Oelbermann Associates Ltd. Partnership v. Borov

Decision Date15 November 1988
Citation141 Misc.2d 838,535 N.Y.S.2d 315
PartiesOELBERMANN ASSOCIATES LIMITED PARTNERSHIP, Petitioner, v. Abbe BOROV, Respondent.
CourtNew York City Court
OPINION

LEWIS R. FRIEDMAN, Judge.

In 1982 (L.1982, ch. 349), New York adopted Multiple Dwelling Law, Article 7-C ("the Loft Law") in a comprehensive effort to regulate and "legalize" the large numbers of lofts in commercial and manufacturing districts which had been illegally converted to residential use and did not comply with the Building Code, Multiple Dwelling Law, or statutes and rules governing minimum housing standards (MDL 280). The Loft Law brought order to the chaotic regime that governed lofts and, inter alia, regulated landlord-tenant relationships while premises were brought into compliance with code and zoning requirements (see, Cobra Resources Inc. v. Dumpl, Inc., 138 Misc.2d 91, 522 N.Y.S.2d 433; Loft Realty Co. v. Aky Hat Corp., 123 Misc.2d 440, 474 N.Y.S.2d 204). "[I]n a city of more than one million persons" (MDL 281[1]), "interim multiple dwellings" ("IMD's") (the legislative term for protected facilities) must be capable of complying with the local zoning law. That is, IMD's may only be buildings or portions of buildings located in areas "in which the local zoning resolution permits residential use as of right or by minor modification or administrative certification of a local planning agency" or "which may be converted to residential use pursuant to special permit granted by a local planning agency" (MDL 281[2] ).

Many residential lofts were denied IMD status because they were located in zoning areas where residential use was prohibited or because special permits had been denied. In 1987 the Legislature amended the Loft Law (L.1987, ch 466) in an effort to remedy that situation. Section 281[4], added to the Loft Law by that amendment, provides that buildings which were residentially occupied for a certain period do not have to comply with local zoning requirements, as otherwise required by MDL 281[2]. The issue presented by this case is whether chapter 466 was validly adopted by the Legislature, in light of the home rule provisions of the New York constitution.

The facts of the case

Petitioner is the owner of the loft building at 57-63 Greene Street in Manhattan. Respondent is a residential tenant of one of the second floor lofts. The building is registered as an IMD with the Loft Board, the agency created by the Loft Law to regulate the conversion process. Since the building is an IMD, petitioner is obligated to legalize the residential units by, inter alia, obtaining a Department of Buildings ("DOB") alteration permit and, ultimately, a residential certificate of occupancy in compliance with the Multiple Dwelling Law, Building Code and Zoning Resolution ("ZR") (see, MDL 280, 281[1], [2], 284[1]; Cobra Resources, Inc. v. Dumpl, Inc., supra, 138 Misc.2d 91, 522 N.Y.S.2d 433). The building is in an M1-5A zone, which permits residential use for "joint living-work quarters for artists" only if a special permit is issued by the City Planning Commission ("CPC") (ZR 74-782, 42-14D, 12-10). Petitioner's predecessor applied to the CPC for the special permit and to DOB for an alteration permit to authorize the legalization of the residential lofts. The CPC recommended the special permit for 13 of the 19 residential lofts in the building; respondent's loft was excluded. The Board of Estimate adopted that recommendation. The alteration application was revised to reflect the CPC determination; the Loft Board certified the revision, pursuant to Rule IV[B][7][a] of its Rules Relating to the Timing and Performance of Code Compliance Work in Interim Multiple Dwellings; and DOB has issued an alteration permit.

Respondent has been a residential tenant since 1976; his last lease expired on June 30, 1988. This holdover proceeding was brought by petitioner solely on the ground that respondent remained in possession beyond the expiration of his lease. Respondent moves to dismiss for failure to state a cause of action since he claims that he is a protected tenant under the Loft Law, as amended by chapter 466. Petitioner cross-moves for summary judgment 1 on the ground that there are not disputed issues of fact and that chapter 466 was enacted in violation of the state constitution.

The parties agree that there are no disputed issues of material fact; they differ only on the validity of chapter 466. Since respondent raises no procedural or factual issues in response to the summary judgment motion, petitioner is entitled to a judgment of possession unless respondent is "covered" by the Loft Law. The "coverage" of respondent's portion of the building terminated when the CPC denied the special permit (MDL 281[2]; Loft Board Rules and Regulations Relating to Determination of Interim Multiple Dwelling Status and Issues of Coverage under Article 7-C of the Multiple Dwelling Law, I[A][2], I[E][4][d] ). On the other hand, as a "covered" tenant he would not be subject to eviction solely because his lease had expired (MDL 286[2] ). Moreover, if respondent is "covered" by the Loft Law, the petition is facially defective (see Cobra Resources, Inc. v. Dumpl, Inc., supra, 138 Misc.2d 91, 522 N.Y.S.2d 433; Matter of Blackgold Realty Corp. v. Milne, 69 N.Y.2d 719, 512 N.Y.S.2d 25, 504 N.E.2d 392). However, under the undisputed facts respondent would qualify for "coverage" pursuant to the chapter 466 amendments. Thus, the only issue to be decided is whether chapter 466 was validly adopted.

