote back to the Department:

I, Robert M. Scarano Jr., the Architect of record for [145 Snediker Avenue], have attached final survey for objection #1, #2, & #3, and photographs showing the installed sidewalks, curbs & roadway. As per my inspection dated 10/6/08, these items have been noted. Therefore, I certify that a final construction signoff can now be issued.

(Pet. Ex. 46). Attached to the affidavit, which was signed over his seal, and sworn before a notary

public, were three photographs of the lamppost taken by respondent himself (Tr. 1136), from

extreme side angles, with a van parked in the driveway at an angle, which gave the viewer the

misimpression that there was more clearance between the post and the end of the driveway than

in fact there was. I have appended to this report and recommendation an excerpt from

Petitioner’s Exhibit 46, respondent’s Affidavit, including the land survey attached and one of the

photographs respondent took, reduced to half a page in size so that it can be viewed on the same

page with, and in comparison to, the Department’s photograph (reduced from Petitioner’s

Exhibit 51 to fit the computer screen), taken by an inspector, of the same lamppost and driveway.

The photographs are dramatically different. See Appendix A hereto.

I find that the only purpose of respondent’s peculiar photographs was to try to elicit a

final construction approval to which respondent’s client was in no way entitled, and, in short, to

deceive the Department, or, in common parlance, to “put one over” on the Department, to “pull a

fast one.” Even if, however, as respondent argues, the experts at the Department understood

from these photos that the post was inside the driveway, and conceded at trial that the photos

were not “doctored” or “manipulated” in the sense of altered technically through photographic

development techniques or electronic editing methods, it was not clear to the viewer how far into

the driveway the post actually was situated. And, because a van was parked at an angle in the

driveway next to the pole, the viewer might not focus on the pole’s location in the curb cut in a

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cursory review. Respondent admitted that he wanted to show with the photos that a van could

get in and out of the driveway (Tr. 1142). Respondent testified that it was “pretty clear” from his

photos that the pole was in the driveway, and he argued that their content was “obvious” (Tr.

1172; Resp. Br. at 74). He complained in his testimony that the Department’s first inspector,

Boris Agrachev, did not expressly mention the light pole in his objection, adding that he found

this odd because, “almost a five-year-old would be able to see that there’s a pole in the

driveway” (Tr. 1118). I find, however, that the photos respondent took of that post were very

misleading as to the true location of the pole with respect to the driveway, and the photos must

be understood as part of the total, sworn submission from Mr. Scarano, with the certified, “final”

land survey attached. That survey was absolutely false when written, as respondent admittedly

knew when he swore his affidavit, because it showed the lamppost having been moved outside

the driveway altogether, when, in fact, the post remained firmly implanted in the driveway at that

time.

Because respondent’s affidavit and its attachments were peculiar, Gordon Holder,

Assistant Chief of the Construction Unit in the Department’s Brooklyn Borough Office,

dispatched another inspector, Artan Mujko, to view and photograph the site. Mr. Holder testified

that Mr. Scarano’s photographs “[j]ust didn’t look right,” and they conflicted with the land

survey (Tr. 560, 572). Contrary to respondent’s argument that the Department could not have

relied on his sworn submission on the theory that it was obvious from the photos that the pole

was in the curb, and despite some concessions by Mr. Holder that he could see that, Mr. Holder

did testify that he might rely on such a document because it was submitted by a licensed

professional (Tr. 563-64). Inspector Mujko went to 145 Snediker Avenue on March 16 and 19,

2009, and took another set of photographs, blow-ups of which were in evidence. These photos

were taken from the vantage point directly in front of the building and sidewalk, dead on, and

show that the lamppost was in fact blocking the driveway, at a point slightly to the right of the

center of the garage door of the building. Indeed, Inspector Mujko photographed the post with

his tape measure placed directly in front of the post, on the sidewalk, proving that the lamppost

was in fact four feet inside the curb cut, when measured from the end or splay of the curb, where

it begins to slope up to the level of the sidewalk (Pet. Exs. 47, 51, 51A).

It is undisputed that it was not until late March 2009, more than five months after

respondent submitted his false affidavit, that respondent’s client, Mr. Tartamella, paid Con Ed

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$3,072.95, by personal check dated March 26, 2009, for the relocation of the pole. The utility

pole was not moved until April of 2009 (Yonuel Fernandez, District Manager of Con Ed, Queens

Retail Unit: Tr. 419-25; Pet. Exs. 41, 42, 44), shortly before the trial in this case was to begin.

Respondent testified, incredibly, about the meaning he intended in crafting his affidavit

as he did. On August 29, 2008, the preceding summer, Department Inspector Boris Agrachev,

inspected the building and the sidewalk. He issued and signed what respondent calls an inartful

objection to the sign-off of the BPP application on a form marked “BPP SIGN-OFF FORM.”

The form includes pre-printed language indicating that the inspector has “inspected the street(s),

sidewalks, curb(s), curb cut(s), and appurtanence(s) [sic] thereon in front of the following

premises for substantial conformance to the approved BPP plan/BPP checklist plan, DOB curb-

cut plan, and final survey and report as follows” (Pet. Ex. 45). The form allows for a finding that

the site conforms to approved plans or does not so conform. Although respondent’s counsel tried

mightily to force concessions from Mr. Agrachev on the witness stand and to blame his

completion of the form as a supposed excuse for respondent’s filing false documents with the

Department, the import of Mr. Agrachev’s written objection on the form is clear: Mr. Agrachev

clearly denied the sign-off based on this inspection of the lamppost and sidewalk. Most

importantly, Mr. Agrachev checked off the box marked “Does not conform to approved plans

(objections noted)” (Pet. Ex. 45) (emphasis supplied). There can be no mistaking that Mr.

Agrachev, in signing and issuing this form with objections, had rejected the condition of the curb

cut. Mr. Agrachev wrote on three, numbered lines on the pre-printed form, as follows:

1. Amend plan to show curb cut, 2. gas & water manholes, as 3. built condition.

(Pet. Ex. 45; Tr. 669). Mr. Agrachev was noting the discrepancy between the approved plans, to

move the post, and the fact that the post remained in the driveway. He also found manholes at

the site that did not appear on the plans (Tr. 669-71). Mr. Agrachev did not understand why Mr.

Scarano never submitted an amended plan (Tr. 692). Mr. Agrachev testified that normally, when

he calls for amended plans, architects submit them within two weeks (Tr. 692). Mr. Agrachev

professionally and credibly defended his work during an intensive cross-examination that served

only to underscore the fact that he was simply doing his job when he refused, in no uncertain

terms, to approve the site for BPP sign-off.

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Respondent admitted on cross-examination that he did not get the BPP sign-off after Mr.

Agrachev’s inspection: “Objections were issued on the BPP sign off in the new building when

the inspections were made. So not at that moment, no” (Tr. 1122). He also admitted that, as a

licensed architect, he knew the pole had to be moved: “I knew that, that was the proper solution,

yes” (Tr. 1122). Shortly after respondent’s affidavit raised questions about the veracity of his

submission, Mr. Mujko returned to the site on October 15, 2008, and issued another rejection of

the site on the same type of form. He also checked off the box on the BPP sign-off form, which

said: “Does not conform to approved plans (objections noted).” He handwrote his specific

objection thus: “Utility pole located directly in front of garage” (Pet. Ex. 48).

Respondent’s assertion that the survey was “completely accurate” and was submitted to

show only (a) that the building was constructed within the property lines, and (b) the location of

water and gas main valves specifically listed on Mr. Agrachev’s objection (Brief at 71) defies

credulity. His submission of the survey to show that the post had been moved to a legal position

outside the curb cut was fraudulent because, in fact, no such move had been made and he knew

this. Respondent parsed his own affidavit by explaining at trial that the language he chose

tracked in minute detail Mr. Agrachev’s three-line objection. Thus, he testified, he meant that he

was attaching the “final” survey “for objection #1, #2 & #3,” purportedly referring specifically

and only to the numbered lines in Mr. Agrachev’s handwritten objection of August 29, 2008 (Tr.

1033-34), to show that the water and gas valves had been installed properly (Tr. 1031).

Respondent chose the word “final” in his affidavit to describe the land survey (Pet. Ex. 46). Mr.

Holder testified that a “final survey” means the work on the sidewalk is completed and “tells us

what’s there” (Tr. 543). Respondent testified that the survey was submitted only to show where

the water and gas valves were and that the Department should have understood that it was

supposed to ignore the misrepresentation on the survey of the location of the post. But the

depiction of the position of the light pole was equally prominent on the survey, and the

testimony, therefore, incredible. Respondent contended that the survey should not have been

read to mean the lamppost had been moved in accordance with the DOT Guidelines, even though

the survey plainly and falsely showed the removal of the post to a point well outside the

driveway. Respondent testified: “Well, only really the gas and water valves were being shown

[on the land survey he attached to his affidavit] because other than that, the amendment of the

plan has nothing to do with the survey as does the as-built condition that he [Mr. Agrachev]’s

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referencing. It’s really only the gas and water valve that has something to do with the survey”

(Tr. 1032).

Respondent’s answers on cross-examination were impressively evasive (Tr. 1129-49).

He was forced to admit that he saw that the pole was obstructing the driveway when he visited

the site and took the photos (Tr. 1144). He testified that he just happened to find his client’s van

in the driveway when he came to take the photos, but he did not feel it necessary to tell anyone to

move the van (Tr. 1142). He testified that he felt an obligation to his client not to let DOB know

that the pole was four feet into the driveway (Tr. 1139-40). Explaining further why he was not

more forthright with DOB on that point, he stated that he did not regard the pole as a critical “life

safety issue.” He felt that the photos and the survey told the story for him (Tr. 1140). He

insisted that while the survey did not show the actual sidewalk conditions, the photos did (Tr.

1141).

Asked whether he knew, as an architect for 24 years at the time, that he was not supposed

to submit documents that are not correct to the Department of Buildings, Mr. Scarano responded:

“I submitted the document that reflected those conditions that I wanted to express to them, that

were in my affidavit for the gas valves, and water valves” (Tr. 1149). Asked to admit that he did

not state forthrightly in his affidavit that he was submitting the land survey not for its depiction

of the utility pole, but only as to the gas and water valves, he denied the ruse and clung to his

close reading of his punctuation of his affidavit -- that the photos were to show the pole and the

survey to show the gas and water (Tr. 1149). Finally, pressed to admit that he knew the survey

was incorrect, but he submitted it anyway, he caved: “I submitted it, yes” (Tr. 1149-50).

Cross-examination of respondent highlighted the falsity of the affidavit and his

continuing defense of it: Respondent testified, “I felt that what the land survey needed to show

from my affidavit which specifically only references the land survey in terms of its answering of

the objections, was the purpose of the land survey. And if there was inconsistencies in the land

survey it wasn’t pertinent to the rest of the sign offs for the construction” (Tr. 1147). He then

admitted that he never mentioned in his affidavit that the land survey did not actually show what

the condition of 145 Snediker Avenue was: “No, because the photos, you know, show that the

land survey is not actually accurate in the drop curb size” (Tr. 1136, 1147, emphasis supplied),

evading altogether the falsity of the drop curb location in relation to the pole. He testified that he

did not alert anyone at the Department that the papers were contradictory, because: “Well I think

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the actual submission of the documents is the alerting” (Tr. 1147). This testimony was absurd.

Forced to admit that the certified, “final” land survey did not actually show what was at the

location, respondent attempted to soften the falsehood by claiming that, “This certified land

survey is not the one that would be submitted at the time when the BPP would be signed off at

the end of the project. This was submitted as a document to assist them in seeing the conditions

in the field” (Tr. 1147). I think not. Pressed again to admit that the land survey was false

because it did not show the conditions in the field, respondent then sought refuge in his point that

the survey showed that the gas and water valves were there (Tr. 1147). Respondent’s

explanation at trial was not a reasonable or fair or accurate reading of the submission, and was

entirely deceitful because the survey showed both the light post as having been moved and the

gas and water valves.

Challenged further to admit that the survey was not accurate with respect to the curb

condition, respondent said the only item in the documents that did not show the condition in the

field was the “length of the drop curb,” avoiding an admission about the location of the pole with

respect to the curb. Asked if the final survey was not accurate, he then tried to take refuge in the

pretense that he, a licensed architect by profession, did not know the meaning of the word

“accurate”: “I don’t know, no, I don’t know what not accurate means. What does not accurate

mean?” (Tr. 1148). This was simply ridiculous testimony. All the more so because respondent

was required to certify when he submitted professional certifications to the Department as

follows: “I am aware the Commissioner will rely upon the truth and accuracy of this statement”

(Pet. Exs. 5, 12). His demurrer hurt his credibility. I find that respondent knows the meaning of

the word accurate, and he knows that having a lamppost depicted outside a curb cut on a final

land survey when the post in fact remains in the curb is not accurate.

Even if respondent wanted to limit the survey to the gas and water valves, any sensible

reading of the objection called for correction of the curb condition as well. And hewing so

closely to the numbered lines on the form Mr. Agrachev used only exacerbated respondent’s

credibility problems with respect to this affidavit. The numbered lines were irrelevant to the

objection. Mr. Agrachev simply used the space on the form to write his objections and was not

breaking his phrasing into three numbered points. He testified that his objection was a unitary

phrase requiring amended plans for all the items he mentioned -- the curb cut and gas and water

manholes (Tr. 687), and he could not understand why the light pole was left in the driveway. He

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testified that it is very unusual for a correction not to have been made immediately following the

objection (Tr. 693). Mr. Agrachev’s objection referred to both the curb cut and the gas and water

manholes (not valves) and the need to show them as built, meaning corrected, because Mr.

Agrachev clearly denied the sign-off because of the condition of the curb cut, among other

reasons. It appears that Mr. Scarano adds another level of confusion by claiming now that he

was submitting the survey to show gas and water “valves” “for” or in response to Mr.

Agrachev’s objections. Mr. Agrachev stated that during his inspection he saw manholes that

were not depicted on the BPP (the plans) (Pet. Ex. 43), and wanted the plans to show the real

field conditions. He was not complaining of gas and water valves, and the survey does not show

any manholes where the photographs taken by both Mr. Scarano and Inspector Mujko (Pet. Exs.

46, 47, 51) appear to depict a manhole of some sort in the roadway directly in front of the

lamppost. So, even respondent’s rationalization for the submission does not address the specific

language of the objection.

Mr. Scarano went on to testify that following his comma, after “#3,” when he wrote “and

photographs showing the installed sidewalks, curbs & roadway,” he was simply calling the

Department’s attention with his photos to the public safety problem that the pole was still in the

driveway. He denied that his affidavit failed to say that he was submitting the land survey, not

for its depiction of the utility pole, but for the gas and water valves only:

No, I think it says clearly that I have attached the final survey for objections one, two and three, and then there’s a comma, which means end of thought. And then and photographs showing the installed sidewalks, curbs, and roads. Not that the survey depicts the sidewalks, curbs and roads, but the photos do and the survey is just to answer those objections that were issued. So they had specific purposes, each one of these attachments.

(Tr. 1149). Nobody would read Mr. Scarano’s affidavit as he claimed he intended it. The

affidavit was an exercise in obfuscation. He claimed that he submitted the photos to show that

there was a conflict among the survey, the photos and the field report by Mr. Agrachev (Tr.

1033). This explanation was preposterous.

Mr. Scarano explained that when he wrote, “As per my inspection dated 10/6/08, these

items have been noted,” he meant that he was very careful to say that the items were “noted,”

and not “corrected” (Tr. 1035). But the language he chose was calculated to be vague enough to

imply strongly (as the land survey plainly indicated) that the post had been moved and the illegal

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condition had indeed been corrected. Respondent testified about this language in his affidavit:

“Well I’m trying very carefully not to say that anything is correct here, I’m using the word noted

because to use the word corrected, or fixed, or answered, wouldn’t be proper here, because

obviously something that’s not corrected, fixed, which is the lamp post” (Tr. 1131). On redirect,

he emphasized the care he takes in his use of language: “I’m very careful about what I say and

do, and what I write” (Tr. 1161). Taking into account respondent’s testimony as to the special

care he takes in his writings to the Department, I find it impossible to accept that respondent’s

false representations, as illuminated by his closely held, heretofore secret interpretation of his

affidavit, as he tried to explain it at trial, were accidental or unintentional. By his own

admission, each representation was indeed deliberate, carefully planned and expressed, then

sworn by Mr. Scarano. His representations were a set of willful distortions of the truth.

