Incorporated Village of Laurel Hollow v. Laverne Originals, Inc.

• Decision Date: 12 July 1965
• Citation: 24 A.D.2d 616,262 N.Y.S.2d 625
• Parties: INCORPORATED VILLAGE OF LAUREL HOLLOW, Respondent, v. LAVERNE ORIGINALS, INC., Estelle Laverne and Erwine Laverne, Appellants.
• Court: New York Supreme Court — Appellate Division

Page 625

262 N.Y.S.2d 625

24 A.D.2d 616

INCORPORATED VILLAGE OF LAUREL HOLLOW, Respondent, v. LAVERNE ORIGINALS, INC., Estelle Laverne and Erwine Laverne Appellants.

Supreme Court, Appellate Division, Second Department.

July 12, 1965.

Jacobson & Goldberg, Mineola, for appellant; Henry Mark Holzer, New York City, of counsel.

Thomas C. Platt, Jr., Village Atty., Mineola, for respondent; Seymour S. Ross, Mineola, of counsel.

Before BELDOCK, P. J., and BRENNAN, HILL, RABIN and BENJAMIN, JJ.

MEMORANDUM BY THE COURT.

In proceedings to punish the defendants for contempt of court for violating an injunction theretofore obtained by the plaintiff, enjoining the defendants' violation of its building zone ordinance (Incorporated Village of Laurel Hollow v. Laverne Originals, 283 App.Div. 795, 128 N.Y.S.2d 226, affd. 307 N.Y. 784, 121 N.E.2d 618), the defendants appeal from two orders of the Supreme Court, Nassau County, as follows:

(1) An order entered December 27, 1962, which granted the plaintiff's motion to punish defendants for contempt of said court; adjudged that they were in contempt of court for disobeying said permanent injunction; fined them $250 to be paid to the plaintiff within thirty days after the entry of the order, with leave to purge themselves of contempt by making such payment; and directed that, if the fine were not paid, the individual defendants were to be arrested and committed until the fine was paid or they were otherwise discharged by law; and

(2) An order dated April 19, 1963, which granted plaintiff's second motion to punish defendants for contempt; adjudged that they were in contempt of court for disobeying said permanent injunction; fined them $250 to be paid to the plaintiff; directed that they pay the additional sum of $300 to the plaintiff for its legal fees and disbursements, all to be paid to the plaintiff within thirty days after the entry of the order, with leave to purge themselves of contempt by making such payments; and directed that, if the fine and legal expenses were not paid, the individual defendants were to be arrested and committed until the fine and legal expenses were paid or they were otherwise discharged by law.

Orders reversed without costs; and motions denied without costs.

The plaintiff's building zone ordinance provides that it is the duty of the Building Inspector to enforce the provisions of said ordinance and authorizes him, in the discharge of his duties, 'to enter any building or premises at any reasonable hour' (Art. X, § 10.1). Section 10.2 of Article X provides that: (a) a person, who violates or causes a provision of the ordinance to be violated, shall thereby be guilty of disorderly conduct, and shall be deemed to be a disorderly person and, on conviction, shall be subject to a fine of not more than $100 for each violation; (b) if any such person fails to abate any such violation within five calendar days after written notice has been personally served or within ten days after notice by registered mail, 'said person shall be subject to a civil penalty' of $100 'for each and every day that said violation continues, recoverable by suit brought by the Village'; (c) 'The imposition of the penalties herein prescribed shall not preclude the Village Attorney from instituting any appropriate action or proceeding to prevent the unlawful * * * maintenance or use, or to restrain, correct or abate a violation, or to prevent an illegal act, conduct, business or use in or about the premises'; and (d) 'No oversight or dereliction of duty on the part of the Building Inspector or his representative shall legalize the erecting, construction, alteration, removal, use or occupancy of a building or structure that does not conform to the provisions of this ordinance or the State Building Construction Code.'

The defendant's building was inspected in 1962 and 1963 by the Building Inspector and by other officials for evidence as to violation of the injunction and the ordinance. Upon the basis of the inspections and searches by the Building Inspector, the plaintiff made the two motions herein to punish the defendants for contempt. In our opinion, if the defendants' contentions as to an unlawful entry, unlawful search and unlawful evidence are invalid, Special Term did not err in granting the motions to punish the defendants for contempt of court for violating the injunction.

However, it appears that, on the basis of the said searches in 1962, the plaintiff also instituted criminal actions against the defendant Erwine Laverne for violations of the ordinance. The criminal actions resulted in convictions, but on June 10, 1964 the Court of Appeals reversed the convictions and dismissed the informations on the ground that the convictions were the result of an unlawful search; i. e., the previsions of the ordinance which purported to sanction entry into private premises by the Building Inspector, a Village offical, without the consent of the occupant, and, indeed, against his resistance,...