Massagli v. Bastys
| Decision Date | 15 August 1988 |
| Citation | 532 N.Y.S.2d 638,141 Misc.2d 357 |
| Parties | Raymond MASSAGLI and Alba Massagli, Plaintiffs, v. Jonas BASTYS and Baltic Estates, Inc. and Town of Cortland, Defendants. |
| Court | New York Supreme Court |
Gerald A. Norlander (Gary W. Bieber, of counsel), White Plains, for plaintiffs.
Drager & Steiner, P.C., Peekskill, for defendants Bastys and Baltic.
Thomas F. Wood, Asst. Town Atty., Buchanan, for defendant Town of Cortland.
In an action for a declaratory judgment, a permanent injunction and specific performance, plaintiffs move for summary judgment and defendants cross-move for summary judgment.
Plaintiffs Raymond Massagli and Alba Massagli, husband and wife, ages 66 and 62, respectively, reside together at the Amberlands Apartment Complex (hereinafter Amberlands) in the Town of Cortland. Plaintiff Raymond Massagli also allegedly suffers from numerous health problems and is allegedly disabled and unable to work. Amberlands is owned by defendant Baltic Estates, Inc. (hereinafter Baltic) whose president is defendant Jonas Bastys.
The Massaglis entered into a lease with Baltic on July 25, 1978 for a term of two years commencing September 1, 1978 and ending August 31, 1980. Extensions of the lease were given through August 31, 1984.
On June 2, 1984, the Massaglis were sent a letter of non-renewal. The stated reason for non-renewal was plaintiffs' record of non-payment of taxes due. A one year extension of the Massaglis' lease was negotiated, said lease term to expire on August 31, 1985.
Baltic sent the Massaglis a notice of termination dated April 26, 1985 advising that the lease would not be renewed at its expiration on August 31, 1985. By a notice of petition and petition dated November 15, 1985, Baltic commenced a summary proceeding in the Town Court, Town of Cortland, to recover possession of the subject leased property.
By order of this Court entered February 3, 1986, plaintiffs were granted a preliminary injunction staying defendants and their agents from pursuing or taking any further action regarding the summary proceeding pending further order of this Court.
By order of this Court entered December 16, 1987, plaintiffs were directed to join the Town of Cortland as a necessary party defendant to this action.
Plaintiffs contend that pursuant to the terms of a contract set forth as a Memorandum of Understanding (hereinafter Memorandum) effective August 19, 1980, between the Town Board of the Town of Cortland and defendant Bastys and another landlord, defendants are bound to renew plaintiffs' lease unless plaintiffs failed to pay rent, damaged the property or participated in clearly objectionable behavior. Plaintiffs contend that they are third-party beneficiaries of that Memorandum and that inasmuch as defendants have set forth no reasons for refusing to renew their lease on the petition commencing the summary proceeding, they are entitled to a new lease or lease renewal.
Defendants deny that the Memorandum is a contract, contending that it is unenforceable and that plaintiffs therefore cannot be third party beneficiaries of that document and are not entitled to a lease renewal.
The history of the Memorandum, as recited therein, is essentially as follows:
1. The Town Board of the Town of Cortland was petitioned in March of 1980 by the Cortland Tenant's Committee to adopt the State Law known as the Emergency Tenant Protection Act of 1974 (L.1974, ch. 576, § 4) (hereinafter "ETPA").
2. The Supervisor of the Town of Cortland in response to the above-cited petition appointed a Tenant-Landlord Advisory Committee.
3. Said Committee met on numerous occasions and further met with the two major Landlords of the Town of Cortland, "Mitchell Berensen, owner of Springvale Apartments and Jonas Bastys, owner of Amberland Apartments".
4. Said Committee submitted a written report which was accepted by the Town Board in the form of Resolution No. 245-80, dated August 19, 1980.
5. The report resulted in the subject Memorandum.
Relevant paragraphs of the Memorandum are as follows:
The Memorandum was extended on February 26, 1985.
The Court finds that there are no material, triable issues of fact.
Initially, the parties dispute whether defendant Town had the power to enter into the Memorandum with the other defendants.