Respondent’s close reading of his very carefully worded affidavit is very damning. No

reader would have understood the internal workings of his mind as he, according to his

explanation at trial, attempted to mince words and shade their meaning with punctuation marks

that held meaning only to him. His testimony confirmed that he believed he could be less than

forthright with the Department. But filing documents with the Department by a professional is

not a cat-and-mouse game, with the filer hoping the Department will not catch a violation of the

law. Rather, the architect has a solemn obligation to be truthful and forthright in his dealings

with the Department of Buildings, so that the public servants charged with scrutinizing the

professional paperwork filed for construction work in New York City can properly discharge

their duties to protect the public safety. This is particularly so when the professional affixes his

or her seal and swears or certifies the truth of the written statements being submitted to DOB.

I find it an aggravating circumstance that respondent, not content to wait patiently and

see whether this trickery was going to result in an approval of the sidewalk condition, had the

temerity to follow up by emailing high level managers at the Department and ask, with feigned

innocence, what could possibly be holding up this approval. On October 20, 2009, respondent

sent an email to Mr. Holder, saying: “Gordon, I left all the paperwork, photos etc to signoff the

BPP in the required items. Everything else we did that day was done. Is everything alright with

this? Robert” (Pet. Ex. 49). Garnering no answer to this message, respondent persisted. On

October 22, 2008, at the top of a chain of emails with Mr. Holder concerning an entirely different

property, respondent wrote: “Gordon, While I have your ear did you have an opportunity to look

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into the BPP Construction signoff from last week on 145 Snediker Avenue. Not sure that there

were any issues after we spoke? Robert” (Pet. Ex. 50). Mr. Holder did not respond and

respondent contends that this was atypical (Tr. 1042). Now, with his bizarre, sworn submission,

Mr. Scarano had caused the Department, justifiably, to scrutinize his work.

The next email between the parties on this subject came on November 18, 2008, from

respondent to Bryan Winter, Deputy Borough Commissioner of Operations, in Brooklyn:

“Bryan, Please let me know if you figured out why the BPP job was put on hold. Not sure why

myself? Robert.” Mr. Winter wrote back within hours: “Robert, Please review your filing and

identify any inconsistencies. Write a letter explaining the reason for any that may have occurred

so that it can be reviewed. The property is on hold for possible filing errors” (Pet. Ex. 52). Next,

on December 2, 2008, Mr. Winter wrote to respondent again: “Robert, Please forward a copy of

any records that you have regarding the BPP. We cannot find the folder and want to quickly

resolve the issue. A note explaining the irregularities that we discussed would speed things

along. BMW.” Respondent answered back the following morning that perhaps the applicant of

record had the file “since they were supposed to make some minor adjustments on it to get the

signoff from the examiner. The construction unit said that there was some issue in the field. Not

sure what they were talking about however if they need anything they should call me and I can

help them figure it all out. I hope everyone is not on another fishing expedition this is all starting

to make me feel special? Robert” (Pet. Ex. 53).

Finally caught at his game, when the Deputy Borough Commissioner put him on defense

and asked for a written explanation of the site conditions, Mr. Scarano retreated, and now blames

the Department for purportedly trying to trick him into making further written representations to

single him out and charge him with misconduct (Resp. Brief at 77-78). This contention is

nonsense. It was he who brought legitimate scrutiny upon himself by filing such false paperwork

in the first place. Respondent avoided any further written submissions, and invited the

Department to contact him instead by phone for clarification. He now complains that nobody

from the Department called him in response to his offer to handle this matter orally. For him to

say that he would not respond because he feared undue attention from the Department and that

the Department would “dissect” his words and spin them into “wild stories” (Tr. l161-62), fails

to address the fact that he made misrepresentations in writing to the Department and then refused

to answer further questions in writing about his affidavit, as requested by a Department official.

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The reason he did not want to write back was that he would have had to admit that he had

submitted false papers and explain the true condition of the light pole, and he had thus painted

himself into a corner. He was in an untenable position of his own making vis-à-vis the

Department.

Respondent’s Defenses

Respondent interposed the following defenses, among others, to these charges. None of

them was persuasive.

Public Safety

Respondent argued that he was the only one who had the public safety in mind, and that

by filing this affidavit, he was calling a safety problem to the attention of the Department,

because “the DOB failed to discharge its duties to protect the public” from his client’s “imminent

occupancy of the premises” after Mr. Agrachev’s August 2008 inspection (Resp. Brief at 79). At

the same time, he claims in post-trial briefing that the lamppost could not have been a public

safety problem because without a Certificate of Occupancy, his client could not lawfully occupy

the building (Resp. Brief at 102). Thus, the argument goes, no accident could happen because

nobody would use the driveway. This convoluted defense beggars belief for two reasons: (1)

Respondent himself engineered the misleading photographs by taking the pictures of his client’s

van (showing the corporate name Rite-Way Wood-Crafts, Resp. Ex. F) parked in the driveway

from extreme side angles, so the driveway in fact was in use. And, though respondent denied

that he deliberately had his client park the van at that angle for the photographs to create the false

impression of more clearance than there was in fact, his testimony that the van coincidentally just

“happened to be there, just at the time when we were taking the photos,” but that he found it

unnecessary to tell anyone to move it (Tr. 1141-42), suggests that he knew very well the

misimpression that he would create with these pictures. (2) Respondent admitted in trial

testimony that as of the date of his October 6, 2008 affidavit, “the owner had moved in all of his

equipment, tools and machinery to make cabinets and do his business and he was doing that on

the day we were having the inspection. . . . he was, you know, basically operating out of that

location,” even though the Certificate of Occupancy had not been issued (Tr. 1028).

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Respondent was Seeking an Approval, Not a “Stronger Objection” from DOB. There Was No Professional Ethics Requirement to Protect a Client by Lying to the Department. Respondent Cannot Blame His Client for His Misrepresentations to the Department. Similarly, the defense that respondent was ethically bound to submit false papers to DOB

was frivolous. He testified at trial that he was simply trying to elicit a “stronger objection” that

he could show to his client, so he could say to him, “here, knucklehead. Fix this already, please”

(Tr. 1031, 1035). This was not credible. Respondent’s contention in his closing brief that “[t]he

photographs (Exh. F) were submitted in order to make it ‘crystal clear’ that there was an issue in

the field about which Mr. Scarano could not ethically detail” (Brief at 71) is utterly without

merit. Respondent claimed at trial that he “wasn’t hopeful that the construction sign-off was

going to be gotten. I was hopeful though that it would get a rise out of everyone to get their

focus here on this because it wasn’t at the time when the inspection took place and I would be

able to then push the client into moving the pole and then being able to get his C of O” (Tr.

1040). Respondent testified that his client was complaining about the cost of the job, lacked

funds, and was reluctant to move the pole (Tr. 1120-22).

Respondent claims he was ethically bound to refrain from simply asking the Department

for the clear, written objection. First of all, he had a denial of the sign-off with objections to the

curb cut from Mr. Agrachev. In addition, an ethical obligation to see to a client’s interests is no

excuse to file false paperwork with the Department of Buildings. The argument is a non

sequitur, a manufactured ethical dilemma. Significantly, respondent admitted on direct

examination that his purpose in submitting his affidavit was to obtain the Department’s approval

without moving the pole (Pet. Ex. 46): “I was putting this affidavit in with the attachments

which were the survey and the photographs in an effort to try to get the sign-off of the final

construction for the BPP” (Tr. 1031; Resp. Brief at 70). In the next breath, he contradicted

himself and testified that he put in the papers to show the Department that there was a

“discrepancy between the photographs and the survey and that I wanted something that I could

bring back to my client to show him that hey, look, you’ve got to really move this pole because

it’s -- now it’s getting to the point where we cannot finish for you this job until this work gets

finished . . . . Well, the previous objection was not really clear enough I guess to my mind in

terms of, you know, alerting the owner that the pole had to be moved. So, I was hoping that we

were going to get a stronger objection that basically said hey, look, you know, move the pole or

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you’re not going to get the sign-off” (Tr. 1031). This defense made no sense and was incredible

because the notion that respondent was trying to elicit an objection is a post hoc rationalization

and, I find, was not the real motivating factor at the time he submitted the affidavit.

I find that respondent intended to obtain a DOB approval by filing these false documents.

He admitted on cross that he was asking for the final construction sign-off (Tr. 1146). The

“needed a stronger objection” defense is belied by respondent’s acknowledgment at trial that

DOB examiner Clara Gomez had already lodged a formal, written objection to respondent’s new

building application, dated October 25, 2006, and informed Mr. Scarano of her Objection No. 11,

which clearly stated “Utility pole to be relocated” (Pet. Ex. 44B; Tr. 1029). Respondent testified

that he spoke with his client about that objection. Moreover, he testified: “I told the owner from

the first time that the building got flipped that the light post was going to have to be moved and I

depicted it on my drawing” (Tr. 1005). Thus, there was no need for yet another official

statement from the Department that the pole had to be moved. Respondent himself had informed

his client of this requirement two years earlier. The site plan showed that the pole was going to

be relocated, and with respect to the architectural plans for the new building (as contrasted with

the BPP, pavement plan), respondent’s client knew way back in 2006 that the pole had to be

moved (Tr. 1029; Pet. Ex. 44). Even though, from the point of view of the architectural plans,

Ms. Gomez marked that objection “resolved” on paper as of December 12, 2006, with the

submission of Mr. Scarano’s site plans to move the pole (Pet. Exs. 37, 44B; Tr. 1029), his client

already knew, according to respondent’s own testimony, that the pole still had to be moved.

Respondent testified that when he “certif[ied] that a final construction signoff can now be

issued” (Pet. Ex. 46), he really meant:

I felt that the work that was done out there with the exception obviously of the -- not moving the light pole was mostly proper and that I’ve seen things happen that, you know, construction has been signed off for things like this in the past. But I really didn’t have a high expectation of the sign-off occurring because the photographs were there and it was going to be clear to anybody who looked at it that, you know, you can’t sign off construction with this kind of condition. It’s just -- it’s not possible.

(Tr. 1036-37). But he also admitted that he intended to try for the sign-off: “I said that there was

a possibility that I thought that the sign off could be issued, and they make the moving of the

pole contingent to the final sign off, or that it would issue a more formal objection that was more

to the point of what was at issue with the BPP at the time that I could then, you know, bring back

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and you know show it to the client” (Tr. 1129). This was double-talk. If respondent knew he

was not entitled to a sign-off, then why ask for one and certify that final sign-off should be

issued, except in the hope that through inattention, the Department might approve this sidewalk

so his client could get a Certificate of Occupancy? And he pushed the top deputies in his emails

for the approval without asking for any contingency. Thus, respondent admitted that,

notwithstanding his insistence that he was trying to elicit a stronger objection, he was, at the

same time, hoping to get the sign-off, and this admission underscored not only the dishonesty of

the affidavit, but also the speciousness of the manifold defenses he devised to neutralize his false

statements. Even if he had a dual purpose, he was in the wrong for making a false filing. While

respondent in his brief claims that the Department has not proved his guilty intention, that is

simply not so. Respondent admitted and confirmed his bad intention, which was also evident

from the trial testimony of the Department’s witnesses, including the DOB, DOT and Con Ed

officials (Messrs. Agrachev, Mujko, Holder and Gallagher for DOB; Ms. Minevich and Mr. Patel

for DOT; and Mr. Fernandez of Con Ed), about the false affidavit and its attachments, as

compared with the true condition of the sidewalk.

Respondent Cannot Blame the Surveyor

Nor is it an excuse for this false filing that respondent’s client, Mr. Tartamella, hired a

land surveyor, Big Apple Land Surveyors, P.C., of Brooklyn, to create the survey attached to

respondent’s affidavit (Tr. 1030). Respondent asserts that it is not his fault that the survey was

wrong or false because someone else prepared it. But he knowingly submitted this false survey

to the Department anyway. Nobody forced him to do that. Big Apple Land Surveyors dated the

survey August 12, 2008. It was respondent alone who submitted the survey with the misleading

photographs to show that the post had already been moved, when he well knew it had not been.

For that trick, respondent cannot lay blame on the surveyor to exonerate himself. Indeed, the

very effort to do so casts respondent in a bad light and is a repellent avoidance of responsibility.

Faced with cross-examination questions that forced him to admit that he knew the survey was

not accurate, he tried to blame the surveyor and answered evasively: “If it’s not accurate I think

you need to really take that up with the land surveyor” (Tr. 1148).

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Respondent Cannot Blame the Engineer

Respondent cannot escape liability for his affirmatively false representations to the

Department by claiming now that it was Mr. Durden’s responsibility as the applicant on the

sidewalk BPP plan to take care of the sign-off request. Curiously, on redirect examination,

respondent testified that in light of Mr. Agrachev’s objection that an amended plan was needed

for the BPP (the paving plan), the BPP could never be signed off without an amended plan, and

that he had no control over that amendment because it was Mr. Durden’s plan for the sidewalk

(Tr. 1173). But all this shows is that respondent had no business injecting himself into Mr.

Durden’s process, proclaiming himself in a sworn statement to be the “Architect of record” for

this property, and certifying its readiness for final construction sign-off. There was nothing

genuine about his sworn, written submission to the Department.

Respondent Was Not Really Awaiting Some Other, Later, Final Approval Process When He Requested a Final Construction Sign-Off for this Sidewalk

Another completely incredible defense was that respondent claimed to have been seeking

only a “field sign-off” (by a field inspector) and not an “in-house” sign-off (by an official in a

Department office who reviews the papers again). He admitted that he was seeking a “sign-off,”

and the language he so carefully selected in his affidavit was not so limited. He admitted that he

knew that even though he certified that the final construction sign-off could be issued, the

sidewalk condition was a violation of DOT rules (Tr. 1132, 1146); he tried to evade that point by

noting that a waiver was possible, but he admitted that he knew that he never applied for one and

did not know if anyone else had either (Tr. 1132). He admitted that he knew at the time he

submitted his affidavit to the Department that no waiver of this lamppost condition had been

issued and that the post had to be moved. Although respondent testified that he was trying to get

the construction sign-off and, at the same time, alert the Department to the problems with the

utility pole, he admitted on cross-examination that he never told the Department “[t]hat there was

an issue with the utility pole specifically, no” (Tr. 1146-47).

Notwithstanding respondent’s description of a two-step process, a BPP inspection and a

document review, the language he used in his affidavit states that he is answering the field

inspection objection and certifying that the final construction sign-off, meaning the final,

departmental paper sign-off, could then be issued. That is the only reasonable reading of his

plain words, and he admitted that he was asking for the final construction sign-off in this

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affidavit, when cornered on cross-examination (Tr. 1036-40, 1121-23, 1128-29, 1132, 1146,

1149, 1173, 1176; Pet. Ex. 46; Resp. Exs. C, D). His affidavit is not susceptible of an

interpretation that he was merely addressing the field inspection and waiting for Mr. Durden to

get the in-house sign-off (Resp. Brief at 73). Mr. Holder credibly testified that he relied on Mr.

Scarano’s representation that he was the “Architect of record” for this property and Holder had

“no reason to double-check who is the applicant” (Tr. 613). Respondent’s implausible testimony

deeply eroded his credibility at the trial. In short, this defense did not pass the proverbial

straight-face test. Through his own testimony, which was so full of avoidance and self-

contradiction, respondent’s credibility was demolished.

The Defense that the Photographs Respondent Submitted Were Not Misleading

Respondent seeks to have these charges dismissed because Mr. Holder testified that the

photos respondent submitted showed the pole inside the curb cut. Mr. Holder also testified that

photos were “odd, I mean the location of the pole itself is not something you see every day … --

in that [the] utility pole is inside the curb cut” (Tr. 567-68; Brief 75). Indeed, respondent’s

submission was so odd that it triggered an investigation of the actual conditions at the site, and

the discovery that respondent’s submission was as misleading as it could be when taken as a

whole, with the sworn affidavit, the photos and the certified, and false, so-called final land

survey.

