Loventhal v. City of Mount Vernon

• Decision Date: 02 February 1976
• Citation: 51 A.D.2d 732,379 N.Y.S.2d 130
• Parties: Daniel LOVENTHAL et al., d/b/a Loventhal Management Co., Appellants, v. The CITY OF MOUNT VERNON et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 130

379 N.Y.S.2d 130

51 A.D.2d 732

Daniel LOVENTHAL et al., d/b/a Loventhal Management Co., Appellants, v. The CITY OF MOUNT VERNON et al., Respondents.

Supreme Court, Appellate Division, Second Department.

Feb. 2, 1976.

Myron Marcus, White Plains (Stephen J. Lehrman, White Plains, of counsel), for appellants.

Arthur H. Ellis, Corp. Counsel, Mount Vernon (Paul S. Richmond, Mount Vernon, of counsel), for respondents.

Before LATHAM, Acting P.J., and MARGETT, CHRIST, SHAPIRO and TITONE, JJ.

MEMORANDUM BY THE COURT.

In an action Inter alia for a declaration that a certain ordinance of the City of Mount Vernon is invalid, plaintiffs appeal from an order-judgment of the Supreme Court, Westchester County, dated July 22, 1975, which (1) declared the said ordinance valid, (2) denied plaintiffs' motion for summary judgment and (3) dismissed the complaint.

Order-judgment affirmed, with $50 costs and disbursements.

The subject ordinance is a valid exercise of the city's police power (see Nettleton Co. v. Diamond, 27 N.Y.2d 182, 315 N.Y.S.2d 625, 264 N.E.2d 118, app. dsmd. 401 U.S. 969, 91 S.Ct. 1201, 28 L.Ed.2d 319). Plaintiffs' reliance on People v. Spitz, 77 Misc.2d 581, 356 N.Y.S.2d 480; revg. People v. Shy, 70 Misc.2d 92, 332 N.Y.S.2d 561, and Matter of Di Pasquale v. Haskins, 25 A.D.2d 490, 266 N.Y.S.2d 955 is misplaced; both of those cases involved revocation of a certificate of occupancy. To the extent that Sokolov v. Incorporated Vil. of Freeport, 82 Misc.2d 1087, 372 N.Y.S.2d 304, equated 'rental permits' for individual dwelling units with certificates of occupancy, we decline to follow its holding.

The ordinance does not have the effect of coercing plaintiffs into consenting to warrantless inspections in derogation of their constitutional rights (cf. Camara v. Municipal Ct. of City & County of San Francisco, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930). They are not required to submit to any search and the proposed inspections are not unreasonably intrusive (see Wyman v. James, 400 U.S. 309, 91 S.Ct. 381, 27 L.Ed.2d 408; Harkey v. deWetter, 443 F.2d 828, cert. den. 404 U.S. 858, 92 S.Ct. 109, 30 L.Ed.2d 100).

While no specific time limits are set forth in the ordinance, inspections are to be 'immediate'; the prohibition against reletting shall not apply if the required inspections are not conducted within two business days after notice of a vacancy is given to the Department of Buildings.