Council for Owner Occupied Housing, Inc. v. Abrams

• Decision Date: 22 November 1988
• Citation: 72 N.Y.2d 553,534 N.Y.S.2d 906,531 N.E.2d 627
• Parties: , 531 N.E.2d 627, Blue Sky L. Rep. P 72,942 COUNCIL FOR OWNER OCCUPIED HOUSING, INC., et al., Respondents, v. Robert ABRAMS, as Attorney-General of the State of New York, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 906

534 N.Y.S.2d 906

72 N.Y.2d 553, 531 N.E.2d 627, Blue Sky L.

Rep. P 72,942

COUNCIL FOR OWNER OCCUPIED HOUSING, INC., et al., Respondents, v. Robert ABRAMS, as Attorney-General of the State of New York Appellant.

Court of Appeals of New York.

Nov. 22, 1988.

Robert Abrams, Atty. Gen. (Nancy Kramer, O. Peter Sherwood, Lawrence S. Kahn and Frederick K. Mehlman, of counsel), pro se.

Herbert Teitelbaum, Thomas P. Battistoni, Mona R. Millstein and Alan Epstein, New York City, for respondents.

Peter L. Zimroth, Corp. Counsel (Fay Leoussis and Francis F. Caputo, New York City, of counsel), for the City of New York, amicus curiae.

Richard L. Levenson and Michele Cortese, New York City, for Metropolitan

Council on Housing and another, amici curiae.

Stuart M. Saft and Eric B. Levine, New York City, for Council of New York Cooperatives, Inc., amicus curiae.

OPINION OF THE COURT

SIMONS, Judge.

This action challenges the authority of the Attorney-General under article 23-A of the General Business Law (the Martin Act), specifically his authority to promulgate and enforce 13 NYCRR 18.3(hh)(3) governing the conversion of rental buildings to cooperative status. The regulation requires sponsors to state in their offering plans "that prior to closing or within a reasonable period of time thereafter, sponsor will cause to be cured all violations of record as of the closing date (except violations caused by acts or omissions of tenants of the building in their own units), and will eliminate all dangerous or hazardous conditions that sponsor has notice of, and comply with all work orders from mortgagees" (13 NYCRR 18.3[hh][3] ).

Plaintiffs are the Council for Owner Occupied Housing, a not-for-profit corporation that comments upon rules, regulations and legislation affecting cooperative and condominium housing in New York, and three individual sponsors of cooperative housing. They instituted this action for declaratory judgment, successfully arguing in the courts below that the regulation exceeds the authority granted the Attorney-General by section 352-e of the General Business Law because it improperly purports to establish enforcement measures. We granted the Attorney-General leave to appeal and we now affirm, concluding that the regulation in question goes beyond the language and purpose of the statute.

Article 23-A of the General Business Law governs the offer and sale of securities in and from New York State. Section 352-e of the article authorizes the Attorney-General to require sponsors of real estate syndication offerings to file an offering plan prior to selling or offering for sale real estate securities, including cooperative interests in realty (see, General Business Law § 352-e[1][b]; [6] ). It provides that the offering plan must include the detailed terms of the transaction "and such additional information as the attorney general may prescribe in rules and regulations" promulgated under subdivision 6 "as will afford potential investors, purchasers and participants an adequate basis upon which to found their judgment" (General Business Law § 352-e[1][b] ). Subdivision 6(a) authorizes the Attorney-General to adopt suitable rules and regulations to carry out the provisions of the statute, including regulations concerning the method, contents and filing procedures with respect to statements required by the statute. If the offering plan filed is not adequate to satisfy the informational purpose, the Attorney-General may refuse to accept it, and thereby prevent the property from being sold or offered for sale (General Business Law § 352-e[2] ).

Notwithstanding these powers and our commitment to interpret the statute containing them liberally to achieve the remedial purpose intended (see, All Seasons Resorts v. Abrams, 68 N.Y.2d 81, 86-87, 506 N.Y.S.2d 10, 497 N.E.2d 33), section 352-e is not, in any sense, an omnibus enforcement statute (see, Matter of Badem Bldgs. v. Abrams, 70 N.Y.2d 45, 517 N.Y.S.2d 450, 510 N.E.2d 319). As its language and our decisions make clear, it is a disclosure statute, designed to protect the public from fraudulent exploitation in the sale of real estate securities. To that end, the required offering statement is intended to provide an adequate factual basis upon which "potential investors, purchasers and participants" can intelligently make their choice and "found their judgment" to buy or not to buy (see, id.; Matter of Whalen v. Lefkowitz, 36 N.Y.2d 75, 78, 365 N.Y.S.2d 150, 324 N.E.2d 536; Matter of Greenthal & Co. v. Lefkowitz, 32 N.Y.2d 457, 462, 346 N.Y.S.2d 234, 299 N.E.2d 657; Council for Owner Occupied Hous. v. Koch, 119 Misc.2d 241, 244-245, 462 N.Y.S.2d 762, affd 61 N.Y.2d 942, 479 N.Y.S.2d 279, 463 N.E.2d 620).

The present regulation goes far beyond that purpose, however, and requires not only the disclosure of all building and code violations, ^* "dangerous or hazardous conditions" and all work orders from mortgagees but also a representation that they will be cured. Nothing in the statute authorizes the Attorney-General to require repair of a building, correction of statutory violations, or elimination of undefined conditions he finds "dangerous or hazardous". The present regulation, by imposing such requirements, would, in effect, enable the Attorney-General to exercise extensive powers not only to enjoin sale of the real property (a power code enforcement officers do not generally possess) and prosecute code violations under the securities fraud provisions of the Martin Act for failure to state or misstating the intention to cure or eliminate building and code violations but also to preempt or interfere with the responsibilities of other regulatory agencies. There is nothing in the statutory scheme that...