Mr. Scarano is responsible for his representations to the Department, and if he could not

make them truthfully, he should not have filed the affidavit. He blames others: his client,

Inspector Agrachev, whose objections, he claims, were “ridiculously vague” (Resp. Brief at 68),

the engineer, and the Department, for not issuing what he would call a proper objection until Mr.

Mujko did so. But respondent takes no responsibility for his own conduct. His claim in his brief

that “In reality, [he] sought to have the DOB finally discharge its duties to the public by issuing

an objection that actually addressed the undisputed impropriety of Mr. Tartamella’s construction

of a driveway with a lamp post in its curb cut” (Resp. Brief at 79) is false. One plan examiner

and two inspectors objected to the sidewalk condition in writing. For respondent to cast himself

now as the lone rescuer of the public interest is an exercise in self-congratulation that finds no

support in the record and is unbelievable.

The Department has proved Charge 2 and Charge 3 (Specifications 9-13), by a

preponderance of the credible evidence, as to falsification of statements to the Department.

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Those prongs of Charges 2 and 3 that allege negligence should be dismissed. Charge 1 should be

dismissed as noted because it is based on negligence alone, not fraud.

Part II

Charges 1 and 2, Specifications 1-8; Charge 3, Specifications 5-8: 158 Freeman Street/1037 Manhattan Avenue, Brooklyn: The Zoning Violations In accordance with the pre-trial Memorandum Decision dismissing Specifications 1-4 of

Charge 3, because they predate the new false filing law, Construction Code section 28-211.1.2,

relating to the Department’s authority to refuse to accept any papers from a licensed architect if

that architect has been found at OATH to have knowingly or negligently falsified statements to

the Department, I exclude Specifications 1-4 from consideration under Charge 3. However, I

must consider the identical Specifications 1-4 under Charge 2, Department rule 21-02(a)(3),

which was in effect at the time of the conduct alleged, and which relates to the Department’s

authority to exclude an architect from the Department’s programs for limited supervisory check

and/or professional certification of applications, plans and removal of objections, for knowingly

or negligently making falsified statements to the Department. Charge 1, alleging negligence,

should be dismissed, as noted above, as should those prongs of Charges 2 and 3 that allege

negligence under Department rule 21-02(a)(3) and Construction Code section 28-211.1.2, for the

reasons stated above. Charges 2 (Specifications 1-8) and Charge 3 (Specifications 5-8) are

sustained in relevant part on the basis that the Department has proved by a preponderance of the

evidence that respondent repeatedly, knowingly falsified statements to the Department.

Introduction

These charges relate to the L-shaped property located at 158 Freeman Street and 1037

Manhattan Avenue in Brooklyn (the “Manhattan/Freeman Property” or the “Property”). The

pertinent allegations in the Second Amended Petition (ALJ Ex. 4) fall into the following subject

areas or categories. The Department alleges in relevant part that respondent intentionally made

false or deceptive statements to it concerning this Property as follows, in order to overbuild the

Property in derogation of zoning regulations:

(1) Lot size. The Property concerns two tax lots, number 41, at 158 Freeman Street, and the contiguous tax lot, number 44, at 1037 Manhattan Avenue. There are two buildings now on these tax lots, which are perpendicular to each other. I have annexed hereto as Appendix B, for ready reference, a chart of record that depicts the shape and location of the two tax lots (Pet. Ex. 15). A “zoning lot” can be comprised of one or more contiguous tax lots within a single block, in single ownership as of December 15, 1961, and registered with the New York City

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Department of Finance. Here, the zoning lot includes both tax lots, numbered 41 and 44 (McDonald: Tr. 110-12); Zoning Resolution, § 12-10 (Pet. Ex. 14). The Department contends that respondent kept changing his written representations as to whether the Property as to which he was seeking DOB approvals at various times consisted of one tax lot or two, depending on the benefit he thought he could win for his client. There was no dispute that the zoning lot consisted of the two tax lots (Resp. Brief at 38; Scarano: Tr. 862-65).

(2) Zoning floor area. The Department contends that respondent changed the zoning floor area for Manhattan Avenue in various filings concerning the Property, with a difference amounting to nearly 1,200 square feet. This claim goes hand-in-hand with the lot size allegations. The agency argues that the inconsistent numerical representations of the zoning floor area were deliberately misleading. (3) Residential versus community facility use. The Department asserts that respondent claimed in written plans that his client was entitled to additional residential units for the Property by submitting calculations that were based on putting a community facility on the first floor of 1037 Manhattan Avenue, and that he even showed an existing community facility at one point that did not really exist. The Department called as a witness respondent’s client, owner of the Property, who denied that he ever even contemplated a community facility. The parties sparred over whether the client was biased. The Department contends that the community facility was utterly illusory -- it never existed and was never really planned or built -- and served to highlight further respondent’s scheme of false representations to the Department about the legal uses of the Property. The Department contends that respondent did this to win approval for a larger building or more residential units than the zoning law permitted, without the legally required parking provided, to gain significant benefits for himself as an architect, to build a grander edifice than was allowed, and for his client -- benefits to which they were not entitled. (4) Corner lot treatment. Under the applicable definition in the Zoning Resolution, the Property is not a “corner lot.” It is not at a corner, that is, not “bounded entirely by streets,” nor does it “adjoin[] the point of intersection of two or more streets.” Zoning Resolution § 12-10 (1961) (Pet. Ex. 29). It is not at the intersection of any streets. Each tax lot faces onto streets, Freeman Street and Manhattan Avenue, respectively, at points within those blocks, not at any corner. “An ‘interior lot’ is any zoning lot neither a corner lot nor a through lot.” Zoning Resolution § 12-10 (1961) (Pet. Ex. 30). “A ‘through lot’ is any zoning lot, not a corner lot, which adjoins two street lines opposite to each other and parallel or within 45 degrees of being parallel to each other. Any portion of a ‘through lot’ which is not or could not be bounded by two such opposite street lines and two straight lines intersecting such street lines shall be subject to the regulations for an ‘interior lot.’” The Property is thus an interior lot (Pet. Ex. 30; McDonald: Tr. 211-215). Zoning Resolution § 12-10 (1961). Printed on the last page of this decision is the diagram of interior and through lots provided in section 12-10 of the Zoning Resolution. See Appendix B hereto to compare the Property at issue here. The Zoning Resolution also provides clearly that the maximum lot coverage for an interior lot or through lot is 65%, not the 80% indicated for a corner lot in an R6 residential district. There is no dispute that the Property is zoned in the R6* district in Brooklyn for purposes of this calculation (Tr. 214-15) and the percentages for the maximum lot coverage for such properties are mandated by the zoning law. Zoning Resolution § 23-145 (Pet. Ex. 32). There is nothing in the Zoning

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Resolution provision on point that says interior lots can be treated as corner lots. Nonetheless, respondent submitted plans for the Property in which he wrote that 80% of the zoning lot could be used to construct a building, even though, as the Department alleges, this is an interior lot, on which only 65% of the lot could be used for building, according to the unambiguous terms of the Zoning Resolution. The Department thus contends that respondent’s submissions were false and that he acted deliberately to claim a bigger building footprint than his client was entitled to have and that respondent changed his paper submissions to 65% after he came under investigation, but then reverted to writing in his paperwork that his client could build on 80% of the lot, as if it were on a corner. The agency argues that respondent knew he was not entitled to corner lot treatment, and that the testimony of respondent’s expert architect that this interior lot should have corner lot treatment should be rejected as contrary to the terms of the Zoning Resolution, otherwise unsupported, and irrelevant.

Although respondent’s expert, architect Elliott Vilkas, testified that interior lots have been treated as corner lots by the Department, there was no specific citation offered to support his opinion, which seemed merely anecdotal and contrary to the precise language of sections 12-10 and 23-145 of the Zoning Resolution (e.g., Tr. 836-38, 842-45). Had respondent wished to exceed the permissible floor area ratio for these interior lots, there was a mechanism available for that -- to apply for a variance. See, e.g, 2323 Avenue “S”, Brooklyn, BSA No. 04-BSA-123K (Oct. 19, 2004) (granting a variance to exceed the maximum floor area ratio provided in Zoning Resolution for corner lot in residential area due to hardship and findings, inter alia, that the overall design of the enlargement was in keeping with other development in the area and would not impact the residential character of the community). But there was no indication that respondent availed himself of the process for obtaining a variance. Instead, he simply claimed a bigger building than the law allowed and the agency’s audit overturned prior approvals of his plans showing the larger bulk claimed for the building at issue. Respondent’s expedient of simply overstating the allowable floor area, bulk and lot coverage of the building permitted was deceptive and skirted accepted procedure. (5) Number of parking spaces required. The Department alleges that respondent filed papers with the Department indicating that no parking spaces were required for this residential Property, when the law required 7 parking spaces for the number of dwelling units planned. The Department thus contends that respondent knowingly sought to mislead the agency and obtain a benefit to which his client was not entitled. Again, the expert testimony that no parking spaces were required was based on only one anecdote with no supporting data. (6) False representation that job was ready to be “audit accepted.” The Department alleges that respondent submitted amended plans for 158 Freeman Street requesting in November 2007 that his application be assigned to an examiner because all previous objections had been answered and the job was ready to be “audit accepted,” even though this was not true.

I find that the Department has proved that respondent intentionally misrepresented these

subjects to the Department and thus, need not reach its alternative theory that the filings were

done negligently or incompetently. Given the pride respondent took in his written work, as

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discussed above, his 25 years of experience as a licensed architect practicing in New York City

(Tr. 850-60), and his detailed knowledge of the zoning law and other rules and regulations

governing the practice of his profession, I find that these inconsistencies and discrepancies in his

official filings with the Department were not accidental. Nor can the issues the Department

raises here be dismissed as mere questions of interpretation leaving leeway for disagreement or

error.

When respondent undertook this project, he and his client were on good terms. He

replaced an architect who had begun the planning work and offered to do better (Scarano: Tr.

1049-50, 1184). Respondent learned of this job in 1999, when the owner, Roman Stasiuk,

showed him plans for a new residential building that were drawn by another professional and

approved by the Department (Tr. 861, 865).9 His client, Mr. Stasiuk, testified that he was waiting

for approval of plans by the previous architect when a friend recommended Mr. Scarano: “We

showed him the existing plans and he said he could do much better, you know, he can approve these

plans quickly and give us a better building” (Tr. 1184). Mr. Scarano testified that Mr. Stasiuk called

him after he built 1037 Manhattan Avenue because Mr. Stasiuk got a better building than originally

planned due to Mr. Scarano’s work and wanted to have more rental units, a larger building. That was

the genesis of the plans to build a second building on the zoning lot at 158 Freeman Street (Tr. 879).

Mr. Scarano was seeking to maximize the size of the buildings that he was planning and to save

his client the costs and burdens of building adequate parking spaces for the future residents of the

buildings on the Property. There is nothing wrong per se in seeking to obtain benefits for a

client, but there is something wrong in making false representations to the DOB in order to

aggrandize the architect’s professional stature and to secure benefits where the client and the

architect are not entitled to the approvals sought and the architect knows it.

In 2000, respondent drew new plans (Pet. Ex. 8; Tr. 875), and filed an application to

supersede the original application (Pet. Ex. 7; Tr. 877). Respondent testified that he showed

80% lot coverage by following the prior plans that had been approved by Brian Ribner, a

Department plan examiner (Tr. 876). Ribner approved the 2000 plans (the “2000 Plans”). His

9 The earlier, 1999 plans were certified by a professional engineer, who listed both tax lots on the Plan/Work Approval Application (PW-1) form, and were approved as submitted based on that engineer’s professional certification (Resp. Exs. M, N). Respondent’s 2000 plans were submitted for full review by DOB (Pet. Ex. 8). His 2002 plans were professionally certified and approved without DOB review (Pet. Ex. 13).

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2002 plans (the “2002 Plans”) were professionally certified (Pet. Ex. 13), meaning the DOB

would not be likely to review them. Because the DOB reviews less than 20% of self-certified

plans (Tr. 35), the Department contended, respondent expected to evade review by self-

certifying: “Respondent knew this, knew there was a very small chance that he would get

caught” (Tr. 13).

Following complaints from local community boards and area residents about

respondent’s work, the Department assigned Mr. McDonald, a professional engineer and plan

examiner in the Department’s Special Enforcement Unit (“SEU”), with 23 years’ experience at

DOB (Tr. 92-94), to audit several of respondent’s professionally certified job applications (Tr.

96, 297-98). The SEU began auditing applications in Brooklyn that “were very problematic with

serious zoning violations” in September 2006 (Tr. 297-98). From February to March 2007, Mr.

McDonald audited respondent’s professionally certified application for a new building at 158

Freeman (Pet. Ex. 17; Tr. 101), including the PW-1 forms (Pet. Ex. 12; Tr. 102-03) and the 2002

Plans (Pet. Ex. 13; Tr. 106-08). Mr. McDonald also audited and compared other filings by

respondent, from 2000, 2004, 2007 and 2008, for this Manhattan/Freeman Property. As noted, I

found Mr. McDonald a credible witness, a conscientious professional, immersed in the details of

his profession. He had no ax to grind, and his testimony struck me as a faithful recounting of the

work he did, without embellishment or personal animus. From 2007 to 2008, his audit

identified, according to Mr. McDonald, 34 violations of the Building Code and the Zoning

Resolution. Mr. McDonald wrote them up as formal “objections” to respondent’s paperwork

(Pet. Exs. 17, 26, 28). A number of these objections are the subject of this case. Mr. McDonald

also noted an inconsistency between the description of the zoning lot on the 2002 Plans and the

accompanying PW-1 form application respondent submitted (Tr. 123, 295).

While respondent revised the plans in 2007, apparently in response to the audit (Tr.

1062), to show, for example, only 65% lot coverage, he then reverted to 80% lot coverage in his

2008 plans (the “2008 Plans”), in spite of the audit (Compare Pets. Exs. 24 and 27). In the face

of the Department’s objections, I find that this and other misrepresentations he made in writing

were not only deliberate; they were stubborn, as respondent attempted to get approval by going

around Mr. McDonald, without utilizing normal review procedures.

While this phase of the case is bound up in detailed mathematical calculations based on

the application of the Zoning Resolution to respondent’s applications and architectural plans

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concerning the Property, the fundamental theory underlying the Department’s proofs concerning

this Property is the same as that seen with regard to the lamppost -- that the Department can no

longer rely upon respondent to submit honest paperwork.

I find that the Department has proved the falsification allegations by a preponderance of

the credible evidence.

Discussion

Lot Size; Zoning Floor Area; Community Facility

On May 15, 2000, respondent filed a PW-1 Plan/Work Approval Application (Pet. Ex. 7)

with a set of architectural drawings (Pet. Ex. 8), with the Department’s Brooklyn Borough Office

for a new building at 1037 Manhattan Avenue (Magdi Mossad, Manhattan Borough

Commissioner: Tr. 31, 46-48). The application showed a zoning lot comprised of tax lots 41

and 44, and was approved in 2000, following a full plan review (Tr. 127).10

On March 4, 2002, respondent professionally certified an application with the

Department for work approval on a new building at 158 Freeman Street in which he knowingly

failed to include the complete dimensions of the zoning lot in the plot diagram in the PW-1 form.

He drew and indicated on page 3 of the PW-1 diagram only the block and lot numbers for tax lot

41, on Freeman Street (Pet. Ex. 12; Tr. 127-28). That section of the form, numbered section 15,

“Plot Diagram of Zoning Lot,” required a drawing of the whole zoning lot, meaning both tax lots:

“Plot Diagram must show the correct street lines from the City Plan, the plot to be built upon in

relation to the street lines and the portion of the lot to be occupied by the building; . . . the house

Numbers and the Block and Lot Numbers. Indicate the dimensions of the total tax lots” (Pet. Ex.

