Opinion
June 9, 1994
Appeal from the Supreme Court, New York County (Stanley Parness, J.).
We reject petitioners' excessive fine claim, since it was, and continues to be, a matter of their own choice to do what is necessary to correct the conditions that led to the findings of harassment and thereby lift the restrictions imposed (see, Matter of Krax Perapatie Apanu Stu Krokodrilos Tus Platos v. New York City Loft Bd., 157 A.D.2d 611; cf., Matter of Saunders v Kennedy, 154 N.Y.S.2d 523, 525, affd 3 A.D.2d 679). Petitioners' argument that the challenged determination effects a taking of property without just compensation is not preserved for appellate review since it was never raised before respondent (see, Matter of Sherry v. Corcoran, 176 A.D.2d 694), or for that matter the IAS Court (see, Murray v. City of New York, 195 A.D.2d 379, 381), and in any event is without merit since petitioners have not been deprived of all reasonable use of the property (see, Spring Realty Co. v. New York City Loft Bd., 127 Misc.2d 1090, 1093-1094, affd 117 A.D.2d 1029).
As for the substantial evidence question, we find that the record presented is inadequate, inasmuch as the evidence therein is piecemeal, conflicting, and, at this point, outdated. Furthermore the record shows that the last inspection which addressed the conditions at issue in these proceedings was a single inspection which took place on November 9, 1988. Therefore, we remand for the purposes stated.
Concur — Ellerin, J.P., Asch, Rubin, Nardelli and Williams, JJ.