City of New York v. Benenson

• Court: New York City Court
• Writing for the Court: HAROLD BAER
• Citation: City of New York v. Benenson, 41 Misc.2d 20, 244 N.Y.S.2d 653 (N.Y. City Ct. 1963)
• Decision Date: 04 December 1963
• Parties: The CITY OF NEW YORK, Plaintiff, v. Charles B. BENENSON, Frederick P. Rose, Lawrence Tisch and Julian Roth, conducting business under the name of Eleven-Eighty Company, 529 Fifth Avenue, New York, Defendants.

Page 653

244 N.Y.S.2d 653

41 Misc.2d 20

The CITY OF NEW YORK, Plaintiff, v. Charles B. BENENSON, Frederick P. Rose, Lawrence Tisch and Julian Roth, conducting business under the name of Eleven-Eighty Company, 529 Fifth Avenue New York, Defendants.

Civil Court of the City of New York, New York County, Trial Term, Part XII.

Dec. 4, 1963.

Leo A. Larkin, Corp. Counsel, Joseph A. Esquirol, Jr., New York City, of counsel, for plaintiff.

Bernard Trencher, New York City, for defendants.

HAROLD BAER, Judge.

This is an action to recover a penalty under Section 82d7 -10.0 ^* of the Administrative Code of the City of New York. Two actions against the same defendants have been consolidated, seeking $1,100.00 in penalties for eleven alleged violations of the code. The defendants owned the property under construction on the north east corner of 46th Street and the Avenue of the Americas, and known as 1180 Avenue of the Americas.

Admittedly, defendants obtained two permits from the office of the President of the Borough of Manhattan. One permit was for the use of the roadway for building materials which permitted an area of eight feet from the north curb of 46th Street for the storage of such materials (Plaintiff's Exhibit 1), and one permit was for the use of equipment, a crane, which permitted a maximum extension into the roadway from the north curb of 46th Street of eleven feet four inches. (See permit and sketch, Plaintiff's Exhibit 2).

The defendants by obtaining the permits aforesaid, complied with that portion of Subdivision 'a' of Section 82d7-10.0 of the Administrative Code of the City of New York requiring permits for obstructing the streets of the city. They also paid the necessary deposits and upon completion received the return of said deposits, thereby complying with Subdivision 'c' of the same section. Subdivisions 'd' and 'e' have no applicability to the issue before the court. The remainder of the section is applicable, and these subdivisions follow:

'b. Conditions. Such permits shall provide expressly that they are given upon condition that the sidewalks and gutters shall at all times be kept clear and unobstructed, and that all dirt and rubbish shall be promptly removed from time to time by the person obtaining such permit. All such permits may be revoked by the borough president at pleasure. * * *

'f. Violations. a. Any person who shall violate any provision of this section, upon conviction thereof, shall be punished by a fine of not less than ten dollars nor more than one hundred dollars for each and every day that the violation exists, or by imprisonment for ten days for each and every day that the violation exists, or by both such fine and imprisonment.

'b. In addition, any person who violates the provisions of this section shall be subject to a civil penalty in the sum of one hundred dollars for each and every day the violation exists.'

The testimony of the police officers confirms that during the first three months of 1962, eleven summonses were issued for eleven separate alleged violations. Four were for exceeding the limits of the crane permit (Exhibit 2), the equipment allegedly extending twenty feet south of the north curb of 46th Street. Seven were for violating the terms of the roadway obstruction permit (Exhibit 1), by storing building materials twenty feet south of the north curb, twelve feet in excess of the allowable eight feet, and in several instances blocking the pedestrian passage on the sidewalk (Subd. b, Sec. 82d7-10.0, Administrative Code of the City of New York); also see the provisions on the back of the permit (Exhibit 1).

Although the plaintiff seeks to recover a penalty, this is basically a civil action. There is no rule of law which requires the plaintiff in a civil action to prove its case with the same certainty which is required in criminal prosecutions. Nothing more is required in such cases than to prove its case by a fair preponderance of the credible evidence (People v. Briggs et al., 114 N.Y. 56, 65, 20 N.E. 820, 823).

The defendants contend that the complaint should be dismissed for a variety of reasons. That the testimony of the police officers did not prove that the persons served by them for violating the permits were employees of the defendant company, and that only the one violating the statute can be subject to a penalty; that the Code, Subdivision 'f' of the section involved specifically states that punishment and penalty shall be for 'each and every day that the violation exists', and the proof fails to show that any violation existed for a full day; that the penalty may only be exacted where there was no permit obtained; and generally, strict construction of penalty statutes preclude recovery in this instance.

Section 82d7 -10.0 was amended on November 7, 1960 by Local Law No. 74. At that time a change was made only in Subdivision 'f' by increasing the amount of the fine ('f, par. a') and by ('f, par. b'), adding 'In addition, any person who violates the provisions of this section shall be subject to a civil penalty in the sum of one hundred dollars for each and every day the violation exists.'

There are no cases on the question here involved, and the amended law has never been interpreted. The legislative background reflects the legislative intent to keep the streets and roadways free of any encumbrance to pedestrian and vehicular traffic. The heading of the Local Law is: 'to amend the Administrative Code of the City of New York, in relation to increasing punishments for unlawful encumbrances in streets'.

Under this amendment to the code, violations were not only punishable by fine and imprisonment, but were made subject to civil penalty. When the police officers issued a summons, it was served upon the individual who violated the code and it was made returnable in the Magistrates' Court (now Criminal Court). On every summons the name of the 'contractor-owner-employer' was given as 1180 Co., or 1180 Corp. This was the company that obtained...