12, emphasis supplied). At the same time, respondent knowingly failed to include information

that there was already an existing building that had been approved and constructed on the same

10 For the different types of departmental review of architectural plans, see Department Directive No. 2 of 1975 (Pet. Ex. 1) (review by Department plan examiner); Operations Policy and Procedure Notice No. 2 of 1995 (Pet. Ex. 2) (professional certification, under which the architect can self-certify that the application complies with zoning regulations and the building code, and which will result in acceptance without review, except that 20% will be audited; applicant can seek a DOB interpretation or reconsideration about a zoning issue prior to filing; audit objections require full plan examination); Operations Policy and Procedure Notice No. 5 of 2002 (Pet. Ex. 3) (random audits of accuracy of zoning calculations); Operations Policy and Procedure Notice No. 1 of 2004 (Pet. Ex. 4); Professional Certification form (Pet. Ex. 5); and Directive 14 of 1975 (Pet. Ex. 6; Mossad: Tr. 43-44) (limited supervision of professional certification used for minor work, showing no changes to building use, occupancy or egress).

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zoning lot, on Manhattan Avenue, and that the floor area claimed was unavailable as indicated.

Tax lot 44 on Manhattan Avenue was 75 feet by 25 feet, or 1,875 square feet at ground level.

Tax lot 41 on Freeman Street was 50 feet by 25 feet, or 1,250 square feet (Pet. Exs. 8, 15). The

two tax lots added together made up the zoning lot:

1,875 square feet (tax lot 44, on Manhattan Ave.) 1,250 square feet (tax lot 41, on Freeman Street) 3,125 square feet (zoning lot total)

FAR = 3.0 (multiplier applied to zoning floor area)

3,125 x 3 = 9,375 (maximum floor area that could be built for residential use)

Total residential space that could be built on zoning lot: 9,375.0 square feet Residential space used from 2000 Plans for Manhattan Ave: (7,507.1) square feet Amount of area left over to be used in 2002 for Freeman St. 1,867.9 square feet Amount respondent represented he could build on Freeman St. 2,984.0 square feet +1,116.1 Overbuilt It was undisputed that the zoning lot was 3,125 square feet at ground level (Pet. Exs. 8,

15, 13), and that the FAR was a multiplier of 3.0, so that the maximum zoning floor area

respondent could use for the zoning lot (both tax lots) was 3,125 x 3 = 9375 square feet,

according to Zoning Resolution section 23-145. Mr. McDonald explained that Mr. Scarano was

simultaneously using the floor area rights and air rights, the developmental rights, twice, as if on

two different zoning lots. (See Specification 1; Tr. 127-29.) In other words, Mr. Scarano had

already used up 7,507.1 square feet of the usable residential space (of the 9,375 square foot limit)

on the total zoning lot to build 1037 Manhattan, when 158 Freeman was an empty part of the

zoning lot. Mr. Scarano’s client, Mr. Stasiuk, testified that construction began on 1037

Manhattan in 2002 and was finished quickly, within a year, in 2003 (Tr. 1191). Based on his

2000 Plans, respondent had only 1,867.9 square feet left that he could use on Freeman Street (Tr.

147-48).

Respondent decided, however, to build 158 Freeman Street bigger than was permitted. In

2002, he filed plans for a 2,984 square foot building on Freeman, 1,116.1 square feet more than

allowed. He was overbuilding by more than 12%. To make it appear that the buildings on the

combined lots were within the limit of 9,375 square feet, the maximum allowed residential floor

area for the zoning lot, respondent reduced the size of the “existing” building at 1037 Manhattan

Avenue on paper, in the 2002 filing, to 6,320.5 square feet, a reduction of 1,186.6 square feet

(Pet. Ex. 13). I find that in 2002, he knowingly misrepresented the existing floor area for 1037

Manhattan Avenue as a lower number than the 7,507.1 square feet he had already used -- writing

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6,320.5 square feet -- when he knew that he had previously represented in writing to the

Department that this floor area was nearly 1,200 square feet more (Pet. Exs. 8, 13, 19). He then

claimed 2,984 square feet for Freeman Street (more than the 1,867.9 square foot limit of

available space), so that he could stay within the maximum zoning floor area, as shown in the

table below. Thus, in 2002, respondent knowingly and falsely stated a reduced number for the

zoning and floor area of 1037 Manhattan Avenue in his 2002 application for 158 Freeman Street

so that he could build bigger residential space than he was entitled to do on 158 Freeman. In

actuality, he was exceeding the 9,375 square foot limit on residential floor area, on the zoning

lot, with a hidden total of 10,491 square feet when both tax lots were considered, as they must

be, as a single zoning lot. (See Specification 2; Pet. Exs. 8, 11, 13, 14, 15, 20; Tr. 133-55.) In

short, he took from Manhattan on paper, so he could add excess space to Freeman. This was

double-counting.

The Department summarized Mr. McDonald’s testimony and the documentary proof in

tabular form to show that respondent was manipulating the figures to exceed the maximum

allowable zoning floor area on the zoning lot:

Scarano 2000 Plans for 1037 Manhattan Avenue Scarano 2002 Plans for 158 Freeman Street Zoning Floor Area (ZFA): 7,507.1 Square Feet (SF) ZFA (1037 Manhattan): 6,320.5 SF 7,507.1 SF (already used in 2000) _________ ZFA (158 Freeman) 2,984.0 SF 2,984.0 SF (2002)

Total Floor Area: 7,507.1 SF Total Floor Area: 9,304.5 SF 10,491.1 SF Max. Allowed Floor Area 9,375 SF Max. Allowed Floor Area 9,375.0 SF +1,116.1 SF Overbuilt (Pet. Exs. 8, 13, 19) (emphasis added). Respondent’s account at trial, on cross-examination -- that he decided to exclude tax lot

44 in the PW-1 description of the zoning lot in the 2002 filing derived from his conclusion that

“[i]t was already clear to me that the zoning lot consisted of the two tax lots, so I didn’t feel it

was necessary to list both of them, both tax lots” (Tr. 905) -- did not explain the important

omission satisfactorily. It did, however, confirm that he knowingly omitted the other tax lot. He

added that there was “confusion in the industry” about what information to include in certificates

of occupancy, such that the information in the PW-1 would not be the zoning lot, but rather, the

tax lot (Tr. 910). He offered that such use of the tax lot would clarify the boundaries and

ownership, changing the metes and bounds, in the event of a sale of property (Tr. 948). Again,

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this statement did not adequately explain the omission given the legal requirement that he file

honest paperwork with the Department.

In important ways, respondent repeatedly filed papers with the Department in which he

kept changing the residential zoning floor area of the building at 1037 Manhattan Avenue, and

this series of inconsistencies contributed to the false and misleading nature of his paperwork.

This is a matter of great significance in the world of building construction in New York City, as

noted in the introductory section of the Analysis in this recommended ruling; the bulk and size of

permissible development in particular neighborhoods or districts, without a doubt, goes to the

heart of the purposes of zoning regulation. See generally Zoning Resolution Art. I, Ch. 1, § 11-

10, entitled “Establishment and Scope of Controls, Establishment of Districts and Incorporation

of Maps,” and §§ 11-11, 11-111, 11-112 (Dec. 15, 1961), which provide that for all new and

existing uses of land governed by the Zoning Resolution in all districts, any buildings or other

structures must be constructed or developed, or enlarged, altered, converted, reconstructed, or

relocated, “only in accordance with the use, bulk and all other applicable regulations of this

Resolution”; Municipal Art Soc. v. New York City, 137 Misc. 2d 832, 837-38 (Sup. Ct. N.Y. Co.

1987) (“Zoning is a vital tool for maintaining a civilized form of existence for the benefit and

welfare of an entire community . . . and is designed to preserve the character of zoned areas from

encroachments of uses which devaluate living conditions . . . with its goal being to provide for

the development of a balanced, cohesive community which will make efficient use of [a] town’s

available land”; “Increasing the bulk of a project imposes a certain burden on the local

community. . . Zoning benefits are not cash items”; they are not for sale; City was not free to

agree to vary zoning by giving developer a bonus of a 20% increase in floor area ratio (FAR), or

bulk, for Coliseum property in exchange for cash in the form of $40 million in subway station

improvements) (internal quotation marks and citations omitted; emphasis supplied). The concern

about imposing burdens by building bigger developments than permitted by the Zoning

Resolution is particularly acute in New York City, where space is so limited and the population

so dense.

Mr. McDonald’s testimony made clear that respondent was seeking an impermissibly

larger building for the benefit of his client than was permitted:

With 80 percent lot coverage versus 65, again, a bigger footprint of building would give you more floor area. With more floor area [one] could generate more dwelling units. . . . a bigger footprint of the building . . . -- I put lot coverage

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before floor area, with a bigger footprint, lot coverage that can generate more floor area and then density. . . . As I stated previously, more floor area, more density, a bigger footprint of the building which will generate more floor area density within that building on that zoning lot. . . . It’s getting more out of this tract of land, this parcel of land, that I refer to as a zoning lot than this area of land that would be entitled for -- again, floor area generating into dwelling units.

(Tr. 326-29). Mr. McDonald testified that respondent’s client, the owner, would receive “the

ultimate benefit” of increased revenue from the sale or rental of the larger residential buildings

on this tract of land. (Id.)

Similarly, a community facility at 1037 Manhattan Avenue would have increased the

FAR, or multiplier, on the zoning lot under the applicable Quality Housing Program for the

residential neighborhood at issue, by 1.0, from 3.0 to 4.0 (Pet. Ex. 27), as respondent wrote on

his 2008 Plans, meaning it would have increased the bulk of the proposed building at the

adjacent property, 158 Freeman Avenue, violating daylight and density requirements (Pet. Ex.

27; Pet. Ex. 28, Objection Nos. 26-27; Tr. 209, 212, 328, 330-31; Pet. Exs. 31, 32). With 3,125

square feet on the zoning lot, a FAR of 3.0 yields maximum residential floor area of 9,375 square

feet, but with an increased FAR of 4.0, the maximum residential floor area is the 12,500 square

feet respondent represented in the 2008 Plans (Pet. Ex. 27). Mr. McDonald would have no

objection to an architect seeking to take advantage of the additional residential floor area on

which to build were there a real community facility, but here, no waiver had been granted for a

community facility and concomitant increased FAR. He testified that the problem with

respondent’s paperwork on this score was that there was no reality to the community facility

here: There must be a “legitimate layout arrangement for that use” (Tr. 328). He raised the

objection to the additional building space respondent claimed because in fact there was “nothing

more than just the apartment” (Tr. 328).

Community facilities are allowed in residential zoning districts and enable a lot to have a

higher FAR. Hospitals and churches are examples of community facilities (Tr. 198). The

community facility here was a sham, as confirmed by respondent’s client, Mr. Stasiuk, who

credibly testified that the only use of his property was to be residential, not commercial

(“Absolutely not”), and not for a community facility. He unequivocally denied that respondent

ever even mentioned, or even suggested, to him that in order to build the four-family residential

property at 158 Freeman Street, he would have to change the use of the first floor of 1037

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Manhattan Avenue to include a community facility: Asked if Mr. Scarano had ever discussed

any community facility with him for this Property, Mr. Stasiuk replied emphatically and

unhesitatingly in the negative: “No, all residential” (Tr. 1186). There was no discussion of any

design other than residential space. From the owner’s point of view, then, the community

facility was invented by Mr. Scarano, and was nothing the owner wanted or even contemplated.

Respondent introduced at trial a fax purporting to show that he had asked his client as far

back as December 2001 to consider building a community facility. He testified that the

document seemed smoke damaged and speculated that it may have survived a fire in

respondent’s office years ago (Rep. Ex. O; Tr. 888). There was a controversy about whether the

document had been produced in discovery. The Department’s attorney objected that respondent

was not the preparer of the document (Tr. 889), that she did not recall ever seeing that document

among the documents produced by respondent, and that there was no necessary connection

between the fax cover sheet and its attachments, which included an undated, handwritten note

from someone named “Yulia” on plain paper. Counsel questioned the authenticity and the date

of actual transmission of the fax (Tr. 889, 883-97). Respondent’s counsel replied that he was “a

little surprised” (Tr. 889, 891) that his adversary had not designated it for copying in the

discovery phase. Agency counsel stated that if she had seen this document, she and her

colleague would have requested a copy (Tr. 890).

Because respondent’s counsel produced many documents and file boxes to the

Department for inspection and later copying (Tr. 889, 891), it was impossible for the Department

to say with certainty that the document had not been produced. Therefore, I found insufficient

basis to preclude it based on an uncertain, asserted failure to produce it prior to trial. Over strong

objection from the Department about the document being a surprise and possibly inauthentic, I

entered this document in the record based on representations from respondent’s counsel that he

had produced this document among many other files. In addition, respondent testified that he

had directed his employee to create and fax it to the client (Tr. 883, 892-93), and had knowledge

of the document.

Having admitted the document, I find that it is immaterial to respondent’s defense that

the community facility was a legitimate, real plan. The fax cover sheet, dated December 24,

2001, was attached to an undated note from Yulia Pritzker, an architect and project manager

formerly employed by respondent and now living in her native Europe (Tr. 895). The note was

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handwritten on plain paper, not on Mr. Scarano’s letterhead like the cover sheet. It was

addressed, “Dear Mr. Stasiuk,” stated that “1st through 4th floor plans” were attached for the

proposed building at 158 Freeman Street, and noted that due to zoning restrictions and

regulations, “we will have to convert 1st floor of exist. adjacent building into community facility

space (med. office)” or to make the proposed new building on Freeman Street all commercial

offices. It added, “Please advise on your decision A.S.A.P.” (Resp. Ex. O; Tr. 883-84, 1082-85).

The attached pages were sketches showing commercial offices on the second and third floors,

and apartments on the fourth and fifth floors of 158 Freeman Street, but there was not a single

sketch of a community facility at 1037 Manhattan Avenue. There was no follow-up document

showing any decision by Mr. Stasiuk in response to the urgent request in the note.

The fax purported to be from Mr. Scarano’s office to Mr. Stasiuk and to flag the issue of

commercial or community facility use at an early phase of this project, Christmas Eve 2001. Mr.

Scarano testified that he discussed with Mr. Stasiuk the possibility of an additional building on

the zoning lot, to give his client the option to build another building on Freeman Street and

convert the use in Manhattan Avenue (Tr. 879-80). Respondent understood that converting the

first floor of 1037 Manhattan into a community facility would allow the new building at 158

Freeman to have a larger percentage of its floor area devoted to residential use (Tr. 885). While

Mr. Stasiuk credibly identified his fax number on the cover page as that of his business, and

stated that he had received many faxes from Mr. Scarano’s office, he denied ever having seen

this fax and consistently denied that Mr. Scarano had ever broached the subject of community

facility with him (Tr. 1188-89). Mr. Stasiuk testified that a community facility was never built

on his property (Tr. 1198).

Respondent called this one of his “milestone” documents that he sent to the owner, as a

historical reference. He testified that he asked Ms. Pritzker to send the fax. “This particular

document had a historical value because it was the first schematic that was sent to the owner to

show him what the possibilities would be for the schematic plans for the building at 158 Freeman

Street. No other documents were prepared yet for the building except for these. The letter was a

cordial, you know, explanation by [Y]ulia [Pritzker] to the owner of the property and those

documents were kept in a file along with many, many other transmittals to him both before and

after this” (Tr. 892-94). If this was the “first” such document, there were no other documents

produced at the trial that would have placed the owner, Mr. Stasiuk, “on notice (Tr. 884),” as

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respondent put it, of a community facility use he swore was news to him and that he never

wanted. Respondent testified that he recalled the Christmas Eve fax and stated that it was “kept

very nicely in the file until today, years and years later” (Tr. 896). But if that file was intact,

there was no follow-up correspondence, lending credence to Mr. Stasiuk’s denial that he ever

received this particular fax with the attachments of record. The only fire respondent testified to

occurred in 2002 in his former office (Tr. 858). If the community facility was planned and

represented in the 2008 Plans as the basis to increase the limits of the maximum residential floor

area, then why were there no other records for the intervening six years concerning the planning

of this facility with Mr. Stasiuk -- no sketch of a community facility, no email, no other faxes, no

correspondence of any kind? I find that the answer to be gleaned from this record is that there

was no community facility. It was an invention to list on the plans to get around the zoning law.

It is to be remembered that the burden of proof is on the Department. Assuming the fax

to be authentic and accepting that respondent had perhaps once raised the issue of community

facility with his client in 2001, the Department’s proof through Mr. Stasiuk was convincing that

there never was any real plan on his part to pursue any such use in his building on Manhattan

Avenue.

