Blye v. Globe-Wernicke Realty Co.

• Decision Date: 03 July 1973
• Docket Number: GLOBE-WERNICKE
• Citation: 347 N.Y.S.2d 170,300 N.E.2d 710,33 N.Y.2d 15
• Parties: , 300 N.E.2d 710 Judy BLYE, Appellant, v.REALTY CO. et al., Respondents, and Attorney-General of State of New York, Intervenor-Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 170

347 N.Y.S.2d 170

33 N.Y.2d 15, 300 N.E.2d 710

Judy BLYE, Appellant, v. GLOBE-WERNICKE REALTY CO. et al., Respondents, and Attorney-General of State of New York Intervenor-Respondent.

Court of Appeals of New York.

July 3, 1973.

John E. Kirklin and Kalman Finkel, New York City, for appellant.

Louis J. Lefkowitz, Atty. Gen. (A. Seth Greenwald and Samuel A. Hirshowitz, New York City, of counsel), in his statutory capacity under section 71 of the Executive Law, Consol.Laws, c. 18, intervenor-respondent.

JASEN, Judge.

In August, 1971, Judy Blye took up residence at the Van Rensselaer Hotel in Manhattan. In October of that year, she was locked out of her room for nonpayment of one week's hotel charges amounting to $60.60. Pursuant to the innkeeper's lien law (Lien Law, § 181 ¹), the hotel summarily seized her personal property (valued by her at about $700) without notice and without an opportunity for a hearing. She was left with only the clothes she was wearing, her purse with some personal identification, and small change.

An action was then commenced seeking a declaratory judgment of the unconstitutionality of section 181 of the Lien Law, a permanent injunction and damages for mental distress. Special Term, 328 N.Y.S.2d 257, dismissed the action on the authority of Waters & Co. v. Gerard, 189 N.Y. 302, 82 N.E. 143, and the Appellate Division unanimously affirmed, 40 A.D.2d 950, 338 N.Y.S.2d 386. The appeal is before us as of right on constitutional grounds. (CPLR 5601, subd. (b), par. 1, Consol.Laws, c. 8.) ²

Plaintiff asks that we reconsider our holding in the Gerard case (supra), wherein the predecessor of section 181 of the Lien Law was upheld against a due process challenge. We are also urged to hold that section 181 is violative of the constitutional guarantees against unreasonable searches and seizures.

We conclude that section 181 of the Lien Law is irreconcilable with evolving concepts of due process and is unconstitutional. Insofar as Gerard holds to the contrary, it is overruled. On this view, we do not reach the search and seizure question.

Preliminarily, there is the issue of mootness. At the request of the Attorney-General, plaintiff's property was returned to her several months after filing of the complaint. While it is true that the return of the property renders the claim for injunctive relief academic, there is an issue remaining--the claim for money damages. Adjudication of that claim turns on resolution of the constitutional questions. The due process and search and seizure issues are, therefore, 'live' and the controversy justiciable. (See Powell v. McCormack, 395 U.S. 486, 496--497, 89 S.Ct. 1944, 23 L.Ed.2d 491; Collins v. Viceroy Hotel Corp., 338 F.Supp. 390, 392--393 (invalidating Illinois innkeeper's lien law on due process grounds); Klim v. Jones, D.C., 315 F.Supp. 109, 117 (invalidating California innkeeper's lien law on due process grounds).) Moreover, it is well-settled that judicial reluctance to decide questions which need not be reached should yield when, as here, important constitutional issues are raised and the controversy is of a kind likely to recur. (Matter of Concord Realty Co. v. City of New York, 30 N.Y.2d 308, 312--313, 333 N.Y.S.2d 161, 162--164, 284 N.E.2d 148, 149--150; Matter of Oliver v. Postel, 30 N.Y.2d 171, 177--178, 331 N.Y.S.2d 407, 410--712, 282 N.E.2d 306, 307--309; Matter of Gold v. Lomenzo, 29 N.Y.2d 468, 475--476, 329 N.Y.S.2d 805, 809--811, 280 N.E.2d 640, 643--644; Matter of Bell v. Waterfront Comm., 20 N.Y.2d 54, 61, 281 N.Y.S.2d 753, 759, 228 N.E.2d 758, 762; East Meadow Community Concerts Assn. v. Board of Educ., 18 N.Y.2d 129, 133, 135, 272 N.Y.S.2d 341, 344, 346, 219 N.E.2d 172, 174, 175.)

Turning to the contention that this summary remedy denies due process, we note that plaintiff's property was not seized by a State official, but by private persons--i.e., hotel personnel, acting pursuant to State law. The threshold question is, therefore, whether the requisite 'State action' is present.

