
    In the Matter of 303 West 42nd Street Corporation, Appellant, v Joseph B. Klein, as Chairman of the Board of Standards and Appeals, et al., Respondents.
    Argued February 13, 1979;
    decided April 3, 1979
    
      POINTS OF COUNSEL
    
      Herald Price Fahringer and Ralph J. Schwarz, Jr., for appellant.
    I. Where substantial constitutional claims are raised in an article 78 proceeding, creating issues of fact, an evidentiary hearing should be conducted to resolve those important issues. (Matter of Belle Harbor Realty Corp. v Kerr, 35 NY2d 507; Show-World Center v Walsh, 438 F Supp 642; Younger v Harris, 401 US 37; Bantam Books v Sullivan, 372 US 58; Doran v Salem Inn, 422 US 922; 414 Theater Corp. v Murphy, 499 F2d 1155; Black Jack Distrs. v Beame, 433 F Supp 1297.) II. The board’s retroactive application of the code provisions to require sprinklering of the Show-World area where there has been a demonstration of a vested right is an abuse of discretion and constitutes a denial of procedural due process. (People v Miller, 304 NY 105; People ex rel. Ortenberg v Bales, 224 App Div 87, 250 NY 598; New York State Investing Co. v Brady, 214 App Div 592; Matter of Caponi v Walsh, 228 App Div 86; Matter of Glenel Realty Corp. v Worthington, 4 AD2d 702, 3 NY2d 924; Matter of Rogers v Department of Housing & Bldgs. of City of N. Y., 208 Misc 785, 5 AD2d 784; Matter of Humble Oil & Refining Co. v Worthington, 49 Misc 2d 432; Matter of Milmic Realty Corp. v Board of Stds. & Appeals of City of N. Y, 35 Misc 2d 30; Rodgers v Village of Tarrytown, 302 NY 115.) III. There was insufficient evidence in the record upon which to support the finding that full sprinklering of the Show-World area was required; therefore, the basis of the finding (smoke through communicating door) was unjustified and a decision upon these grounds denies petitioner procedural due process. (Matter of Community Synagogue v Bates, 1 NY2d 445; Matter of Carnat Realty v Barnett, 33 AD2d 772; Matter of Shane v Kern, 31 AD2d 654; Matter of Shell Oil Co. v Farrington, 21 AD2d 794; Goldberg v Kelly, 397 US 254; Matter of Erdman v Ingraham, 28 AD2d 5; Matter of Hecht v Monaghan, 307 NY 461.) IV. Respondents’ ordering full sprinklering of the upper floors, after total silence of 47 years and in view of vested rights, and where feasible alternatives are available, is unreasonable on the record, thus amounting to a denial of due process. (La Porto v Village of Philmont, 39 NY2d 7; Bender v New York City Health & Hosps. Corp., 38 NY2d 662; Matter of Boardwalk & Seashore Corp. v Murdock, 175 Misc 208.) V. Since Show-World constitutes a separate area of the building with occupancy different from the upper floors, Show-World exit requirements must be determined separately. Because Show-World complied with the special exit conditions for its own area, the board’s determination is erroneous as a matter of law. VI. The refusal to permit petitioner to present evidence on reasonable alternatives to the ordered full sprinklering amounted to a denial of procedural due process, made further evident by the fact that every other building in New York County is accorded this opportunity.
    