Respondent claimed that Mr. Stasiuk decided in early 2002 to proceed with a 100%

residential new building at 158 Freeman and to convert the ground floor of 1037 Manhattan into

a community facility use (Tr. 897-98, 1086). Respondent admitted that he and Mr. Stasiuk never

discussed removing residential tenants or fixtures, such as kitchens, granite counters and

stainless steel appliances, from 1037 Manhattan Avenue that supposedly was to be changed to

community facility use (Tr. 1087). Respondent professionally certified the 2002 new building

application for 158 Freeman (Pet. Exs. 12, 13), calculating the floor area from the “residual floor

area that remained on the zoning lot,” defined as both tax lots 41 and 44 (Tr. 901). He knew that

he was certifying the lawfulness of the filing and that there was a chance that the Department

would never review it (Tr. 1053-54).

In addition, respondent disregarded procedures by failing to file a proper floor plan

amendment for 1037 Manhattan Avenue to show a new use there. He never filed the necessary

Alteration, Type 1 application to amend the Certificate of Occupancy. He was trying to benefit

from circumventing the normal procedures (Tr. 330-31). Part of skirting the rules, according to

Mr. McDonald, was that respondent was trying to change the use of 1037 Manhattan Avenue by

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including its supposed new use on 158 Freeman Street plans, but skipping the filing steps for

1037 Manhattan Avenue, which required a separate application (Tr. 330-31).

The agency audit revealed the following additional problems with respondent’s written

submissions.

On May 10, 2004, respondent filed the Plan/Work Approval Application for a “Post-

Approval Amendment” (“PAA”), on a PW-1 form with the Department to change, or as

respondent put it, “correct” the metes and bounds description to reflect a reduced “zoning lot.”

This resulted in a change from the Temporary Certificate of Occupancy showing both tax lots, to

the final Certificate of Occupancy, which, with this change, showed only one tax lot (No. 44)

(Pet. Exs. 9, 20, 21), for Manhattan Avenue. But the Certificates of Occupancy at the time

required a description of the metes and bounds of the whole “zoning lot,” i.e., both tax lots (Tr.

144-47; Pet. Exs. 20, 21). Respondent filed this PAA, despite the fact that he had filed the

earlier, conflicting, original application (Pet. Exs. 7-10), on which he had correctly indicated that

the construction area was on a two-tax lot zoning lot (Nos. 41 and 44), and that he thus knew that

the floor area ratio of Manhattan Avenue, after this reduction, would take the building out of

compliance with the Zoning Resolution as follows. If the zoning lot were only tax lot 44, which

measures 1,875 square feet, that figure multiplied by the FAR of 3.0 yields a maximum building

size of 5,625 square feet, and respondent had already used up 7,507.1 square feet for that lot, at

1037 Manhattan Avenue. (See Specification 3; Pet. Exs. 9, 11, 15; Tr. 144-47.)

On May 11, 2007, respondent submitted to the Department amended plans for Freeman

Street (the “2007 Plans”) (Pet. Ex. 24), showing a zoning lot comprised exclusively of tax lot 41,

and, therefore, different from the 2002 Plans; the 2002 Plans showed a zoning lot consisting of

two tax lots: 41 and 44 (Pet. Exs. 15, 16; Tr. 181). In his accompanying cover letter to Peter

Ebright of SEU, dated May 11, 2007, which letter respondent signed and to which he affixed his

seal, respondent stated that he was not submitting his plans to Mr. McDonald, for reasons that

are obliterated on the letter. It was not clear who crossed out that particular line on the letter.

Respondent added, in the letter, that his revised plans “answer[ed] all of the objections raised

during [Mr. McDonald’s] audit. Since we are not merging the existing zoning lots, most of the

objections will be removed since they are not applicable” (Pet. Ex. 25). These documents falsely

and misleadingly indicated that there were two separate zoning lots: (1) tax lot 41; and (2) tax

lot 44. In the 2002 Plans, respondent had shown the merged tax lots, 41 and 44 (Tr. 185), but the

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2007 Plans now showed only one tax lot, number 41, abutting Freeman Street (Tr. 183-85).

Respondent knew or should have known that tax lots 41 and 44 already constituted one zoning

lot. In the latest plans at issue in this case, the 2008 Plans, the zoning lot was depicted by

respondent as two tax lots again, numbers 41 and 44, but there was insufficient zoning lot area to

accommodate both buildings as built (Tr. 323). Mr. McDonald audited these 2007 Plans, which

provoked several new objections, one of which took issue with the size of the zoning lot: that a

minimum lot area of 1,700 square feet is required for a proposed four-family residence in this

C2-3 residence district, but the 2007 Plans respondent submitted showed only 1,250 square feet

(25 feet by 50 feet) because respondent had manipulated the definition of the zoning lot, and his

2007 Plans thus violated the zoning regulations. Zoning Resolution § 23-32 (Pet. Ex. 26; Tr.

183). (See Specification 4.)

Respondent submitted the revised plans in May 2007 in response to Mr. McDonald’s

March 2007 audit of the 2002 Plans (Pet. Ex. 25; Tr. 950-51, 1058-59). Asked about his

statement in his letter to Mr. Ebright that “[s]ince we are not merging the existing zoning lots,

most of the objections will be removed since they are not applicable” (Tr. 1059), respondent

testified that he knew the tax lots were already merged and the owner had never subdivided the

zoning lot, but offered that he was trying to look at the problem in a new way to see if the

buildings could stand independently of each other. He testified that this gambit did not work,

and he generated still more objections (Pet. Ex. 26; Tr. 952-53, 1056-62). He then realized that

the solution was the original filing, with two buildings together, on the two tax lots making up

one zoning lot (Tr. 1064).

On November 26, 2007, respondent submitted to Deputy Commissioner Thomas Fariello,

of the Department’s Brooklyn Borough Office, a letter requesting that the Freeman Street

application be assigned to an examiner in the borough (as opposed to SEU in Manhattan, Tr. 94)

because “[a]ll previously issued objections have been answered and the job [at 158 Freeman

Street] is ready to be ‘audit accepted’” (Pet. Ex. 35), even though he knew that this statement

was false because all previous objections had not been satisfied. Mr. McDonald testified that

“audit accepted” is a term the Department uses to indicate that an applicant has answered all

audit objections to the satisfaction of the auditing plan examiner. A notation of “Audit

Accepted” is entered into the Department’s Building Information System (“BIS”) when all

objections have been cleared (Tr. 232-33). In fact, respondent’s representation was patently

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false, and he knew it, because: he had not even met with Mr. McDonald, the only Department

auditor on this job, to discuss the 2007 Plans and objections (and would not do so until nearly a

year later, October 27, 2008, Tr. 230); none of the objections recorded by Mr. McDonald had

been answered by the time of respondent’s November 26, 2007 letter; and Mr. McDonald had

never notified respondent that the objections had been satisfied (Tr. 233-34). (See Specification

5.) Respondent did not mention in his letter to Mr. Fariello that the job was under review by

SEU, claiming that Mr. Fariello’s office “knew exactly what was going on with all of my jobs”

(Tr. 1073, 1165). According to respondent, Mr. Fariello had suggested he write to have the 158

Freeman audit reassigned to the borough (Pet. Ex. 35; Tr. 955-57); Mr. Fariello assigned the task

to Michael Rahimi, a plan examiner in the Brooklyn Borough Office (Tr. 957-58). Respondent

submitted revised plans to the Brooklyn Borough Office and Rahimi approved the 2008 Plans on

August 29, 2008 (Pet. Ex. 27; 192-93, 965).

Respondent defended his statement that “all previously issued objections have been

answered and the job [was] ready to be ‘audit accepted,’” on the basis that “It’s my opinion that

the job that I put in initially met the requirements of the zoning and the Building Code . . . [and

that] the job is complete and ready to be approved in an audit after a review”; he explained, “It’s

a term that just means the job has [passed] review . . . . ” (Tr. 958). This was not a forthright

explanation of his flat-out misrepresentation in the letter. It is very different and misleading to

say “all objections were cleared,” when one really means “all objections should be cleared.” The

statement in the letter was false. Respondent continued at trial to cling to his point “that most of

the objections are not really warranted and would be able to be answered either through

clarification or reconsideration. . . . ” (Tr. 1073). Respondent testified on direct questioning that

when he wrote this representation, he did not expect the DOB to accept what he wrote: “Not

really, no” (Tr. 959). The answer was cavalier, as if to say it did not matter if the representation

was true, because he thought the Department would seek clarification anyway because it was his

work. The Department has a right to rely on his representations. Respondent denied that this

was a false statement by him, but demonstrated that he exempted himself from forthright

dealings so that the Department could make its own investigation and catch the lie. It was with

answers like this that he called his own credibility into question. This kind of testimony

highlighted respondent’s demeanor throughout the trial, during which he exhibited a thinly

veiled contempt, not only for Department personnel, but also for his clients (calling one of them

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a “knucklehead,” Tr. 1031, 1035). He conveyed in his remarks the sense that he knew better

than those who reviewed his work, and that those who challenged him were out to get him, on a

“quest ‘to get’ Mr. Scarano,” as his lawyer put it (Pet. Ex. 53; Resp. Brief at 55, 76-77, 79). But

respondent could offer no particular reason for this supposed crusade against him. Most

significantly, as to his November 2007 letter, he admitted at the trial that when he wrote that

letter, Mr. McDonald had not cleared his objections (Tr. 1074), so the letter was indeed false.

In August 2008, respondent changed the zoning calculations for 1037 Manhattan Avenue

yet again. He submitted amended plans, a new building application, to the Department for 158

Freeman Street, the 2008 Plans, certifying that the existing residential floor area for 1037

Manhattan Avenue was 6,552.4 plus 755.7 square feet for a community facility, for a total of

7,308.1 square feet (Pet. Ex. 27). But respondent knew when he did this that in July 2002, he

had submitted plans for 158 Freeman Street in which he had certified, to the contrary, that the

existing floor area of the adjoining property at 1037 Manhattan Avenue was actually only

6,320.5 square feet (Pet. Ex. 13). Respondent now knowingly sought to inflate the zoning floor

area by about 1,000 square feet. He also knew when he submitted the 2008 amended plans that

he had taken no steps to convert any part of 1037 Manhattan Avenue’s residential floor area to

community facility use (Tr. 1084-85, 200-02). Respondent knew that his representation of a

community facility at 1037 Manhattan Avenue in the 2008 Plans for Freeman Street was false

because the 2004 Certificate of Occupancy for 1037 Manhattan Avenue limited that lot to

residential use (Pet. Ex. 20). Respondent’s testimony that he consulted with his client, Roman

Stasiuk, the owner of the properties, about converting a portion of 1037 Manhattan Avenue to a

community facility or developing 158 Freeman Street as a commercial building was not credible.

Mr. Stasiuk’s testimony to the contrary that he had never spoken with respondent about this and

that he never contemplated anything but residential use of this property was realistic and more

likely true than respondent’s self-serving claim that a community facility use was an early plan,

even though he did not make any submission to the Department describing such use until 2008.

In addition, respondent intended to deceive the Department by submitting the amended Freeman

Street plans to the Brooklyn Borough Office when he knew that this job application was under

audit review by the Special Enforcement Unit with, then, at least 19 open audit objections (Pet.

Ex. 26). Mr. McDonald testified that this was unusual, and he could recall no other instance

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where an applicant submitted revised drawings to a borough office when the application was

under audit by SEU (Tr. 195). (See Specification 6.)

Respondent claimed that even though he knew, based on 24 years of experience as an

architect, that objections must be resolved before a project can move forward (Tr. 1062, 1067),

he was unable to get an appointment with SEU to resolve the objections (Tr. 954). This seemed

implausible. He did admit that he never met with Mr. McDonald or sent him a letter attempting

to resolve the objections, and that he was familiar with the reconsideration process, but did not

pursue it on these items; he was unhappy with the objections and disagreed with Mr. McDonald,

particularly on the lot coverage. Instead of following normal procedure for making appointments

with the auditor to resolve the objections (Pet. Ex. 4), he appealed to the Brooklyn office (Tr.

1067-69; 59; 352). It is the applicant’s responsibility to make the effort and contact the SEU

auditor for appointments to meet in person to resolve the objections before seeking review at the

Borough level (Tr. 99-100). I find that respondent was trying to get around Mr. McDonald, as

the audit was becoming uncomfortable for him.

Mr. McDonald completed a third and final audit of the 2008 Plans in September 2008.

Mr. McDonald disagreed with Mr. Rahimi’s approval. The permits were revoked (Pet. Ex. 28;

Tr. 191-92, 257-59, 323).

As noted, respondent filed papers that were inconsistent on material points with his

previous filings with the Department. He reverted in the 2008 Plans to proposing a zoning lot

comprised of both tax lots, 41 and 44 (Tr. 323), including the building at 1037 Manhattan, which

had been approved in 2000 (Tr. 191), and 158 Freeman. In the 2008 audit, Mr. McDonald

compared the 2008 Plans with the 2000 and 2002 Plans respondent had filed with DOB (Tr. 296-

97). Mr. McDonald identified problems with the 2008 Plans: with the size of the building at

1037 Manhattan (tax lot 44) on the zoning lot including both tax lots (based on the 2000 Plans),

there was not enough lot area left to place another building with the zoning floor area, zoning lot

coverage, density, and number of dwelling units respondent was proposing for 158 Freeman. In

short, respondent’s plans showed the Property overbuilt and in violation of zoning regulations

(Tr. 146-47, 318-19, 321). Mr. McDonald reasoned that respondent had represented the zoning

lot on which 1037 Manhattan was located reduced in size in the 2004 Post-Approval Amendment

(PAA) approved on May 17, 2004, by Sam Lai, P.E., Chief Plan Examiner for the Brooklyn

Borough Office to change the metes and bounds description. Mr. Lai explained that the

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expediter for respondent told him the PAA was submitted to correct a typographical error, and

that the applicant was seeking the correction on a “rush” basis (Pet. Ex. 9; Tr. 67-74, 144-46).

Respondent was likely trying to deflect agency attention from both tax lots as a unit so that there

would be no review of his bogus calculations for the Property as a whole. Mr. Lai sought more

information and respondent submitted a PAA with the Plot Diagram showing tax lot 44 only

(Pet. Ex. 10; Tr. 72-73). The zoning lot approved in 2000 consisted of both tax lots (Tr. 145).

But, after the 2004 PAA was approved, respondent reduced the “zoning lot” in DOB records to

show only tax lot 44 (Tr. 145). The legal description of the lot (the metes and bounds) in the

PAA showed a lot of 75 feet by 25 feet, corresponding with only tax lot 44 (Tr. 75).

The Temporary Certificate of Occupancy, dated April 1, 2004, had included both tax lots

where the form called for the legal description of the “zoning lot” (Pet. Ex. 21; Tr. 151-54). The

PAA was dated May 10, 2004, seeking to “correct” the legal description of the lot. The final

Certificate of Occupancy was issued for 1037 Manhattan Avenue quickly, as requested, on May

24, 2004 (Pet. Ex. 20; Tr. 150-51). The zoning lot description on the final certificate matched

the boundaries of tax lot 44, abutting Manhattan Avenue, in effect, deleting lot 41 (Pet. Exs. 11,

15; Tr. 151). With the issuance of the final Certificate of Occupancy, 1037 Manhattan Avenue

(tax lot 44), had no further relationship with tax lot 41, abutting Freeman Street (Tr. 161), in the

sense that respondent could not change the use at 1037 Manhattan Avenue by filing plans for 158

Freeman Street. The 2004 Certificate of Occupancy for 1037 Manhattan Avenue was

exclusively for residential use (Pet. Ex. 20). It is undisputed that once that Certificate of

Occupancy was issued, a change in the use of 1037 Manhattan Avenue to house a community

facility would require a separate alteration application (Tr. 330, 767, 1084). No such application

had ever been filed (Tr. 129, 200-02).

The 2008 Plans showed a series of inconsistencies among the figures respondent listed

for 1037 Manhattan Avenue in the 2000, 2002 and 2008 Plans (Pet. Exs. 8, 13, 27, and 28,

Objection No. 25; Tr. 198-201). In 2000, the zoning floor area measurement for the new

building in the 1037 Manhattan papers was represented as 7,507.1 square feet (Pet. Ex. 8; Tr.

