People v. Halpern
| Decision Date | 20 November 1974 |
| Citation | 79 Misc.2d 790,361 N.Y.S.2d 578 |
| Parties | PEOPLE of the State of New York v. Jerome HALPERN and Lillian Udelefsky, Defendants. PEOPLE of the State of New York v. Lillian UDELEFSKY, Defendant. |
| Court | New York City Court |
The above defendants, represented by the same attorney, have initiated an Omnibus Motion to dismiss the respective informations contained in: (1) Docket No. 893/72 against Jerome Halpern and Lillian Udelefsky jointly, alleging a violation on July 12, 1972, of Chapter 10, Article 8, Section 10--814.3(3) of the Municipal Code of the City of Long Beach (promulgated by Ordinance No. 1038/71 as amended by Ordinance No. 1132/72); and (2) Docket No. 1339/73 against Lillian Udelefsky, alleging a violation on July 16, 1973, of Chapter 10, Article 8, Section 10--810.1 (promulgated by Ordinance No. 1140/72).
On July 12, 1972, Section 10--814.3(3), provided
'Every non-fireproof building used in whole or in part as a hotel or rooming house, irrespective of when such building may have been constructed or altered, shall not later than October 1, 1971, be provided, by the owner, with an automatic sprinkler system throughout the entire structure.'
Section 10--810.1(b)(3) is a renumbered amendment of Section 10--814.3(3).
The charges in each case referred to above are similar in nature alleging that the respective defendants, as owners of a rooming house, failed to provide an automatic sprinkler system throughout the subject premises consonant with the requirements of law.
The defendants, their attorney, and the Assistant Corporation Counsel have stipulated to the facts as follows: that on July 12, 1972, and July 16, 1973, the dates of alleged violation, defendants Halpern and Udelefsky owned a multiple dwelling located at 416 W. Penn Street, Long Beach, New York (having purchased the same in 1947); that there was a sprinkler system in the common hallways of said premises but absent in those rooms and areas that are alleged in the respective informations; that the building was three stories in height and contained approximately 16 separate rooms, the majority of which had independent living and sanitary and sleeping facilities for separate occupancy, and was so used since prior to 1957; that the structure was a non-fireproof building constructed prior to 1930. The facts also reveal the approximate sums spent for alterations and repairs over the years.
The basis of the motion to dismiss is twofold:
Firstly, that the local City Ordinances defendants are charged under violate Section 386 of the Executive Law of the State of New York, which precludes a municipality, that has adopted the New York State Building Construction Code (hereinafter referred to as Code), from enacting an ordinance with provisions more restrictive than contained in said Code.
Such contention would be correct, assuming the sprinkler system requirements of the ordinance were more restrictive than the Code, provided the latter were applicable directly to the subject property. However, it was not.
Although the Code was adopted by the City of Long Beach on August 6, 1957, neither the 'Multiple Dwellings' nor the 'General Building Construction' provisions thereof applied to the property here involved on the days of the alleged violation.
That conclusion is based upon the following analysis: The agreed facts indicate that on the dates in question, the property was a multiple dwelling within the definitions of B 108--3 of the Code. However, Section B 105--2.1 thereof excludes from coverage any such building occupied as a multiple dwelling at the time of the Code's adoption, where costs of alterations or repairs subsequently made, within any 12 month period, do not exceed 50% Of replacement cost of the building at the beginning of that 12 month period.
In the case at Bar, the facts show the property has been used as a rooming house since prior to 1957, when the Code was adopted; and that subsequent alterations and repairs did not exceed the formula referred to above. Thus, the 'Multiple Dwellings' provisions of the Code do not govern.
Nor are the 'General Building Construction' provisions of the Code applicable. Section C 105--2.1 thereof states that the 'General Building' provisions are applicable to:
'* * * business, mercantile, industrial, storage, assembly, institutional, and miscellaneous occupancy and uses * * *'.
The words 'miscellaneous occupancy' will not be expanded to include multiple dwellings which are dealt with elsewhere in the Code, and for the further reason that the rule of Ejusdem Generis, Sec. 239, subd. b, Statutes, McKinney's Consolidated Laws of New York, provides that general language following specific phrases is limited in scope by the latter.
The Court finds that the applicable statutory requirements for automatic sprinklers pertaining to the subject property at the time of the adoption of the Code in 1957, was contained in Section 52 of the Multiple Residence Law of the State of New York. That Section was not rendered inoperative by adoption of the Code since the latter did not, at the time of its adoption, govern the subject property. Section 329(2) Multiple Residence Law.
It would be unreasonable to assume that the Legislature intended the Code to replace the Multiple Residence Law in cases where the former did not apply to certain specific properties.
At the time of the alleged violations, the fire prevention requirements for the subject property were governed (1) in the case of Docket No. 893/72, by Section 10--814.3 (); and (2) Docket No. 1339/73 by Section 10--810.1(b) (Ordinance No. 1140/72).
The fact that these Ordinances may be more restrictive than the Code or Multiple Residence Law is of no consequence...
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...therefore apparent that the terms of N.Y. Constitution, article III, § 16, construed literally, do not apply (see, People v. Halpern, 79 Misc.2d 790, 794, 361 N.Y.S.2d 578 [holding that an industrial code, which was not a "law", could properly be incorporated by reference into statute]. ECL......
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...every local government shall have the power to adopt laws not inconsistent with the Constitution. The People, citing People v. Halpern, 79 Misc.2d 790, 361 N.Y.S.2d 578, a City Court case in the City of Long Beach, Nassau County, state that Article III, Section 16 of the New York State Cons......