It is clear that private conduct will not invoke the constitutional guarantees of due process. But it is equally without doubt that, in some circumstances, the actions of a private citizen can become the actions of the State for purposes of the due process clause. (Adickes v. Kress & Co., 398 U.S. 144, 169--171, 90 S.Ct. 1598, 26 L.Ed.2d 142; Burton v. Wilmington Parking Auth., 365 U.S. 715, 722, 81 S.Ct. 856, 6 L.Ed.2d 45.) For instance, State action, or action under color of State law, has been readily found in racial discrimination cases. (E.g., Reitman v. Mulkey, 387 U.S. 369, 87 S.Ct. 1627, 18 L.Ed.2d 830; Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161; see generally, Honan, Law and Social Change; The Dynamics of the 'State Action' Doctrine, 17 J.Pub.L. 258; Comment, Current Developments in State Action and Equal Protection of the Law, 4 Gonzaga L.Rev. 233.) And in recent years, another theory of State action has emerged. It holds that the actions of private persons, when performing traditionally public functions, may be attributed to the State for purposes of the Fourteenth Amendment. (E.g., Hall v. Garson, 430 F.2d 430, 439 (5th Cir.); Barber v. Rader, 350 F.Supp. 183, 189 (S.D.Fla.); Collins v. Viceroy Hotel Corp., 338 F.Supp. 390, Supra; Adams v. Egley, 338 F.Supp. 614, 617 (S.D.Cal.); Klim v. Jones, 315 F.Supp. 109, Supra; see, also, Hernandez v. European Auto Collision, 346 F.Supp. 313, 317, n. 4 (E.D.N.Y.); but see Kirksey v. Theilig, 351 F.Supp. 727 (D.Col.).)

In this State, the execution of a lien, be it a conventional security interest (Lien Law, § 207), a writ of attachment (CPLR art. 62), or a judgment lien (CPLR art. 52) traditionally has been the founction of the Sheriff. On this view, 'State action' can be found in an innkeeper's execution on his own lien. (Collins v. Viceroy Hotel Corp., Supra; Klim v. Jones, Supra; cf. Hall v. Garson, 430 F.2d, at p. 439.) Then, too, it cannot be gainsaid that innkeepers are possessed of certain powers by virtue of section 181 of the Lien Law. By that token, their actions are clothed with the authority of State law (United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 85 L.Ed. 1368) and their actions may be said to be those of the State for purposes of the due process clauses. ³

Procedural due process requires notice and an opportunity for a hearing before the State may deprive a person of a possessory interest in his property. (Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349; Fuentes v. Shevin, 407 U.S. 67, 80--84, 92 S.Ct. 1983, 32 L.Ed.2d 556; Boddie v. Connecticut, 401 U.S. 371, 378--379, 91 S.Ct. 780, 28 L.Ed.2d 113.) The protection is not limited to necessaries (Fuentes v. Shevin, Supra, 407 U.S., at pp. 88--90, 92 S.Ct. 1983), although the relative weight of the property interest involved may be relevant to the form of notice and hearing required by due process. Nor does the availability of the right turn on the relative degree of permanence of the deprivation, nor may it be defeated by provision for recovery of the property. Only an extraordinary or truly unusual situation will justify postponing notice and opportunity for a hearing. (Fuentes v. Shevin, Supra, at p. 90, 92 S.Ct. 1983; Boddie v. Connecticut, Supra, 401 U.S., at pp. 378--379, 91 S.Ct. 780.) Thus, for example, summary seizure may be permissible where necessary to secure an important governmental or general public interest or where the need for prompt action is paramount. (Sniadach v. Family Finance Corp., Supra, 395 U.S., at p. 339, 89 S.Ct. 1820; Fuentes v. Shevin, Supra, 401 U.S., at p. 379, 91 S.Ct. 780.)

It cannot be said that the statute before us serves such an important governmental or general public interest. As the Supreme Court noted in an analogous context in Fuentes, 407 U.S., at p. 92, 92 S.Ct., at p. 2000, 'no more than private gain is directly at stake.' And as this case well illustrates, summary seizure of a guest's property may deprive him of the sum of his possessions. Consequently, it may affect his ability to hold a job, making him a burden to family or friends, or perhaps even a public charge.

Practically speaking, it is difficult to perceive how this statute affords the innkeeper any real protection against the transient intent on absconding and defaulting on his bill. Rather, the statute falls hardest on people such as this plaintiff who work in the community and make their residence at a hotel or other like establishment. With respect to this class of persons at least, the extraordinary remedy of summary seizure is especially harsh, oppressive, and, it would seem unnecessary. Nor does this statute limit summary seizure to those extraordinary situations necessitating prompt action--e.g., to secure the creditor's interest in obtaining jurisdiction for purposes of bringing a nonpayment suit or in preventing the debtor from removing or concealing his property to prevent future execution on any judgment that might be obtained. (See Ownbey v. Morgan, 256 U.S. 94, 41 S.Ct. 433, 65 L.Ed. 837.) The fact is that the statutory scheme does not contemplate the bringing of a nonpayment suit, nor any judicial determination, per or post seizure, of the validity of the keeper's claim. ⁴ The statute sweeps broadly and, as a matter of course, permits the unchecked summary seizure of a guest's property without regard to the validity of the particular claim and without regard to whether the particular guest is likely to remove or conceal himself and his property if given notice and opportunity for a hearing. In resolving the conflicting interests and in light of the feasible alternatives, ⁵ we believe the guest's interest in possession and use of his property outweighs the innkeeper's interest in summarily seizing that property to secure the payment of charges. ⁶

Conditioning the innkeeper's lien with procedural due process safeguards will...