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New York State Bar Association
New York City Bar
New York County Lawyers Association

Activities & Affiliations

New York State Bar Association
New York City Bar
New York County Lawyers Association

  • Daniel Schneider

FSF successfully asserts ‘Interest of Justice’ to defeat erroneous fines issued by NYC DOB


An avenue of legal relief seldom invoked, except where other prayers for relief have failed, is a doctrine known as “the interests of justice.” The purpose of this doctrine has long been to provide relief in a form which would prevent a miscarriage of justice. See, Glamore Motor Sales v. Broderick, 259 A.D. 1022 (2d Dept. 1940). This interest has, for more than a century, “even to the disregard of legal or factual merit, allow[ed] the letter of the law [to] gracefully and charitably to succumb to the spirit of justice.” People v. Rickert, 58 N.Y.2d 122, 126 (1983) (comparing the criminal interest of justice standard to the civil).


To be clear, applications of this kind are rarely successful as reserved for situations where such an order is righting a wrong. It balances any perceived unfairness in considering factors not previously raised and presumably waived with the need to get the answer right. A judge possesses this discretion, but with a term so subjective in nature, interpretation varies greatly from case to case.


Farber Schneider Ferrari LLP, a boutique Manhattan litigation firm, recently secured a major client victory by invoking this interest of justice argument, confirming that this creative legal maneuver is alive and well in New York. In a recent deal struck with the City of New York’s Department of Buildings (“DOB”), we vindicated our home owner clients—who had been saddled with $262,000.00 in erroneous fines and penalties levied by DOB—by causing to have all those fines and penalties nullified and reduced to zero.


In seeking a declaratory judgment from the Court, we argued that the ‘interest of justice’ requires such a result. Our victory exemplifies what a powerful tool this can be, in cases where no other procedural device has worked.


It should be noted that in the aftermath of COVID-19, where individuals and businesses alike will be struggling to survive, seeking relief “in the interest of justice” may resonate with the public more than ever. Many will find themselves in situations where their contracts don’t help them, laws and rules do not directly apply and, through no fault of their own, they could lose everything. With the right attorneys, an apolitical and forthright judiciary and a pinch of luck, help may be available “in the interest of justice.”


Back in 2013, DOB issued our homeowner clients initial violations, claiming an illegal alteration had been made to their home which violated their property’s certificate of occupancy; a claim which our clients explained had been improperly imposed. This was substantiated by their architect who confirmed that no such alteration had ever been made—the house was in the same condition it had been when built—and that there had been no violation of the certificate of occupancy.


Still, DOB returned to the property several times, imposing numerous violations citing our clients’ “failure to correct” the initial violations. This continued despite the homeowners’ protestations that there was nothing they could do to correct conditions that did not exist in the first place! As a result of DOB misguidance/error, our clients’ finances would have been decimated by a debt to the City of over a quarter million dollars—a debt based on an error in which our clients bore no blame.


To make matters worse, due to the large number of hearing dates (a separate administrative proceeding was held for each of the twenty-plus individual violations), the clients’ health issues and other reasons, many of these violations went into default and/or appeal dates were missed. As a result, our clients were concerned, despite their actual innocence of the underlying charges, that they were going to be stuck with these crippling fines which would cause them to lose their house. Shortly after retaining Farber Schneider Ferrari, our clients received notices from a City Marshal who was going to start seizing personal property to satisfy the fines.


In 2019 – six years after the initial violations had been written and well beyond the time limits of various statutory or administrative deadlines – Farber Schneider Ferrari LLP filed a case in New York Supreme Court seeking a declaratory judgment that all of these violations required reversal and dismissal in the interest of justice. We argued, citing long held Court of Appeals precedent, that New York’s trial court could accept jurisdiction over something otherwise properly before a lower administrative court, and that it could grant such relief in order to “avoid a failure of remedy or a miscarriage of justice.” Bankers' Sur. Co. v. Meyer, 205 N.Y. 219, 224 (1912).


This strategy proved to be successful. Without forcing our clients to engage years-long litigation yielding costly legal fees (the recapture of which was unlikely if not impossible) New York City (through DOB) entered into a stipulation of settlement with our firm whereby it agreed to vacate and dismiss each and every one of the violations.


Righting a wrong imposed by a governmental actor is difficult, especially long after the fact. Presently, most often, it is applied in the criminal context to permit DNA testing of evidence which was unavailable at the time of a conviction. Numerous defendants have either been exonerated or have been granted a new trial. See e.g. People v. Boone, 30 N.Y.3d 521 (2017); https://www.innocenceproject.org/dna-exonerations-in-the-united-states/ (last accessed May 26, 2020); N.Y. Crim. Proc. Law (“CPLR”) § 440.10 (vacatur of a criminal order is available at any time after imposition so long as certain factors enumerated in the statute are met); and CPL § 210.40 (motion to dismiss in furtherance of justice).


In the civil arena, an application to vacate an order or judgment or a determination of a government agency, typically must be sought within one year of the original determination. N.Y. Civ. Practice Laws & Rules § 5015. That being said, Courts have “broad discretionary power to vacate [an] order ‘for sufficient reason and in the interests of substantial justice.’” Smith v. Pataki, 150 A.D.3d 460, 461 (1stDept. 2017). This includes ignoring the one-year requirement. See Torres v. Rely On Us, Inc., 165 A.D.3d 731, 732 (2d Dept. 2018). Such a claim can be made at any time. We wielded this argument in our client’s favor years later knowing that any other strategy was doomed to fail.


An interest of justice claim can be a powerful tool to right wrongs and to redress actual innocence of state punishment in the civil realm. This is especially true when all other avenues have become futile, or deadlines have elapsed. In our clients’ case, both were true, and they had been facing a life changing debt until we sought dismissal of the violations via declaratory judgment in the New York Courts. As a result, our clients have been able to keep their home and put a lengthy legal battle behind them.


If you believe that you have been wrongfully accused, levied, fined, punished or otherwise, please feel free to contact Farber Schneider Ferrari LLP and make an appointment for a consultation.