      Allen G. Schwartz, Corporation Counsel (Leonard Olarsch and L. Kevin Sheridan of counsel), for respondents.
    I. Under the circumstances of this case, appellant is not entitled to an evidentiary hearing to explore the issue of alleged selective enforcement. (People v Utica Daw’s Drug Co., 16 AD2d 12; People v Goodman, 31 NY2d 262; Matter of Di Maggio v Brown, 19 NY2d 283; Oyler v Boles, 368 US 448; People v Walker, 14 NY2d 901; People v Acme Markets, 37 NY2d 326; United States v Sacco, 428 F2d 264; Black Jack Distrs. v Beame, 433 F Supp 1297; Show-World Center v Walsh, 438 F Supp 642; Ah Sin v Wittman, 198 US 500.) II. The record amply supports the determination that sprinklering throughout this 12-story building was a required safety measure and not a "pretext” to close down the first floor tenant’s "adult” business. (Matter of Belle Harbor Realty Corp. v Kerr, 35 NY2d 507; People ex rel. Schwab v Grant, 126 NY 473; Matter of Levy v Board of Stds. & Appeals of City of N. Y., 267 NY 347; People ex rel. Fordham Manor Reformed Church v Walsh, 244 NY 280; Matter of Community Synagogue v Bates, 1 NY2d 445; Matter of Donegan v Griffin, 270 App Div 937.) III. The requirement that a sprinkler system be installed to protect the public from fire is permissible exercise of the police power and is not violative of any vested right of appellant. (Queenside Hills Realty Co. v Wilson, 294 NY 917, affd sub nom. Queenside Hills Co. v Saxl, 328 US 80; Matter of Aron Manor Nursing Home v Board of Stds. & Appeals of City of N. Y, 35 Misc 2d 1044; Matter of Milmic Realty Corp. v Board of Stds. & Appeals of City of N. Y., 35 Misc 2d 30; People v Kaye, 212 NY 407; Cockcroft v Mitchell, 187 App Div 189; Birchwood Towers No. 1 Assoc. v Lowery, 39 AD2d 838, 31 NY2d 641; Matter of Nicolby, Inc. v Board of Stds. & Appeals of City of N. Y, 36 AD2d 793; People v Miller, 304 NY 105; People ex rel. Ortenberg v Bales, 224 App Div 87.)
   OPINION OF THE COURT

Fuchsberg, J.

In this article 78 proceeding we must define the measure of proof required to make out a prima facie case of unconstitutional discrimination in the administering of admittedly valid laws. We hold that this burden is met and, hence, an evidentiary hearing before a judicial tribunal is mandated whenever one asserting such a violation can demonstrate a reasonable probability of success on the merits of his claim.

Petitioner corporation is the owner of a 12-story, L-shaped office building located at Eighth Avenue and Forty-Second Street in the Times Square area of New York City. In March, 1974, the corporation, in contemplation of a lease negotiated between it and Show-World, Inc., a prospective tenant, applied to the city’s department of buildings for a permit to reconstruct the cellar, first and mezzanine floors to accommodate the tenant’s intended use of these premises to house an "adult” bookstore and two "adult” theatres. Because the renovations were to be confined to the bottommost floors, petitioner was able to take advantage of an expedited procedure whereby only the altered portions and not the entire building required a certificate of occupancy. The department issued the necessary permit in July, 1974.

In April, 1975, while the alterations were in progress, the Manhattan Borough Superintendent of the Department of Buildings notified petitioner’s architect that "the 2nd to 12th floors * * * do not comply with the egress provisions of either the old [1938] code or the new [1968] code, and is [sic] in apparent violation of Par. C26-600.3 of the new code.” Aside from elevators, the building, constructed in 1926 of fireproof steel and concrete, contains a single staircase or fire tower that leads to an exit on 42nd Street for use of all occupants of the building above the mezzanine floor. Since its construction, no fire or safety problems had ever been reported and, despite the department’s review of the adequacy of the building in that regard in 1951 and again in 1963, this was the first hint petitioner had of such a deficiency. Although the superintendent insisted upon the installation of sprinklers in the two exits to the Show-World premises, he served no notice of violation or gave any other indication that the remainder of the building could not continue in status quo. After further revisions in the alteration plans acceptable to the authorities, the renovations in the premises leased to Show-World were completed at a cost of over $200,000 and, in July, 1975, a temporary amended certificate of occupancy was issued.

Between July and October, 1975, however, the department changed its position. These months bore witness to one of the well-publicized periodic efforts by city officials to "clean up” the Times Square area by driving out of business purveyors of sexually explicit material. And, by what petitioner claims was not a coincidence but inspired by the so-called Midtown Task Force which the Mayor had created to engineer his antismut campaign, the commissioner of buildings during this period decided to take a fresh look at the adequacy of the plans in terms of fire safety. He then used that to persuade the Board of Standards and Appeals to issue a modification of both the original and temporary certificates of occupancy so as to order full sprinklerization of the entire building.* **

At the hearing on his application, the commissioner, contending that the fire tower and exit were inadequate means of egress for the tenants of the other 11 floors in the event of a fire, reiterated the superintendent’s objection that this limited exit complied neither with the pre-existing nor the current code requirements. In addition, the commissioner asserted that, while the exits from the Show-World premises conformed to the code, because he believed it possible that smoke could travel throughout the building via a reception window in the lobby, the sprinklers should also be installed in the three floors occupied by Show-World; however, counsel for the commissioner appears later to have abandoned that contention before the board.

