One inspector then left the apartment and went into the Club to transmit the music to the other inspector by walkie-talkie so as to verify that the music was coming from the Club. Following DEP procedures, the inspectors took several noise level readings in the complainant's apartment with the windows closed. The DEP inspectors found that the music being played at the Club exceeded the allowable sound levels set forth in section 24-241.1 (a) of the Administrative Code of the City of New York. On April 4, 1996, at approximately 10:30 P.M., DEP inspectors went to the Club to investigate a complaint of excessive noise made by a tenant residing above the Club. ECB is an administrative agency which, inter alia, conducts proceedings for the adjudication of laws, rules and regulations relating to noise pollution. DEP is an administrative agency which, inter alia, enforces laws, rules and regulations for the purpose of eliminating noise pollution. Petitioner Elliana Properties owns the building in which the Club is located. This dispute concerns the issuance of notices of violation (NOV) on Apin response to complaints of excessive noise at petitioner Reminisce Bar and Lounge (the Club), a nightclub at 334 East 73rd Street, New York, New York. Accordingly, the petition has been construed by ECB as including it as a respondent. Respondent DEP opposes the petition, which is denied for the reasons set forth below.Īlthough ECB is not named as a respondent, the petition challenges the actions of both DEP and ECB. In this CPLR article 78 proceeding, petitioners seek to set aside the order issued by the Environmental Control Board (ECB) on Septemon the grounds that (i) ECB should not have considered the Department of Environmental Protection (DEP) appeal, and (ii) ECB's determination on appeal was arbitrary and capricious and contrary to the law and the facts.
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