297); in 2002, the same zoning floor area was indicated in the 158 Freeman Street new building

application as 6,320.5 square feet (Pet. Ex. 13; Tr. 198, 297). In 2008, the same area was shown

in the 158 Freeman Street revised papers as 6,552.4 square feet, with an additional 755.7 square

feet for a proposed community facility, for a total of 7,308.1 square feet (Pet. Ex. 27; Tr. 198,

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968-69). Respondent included the 1037 Manhattan floor area figures in the 2008 revisions for

158 Freeman because, he testified, the buildings “were working as a unit” on the same zoning lot

(Tr. 973), but the necessary amendments had not been filed.

Respondent acknowledged these discrepancies and attributed the difference to the

supposed conversion of the first floor of 1037 Manhattan to community facility use (Tr. 904).

Significantly, though, respondent showed the community facility use as existing in 2002, by

taking zoning area deductions for it of nearly 600 square feet on the 2002 Plans, even though, he

admitted on cross-examination, it did not exist (Tr. 1088-89; Pet. Ex. 13). Respondent testified

that there was no notation on the 2002 Plans that part of the existing building at 1037 Manhattan

would be converted to a community facility, but offered by way of explanation that there would

be a subsequent filing for 1037 Manhattan. He testified that such a filing could be made at any

time before the buildings received their final Certificates of Occupancy (Tr. 906-08), but there

already was a final Certificate of Occupancy for 1037 Manhattan Avenue. The buildings on the

Property had been constructed as of 2008, when he submitted the 2008 Plans (Tr. 1078), and no

such filing had been made (Tr. 129). Respondent filed no paperwork that would have given

legitimacy to a community facility. He admitted that he never did amend the plans for 1037

Manhattan, even though he managed to file the 2004 PAA after 1037 Manhattan was built (Tr.

1051-52). And he never stated in the 2002 Plans that the community facility was merely a

proposal (Tr. 1088).

Corner Lot. The audit also showed that respondent had indicated a falsely inflated figure for

allowable lot coverage, claiming he could build on 80% of the lot for the new building (Pet. Ex.

17, Objection No. 3; Tr. 208-09). Because these tax lots, 41 and 44, were not corner lots, but

rather, were two interior lots, the true, maximum allowable lot coverage was only 65% (Tr. 208-

09, 214). Zoning Resolution § 23-145. Manhattan Avenue and Freeman Street intersect, but the

tax lots in issue abut those streets mid-block, not at that intersection (Pet. Ex. 15; and Appendix

B hereto). In August 2008, respondent submitted plans to the Department for 158 Freeman

Street in which he falsely indicated that the maximum permitted lot coverage for that property

was 80% (Pet. Ex. 28, Objection No. 28; Tr. 218-19), even though the permitted lot coverage for

that property is only 65%, and even though Mr. McDonald had issued an objection on March 9,

2007, to this representation in the 2002 Plans. The objection stated in no uncertain terms:

“Proposed lot coverage = 80%. Not permitted. ZR 12-10 ZR 23-145” (Pet. Ex. 17, Objection

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No 3). Mr. McDonald had concluded that 158 Freeman was an interior lot with maximum

allowable lot coverage of 65% (Tr. 208-09, 212, 214-15). In his 2007 submission to SEU,

respondent had corrected the problem, if only fleetingly, and stated the maximum allowable lot

coverage as 65% (Tr. 218), but then reverted to his 80% figure on the 2008 Plans. His

representation of 80% lot coverage was inflated and false. (See Specification 7.) Indeed,

respondent kept listing the 80% maximum lot coverage in his plans in 2002, changing it in 2007,

the year the audit began to 65%, and then changing it back in 2008 to 80% (Tr. 334; Pet. Exs. 17,

26, 28).

Respondent was able to list different maximum lot coverage figures for the same building

only because he professionally certified some of the plans under the Department’s honor system

(2002 Plans, Pet. Ex. 13; Tr. 334). Mr. Mossad testified that this means that the architect

professionally certifies that he has complied with all the laws of the Buildings Department,

including the zoning, Building Code and multiple dwelling and any other laws and regulations.

Those plans that are professionally certified more likely than not escape audit review because the

Department relies on professional architects to submit truthful papers and does not review those

plans; less than 20% of the professionally certified applications are audited (Mossad: Tr. 35;

McDonald: Tr. 333-35).

Respondent testified that he used 80% corner lot coverage in the 2008 plans in reliance

on the approval of the 2000 Plans for 1037 Manhattan Avenue, and that he believed the Zoning

Resolution allowed this (Tr. 978). But once Mr. McDonald objected to this corner treatment in

2007, there was no longer a justification to adhere to 2000 Plans, and respondent must have

known that such reliance was unreasonable and contrary to the express audit objections.

The corner lot definition in the Zoning Resolution is clear; it also comports with an

everyday, common sense understanding of how a corner of two intersecting streets looks. In

giving effect to the language of the Zoning Resolution, the Court of Appeals has held: “Where,

as here, the language is unambiguous, and the result is not absurd, we see no reason to depart

from the legislative text.” Raritan Development Corp. v. Silva, 91 N.Y.2d 98, 103 & n.1, 107

(1997) (reviewing the definition of “floor area” in section 12-10 of the Zoning Resolution to

determine the appropriate “floor area ratio”) (court must construe a statute “so as to give effect to

the plain meaning of the words used”; “no rule of construction gives the court discretion to

declare the intent of the law when the words are unequivocal”) (internal quotations and citations

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omitted) (emphasis supplied). The Court held further that an interpretation said to have been

used “always,” but which conflicted with the plain language of the Zoning Resolution “might be

more compelling if the present text of the Zoning Resolution offered any support.” Id. at 103-04.

Parking. Mr. McDonald also testified that part of respondent’s scheme to circumvent zoning

regulations was to avoid compliance with the requirements for off-street parking:

[S]omewhere on the zoning lot the required . . . accessory off-street [parking spaces], have to be provided . . . either within a building or outside the footprint of the building, somewhere on that zoning lot. If that is provided incorrectly, essentially that area is not provided for for that parking. That’s being disregarded.

(Tr. 326).

As to the 2002 Plans, respondent provided for 7 parking spaces to comply with the

Zoning Resolution, but did not make an adequate arrangement for these spaces (Pet. Exs. 13, 17,

Objection Nos. 6 & 7; Tr. 224-227). According to Mr. McDonald, 7 was the correct number of

accessory parking spaces, consistent with Zoning Resolution sections 25-23 and 25-241. Section

25-241 provides for “Reduced [Parking] Requirements for Small Zoning Lots,” such that for a

zoning lot such as this Property, under 10,000 square feet, the number of required accessory off-

street parking spaces is 50% of the total dwelling units on the “zoning lot.” The provision is

very clear. It already provides a break for small residential properties -- a reduction from 70%

under section 25-23). But respondent decided to take even more of a benefit by disregarding the

“zoning lot” language and substituting the even smaller individual tax lots to eliminate the

parking requirement altogether (Pet. Ex. 27). This “zoning lot” was both tax lots, not one

(McDonald: Tr. 110-12); Zoning Resolution, § 12-10 (Pet. Ex. 14). The total number of

dwelling units proposed for the Property was 14, based on 10 proposed for 1037 Manhattan

Avenue and 4 proposed for 158 Freeman Street. (Pet. Ex. 13). Half of 14 yields 7 (Tr. 220-21,

226). Despite the audit objection on this point, SEU never received a response. The

Department, therefore, revoked the new building permit for 158 Freeman on May 4, 2007 (Pet.

Ex. 23; Tr. 174-75). Although there is a departmental review procedure for such objections (for

reconsideration of the plan examiner’s objections with, in succession, the Chief Plan Examiner,

the Deputy Borough Commissioner, the Borough Commissioner and the Technical Affairs Unit

(Tr. 37, 44-45)), respondent did not invoke this process.

In August 2008, respondent submitted plans to the Department for 158 Freeman Street in

which he falsely indicated that no parking spaces were required for that property (Tr. 224, 226),

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even though he knew or should have known that 7 parking spaces were required for that location

under Article 2, Chapter 5 of the Zoning Resolution. Under Zoning Resolution sections 25-241

and 25-261, it was undisputed, parking requirements are waived if 50% of the number of

dwelling units yields the number 5 or less; expressed differently, a maximum of 5 spaces could

be waived for small zoning lots. Respondent’s 2008 Plans were inconsistent with his 2002

Plans, in which he had shown 7 spaces. This time, he wrote that there were 13 dwelling units,

not 14, eliminating one unit from the 10 at 1037 Manhattan because of the claimed community

facility: so, 9 for that 1037 Manhattan and 4 for 158 Freeman. But even under that calculation,

half of 13 yields 6.5, which is rounded up to 7 parking spaces (Tr. 226-27; Pet. Ex. 27).

Respondent, however, calculated the parking by counting the number of dwellings in each tax lot

separately and halving each number to yield a number 5 or less in each case (i.e., half of 9 is 4.5,

and half of 4 is 2), to claim a waiver of parking because 5 or fewer spaces could be waived based

on the cited sections (See Specification 8.)

“Parking standards for residential units are typically based on the number of dwelling

units or the number of bedrooms.” 7-42 Rohan, Zoning and Land Use Controls § 42.06[3]

(updated 2005 by E. D. Kelly, incorporating prior material prepared by G.L. Ohlsson) (Lexis

2010). It is easier to place the two buildings on the tract of land if the architect does not include

the required number of parking spaces, and does not concern himself with placement in relation

to the square footage on the lot needed for parking. So, for example he would need 300 square

feet per parking space, and 7 spaces would require 2100 square feet (McDonald: Tr. 338-39). In

2002, respondent indicated the correct number of parking spaces on his plans, but in 2008, he

changed them. In 2008, respondent indicated parking calculations per tax lot (Pet. Ex. 27), when

he should have listed them per zoning lot, as he had in 2002 (Tr. 339).

Respondent defended his 2008 parking calculations by saying that the two buildings were

developed at separate times, and that the parking waiver for small developments could be applied

individually to each structure to eliminate accessory parking altogether on each tax lot, even

though he had calculated the parking correctly for the zoning lot in 2002 (Tr. 980-82, 1077-78).

For this purpose, he now counted the buildings separately. But for purposes of claiming an

increased residential floor area in 2008, he had testified that they were “working as a unit” (Tr.

973). It cannot be both ways. He further defended his parking submissions by saying he could

cure the problem that the buildings were already constructed by 2008 without adequate parking

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space, by importing a car stacking device into the rear yard (Tr. 1078-79). These contentions

seemed a poor defense for eliminating the required parking, and pushing beyond the limits of the

Zoning Resolution to take improper advantage of the reduced parking provided for small

developments. I find that the zero parking representation amounted to twisting the regulation

deliberately to eliminate all parking by manipulating the necessary calculation (halving smaller

tax lot numbers) in a way that is simply unavailable under the language of the Zoning

Resolution. This, too, was a misrepresentation to the Department.

Respondent’s Defenses

Expert Testimony

Respondent offered multiple theories of defense. Among them was the point that he

produced two expert architects, Michael J. Macaluso and Elliot Vilkas (Pet. Exs. H, I), who

offered that respondent’s conduct was reasonable and defensible based on their reading of the

Zoning Resolution and other building regulations and their general experience. The Department

objected to the late designation of these architects as experts, although their names were on

respondent’s witness list, because they were not specifically designated as experts, and on the

basis that their testimony was irrelevant because there were questions of fact and law for the

tribunal, and the witnesses could not offer interpretations of the zoning law (Tr. 696-97). The

Department had their names before trial among all the witnesses shown on respondent’s witness

list, but did not request more detailed information of respondent’s counsel about them. There

was a week’s break in the proceedings to enable the Department to prepare cross-examination of

these experts, and they were allowed to testify, on the basis that they had been listed as

witnesses, and precluding them would have deprived respondent of the full opportunity to defend

himself. There was no prejudice to the Department because it had a week’s time to prepare (Tr.

Vols. V-VI). The Department objected to Mr. Macaluso’s qualifications on the grounds that he

has not supervised numerous licensed architects, that he had never served on any ethics panels or

licensing agencies, and that he had filed relatively few jobs with the Department (Tr. 745-46,

752). Both Messrs. Macaluso and Vilkas were qualified as experts for purposes of this

administrative hearing (Tr. 752, 815). Mr. Macaluso testified that he was not being paid for his

time on this case (Tr. 785). Mr. Vilkas was paid $250 per hour for his time on this case (Tr.

831-32). The Department did not object to Mr. Vilkas’ qualifications as an expert, but preserved

its objection to the relevance of his testimony to the extent he would interpret the law (Tr. 815).

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Mr. Macaluso conceded that certain aspects of respondent’s paperwork were not proper,

but said they conformed to custom among architects. He testified that the Property consisted of

two tax lots, based on his review of the 2000 and 2002 Plans (Pet. Exs. 8, 13; Tr. 756-758, 760-

62). By contrast, the 2002 PW-1 for the new building at 158 Freeman (Pet. Ex. 12) contains a

plot diagram showing a single tax lot only, tax lot 41, as Mr. Macaluso acknowledged (Tr. 756-

64, 791-93). He stated that the form calls for a description of the entire zoning lot, and conceded

that the 2002 PW-1 did not have the required description. He offered his opinion that the

application showed both tax lots, 41 and 44, and that the omission of tax lot 44 on the PW-1 had

no impact on the application and was typical for architects (Tr. 756-64, 790-93). He conceded

that the PW-1 form is used by DOB to input data into the City’s computer system (Tr. 764).

Thus, I find respondent’s omission material. As to the residential floor area, Mr. Macaluso

testified that a change in use of 1037 Manhattan Avenue would require a separate Alteration 1

filing (Tr. 766-68, 795), that a reduction of residential floor area in that building could be used at

158 Freeman, and that such a change could be filed any time before the issuance of a final

Certificate of Occupancy for Freeman (Tr. 809-10). While the Department did not dispute that

one may properly change the use reflected on a Certificate of Occupancy for a portion of a

building from residential to community facility through the filing of an Alteration 1 application,

Mr. Scarano never did that here.

Significantly, Mr. Macaluso also seemed to concede that the inclusion of a community

facility use for 1037 Manhattan Avenue on the 2002 filing for 158 Freeman Street (Pet. Ex. 13) -

- to reduce the residential floor area of 1037 Manhattan from 7,507.1 square feet to 6,320.5

square feet, changed again in 2008 to 6552.4 square feet (Pet. Ex. 27) -- meant that the

community facility use already existed and was not merely proposed. He did not know that the

supposed community facility space at 1037 was in fact occupied as a residence at the time of the

2008 filing, and seemed surprised to learn that there had not been a filing yet to convert the use

of 1037 Manhattan to a community facility, and that the 2008 Plans shown to him at the trial did

not include the necessary amendments to effectuate a change of use on Manhattan Avenue (Tr.

769-70, 798-801). He further allowed that residents of the building could not live in a

community facility because that would contravene the Certificate of Occupancy (Tr. 801). And

he conceded that it would have been clearer if the community facility had been shown on the

2002 Plans (Tr. 812), and that no such use was shown on the 2004 Certificate of Occupancy (Tr.

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814). Mr. Macaluso gave his opinion that there was nothing unusual in respondent’s

representations of residential floor area for 1037 Manhattan and that respondent met the standard

of care for architects in New York City (Tr. 764-82; 795-801, 808-14). Mr. Macaluso also

testified that it was standard and customary practice for respondent to represent the tax lot rather

than the zoning metes and bounds description in the 2004 PAA for 1037 Manhattan Avenue (Tr.

779-82), giving his opinion that there is no meaningful difference between a property description

by metes and bounds on a Certificate of Occupancy that refers to a tax lot and a description that

refers to a zoning lot. I must disagree with that legal conclusion, particularly where, as here,

there is such chronic and deliberate deception. Mr. Macaluso added that DOB no longer requires

the metes and bounds description on the Certificate of Occupancy currently in use (Tr. 775;

Resp. Ex. J). But the current form in use was beside the point. The Certificate of Occupancy

form that respondent completed did call for the legal description of the entire zoning lot, not the

single tax lot (Pet. Exs. 20 and 21 at 2).