For its part, the petitioner protested that the original certificate of occupancy had been issued in 1928 only after objections by the city that at least two stairwells were required had been officially considered and disregarded. Taking the position that it did not seek to avoid making all expenditures necessary to meet its fire safety obligations, and evincing a willingness to make any reasonable accommodation for that purpose, it urged that less expensive alternatives would achieve the same level of protection. In this regard, it asserted that other buildings, similarly constructed, had only been required to undertake partial sprinklering in satisfaction of their nonconformance under section C26-600.3. Full compliance with the commissioner’s order, according to the petitioner, would be confiscatory, costing over $250,000. On top of the $200,000 it had already expended for the renovations fully approved by the city only two months earlier, these costs, petitioner claimed, would push it into bankruptcy.

Alleging that the continued existence of the building’s purportedly inadequate fire exits for 47 years coupled with the superintendent’s recent approval of the Show-World alterations belied any legitimate concern by the department for fire safety, petitioner argued that the code provisions were being discriminatorily enforced against it as part of the crackdown on businesses catering sexually explicit material. But the board did not allow the petitioner to present any evidence in support of its discrimination argument, confining itself instead to the merits of the commissioner’s requested modification. On March 9, 1976, the board granted the commissioner’s application. The commissioner thereupon issued a violation notice requiring the entire building to be sprinklered. This proceeding followed.

Special Term found warrant in the record for the board’s decision and, further, dismissed petitioner’s discriminatory enforcement claim, concluding that petitioner had made no showing that the action was arbitrary, capricious or contrary to law. A divided Appellate Division affirmed by a vote of three to two. We reverse and remit because, on the basis of the showing before Special Term, the decision to dismiss the petitioner without an evidentiary hearing on the claim of discriminatory enforcement constituted an abuse of discretion as a matter of law.

The underlying right, asserted by petitioner is to equal protection of the laws as guaranteed by the 14th Amendment and the New York State Constitution (art I, § 11), one of the governing principles of our society. As enunciated more than a century ago in Yick Wo v Hopkins (118 US 356, 373-374), it forbids a public authority from applying or enforcing an admittedly valid law "with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances”. We have recognized the principle in cases involving the enforcement of the criminal laws (see People v Acme Markets, 37 NY2d 326; People v Goodman, 31 NY2d 262) and the administrative regulation of public health, safety and morals (see Matter of Di Maggio v Brown, 19 NY2d 283; Matter of Bell v New York State Liq. Auth., 48 AD2d 83). To invoke the right successfully, however, both the "unequal hand” and the "evil eye” requirements must be proven — to wit, there must be not only a showing that the law was not applied to others similarly situated but also that the selective application of the law was deliberately based upon an impermissible standard such as race, religion or some other arbitrary classification (Matter of Di Maggio v Brown, supra, pp 290-291; Oyler v Boles, 368 US 448, 456; Snowden v Hughes, 321 US 1, 8).

In particular, in our State, the claim of unequal protection is treated not as an affirmative defense to criminal prosecution or the imposition of a regulatory sanction but rather as a motion to dismiss or quash the official action (People v Goodman, supra, pp 268-269; People v Utica Daw’s Drug Co., 16 AD2d 12, 15-18). And, in its consideration of the merits of such a claim, as it would on a suppression motion, a court must conduct a hearing if, on the papers before it, a strong showing of selective enforcement, invidiously motivated, appears (People v Utica Daw’s Drug Co., supra, pp 16-19).

