303 West 42nd St. Corp. v. Klein

• Decision Date: 03 April 1979
• Citation: 389 N.E.2d 815,46 N.Y.2d 686,416 N.Y.S.2d 219
• Parties: , 389 N.E.2d 815 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.
• Court: New York Court of Appeals Court of Appeals

Page 219

416 N.Y.S.2d 219

46 N.Y.2d 686, 389 N.E.2d 815

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.

Court of Appeals of New York.

April 3, 1979.

Herald Price Fahringer and Ralph J. Schwarz, Jr., New York City, for appellant

Allen G. Schwartz, Corp. Counsel, New York City (Leonard Olarsch and L. Kevin Sheridan, New York City, of counsel), for respondents.

OPINION OF THE COURT

FUCHSBERG, Judge.

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. ¹ 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." ² Aside from elevators, the building, constructed in 1926 of fireproof steel and concrete, contains a single staircase or fire tower ³ 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. ⁴

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 U.S. 356, 373-374, 6 S.Ct. 1064, 1073, 30 L.Ed. 220, 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 N.Y.2d 326, 372 N.Y.S.2d 590, 334 N.E.2d 555; People v. Goodman, 31 N.Y.2d 262, 338 N.Y.S.2d 97, 290 N.E.2d 139) and the administrative regulation of public health, safety and morals (see Matter of Di Maggio v. Brown, 19 N.Y.2d 283, 279 N.Y.S.2d 161, 225 N.E.2d 871; Matter of Bell v. New York State Liq. Auth., 48 A.D.2d 83, 367 N.Y.S.2d 875). 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, 19 N.Y.2d pp. 290-291, 279 N.Y.S.2d pp. 166-167, 225 N.E.2d pp. 874-875; Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 7 L.Ed.2d 446; Snowden v. Hughes, 321 U.S. 1, 8, 64 S.Ct. 397, 88 L.Ed. 497).

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, 31 N.Y.2d pp. 268-269, 338 N.Y.S.2d 102-103, 290 N.E.2d pp. 143-144; People v. Utica Daw's Drug Co., 16 A.D.2d 12, 15-18, 225 N.Y.S.2d 128, 131-134). 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, 225 N.Y.S.2d pp. 132-135). ⁵

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 N.Y.2d 326, 372 N.Y.S.2d 590, 334 N.E.2d 555, Supra (violation of Sunday closing law); Matter of Di Maggio v. Brown, 19 N.Y.2d 283, 279 N.Y.S.2d 161, 225 N.E.2d 871, Supra (violation of Condon-Wadlin Act forbidding strikes by public employees); People v. Solkoff, 53 Misc.2d...