Towns and villages, as creatures of the State, may exercise only those powers specifically delegated to them by the State ( see, Wells v. Town of Salina, 119 NY 280, 23 N.E. 870 [1890] ). However, although a municipality cannot govern beyond the scope of the power the State has granted it, this power may be conferred expressly or by necessary implication ( see, Bee Line, Inc. v. Nickerson, 60 Misc.2d 931, 939, 303 N.Y.S.2d 950 [Sup.Ct., Nassau Co. 1969] ). Article 9, section 2(c), paragraph 10 of the New York State Constitution grants power to the local governments to provide for order, conduct, safety, health and well-being of persons or property therein. In 1963 the New York State Constitution was amended to provide that "[r]ights, powers, privileges and immunities granted to local governments by this article shall be liberally construed" (McKinney's Const. Art. 9, § 3, par. [c] ).
A general grant of power is derived from the Town Law § 64, par. 23 which grants towns all powers conferred upon the town and such additional powers as shall be necessarily implied therefrom. "It is well settled that a village or town is not restricted to the exercise of its specifically granted powers but possesses also such powers 'as are necessarily incident to, or may be implied from those powers, including all that are essential to the * * * object of its existence' " ( New York Trap Rock Corp. v. Town of Clarkstown, 299 N.Y. 77, 86, 85 N.E.2d 873 [1949] ). The power to contract may be implied where the Town of Cortland has recognized the scarcity of adequate housing at affordable prices and has taken this step to promote the public welfare.
The town is given the express authority to award and execute town contracts (McKinney's Town Law § 64, par. 6). This section empowers towns to award contracts and execute same by the town supervisor. It has long been recognized that towns as corporations may make such contracts as may be necessary to the exercise of their corporate or administrative powers (see, Lorillard v. Town of Monroe, 11 N.Y. 392 [1854] ).
Section 130 of the Town Law states in pertinent part: "The town board after a public hearing may enact, amend and repeal ordinances, rules and regulations not inconsistent with law, for the following purposes in addition to such other purposes as may be contemplated by the provisions of this chapter or other laws."
Section 130, par. 15 of the Town Law provides that among these purposes is the promotion of general welfare, "(p)romoting the health, safety, morals or general welfare of the community, including the protection and preservation of the property of the town and its inhabitants, and of peace and good order, the benefit of trade and all other matters related thereto, insofar as the same shall not be inconsistent with existing law."
In the instant case, the town adopted resolution No. 245-80 which recites that the Supervisor appointed a Landlord/Tenant Advisory Committee to deal with rental housing problems in Cortland. The Committee submitted recommendations which were adopted by the resolution "that the Town Attorney be hereby authorized to prepare a 'Memorandum of Understanding' pertaining thereto, and the Supervisor is hereby authorized to sign said memorandum on behalf of the Town."
The Court finds that the Town had the power to enter into the subject Memorandum.
The next issue to be addressed is whether the Memorandum is preempted by the ETPA.
Article 9, section 2, paragraph c of the New York State Constitution prohibits a municipality from enacting legislation which is inconsistent with state legislation. A municipality is pre-empted from enacting legislation where the State's legislation demonstrates a purpose to occupy the field ( see, Robin v. Incorporated Vil. of Hempstead, 30 N.Y.2d 347, 350-351, 334 N.Y.S.2d 129, 285 N.E.2d 285 [1972]; Builders' Council of Suburban N.Y. v. City of Yonkers, 106 Misc.2d 700, 701, 434 N.Y.S.2d 566 [Sup.Ct., West.Co.1979], affd. 79 A.D.2d 696, 434 N.Y.S.2d 450 [2nd Dept.1980] ). "The intent to preempt may be deduced from an elaborate statutory scheme or from general state policy" ( Matter of Marcus v. Baron, 84 A.D.2d 118, 124-125, 445 N.Y.S.2d 587 [2nd Dept.1981], revd on other grounds, 57 N.Y.2d 862, 456 N.Y.S.2d 39, 442 N.E.2d 437 [1982] ).
Although the ETPA is elaborate, as conceded by plaintiffs, it is also voluntary. It is only if the legislative body of the City of New York or any city, town or village of Nassau, Westchester or Rockland County declares an emergency and adopts the ETPA will its provisions be effective within that local municipality (ETPA §§ 3, 14...
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