Bryant Westchester Realty Corp. v. Board of Health of City of New York

• Decision Date: 15 July 1977
• Citation: 397 N.Y.S.2d 322,91 Misc.2d 56
• Parties: BRYANT WESTCHESTER REALTY CORP., Plaintiff, v. The BOARD OF HEALTH OF the CITY OF NEW YORK, City of New York, Pascal J. Imperato, James L. Curtis, Bernard H. Perlman, Margarite C. Holmes and Benjamin Z. Kreitman, Defendants.
• Court: New York Supreme Court

Page 322

397 N.Y.S.2d 322

91 Misc.2d 56

BRYANT WESTCHESTER REALTY CORP., Plaintiff, v. The BOARD OF HEALTH OF the CITY OF NEW YORK, City of New York, Pascal J. Imperato, James L. Curtis, Bernard H. Perlman, Margarite C. Holmes and Benjamin Z. Kreitman, Defendants.

Supreme Court, Special Term, New York County, Part I.

July 15, 1977.

Rosenberg & Cohen, P. C., New York City by Gary M. Rosenberg and Michael J. Siris, New York City, of counsel, for plaintiff.

W. Bernard Richland, Corp. Counsel, New York City by Gabriel Taussig, New York City, of counsel, for defendants.

ARNOLD L. FEIN, Justice:

Plaintiff landlord moves for a preliminary injunction restraining defendant from enforcing Section 131.15 of the New York City Health Code on the ground that it is unconstitutional, at least as applied to plaintiff. Defendant cross-moves for an order dismissing the complaint pursuant to CPLR 3211 or alternatively for summary judgment pursuant to CPLR 3212 granting a declaratory judgment declaring the constitutionality of the section.

Section 131.15 requires the installation of window guards in apartments where children under the age of ten reside, and in the hallway windows of such buildings. The installations are required in order to prevent children of tender years from falling out of the windows. The section sets forth a detailed procedure to be used by the landlord to determine which apartments require gates, and a three-phase plan of implementation. The plaintiff is in the first phase. Section 131.17 of the Health Code provides a mechanism whereby those who find difficulty in complying with the provision of Section 131.15 may seek a modification of its requirements from the Commissioner of Health. Section 5.21 of the Health Code provides for further appeal to the Board of Health. Plaintiff has not sought relief under either of these administrative remedies.

Plaintiff challenges constitutionality upon the grounds that (1) compliance would be a confiscatory financial burden; and (2) there is no rational relationship between the installation of window guards and the prevention of window falls. Plaintiff also alleges that the section violates the rent control provisions of Chapters 371 and 1012 of the Laws of 1971, which prohibit a municipality from adopting any regulation affecting rent control housing more stringent than those in effect prior to June 30, 1971, without first obtaining the approval of the State Division of Housing.

In seeking a preliminary injunction, the movant must persuade the court that it has a clear legal right to the relief sought upon undisputed facts and that it will suffer irreparable injury should the application be denied (Albini v. Solork Assoc., 37 A.D.2d 835, 326 N.Y.S.2d 150; DeCandido v. Young Stars, 10 A.D.2d 922, 200 N.Y.S.2d 695). The burden of persuasion is even heavier when what is sought is a determination that a law, ordinance or regulation is unconstitutional (Van Berkel v. Power, 16 N.Y.2d 37, 40, 261 N.Y.S.2d 876, 878, 209 N.E.2d 539, 540). It is well settled that the loss by a party of monetary benefits does not, in and of itself, constitute irreparable injury, warranting a temporary injunction (DeLury v. City of New York, 48 A.D.2d 595, 378 N.Y.S.2d 49).

The essence of plaintiff's complaint is that it cannot afford the cost of making the requisite installations. Economic injury is the only damage alleged. This is not a ground for an injunction.

On this basis alone, plaintiff has not made a sufficient showing to obtain a temporary injunction. Plaintiff has not demonstrated that it has a clear legal right to the relief sought.

Plaintiff contends that the Code provision is irrational on its face and is based upon an arbitrary and limited study and investigation, and is accordingly unconstitutional. The papers submitted reveal that Section 131.15 was adopted in part upon the results of a Department of Health program and study entitled, "Children Can't Fly". The findings were that the installation of window guards prevented injuries from falls. Public hearings were held in compliance with law, in connection with the adoption of the Code provision. (See Matter of Sorbonne Apts. Co. v. Board of Health, 88 Misc.2d 970, 390 N.Y.S.2d 358, sustaining the section's validity.) Other views were presented and considered. On the basis...