Kaplen v. Town of Haverstraw

• Decision Date: 20 January 1987
• Citation: 511 N.Y.S.2d 44,126 A.D.2d 606
• Parties: Wilson KAPLEN, d/b/a Mountainside Apartments, Plaintiff, Gould Palisades Company, Appellant, v. The TOWN OF HAVERSTRAW, et al., Defendants-Respondents, Stephen M. Fromson, et al., Intervenors-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 44

511 N.Y.S.2d 44

126 A.D.2d 606

Wilson KAPLEN, d/b/a Mountainside Apartments, Plaintiff Gould Palisades Company, Appellant, v. The TOWN OF HAVERSTRAW, et al., Defendants-Respondents Stephen M. Fromson, et al., Intervenors-Respondents.

Supreme Court, Appellate Division Second Department.

Jan. 20, 1987.

Dubbs & DePodwin, Spring Valley (Seymour Dubbs, of counsel), for appellant.

Edward Chazin, New York City, for defendant-respondent Div. of Housing and Community Renewal.

Arthur Moskoff, Garnerville, for defendant-respondent Town of Haverstraw.

Greenberg & Wanderman, Spring Valley (Stephen M. Fromson, pro se, of counsel), for intervenors-respondents.

Before MANGANO, J.P., and NIEHOFF, LAWRENCE and KUNZEMAN, JJ.

MEMORANDUM BY THE COURT.

In an action, inter alia, for a judgment declaring null and void a resolution of the Town Board of the Town of Haverstraw, effective September 12, 1983, that a rental emergency exists as to apartment complexes containing 120 or more dwelling units and that such complexes are subject to regulations pursuant to the Emergency Tenant Protection Act of 1974, the plaintiff Gould Palisades Company appeals from an order of the Supreme Court, Rockland County (Gurahian, J.), dated October 24, 1985, that granted the motion by the defendant Town of Haverstraw and the cross motion by the other defendants for summary judgment in their favor, and dismissed the complaint.

ORDERED that the order is modified, on the law, by adding a provision that the resolution of the Town of Haverstraw, effective September 12, 1983, is valid. As so modified, the order is affirmed, with one bill of costs to the defendant Division of Housing and Community Renewal, the defendant Town of Haverstraw, and the intervenors-respondents appearing separately and filing separate briefs.

On appeal, the plaintiff Gould Palisades Company contends that the September 12, 1983 resolution adopting the Emergency Tenant Protection Act (hereinafter ETPA) with regard to apartment complexes containing 120 or more dwelling units (which resolution was later corrected to regulate apartment complexes containing 100 or more dwelling units) is invalid, because the town was required to survey all housing within its borders before declaring a housing emergency with respect to apartment complexes containing at least 120 dwelling units, and because the adoption of the ETPA with respect to apartment complexes containing 120 units or more, was arbitrary and capricious.

We reject the plaintiff's claims. "A declaration of emergency may be made as to any class of housing accommodations if the vacancy rate for the housing accommodations in such class within such municipality is not in excess of five percent" (McKinney's Uncons Laws of N.Y. § 8623[a]; emphasis added). Under that provision which clearly indicates that a declaration of an emergency can be made as to a certain class of housing accommodations if the vacancy rate in that class is less than 5%, there is no requirement that the...