Builders' Council of Suburban New York, Inc. v. City of Yonkers

• Decision Date: 19 January 1979
• Parties: BUILDERS' COUNCIL OF SUBURBAN NEW YORK, INC., Stanley Cohen, d/b/a Marco Management Co., D.H.I. Enterprises, Inc., Absyl Realty Corp., Arditi Realty Corp. and Ennio Amicucci, Plaintiffs, v. The CITY OF YONKERS, New York and the Yonkers Multiple Dwelling Emergency Commission, Defendants.
• Court: New York Supreme Court

Page 566

434 N.Y.S.2d 566

106 Misc.2d 700

BUILDERS' COUNCIL OF SUBURBAN NEW YORK, INC., Stanley Cohen d/b/a Marco Management Co., D.H.I. Enterprises Inc., Absyl Realty Corp., Arditi Realty Corp. and Ennio Amicucci, Plaintiffs, v. The CITY OF YONKERS, New York and the Yonkers Multiple Dwelling Emergency Commission, Defendants.

Supreme Court, Westchester County.

Jan. 19, 1979.

Taylor & McCullough, Harrison, for plaintiffs.

Eugene J. Fox, Yonkers, for defendants.

ANTHONY J. FERRARO, Justice.

Defendants make a motion for summary judgment pursuant to C.P.L.R. 3212 contending that Plaintiffs' claim has no merit.

Plaintiffs make a cross-motion for summary judgment on the ground that there is no defense to the action.

The action is for a declaratory judgment declaring Local Law 3-1978, adopted by Defendant city, unconstitutional, unreasonable, ineffective and void.

Plaintiffs are a trade association of landlords and individual landlords owning apartment houses in Yonkers. Defendant City of Yonkers passed Local Law 3-1978 in March of 1978. The ordinance creates a multiple dwelling commission empowered to collect money from multiple dwelling owners and to hold that money in case an emergency condition arises in the future. If an emergency situation develops in the opinion of the commission, it is empowered to use the owner's money to make the repairs. All owners are required to deposit a half of month's rent for each apartment unit up to a maximum of $5,000.00 per building. The commission determines the amount due and notifies the owner who must then pay the amount within ten (10) days. If payment is not made, the Corporation Counsel is required to apply to the City Court for the appointment of a receiver of rents. The commission may spend the landlord's money when (1) it has declared an emergency condition to exist (2) it has determined that remedying the condition is the landlord's responsibility (3) it has found that the landlord has been notified and (4) no work has been commenced immediately after notice to correct the condition. If the owner undertakes the repairs and they are not completed with 72 hours, the commission can use the money to make the repairs if the Health officer of the Building Inspector finds that the work could have been done within that time. An owner may only appeal on the issue of whether an emergency condition existed and the amount expended was responsible. The appeal must be taken to the Mayor and City Council. The Mayor is also the Chairman of the Commission. A violation of the law carries a fine of $250 for each day a violation occurs. No notice or hearing is provided prior to imposition of the fine and no right of appeal is granted.

Article 9 § 2(c) of the New York State Constitution prohibits a municipality from enacting legislation which is inconsistent with State legislation. Article 7-A of the Real Property Actions and Proceedings Law provides for a special proceeding by tenants of multiple dwellings directing the deposit of rents into court to be used to remedy "conditions dangerous to life, health or safety." This law is directed at the same subject in the same area. A local municipality is preempted from enacting legislation where the State's legislation demonstrates a purpose to "occupy the field." Robin v. Incorporated Village of Hempstead, 30 N.Y.2d 347, 334 N.Y.S.2d 129, 285 N.E.2d 285. Some provisions of the local law differ from the State enactment. A local ordinance may not permit what a state law prohibits nor prohibit what a state law permits. Wholesale Laundry Board of Trade v. City of New York, 17 A.D.2d 327, 234 N.Y.S.2d 862, aff'd. 12 N.Y.2d 998, 239 N.Y.S.2d 128, 189 N.E.2d 623. The State law seeks to achieve the same result as the local law. The theory of compelling the...