I find that respondent’s 2004 “correction” of the legal description of the Property, as if it

were a typographical error, was false and that the false description was not a technical fault.

Rather, the PAA was part of his scheme of changes to join or unhitch the tax lots to avoid zoning

requirements. That he rushed that amendment through Mr. Lai’s office as if there was a mere

“typo” is a measure of the depth of respondent’s deceptive practices.

Mr. Macaluso’s testimony was self-contradictory and unpersuasive, given the significant

concessions Mr. Macaluso made as to the irregularities in respondent’s filings. I read his

testimony as an acknowledgment that the paperwork was, in fact, misleading as to the omission

of a tax lot in the PW-1 and the representation of an existing community facility that was not

really there.

Mr. Vilkas testified about the treatment of the tax lots as interior or corner lots. He

offered his opinion based on a nearly 40-year career as a licensed architect in New York

specializing as a consultant on zoning and building code issues (Tr. 734-35). According to Mr.

Vilkas, the 80% maximum allowable lot coverage calculation in the 2008 Plans was appropriate,

based on his reading of Zoning Resolution, sections 23-145 and 12-10 (Tr. 733-38, 816-850),

and his understanding that because 158 Freeman is within 100 feet of a corner, the lot can be

treated as a corner lot (Tr. 817-19). Mr. Vilkas acknowledged that the zoning lot shown in the

2008 Plans was a complete zoning lot, and not a portion of another zoning lot (Tr. 836-37), but

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claimed, according to his experience and practice in the profession, that the applicable portion

within 100 feet of the corner was the 75-foot length of tax lot 44 and the 25-foot width of tax lot

41 (Tr. 843-48), even though neither lot is at a corner. Asked whether the only way I could find

that these were corner lots was his testimony, Mr. Vilkas agreed, adding that his reading was

based on his experience. His conclusions were unsupported by data (Tr. 842-46; 817-19).11

Mr. Vilkas read from the Zoning Resolution sections discussing corner lots. But section

12-10 states that a “corner lot”

is either a zoning lot bounded entirely by streets, or a zoning lot which adjoins the point of intersections of two or more streets. . . . The portion of such zoning lot subject to the regulations for corner lots is that portion bounded by the intersecting street line and lines parallel to and 100 feet from each intersecting street line. 12

(Emphasis supplied in part, omitted in part.) In other words, corner treatment for a lot found at

an intersection is limited to 10,000 square feet (100’ x 100’), assuming a lot larger than 10,000

square feet. One can imagine drawing the lines parallel to and 100 feet from the intersecting

streets, creating a square. So the 100’ parallels language is a limitation on lots adjoining a corner

that are bigger than 10,000 square feet, like a whole City block. The remaining portion of such

zoning lot exceeding that number receives interior or through lot treatment. Nowhere does

section 12-10 say that a zoning lot that does not even touch a corner gets corner lot treatment.

Here, there can be no factual dispute that neither tax lot 41 nor tax lot 44, which make up the

zoning lot, touches an intersection or corner. There is an intersection of Manhattan Avenue and

Freeman Streets, but the zoning lot (the Property) here does not adjoin that intersection (Pet. Ex.

15; see Appendix B hereto). Mr. Vilkas posited that because the zoning lot at issue here is

within the parallels 100 feet from the intersecting streets, it should receive corner lot treatment.

But the fallacy of that testimony as a matter of law is (1) he is reading from the portion

definition, which has nothing to do with a small lot, and he conceded that the Property at issue is

11 The definition of corner lot in the Zoning Resolution comports with the common sense understanding that a corner is at the intersection of two streets. The lots here were not at corners. Zoning Resolution § 12-10. Without legal citations to support a contrary reading of the straightforward zoning law provision at issue, I find that an interior lot by any other name is still an interior lot. 12 In addition, the interior angle formed by the intersection of the streets must be 135 degrees or less. At more than 135º, the angle would be approaching 180 degrees, a straight line. So 135º is the limit of the zoning definition of a corner.

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not a portion of a zoning lot and it is not more than 10,000 square feet; and (2) the language

“such zoning lot” refers back in section 12-10 to the basic definition of a corner lot as “a zoning

lot which adjoins the point of intersections of two or more streets.” This cannot be a corner lot

unless it adjoins the intersection, and it does not. So there is no need to get to the 100-foot

parallels language reserved for larger lots that actually have a corner.

If Mr. Vilkas was trying to say that because a 10,000 square foot zoning lot (i.e., a 100’ x

100’ square) actually touching a corner is a corner lot, then this parcel that does not even touch

the corner at all should get the same treatment simply because it is smaller (i.e., the 3,125 square-

foot Property), the Zoning Resolution certainly does not say that. In other provisions of the

Zoning Resolution, small lots receive special treatment, as we see in the parking sections (i.e.,

Zoning Resolution § 25-241, reduced parking requirements for small zoning lots), but there is no

such exemption in the corner lot rule. And it is not for respondent to engraft such an exception

onto the clear terms of the law. He could have sought a variance, but he did not. Although I

requested administrative law from both sides, such as a Board of Standards and Appeals decision

or other authority about corner lots, neither side offered any legal citations, and respondent

tendered nothing in support of Mr. Vilkas’ opinion as to what the law means. Mr. Vilkas did

testify that corner lots can be bulkier because, for example, they have windows on both sides that

have street frontage, supplying light and air (Tr. 829-30). It follows that overbuilding on an

interior lot would not fit the same considerations for light and air. In the absence of real data or

any other official or legal authority, I am left with the plain language of the Zoning Resolution,

and I find that it needs no illumination because it is clear that a corner lot must touch an

intersection.

With regard to parking requirements, Mr. Vilkas testified that respondent’s calculations

based on analysis of two separate buildings instead of the zoning lot were correct and consistent

with his experience. He testified that respondent was thus able to take advantage of the reduced

parking requirements of Zoning Resolution 25-241 (Resp. Ex. K) (the 50% calculation), and the

waiver provisions of Zoning Resolution section 25-261 (five spaces waived) (Tr. 819-23).

Asked to provide an example of such separate building calculations, he was able to refer only

vaguely to a set of buildings on Farrington Street in Queens where this had been done, but this

was not a project he had worked on and was, at best, only anecdotal testimony. He was not the

applicant for that job and did not know whether the job was fully reviewed by DOB or had been

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professionally certified. In fact, he could provide no details (Tr. 820-25, 838-39). To base his

opinion so vaguely on one example for which he could give no particulars left much room for

doubt. He had no examples for Brooklyn, where the Property is located (Tr. 823). Mr. Vilkas

then attempted to explain away the 7 parking spaces respondent had included in the 2002 Plans

as permitted but not required (Tr. 824-25). He conceded, as he must, that using the total number

of dwelling units shown on the 2008 Plans for 158 Freeman, by his reckoning, would yield 7

parking spaces (50% of 13 being 6.5, rounded up) (Tr. 820, 840-42, 1078).

Having admitted the expert testimony, I turn now to a determination as to the appropriate

weight to be assigned to it. Respondent’s theory was that his representations were not false,

but were simply “interpretations” of law that differed from the Department’s interpretations

(Resp. Brief at 106). The Department objected to the expert testimony at trial on the basis that

expert testimony on the law is irrelevant, that legal findings are for the court, and that

respondent’s representations in his various submissions to the Department present a question of

fact, leaving the legal significance of the facts to the tribunal (Tr. 696-97, 919-22). Their

testimony was tendered specifically to address the question of whether respondent was negligent

(Tr. 699, 702; 698-720), and I have dismissed those allegations, granting, in effect,13

respondent’s motion at the close of the Department’s case in chief (Tr. 698) to dismiss the

negligence claims. Their testimony was, upon full consideration of the record, irrelevant to the

false statement claims, except to the extent that it lent support to those charges. The Department

correctly argues in its Closing Memorandum at 38 that there was no “clash of interpretations.

Vilkas’s testimony of his opinion of the meaning and applicability of the zoning provisions at

issue and of its purported acceptance in the filing community is no more than an account of what

practitioners may have been able to file, whether in professionally certified or reviewed jobs. It

cannot displace the actual terms of the governing law or the Court’s interpretation of those

terms.”

13 Respondent argued that the Department’s failure to offer expert testimony was fatal to its incompetence allegations. The Department cited 8 NYCRR §§ 29.1(b)(1) (prohibiting grossly negligent failure to comply with “substantial provisions of Federal, State or local laws, rules or regulations governing the practice of the profession”), and 29.3(a)(1) (prohibiting “being associated in a professional capacity with any project or practice known to the licensee to be fraudulent or dishonest in character”) (Lexis 2010), for the professional standards governing licensed architects in New York State, arguing that expert testimony is immaterial because respondent’s conduct is governed by law and rules. Closing Memorandum at 38-39. I need not resolve that controversy, which is mooted by the dismissal of the negligence allegations as inconsistent with the Department’s fraud theory.

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To the extent these architects gave testimony about the meaning of the law, such

testimony was unreliable and entitled to no weight because it was a usurpation of the role of the

judge. The interpretation and applicability of the law is the province of the court. I asked that

the experts avoid interpreting the law (Tr. 753). Respondent seeks to dismiss Part II of the case

based upon their testimony and asserts that the Department has failed to prove its case because it

did not offer its own experts to rebut their testimony. However, the Department did call a

professional engineer, Mr. McDonald, who was knowledgeable about the facts of this case, as a

fact witness. The Department was not obliged to proffer countervailing expert testimony where,

as here, the expert testimony tendered by respondent was improper and unpersuasive and there

was countervailing factual material submitted by a licensed professional. Omnipoint

Communications v. City of White Plains, 430 F.3d 529, 533-34 (2d Cir. 2005) (in zoning contest

by corporation seeking permit to construct a 150’ telecommunications tower disguised as an

evergreen tree, three times the height of the tallest such tree in town, on a local golf course,

residents were not required to offer “any expert testimony at all”; local zoning board’s decision

to deny the permit upheld even though self-interested applicant’s expert architect’s testimony

was “insufficiently contested by properly credentialed expert testimony,” where visual impact

study submitted by residents was prepared by a landscape architect with limited qualification for

that task) (emphasis supplied).

This defense based on the expert testimony must be rejected because: “The trier of fact

determines the weight of expert testimony . . . [and] is not bound to accept the opinion of an

expert even if it is uncontradicted.” Prince, Richardson on Evidence § 7-305 (Lexis 2008). In

essence, respondent’s expert witnesses offered their interpretations of the governing law and

regulations, and I found their testimony immaterial, improbable, in conflict with the evidence

and legally unsound because it was contrary to the plain language or meaning of the law. In

these circumstances, there is no occasion to dismiss Part II of this case simply because

respondent offered expert testimony. See generally Comm’r of Welfare v. Simon, 20 A.D.2d

865, 866 (1st Dep’t 1964) (weight to be given expert opinion evidence is ordinarily for the

tribunal charged with deciding the facts and court is not obligated to give expert opinion

conclusive effect); Desnoes v. State of New York, 100 A.D.2d 712, 713 (3d Dep’t 1984) (weight

to be given to unrebutted expert testimony is a question of fact for the trial court; “Such

testimony may be rejected by the trial court if it is improbable, in conflict with other evidence or

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otherwise legally unsound”); Brooker v. State of New York, 206 A.D.2d 712 (3d Dep’t 1994)

(court was entitled to reject sole expert testimony in its entirety).

Nor is it proper for an expert to interpret New York law for the trial judge. See Franco v.

Jay Cee of New York Corp., 36 A.D.3d 445, 447-48 (1st Dep’t), leave to appeal denied, 2007

N.Y. App. Div. LEXIS 6472 (2007) (meaning and applicability of the law is the province of the

court, not the expert, and expert testimony of that sort is to be rejected, particularly when

expert’s reading of building code distorts its meaning); Elezaj v. P.J. Carlin Construction Co.,

225 A.D.2d 441, 442 (1st Dep’t 1996), aff’d, 89 N.Y.2d 992 (1997) (expert could not testify to

applicability of statute to particular circumstances and his testimony was not supported by

evidence of record); Rodriguez v. NYC Housing Auth., 209 A.D.2d 260, 260-61 (1st Dep’t 1994)

(expert testimony regarding the meaning and applicability of a statute is impermissible).

Mr. Vilkas could not cite any particular data or cases in which an interior lot like the ones

at issue here received corner lot treatment from the Department of Buildings, and he offered

precious little to support his opinion about parking calculations. With all due respect to his long

career in New York as a licensed architect specializing in zoning and code compliance and to the

refinement he exuded, I find that his testimony amounted to little more than, “Because I say so.”

Expert opinion evidence based upon the mere “ipse dixit” or personal opinion of the expert is to

be rejected. Beck v. Warner-Lambert Co., 2002 NY Slip Op. 40431U, 2002 N.Y. Misc. LEXIS

1217 at **10 (Sup. Ct. N.Y. Co. 2002); National Communications Ass’n, Inc. v. AT&T, 1998

U.S. Dist. LEXIS 3198 at *153-55, 161-62, 165-67 (S.D.N.Y. 1998) (same) (noting that non-

scientific expert opinion must have a reliable basis in knowledge and experience in the particular

discipline involved; experts could not testify as to whether party acted unlawfully and had no

knowledge of acts taken by that party). The record showed that Mr. Macaluso was not informed

of the actual status of Mr. Scarano’s applications or of the actions he took or had not taken with

respect to the Property.

Respondent took full advantage of the probability that professionally certified jobs would

escape review or audit by the DOB. I find that he made successive filings with inconsistent

representations of the zoning lot for this Property and its residential floor area to obtain official

approvals for illegal structures, in an effort to evade review that would catch these false and/or

misleading representations. As of the time of trial, he had not taken steps to cure the illegal floor

area at 158 Freeman Street by filing the necessary alteration application for 1037 Manhattan

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Avenue. Taking this point together with Mr. Stasiuk’s credible testimony that he never heard of

a community facility use for his property, I find that respondent never intended to do so, and that

he did mean to mislead the Department and free himself from the zoning restrictions.

For the foregoing reasons, there is no occasion on this record to dismiss the charges based

on the expert testimony or the fact that only respondent offered such testimony.

Estoppel

It is true that Department plan examiners had earlier approved certain of respondent’s

filings for this Property (Tr. 258, 264, 345-52). Mr. McDonald was not in the same line of

authority as those plan examiners, nor were they reporting to each other in a hierarchical sense,

so that they wielded no greater authority than he did as an enforcement officer, and he obviously

disagreed with the approvals they had issued (Tr. 264-66).

Respondent contends that he was entitled to rely on the approvals given initially of his

plans by Department architect Michael Rahimi and retired architect Brian Ribner (Tr. 52, 264,

768-69, 867, 869, 878-79, 960, 965-66; Resp. Exs. M, N; Pet. Exs. 8, 27), and the Department’s

prior non-enforcement of the code and rules. Approvals were issued by then Chief Plan

Examiner Brian Ribner in 2000 (Pet. Ex. 8; Tr. 80) and by Mr. Rahimi in August 2008 (Pet. Ex.

27). Mr. McDonald’s mistaken concession on cross that respondent, in the words of the

question, “could rely” on those approvals (Tr. 346-47; Respondent’s Brief at 54-56), is a nullity

because Mr. McDonald could not testify to a legal conclusion. The audit exposed the problems

with the zoning violations throughout respondent’s filings. The prior approvals, erroneously

issued through an insufficient, earlier review process tacitly acknowledged by the Department in

this proceeding, have been overruled by the Department through its enforcement mechanism (Tr.

146, 346). The Court of Appeals has held that “‘estoppel is not available against a local

government unit for the purpose of ratifying an administrative error,’” Parkview Associates v.

