Owner converted a two-family house to a four-family. On May 27, 2009, the Department of Buildings issued four notices of violation to Nashat Estafanous. Estafanous owned a residential property at 25 Simonson Avenue in Staten Island, which he converted, without permits, from a two-family residence to a four-family residence by fitting the attic and newly-constructed garage for occupancy. The NOVs imposed a fine totaling $31,100, and ordered Estafanous to remove the illegal conversion construction or to obtain permits for the construction.
Between April 8, 2010 and January 26, 2011, Buildings issued eight subsequent NOVs to Estafanous for failing to comply with the original NOVs that ordered him to remove the illegal construction or obtain permits. At the first hearing date, held by the Environmental Control Board to rule upon the NOVs issued for failure to comply, Estafanous was represented by an attorney, and the hearing was adjourned at Estafanous’ request. The second date of the hearing was made known to both Estafanous and his attorney. Prior to the second hearing date, Estafanous did not inform the administrative law judge that he would be obtaining new counsel. On March 20, 2013, Estafanous appeared for the second hearing without an attorney. The judge declined his request for further adjournment so that he could obtain counsel, and fined Estafanous $40,800 for the violations. As the violations had remained unchanged for the previous three years, six of the eight fines were assessed as aggravated penalties. The aggravated penalty for failure to comply with a Buildings order is $6,000, as opposed to the standard penalty of $2,400.
Estafanous then brought suit against the ECB in the Supreme Court, Appellate Division, Second Department. He claimed that his constitutional right to due process was violated when, on the second day of the hearing, counsel was not present. He also claimed that the due process was violated when the building inspector who issued the violations was not present for cross-examination at the hearing, and that the fine was unconstitutionally excessive.
On February 17, 2016, the Appellate Division upheld the ECB’s ruling and dismissed Estafanous’ suit. The court ruled that aside from certain narrow exceptions, the constitutional right to counsel does not extend to civil actions or administrative proceedings. Due process only requires that a party in an administrative proceeding have the opportunity to be represented by counsel. The court also found that there was no valid basis for his other claims, and that the fine did not shock the court’s sense of fairness and was not unconstitutionally excessive.
Matter of Estafanous v New York City ECB, 2016 NY Slip Op 01176 Decided on February 17, 2016 Appellate Division, Second Department.
By: Rebecca Ruffer (Rebecca is a student at New York Law School, Class of 2018).