The court notified the Attorney General in writing of the proceeding, pursuant to CPLR 1012, offering an opportunity for intervention. The Attorney General wrote to the court and declined to intervene on the ground of "lack of resources." He noted that the issue of the constitutionality of chapter 466 was presented in a declaratory judgment action, commenced in July 1988, pending in Supreme Court New York County (City of New York v. State of New York, Index No. 44141/88). The Attorney General's letter "suggested" that this court stay the proceeding to await the outcome of the declaratory judgment action. This court declines to follow that "suggestion". First, since the Attorney General chose not to intervene as a party, he has no standing to "suggest" a stay of the proceeding; the "suggestion" should not even be considered. Second, the parties before the court are entitled to an expeditious determination of their rights in this "summary proceeding". The court has been advised that as of the date of this opinion, the declaratory judgment action has proceeded no further than the service of the answer. Thus, no decision will be forthcoming in the foreseeable future. Third, the parties here have submitted thoughtful, comprehensive briefs on the statutory and constitutional issues presented and little would be gained by waiting. Finally, the other action also involves the constitutionality of portions of chapter 466 which are not involved here 2; chapter 466 contains a separability section.

Absence of a Home Rule Message

Petitioner contends that chapter 466 is a "special law" that affects the "property, affairs or government" of New York City. No "home-rule message" was adopted by the City of New York. Petitioner concludes that chapter 466 violates Article IX, section 2[b][2] of the Constitution.

The court starts its analysis with the oft repeated "presumption that an act of the Legislature is constitutional and this presumption can be upset only by proof persuasive beyond a reasonable doubt" (Hotel Dorset Co. v. Trust for Cultural Resources of City of New York, 46 N.Y.2d 358, 370, 413 N.Y.S.2d 357, 385 N.E.2d 1284; Montgomery v. Daniels, 38 N.Y.2d 41, 54, 378 N.Y.S.2d 1, 340 N.E.2d 444; Matter of Malpica-Orsini, 36 N.Y.2d 568, 570, 370 N.Y.S.2d 511, 331 N.E.2d 486). The court must also presume that the Legislature has made sufficient inquiry to find the facts necessary to support the legislation as well as the need or desirability for the action (I.L.F.Y. Co. v. Temporary State Housing Rent Commn., 10 N.Y.2d 263, 270, 219 N.Y.S.2d 249, 176 N.E.2d 822, appeal dismissed 369 U.S. 795, 82 S.Ct. 1155, 8 L.Ed.2d 285; Matter of Van Berkel v. Power, 16 N.Y.2d 37, 40, 261 N.Y.S.2d 876, 209 N.E.2d 539; Hotel Dorset Co. v. Trust for Cultural Resources of City of New York, supra, 46 N.Y.2d at 370, 413 N.Y.S.2d 357, 385 N.E.2d 1284). Those presumptions are not overcome here. The court cannot find "such a clear usurpation by the Legislature of prohibited power as must be found before a statute can be pronounced unconstitutional and void" (Matter of Ricker v. Village of Hempstead, 290 N.Y. 1, 5, 47 N.E.2d 417).

The threshold question is whether chapter 466 affects the "property, affairs or government" of the City. The phrase "property, affairs or government" has been part of the home rule article of the Constitution since 1894 (see NY Const. [1894], art. XII, 2) but was used even earlier. The principle emerging from the cases interpreting that phrase is that where, "to a substantial degree, in depth or extent, a matter of State concern is involved" the state may legislate even though local concerns are also touched upon (see, e.g., Wambat Realty Corp. v. State of New York, 41 N.Y.2d 490, 493-494, 393 N.Y.S.2d 949, 362 N.E.2d 581). "However, the words 'property, affairs or government' have a narrow significance" (County Securities, Inc. v. Seacord, 278 N.Y. 34, 38, 15 N.E.2d 179). As long as the subject matter was "of sufficient importance to the State, transcendent of local or parochial interests or concerns" state legislation has been held not to violate the home rule provisions of the constitution. (Wambat Realty Corp. v. State of New York, supra, at 494, ...

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2 cases
  • Prodell v. State
    • United States
    • United States State Supreme Court (New York)
    • June 29, 1995
    ...to find the facts necessary to support the legislation as well as the need or desirability of the action." Oelbermann Associates v. Borov, 141 Misc.2d 838, 842, 535 N.Y.S.2d 315 (citations It need not be said that the State has a legitimate interest in ensuring that similarly situated taxpa......
  • Baer v. Jarzombek
    • United States
    • New York City Court
    • January 17, 1992
    ...323 (1st Dep't), appeal dismissed, 78 N.Y.2d 951, 573 N.Y.S.2d 646, 578 N.E.2d 444 (1991); Oelbermann Assocs. Ltd. Partnership v. Borov, 141 Misc.2d 838, 535 N.Y.S.2d 315 (Civ.Ct., N.Y.Cnty.1988). The subject building was registered by Petitioners with the Loft Board as an interim multiple ......

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