The theory is that conscious discrimination by public authorities taints the integrity of the legal process to the degree that no court should lend itself to adjudicate the merits of the enforcement action. This, even though the party raising the unequal protection claim may well have been guilty of violating the law (see People v Acme Markets, 37 NY2d 326, supra [violation of Sunday closing law]; Matter of Di Maggio v Brown, 19 NY2d 283, supra [violation of Condon-Wadlin Act forbidding strikes by public employees]; People v Solkoff, 53 Mise 2d 137 [violation of zoning ordinance]). Such a claim, of course, should not result in immunization from a new prosecution when and if the public authorities cure the defects in their enforcement methods. Thus, we see no reason here to prohibit the petitioner from invoking the constitutional right to defeat the commissioner’s enforcement of the building code against it (see English v Town of Huntington, 448 F2d 319, 323 [Friendly, Ch. J.]).

The burden of proving a claim of discriminatory enforcement is a weighty one. Common sense and public policy dictate that it be so. The presumption is that the enforcement of laws is undertaken in good faith and without discrimination (see, e.g., United States v Falk, 479 F2d 616, 620). Moreover, latitude must be accorded authorities charged with making decisions related to legitimate law enforcement interests, at times permitting them to proceed with an unequal hand. For example, it has been held that, in order to bring an appropriate case to test a new regulation or statute, or because of limited manpower or other resource inadequacies, or for the purpose of deterring other potential transgressors, certain violators may be selected for prosecution out of the class of all known violators (see People v Utica Daw’s Drug Co., 16 AD2d 12, 21, supra; Comment, 61 Col L Rev 1103, 1119-1133). Such an enforcement strategy may also permissibly be directed at only serious violations (see English v Town of Huntington, supra, p 323 [enforcement of building and zoning codes only against buildings where fire and sanitary hazards had gone far beyond tolerable limits]) or those occurring in a geographic area where the probability or rate of violations is high (see, generally, Tieger, Police Discretion and Discriminatory Enforcement, 1971 Duke LJ 717). The reasoning goes that these instances of legitimate law enforcement should not be hampered by requiring that a hearing be held every time one subject to a regulatory or criminal penalty feels he has been unfairly singled out.

A mere showing of selective enforcement is, therefore, not enough. As indicated, the disparate impact must be shown as well to have been the product of an "evil eye”. When officials acknowledge uneven enforcement against a class that has been selected for some reason apart from effective regulation, an impermissible animus has been shown (see Betty-June School v Young, 25 Misc 2d 909, 912).

Ordinarily, however, a strong inference of illicit motive will be all that can be expected because admission of intentional discrimination is likely to be rare; law enforcement officials are unlikely to avow that their intent was to practice constitutionally proscribed discrimination. Proof of intent nevertheless may appear from a convincing showing of a grossly disproportionate incidence of nonenforcement against others similarly situated in all relevant respects save for that which furnishes the basis of the claimed discrimination (cf. Gomillion v Lightfoot, 364 US 339; Yick Wo v Hopkins, 118 US 356, supra). For history teaches that it is by no means to be assumed that motive and disproportionality have to be discrete. The more convincing is the demonstration of the "unequal hand” — the grosser the disparity of enforcement and the greater the similarity between those prosecuted and those not prosecuted —the stronger will be the inference of illicit motive, since conscious discrimination may then stand out as the only reasonable explanation for the pattern of enforcement.

Nevertheless, as a practical matter, difficulties in obtaining detailed knowledge of unprosecuted violators in order to meet the burden of demonstrating similarity are likely to be great. Therefore, because the importance of the right to be free from impermissible selective enforcement must be of more than theoretical value, the burden of demonstrating a violation, albeit- heavy, must not be so heavy as to preclude any realistic opportunity for success. "Latitude should be allowed in this complex area of proof’ (People v Walker, 14 NY2d 901, 902).

Consequently, the threshold showing needed to make out a colorable claim must mediate between our reluctance to impugn legitimate law enforcement methods and our desire to safeguard constitutional rights. To establish enough of a case to trigger an evidentiary hearing as of right, a petitioner must show, on the strength of sworn affidavits and other proof supplying factual detail, that he is more likely than not to succeed on the merits. In formulating this test we draw rough guidance from the principles governing the issuance of a preliminary injunction (see, e.g., Siegel, New York Practice, § 328, p 399), since, in essence, the relief sought in petitioner’s claim will enjoin the authorities from enforcing the commissioner’s order against it. Only the meaningful showing to which we have alluded will enable a court to infer the reasonable probability of success (cf. Show-World. Center v Walsh, 438 F Supp 642, 651 ["strong likelihood”]). The interdependence of evidence relating to uneven enforcement and motivation, on which we have already commented, is a factor which, of course, is to be considered when determining whether this standard has been met (cf. United States v Oaks, 508 F2d 1403, 1404; United States v Berrios, 501 F2d 1207, 1209-1210; United States v Falk, 479 F2d 616, 623, supra).

