Furey v. Suffolk County

• Decision Date: 17 December 1984
• Parties: In the Matter of James F. FUREY, et al., Petitioners, v. The COUNTY OF SUFFOLK, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 788

482 N.Y.S.2d 788

105 A.D.2d 41

In the Matter of James F. FUREY, et al., Petitioners, v. The COUNTY OF SUFFOLK, et al., Respondents.

Supreme Court, Appellate Division,

Second Department.

Dec. 17, 1984.

Furey & Furey, P.C., Valley Stream (James F. Furey, pro se, of counsel), for petitioners.

Martin Bradley Ashare, County Atty., Hauppauge (Derrick J. Robinson, Asst County Atty., Hauppauge, of counsel), for respondents.

Before MOLLEN, P.J., and MANGANO, O'CONNOR and LAWRENCE, JJ.

O'CONNOR, Justice.

The issue to be resolved at bar is whether the record contains substantial evidence to support a determination of the Suffolk County Department of Health Services Board of Review denying petitioners' application for a waiver of a State Sanitary Code provision that requires enclosure of interior staircases in temporary residences for fire protection purposes. We conclude that it does not.

Petitioners own a two-story frame house on Shelter Island. During the summer months they rent out nine bedrooms on the second floor to guests on a temporary basis. In May, 1980, petitioners applied for a new permit to run their temporary residence under recently enacted amendments to the State Sanitary Code (10 NYCRR Subpart 7-1). Following an inspection of the premises in July, 1980, the Suffolk County Department of Health Services notified petitioners of various violations of the subject code. The only violation cited, germane here, was that the "interior stairway not enclosed as specified" in section 7-1.11 (subd par ) of the code. Thereafter, petitioners sought a waiver of the requirement pursuant to section 7-1.13 (10 NYCRR 7-1.13), which provides in pertinent part:

"7-1.13 Waiver of fire safety provisions.

"(a) The permit-issuing official may waive any of the provisions of sections 7-1.6 through 7-1.12 of this Subpart, inclusive, whenever all of the following conditions are present:

"(1) The portion of the building to which fire safety provisions apply has been operated as a temporary residence prior to the effective date of the requirement which is being waived.

"(2) Failure to comply with fire safety provisions of the sections being waived would not significantly decrease safety to the occupants in the particular building, and such compliance represents a significant structural change or major expense to the operator.

"(3) Adequate alternative provisions have been made for the safety of the occupants in prevention and detection of fires and emergency exiting in the event of fire or other emergency."

The term "adequate" is defined by the code (10 NYCRR 7-1.1 ) as:

"(j) Adequate shall mean sufficient to accomplish the purpose for which something is intended, and to such a degree that no unreasonable risk to health or safety is presented. An item installed, maintained, designed and assembled, an activity conducted, or act performed, in accordance with generally accepted standards, principles or practices applicable to a particular trade, business, occupation or profession, is adequate within the meaning of this Subpart."

At a hearing before the Board of Review of the Department of Health Services, petitioner James Furey (hereinafter petitioner) stated that his premises had been operated as a boarding house for many years prior to the adoption of the subject regulation and that compliance therewith would require extensive alterations, structural change and great cost to him. Petitioner further stated that after the initial inspection he had installed battery-operated smoke detectors in the rented areas of the premises to warn guests of dangerous conditions and had equipped each rented room with a window escape, which the department all but conceded was in compliance with code requirements. Petitioner contended that these alternatives were "adequate" within the meaning of the code to protect his guests against the eventuality of fire and that a waiver would not significantly decrease their safety. The department did not contest the prior use of the premises as a temporary residence nor the cost and changes necessary to comply with the enclosure requirement. As to the adequacy of petitioners' alternatives, the department merely insisted that any alternatives to compliance include a sprinkling system, a complete fire and smoke detection system and self-closing doors on all rooms, as purportedly required by State waiver guidelines and outlined by a State public health engineer in a telephone conversation with petitioner.

Following the hearing, the Board of Review made findings including, inter alia, that petitioners had not effectuated the alternatives outlined by the State engineer and thus recommended denial of the waiver. Accordingly, in its formal determination, it urged petitioners to "take the necessary steps to conform with the rules and regulations of the * * * Code". This CPLR article 78 proceeding followed.

It is well established that upon judicial review of a determination made by an administrative body after a hearing, the issue presented for the court's consideration is limited to one of substantial evidence (CPLR 7803, subd 4; see Matter of Purdy v. Kreisberg, 47 N.Y.2d 354, 358, 418 N.Y.S.2d 329, 391 N.E.2d 1307; 300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 N.Y.2d 176, 181, 408 N.Y.S.2d 54, 379 N.E.2d 1183; Matter of Desmone v. Blum, 99 A.D.2d 170, 473 N.Y.S.2d 196). Demystifying that term of art, what this means is that the reviewing court examines the entire record to determine whether sufficient proof exists from which "an inference * * * of the factfound may be drawn reasonably" and once it makes a determination as to this quantum of evidence--roughly that needed for a court to submit a question of fact to a jury--its task is complete (Matter of Stork Rest. v. Boland, 282 N.Y. 256, 273, 26 N.E.2d 247; see, also, 300 Gramatan Ave. Assoc. v. State Div. of Human Rights, supra, 45 N.Y.2d pp. 180-181, 408 N.Y.S.2d 54, 379 N.E.2d 1183). In the final analysis, it is not the function of the reviewing court to weigh the evidence or substitute its own judgment for that of an administrative body to whose expertise a subject matter has been entrusted, but rather to determine whether there is a "reasonable fulcrum of support in the record" to sustain the body's findings (Matter of Paulsen 27 A.D.2d 493, 495, 280 N.Y.S.2d 491; see, also, Matter of Ahsaf v. Nyquist, 37 N.Y.2d 182, 184-185, 371 N.Y.S.2d 705, 332 N.E.2d 880; Matter of Pell v. Board of Educ., 34 N.Y.2d 222, 231, 356 N.Y.S.2d 833, 313 N.E.2d 321; 1 Davis, Administrative Law Treatise § 3:3).

The limited review function of a court does not mean, of course, that the court must confirm a determination simply because it has been made by an administrative body. On the contrary, the court has a genuine judicial function to exercise when it reviews the sufficiency and the...