City of New York, 71 N.Y.2d 274, 282 (1988) (citation omitted). Accord Schorr v. New York

City Dep’t of Housing Preservation and Development, 10 N.Y.3d 776, 779 (2008) (“It is well

settled that ‘estoppel cannot be invoked against a governmental agency to prevent it from

discharging its statutory duties’”) (citations omitted). The owner in Parkview Associates was

forced to demolish the constructed portions of the upper floors of a building. The Court ruled

that it is settled that “‘a municipality . . . is not estopped from enforcing its zoning laws either by

the issuance of a building permit or by laches.’” 71 N.Y.2d at 282 (citation omitted). The Court

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held further: “. . . [E]stoppel is not available to preclude a municipality from enforcing the

provisions of its zoning laws and the mistaken or erroneous issuance of a permit does not estop a

municipality from correcting errors, even where there are harsh results. . . .” Id. Accord Clear

Channel Outdoor, Inc. v. City of New York, 09-1553-CV, 09-1554-CV, 09-1571-CV, 2010 U.S.

App. LEXIS 2257 at *10 & n. 7, 40-41 (2d Cir. Feb. 3, 2010) (“Essentially, Plaintiffs have

benefitted from their own misconduct and now suggest to this Court that the City should be

precluded from enforcing its zoning scheme because it has not always enforced its regulations in

a manner that would allow it to achieve full compliance. That cannot be the law.”) (“Meager

past efforts at zoning enforcement are not the stuff of economic expectations. Governments

generally are not estopped by the misdeeds of their agents or employees.”)

That the Department erred in approving documents that were in violation of law until Mr.

McDonald investigated does not excuse respondent’s false papers, nor do his experts set up an

industry custom and practice that contravenes the applicable legal requirements.

Credibility – A Summary

In summary of the detailed credibility findings above, I note that the Department’s

witnesses were professional, matter-of-fact, and exhibited no bias against respondent, who, by

contrast, gave testimony that was self-interested, self-contradictory, and disdainful of both clients

and regulators. He had that greatest motivation to justify his actions and his testimony was

unconvincing.

Respondent contends that Mr. Stasiuk was not credible because he lost money on the

Property when the Department issued stop-work orders and revoked the building permits (Pet.

Exs. 18, 23, and 36: Mar. 16 and May 4, 2007, and Jan. 29, 2009 notices), and he was hampered

in his efforts to sell the development and held his substantial financial losses against respondent.

Respondent argues that Mr. Stasiuk attended the trial to exact revenge. To the contrary, I found

Mr. Stasiuk credible, based on his demeanor, his even-tempered responses, and the substance of

his testimony. Mr. Stasiuk was the Department’s rebuttal witness, called in response to the

Christmas Eve fax and Mr. Scarano’s testimony purporting to set up an early written reference to

a community facility. Mr. Stasiuk answered straightforwardly that he was disappointed in his

losses, but denied that he was annoyed or angry with Mr. Scarano (Tr. 1191-1211). He candidly

conceded that his financial loss was annoying to him, but he also noted that he had hired Mr.

Scarano nonetheless on a third building, not at issue here, and would not have done so were he

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angry with Mr. Scarano. Mr. Stasiuk estimated that he lost close to a million dollars because the

audit affected his ability to sell the Property at the price he wanted, he sold at a loss, he lost

rental income, and he lost money on the third building respondent planned for him (Tr. 1191-92,

1205, 1212-13).

Mr. Stasiuk did not appear to be vengeful or enraged at respondent (Tr. 1207). Mr.

Stasiuk knew that his plan for the development of this Property was to use it solely for residential

buildings (Tr. 1183-85). He did not hesitate to deny that respondent ever advised him of the

need to convert 1037 Manhattan Avenue to a community facility and denied the authenticity of

the Christmas Eve fax. He said he received faxes all the time from respondent because he was

developing three properties with him over the years, but not this fax, and he would have

remembered it because he knew well the uses of his own property (Tr. 1185-88). As between

Mr. Stasiuk and Mr. Scarano, the latter had a greater interest in bolstering his plans with

documentation of a community facility. That there was no other support for this phantom plan

lends credence to Mr. Stasiuk’s testimony. Mr. Stasiuk testified that he would have remembered

such a proposal because it would have affected his rental income, and he knew that he would not

have built a commercial building at all because residential rent “was the only way to go in that

part of the neighborhood” (Tr. 1212). Mr. Stasiuk did not waver under cross-examination and

consistently testified that respondent never mentioned a commercial or community facility use

for his buildings (Tr. 1201-02). He also testified that before coming to testify, he had reviewed

his own paperwork for this Property, had discarded no papers, and found no indication that

respondent had ever proposed such nonresidential use for Mr. Stasiuk’s property (Tr. 1211-12).

I find that Mr. Stasiuk’s testimony stood for a very different proposition from

respondent’s assertion that his client should not be believed: that Mr. Scarano’s aggressive

circumvention of the zoning law indeed had dire consequences for his client. Mr. Stasiuk, age

48, had to sell this Property, which he was holding to provide for his retirement, prematurely.

He had to change his life plans, and he took a significant monetary loss as a result of

respondent’s architectural plans and designs, which Mr. Stasiuk now understands, in lay terms,

to have been “wrong” or “illegal” (Tr. 1204-06). The permit for 158 Freeman remained revoked

as of the time of trial (Tr. 234). Thus, the Department’s pursuit of this case against respondent

can be seen, not as an example of unfair bias against respondent, but as a good faith effort to

vindicate the public interest in upholding the zoning law in New York and preventing exactly

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this kind of distress to property owners who hire architects to guide them through construction in

compliance with the law.

Intent

Respondent asserts (Brief at 96) that the Department failed to prove that he acted

intentionally, citing, inter alia, Police Department v. Miller, OATH Index No. 513/92 at 7 (Mar.

2, 1992) (“Statements which are legitimately open to differing interpretations are neither false

nor evasive.”). The facts laid upon the record in Part I, however, show that as to Snediker

Avenue, respondent was acting knowingly and deliberately. As to the Manhattan/Freeman

Property discussed in Part II, the evidence points, not to unclear zoning provisions, nor to

ambiguities that must be resolved against the drafter (Resp. Brief at 103-06), because the key

provisions were clear as applied to the Property, but rather to respondent’s knowingly and

persistently filing solemn written representations with DOB in order to build a bigger building

than the zoning law allowed for his private business client without providing sufficient open

space or parking. These were not “gray areas,” as respondent’s counsel argued in his opening

statement. And it was respondent’s contention throughout these proceedings that he was

“extremely knowledgeable of the Zoning Resolution and the Building Code” (Opening: Tr. 20-

21). Respondent testified clearly that he took great care in what he wrote: “I’m very careful

about what I say and do, and what I write” (Tr. 1161; 1049).

Respondent was deliberately overbuilding and he knew it. He did this while filing papers

that he knew were false, such as the November 2007 letter stating that the Property was ready to

be “audit accepted” (Pet. E. 35), when he knew it was no such thing, and claiming a phantom

community facility. Moreover, respondent cast himself throughout these proceedings as

extremely knowledgeable in both building code and zoning regulations (Resp. Brief at 21). The

numerous inconsistencies in his paperwork showed that he was manipulating the filing process to

best advantage. The Department has convincingly established from the entire set of

circumstances that respondent knew that his submissions were false and misleading. Dep’t of

Buildings v. Jennings, OATH Index No. 561/00 at 32-33 (Nov. 30, 2000) (expediter), aff’d,

Comm’r Dec. (Dec. 11, 2000).

I have considered in full respondent’s other arguments in defense of these charges and

found them to be without merit.

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FINDINGS AND CONCLUSIONS

The Department proved by a preponderance of the credible evidence that:

1. As to Charges 2 and 3, Specifications 9-13, regarding 145 Snediker Avenue, Brooklyn, respondent knowingly made sworn, false statements and false and/or misleading representations, including the submission of a false and misleading certified land survey, and misleading photographs to the Department concerning the condition of the sidewalk and the lamppost that was inside the curb cut and driveway in front of the building at that address, for purposes of securing a final construction sign-off for the building pavement plan, an approval to which, he knew, his client was not entitled.

2. As to Charges 2, Specifications 1-8, and Charge 3, Specifications 5-8,

regarding 158 Freeman Street/1037 Manhattan Avenue, Brooklyn, respondent knowingly made false and/or misleading statements to the Department concerning: the lot size; zoning floor area; a community facility use that neither existed nor was actually planned for this property; the treatment of the tax lots on the property as corner lots when in fact they were interior lots, which must be developed using 65% as the maximum allowable lot coverage rather than the 80% allowable for corner lots; the number of parking spaces required, by representing that none were required, when in fact 7 were mandated by the Zoning Resolution; and by misrepresenting in writing to a senior official of the Department that all audit objections to his plans had been answered and the plans were ready to be “audit accepted,” knowing that this statement was untrue; all for purposes of building bigger structures than were permitted by the Zoning Resolution, without the necessary parking, and in violation of longstanding and clear size, bulk, population density, parking and open space requirements in the New York City zoning regulations designed to ensure the appropriate use of residential space in urban areas so that the character of neighborhoods is preserved and protected from encroachments on legal uses.

Charge 1 and all negligence charges contained in Charges 2 and 3 are dismissed as

inconsistent with the fraud theory of the Department’s case.

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RECOMMENDATION

I have considered respondent’s lengthy career as an architect, licensed since 1985, and

have taken into account the fact that 99% of his business is in New York City (Tr. 852, 859-60).

I have also considered his undisputed record of having been recognized professionally with

awards from architectural associations for some of his designs and projects (Tr. 860-61).

However, given the gravity of the conduct proved here, and the terms of the applicable

regulations, I recommend that respondent be excluded from the Department’s programs for

limited supervisory check and/or professional certification of applications, plans and removal of

objections pursuant to 1 RCNY section 21-02(a)(3) (eff. 1991), based on all the charges proved,

and that the Commissioner refuse to accept documents signed by respondent and submitted to the

Department of Buildings in New York City, pursuant to Construction Code section 28-211.1.2,

based on his false filings concerning 145 Snediker Avenue and those regarding the Property at

Freeman and Manhattan Avenue made after August 15, 2007, the effective date of that section.14

The bases of this recommendation are the applicable regulatory provisions for ensuring

integrity in the process of obtaining approvals for construction work in the City of New York and

the depth of the loss of trust and confidence the Department placed in respondent as a

professional architect, due to his demonstrated willingness to file papers with the Department

that are not honest and do not comply with the law. These provisions require integrity, both in

the filing process and in the professionals who seek benefits from the Department of Buildings,

and, at the same time, place important duties on the government to guard the public safety and

the neighborhood zoning scheme. False filings lead to chaos. They cannot be tolerated. Nor can

schemes to defy the strict terms of the zoning regulations that are so important to protect our

ability to co-exist in the limited space of New York City’s neighborhoods and to preserve urban

life with adequate open space, light, air and parking space. The history of the 2007 amendments

to the limited supervisory check and professional certification program rules, which have been

14 That section provides: “In addition to any other penalty provided by law, the commissioner may refuse to accept an application or other document submitted pursuant to or in satisfaction of a requirement of this code or of a rule of any agency promulgated thereunder that bears the signature of a person who has been found, after a hearing at the office of administrative trials and hearings pursuant to the department’s rules, to have knowingly or negligently made a false statement or to have knowingly or negligently falsified or allowed to be falsified any certificate, form, signed statement, application, report or certification of the correction of a violation required under the provisions of this code or of a rule of any agency promulgated thereunder.”

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agency policy in some form dating back at least to the 1970’s (Pet. Exs. 1-6), highlights the dual

concerns of the DOB for both public safety and zoning requirements when the Department relies

upon the honesty and integrity of architects to certify plans:

Pursuant to § 27-143 of the Administrative Code, the Department of Buildings has established procedures for limited supervisory check and professional certification of applications and plans submitted by architects and engineers. In general, these procedures have benefited both the construction industry and the general public by expediting departmental review without sacrifices to public safety or zoning regulations. While the vast majority of architects and engineers have justified the confidence that the Department has in their professionalism, there have been occasions when the laws that govern construction in the City have been disregarded, threatening public safety or the integrity of zoning regulations. The purpose of this rule, which amends §§ 21-01 and 21-02, is to protect the safety and integrity of the public by expanding the grounds for suspending or excluding architects and engineers from procedures for limited supervisory check and professional certification. This suspension or exclusion will result in increased Department scrutiny of applications and plans from those architects and engineers. This will encourage increased applicant compliance with public safety and zoning requirements in order to have expedited reviews.

1 RCNY§ 21-01, note 1 (Jan. 10, 2007) (Lexis 2008) (emphasis supplied).

The professional certification respondent was required to file when he professionally

certified plans with his seal to the Department is the same certification in use by the Department

since 1995. It provides in relevant part:

I hereby state that I have exercised a professional standard of care in certifying that the filed application is complete and in accordance with applicable laws, including the rules of the Department of Buildings, as of this date. I am aware the Commissioner will rely upon the truth and accuracy of this statement. . . . I further realize that any misrepresentation or falsification of facts made knowingly or negligently by me, my agents or employees, or by others with my knowledge, will render me liable for legal and disciplinary action by the Department of Buildings and other appropriate authorities, including termination of participation in the professional certification procedures at the Department of Buildings.

(Mossad: Tr. 41-42; Pet. Ex. 5, emphasis supplied; Pet. Ex. 12, signed by respondent). Because

the Department does only a cursory review of such submissions, “it relies on the accuracy and

honesty of the licensed professional certifying the document.” Dep’t of Buildings v. Fekete and

St. Clair Nation, OATH Index Nos. 1118-19/07 at 18 (Oct. 26, 2007), aff’d in pertinent part,

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Comm’r Dec. (Dec. 4, 2007), Comm’r Dec. aff’d as modified, St. Clair Nation v. City of New

York, 60 A.D.3d 468 (1st Dep’t), leave to appeal granted, 12 N.Y.3d 713 (2009).

This recommendation is consistent with precedent. See Dep’t of Buildings v. Wild,

OATH Index No. 1786/09 (Jan. 29, 2009), aff’d, Comm’r Dec. (Mar. 10, 2009) (architect’s false

statements resulted in refusal by Commissioner to accept further filings under § 28-211.1.2; rule

21-02 violation based on improper use of stamp); Dep’t of Buildings v. Benlevi, OATH Index

No. 395/09 (Jan. 9, 2009), aff’d, Comm’r Dec. (Jan. 22, 2009) (Commissioner refused to accept

documents from architect who submitted false statements to the Department and excluded him

from using self-certification privileges); Dep’t of Buildings v. Giangrande, OATH Index No.

897/09 (Dec. 10, 2008), aff’d, Comm’r Dec. (Feb. 12, 2009) (architect who filed false statements

with DOB excluded from limited supervisory check and professional certification programs

under 21-02(a) and Commissioner refused to accept any future papers he may attempt to file);

Dep’t of Buildings v. Pettit, OATH Index No. 190/02 (July 30, 2002), aff’d, Comm’r Dec. (July

31, 2002) (architect excluded from self-certification privileges where he knowingly, in some

instances, or negligently in others, filed false information with DOB). As noted in Pettit, “[t]he

self-certification process relies on the integrity of professionals.” Pettit, OATH 190/02 at 16.

Where the Department can no longer rely upon an architect to exercise his professional judgment

with limited or no review, the architect will be excluded from participation in procedures for

limited supervisory review of plans and applications. Id.; Fekete and St. Clair Nation, OATH

1118-19/07 (Oct. 26, 2007) (engineer’s certification of “doctored” photographs in support of

building pavement plans falsely representing an existing two-story structure rather than the one-

story structure that actually was at the location, resulted in his exclusion from self-certification

procedures; engineer disregarded public safety interest in accurate building pavement plans and

other applications and lacked integrity).

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The record shows that respondent has deservedly lost the trust of the Department of

Buildings. Accordingly, he should no longer be permitted to file papers with the Department.

This recommendation is not about respondent’s talents, as to which I make no finding, but it is

about professional integrity, and on the latter point, respondent has shown himself to be lacking.

The recommendation that the Commissioner refuse to accept papers signed by respondent is not

made lightly.

Joan R. Salzman Administrative Law Judge March 1, 2010 SUBMITTED TO: ROBERT D. LiMANDRI Commissioner PHYLLIS ARNOLD, ESQ. CHRISTINE R. ABBENDA, ESQ. ANDREW WALLACE, ESQ. Attorneys for Petitioner ZETLIN & De CHIARA LLP Attorneys for Respondent BY: RAYMOND T. MELLON, ESQ.

Diagram of interior and through lots as defined in and reprinted from Zoning Resolution section 12-10 (1961).