Here petitioner met the test. It is clear that it made a_ prima facie showing of the merits of its assertions that both disparate impact and invidious motive exist. It alleged different treatment based solely on the nature of its tenant Show-World’s business. Although the transcript of the hearing before the board discloses that the commissioner stated that he had "readily available” a list of other buildings against which similar action had been taken, the list actually furnished to petitioner contained but three addresses without further description of any kind. In contrast, as the petitioners point out on the basis of public record, a hearing could very well have disclosed that, in at least 21 other buildings having a single means of egress, less costly partial sprinkerlization was all the commissioner required to provide adequate fire protection (see Black Jack Distrs. v Beame, 433 F Supp 1297, 1301). This evidence of unequal treatment may be all the more compelling because the code section applied against petitioner (§ C26-600.3) vests discretion in the commissioner to formulate remedies for inadequate exit facilities.

Further, the demonstration of illegitimate motive was direct as well as indirect. As previously noted, at approximately the same time that the commissioner requested modification of petitioner’s certificates of occupancy, city officials, and in particular the Mayor’s assistant in charge of the Midtown Task Force, were unabashedly trumpeting: "[d]espite all the constitutional limitations, we stop at nothing when we try to put one of these places out of business.” Consistent with that public statement, petitioner pleads that the Midtown Task Force had directed the department of buildings to strictly enforce the building code in aid of its campaign. However great may have been the city’s frustration at its inability to reduce the number of sex-related businesses (see, generally, Project, 52 NYU L Rev 810, esp p 881, and n 343; pp 894-900; but cf. Lopate, 42d Street You Ain’t No Sodom, NY Times, March 8, 1979), the existence of this motivation could suffice to taint the commissioner’s enforcement of the building regulations (see People v Acme Markets, 37 NY2d 326, 330, supra; People v Tornatore, 46 Misc 2d 908). It requires no indorsement or rejection of the task force’s goals to recognize how readily it could be found that they were in fact unrelated to legitimate fire prevention.

But petitioner did not rest solely on his presentation of the official’s statement to show motive. Despite the fact that the building had been under the department’s active scrutiny for nearly two years in connection with the reconstruction of its lower floors, no action was taken until the antipornography drive was undertaken. More than this, the record indicates that two previous submissions of the building’s plans for department approval of alterations to higher floors — beyond question entailing review of the fire tower and exit facilities— had not generated an unfavorable administrative response. All this could undermine the commissioner’s claimed motivation, suggesting as it does more than the possibility that his finding of unsafe conditions was but a post hoc justification. Of course, at this point we acknowledge that the commissioner may, upon our remitting this matter, establish that his actions were in fact undertaken in good faith or that his full sprinkerlization order was not an unreasonably excessive measure in this context. In fact, it may turn out that the dangers here are of such magnitude that the police power can only be vindicated by nothing short of the drastic cure for which the city presses. At this stage, though, taken as a whole, the nature and quantum of petitioner’s proposed proofs were more than adequate to justify a judicial hearing, all the more so because the alleged discrimination involved the exercise of 1st Amendment rights (cf. United States v Oaks, 508 F2d 1403, supra; United States v Falk, 479 F2d 616, supra).

In sum, petitioner, having been improperly deprived of an opportunity to present and develop additional proof in support of its constitutional claim, should now have the chance to do so. We should, therefore, reverse and remit this matter to Special Term for a hearing on the merits of the discriminatory enforcement issue.

Gabrielli, J.

(dissenting). Neither law nor conscience will permit me to agree that petitioner has made out a plausible claim of impermissible discriminatory enforcement of the law, as claimed by four Judges of this court. I am thoroughly convinced that the determinations made by the Appellate Division and the Supreme Court at Special Term were entirely correct.

This proceeding involves a desperate attempt by the owner of a large unsafe building in midtown Manhattan to avoid, or at least delay, the expense of certain modifications necessary to make the building safe not only for the public but also for the several hundred people who are required to work therein. It is estimated that some 800 people are involved. Ignored by the majority of this court is the fact that the building is concededly in violation of an admittedly valid safety provision, and yet the owner has sought to oppose any modification on the basis of several meritless legal arguments, one of which the majority of this court has, in my opinion, incorrectly and unfortunately accepted. Petitioner suggests that its building has been improperly selected and required to obey the safety provision simply because it contains certain facilities catering to the erotic tastes of some citizens. The majority of this court today concludes that petitioner has made out a sufficient claim to warrant a hearing. I disagree.

Careful examination of petitioner’s complaint and its brief in this court as well as the record, reveals certain facts interesting in the extreme. Petitioner’s original selective enforcement claim was based on an unsupported allegation that respondents were taking no action against other buildings with similar defects even after the safety violations were brought to the attention of the appropriate officials. During the pendency of this proceeding, however, petitioner apparently learned that respondents had in fact taken action to enforce the law against other buildings. As a result, petitioner has now changed the focus of its claim. Rather than arguing that respondents are discriminatorily enforcing the law only against buildings containing adult movie houses and pornographic bookshops, petitioner now argues that the particular corrective action demanded by respondents in this instance is more costly than the type of corrective measures ordered in other buildings with similar defects.

Preliminarily, I note that the particular corrective action proper in a particular building will of necessity vary with the size, occupancy level, age, and condition of the building. The evaluation of such factors is best left to the expertise of the agencies charged with the enforcement of safety regulations and ordinances, as is the final determination of just what improvement is needed in a particular building. Such decisions should not be made by courts which are ill-equipped for them, not normally being composed of engineers.

More significant, however, is the unquestionable fact that in this instance petitioner made no attempt whatsoever to convince the appropriate public officials that the remedy proposed by respondents, namely, installation of a full sprinklering system, was in fact unnecessary, and that some other method would serve equally well. During the course of a long and exhaustive hearing before the Board of Standards and Appeals, before whom petitioner was afforded an opportunity to present any and all relevant information on the safety issue, petitioner unwisely took an "all or nothing” position, arguing first, and almost facetiously, that the city could not enforce its safety regulations against the building now since it had not done so before, and second that even though the building was in violation of the applicable provisions of the code, it was nonetheless safe. The prior argument has, of course, been rejected by every Judge and court faced with it; the latter is singularly unpersuasive, especially in light of the fact that one of petitioner’s own experts, when asked directly whether the building, as it presently exists is safe, at first sought to evade the issue by characterizing the query as "a loaded question” and then responding that he would not build such a building today. He nevertheless stated that it was safe, mainly because there had as yet been no fires in the building. No one has, or ought to have, a so-called vested right in what is concededly a "fire trap” — just as no one has a vested right in a nuisance.

In any event, having failed to propose to the board alternative, less costly methods of remedying the admitted violation covering the entire building, petitioner may not now be heard to complain that the particular corrective measure finally decided upon was excessive. Possibly some less costly method would in fact be adequate. That determination, however, is one for the appropriate agencies and may not be made for the first time in the courts within the context of and as the proof of a claim of discriminatory enforcement.

The majority of this court suggests that a different result is warranted on the theory that the question whether full sprinklerization was necessary was not properly before the board. Apparently this is based on the belief that the only function of the board at that hearing was to determine whether some modification of the certificate of occupancy was necessary, without determining what modification. Then, presumably, it would be for the commissioner to make such a determination subsequent to the board granting him permission to modify the certificate in, apparently, some manner completely unknown to the board. Assuming arguendo that this rather convoluted procedure does express the proper interrelationship of the board and the commissioner, then it would appear certain that after the commissioner issued the order requiring full sprinklerization, it was necessary for petitioner, if it wished to challenge that order, to follow the appropriate route of administrative review by taking an appeal to the board. Having failed to do so, and thus having precluded consideration of its claims by the board, the group best equipped to deal with them, petitioner should be precluded from now seeking, as the majority candidly admits, to assert those claims for the first time in this proceeding. In either case the result is the same. Either petitioner had an opportunity to present its claims to the board at the hearing, and failed to do so, or petitioner failed to appeal to the board from the order of the commissioner requiring full sprinklerization; in either case, petitioner is precluded from now asserting those claims in court.

When all is said and done, the simple fact remains that petitioner owns and is operating an unsafe office building. The danger is a real one; at any time the building could catch fire and in that case there would simply be insufficient means of escape for persons trapped in the building. In such a case I cannot countenance this court’s decision to reward petitioner’s delaying tactics and to overlook its failure to have made its objections in the proper forum at the proper time. Accordingly, I vote to affirm the order appealed from.

Judges Jasen, Jones and Wachtler concur with Judge Fuchsberg; Judge Gabrielu dissents and votes to affirm in a separate opinion in which Chief Judge Cooke concurs.

Order reversed, with costs, and the matter remitted to Supreme Court, New York County, for a hearing in accordance with the opinion herein. 
      
      . Subdivision (b) of section C26-121.5 of the Administrative Code of the City of New York provides that if the alteration affects less than 20% of a building taller than three stories, a new certificate of occupancy for the entire building need not be obtained.
     
      
      . Section C26-600.3 of the Administrative Code provides the commissioner with discretion in determining the appropriate corrective measures that must be implemented where exit facilities do not conform to the code requirements: "Inadequate exits for existing structures. — Every structure existing on the effective date of this code which is not provided with exit facilities as prescribed in this code, and in which the exit facilities are, in the opinion of the commissioner, inadequate for the safety of the occupants, shall be provided with such means of egress or fire protection as the commissioner shall direct.”
     
      
      . Section D26-1.07 (subd a, par 42) of the Administrative Code defines a fire tower as "a fireproof stair, enclosed in fireproof walls, without access to the building from which it affords egress other than by a fireproof self-closing door opening on a communicating balcony or other outside platform at each floor level.”
     
      
      . The commissioner acted pursuant to section 1804 (subd [4], par [c], cl [6]) of the New York City Charter, which provides: "no order, direction or requirement affecting or at variance with any matter set forth in any certificate of occupancy shall be made or issued by any agency or officer of the city * * * unless and until the certificate is set aside, vacated or modified by the board of standards and appeals or a court of competent jurisdiction upon the application of the agency, department, commission, or officer or member thereof, seeking to make or issue such order, direction or requirement. All such applications shall be made in writing and filed with the board or court for hearing thereon”.
     
      
      . The hearing accorded petitioner before the board, as we have noted, did not consider the merits of the discrimination claim. Such an argument was properly brought only before a judicial tribunal (see Matter of Di Maggio v Brown, supra, p 292).
     
      
      . Judicial notice may be taken of certain events subsequent to Special Term’s decision that may bear on the discrimination claim. Thus, we observe that in March, 1977 the commissioner issued a vacate order against the entire building but enforced it only against Show-World, which had two sprinklered exits, despite the claimed inadequacy of the fire tower that served the other 11 floors.
     
      
      . As indicated earlier, the Board of Standards and Appeals granted the commissioner’s request for modification of the petitioner’s certificates of occupancy. It was only thereafter that the commissioner could issue his full sprinklerization order. In any event, the board’s determination countenanced the fact, if not yet the manner, of the discrimination of which the petitioner complains. Petitioner therefore should not be limited, as the penultimate paragraph of the dissent suggests, to an appeal to the very board that had sanctioned the unequal protection. Instead, it was entitled to an impartial evaluation of the action in which the board and the commissioner in effect joined. (See, generally, 3 Davis, Administrative Law Treatise, § 20.07 [exhaustion not required where administrative remedies may be futile]; 1 NY Jur, Administrative Law, § 171, p 575.) And, most significantly, the city itself at no place has raised any exhaustion of remedies point, in recognition, we assume, of the fact that the exahustion rule in any event does not apply where, as here, the challenge to administrative action is on constitutional grounds (Watergate II Apts. v Buffalo Sewer Auth., 46 NY2d 52, 57-58).
     