People v. Kalayjian

• Decision Date: 28 December 1973
• Citation: 76 Misc.2d 1097,352 N.Y.S.2d 115
• Parties: The PEOPLE of The State of New York, Respondent, v. Leon KALAYJIAN, Appellant.
• Court: New York Supreme Court — Appellate Term

Page 115

352 N.Y.S.2d 115

76 Misc.2d 1097

The PEOPLE of The State of New York, Respondent, v. Leon KALAYJIAN, Appellant.

Supreme Court, Appellate Term, Second Department, Ninth and

Tenth Judicial Districts.

Dec. 28, 1973.

Kaiser & Hirsch, Mount Vernon (Martin Hirsch, Mount Vernon, of counsel), for appellant.

Anthony T. Antinozzi, Corp. Counsel, New York City, for respondent.

Before HOGAN, P.J., and McCULLOUGH and FARLEY, JJ.

MEMORANDUM

PER CURIAM.

Judgment of conviction affirmed.

Defendant was convicted of occupying a one-family residence other than as a one-family dwelling, in violation of the City of Rye Building Zone Ordinance.

The premises contain one kitchen, a dining room, a sitting room, sixteen bedrooms, twelve bathrooms, and is occupied by twenty-five people comprising four separate families including children, close relatives, two maids and a monk. All occupants are members of the American Orthodox Catholic Church whose main headquarters are in the Bronx, New York City. Religious instruction is given daily for one hour to the children of the household, and the adults receive instruction three times a week. No religious services are conducted on the premises, and the church maintains no place of worship in the City of Rye.

The premises were purchased by the individual defendant who retains record title with his wife, and the maintenance, and upkeep of the building are shared by the occupants other than the monk, Avok Hakodian. The premises are not tax exempt. Three of the adult male occupants are deacons of the American Orthodox Catholic Church, but were ordained after acquisition and occupancy of the premises, and the head of each household, including the deacons, are gainfully employed on a full time basis during the week.

There are two main permitted uses in an R--4 residence district of the Building Zone Ordinance of the City of Rye, which are as follows:

'(1) Houses. A single detached residence on its own lot for not more than one family.

(2) Religious uses. Churches and other places of worship, including parish houses and buildings for religious instructions.' A 'family' is defined as:

'A single individual living upon the premises as a separate housekeeping unit; or a collective body of one or more persons living together on the premises as a single housekeeping unit in a domestic relationship based on birth, marriage, or other domestic bond.'

In our opinion, the private residence does not constitute a parish house for religious purposes. Even assuming a parish house may constitute a main rather than accessory use within the meaning of the Ordinance, the factual situation clearly establishes that the actual or principal use of the building, as found by the Court below, is that of a dwelling for residential purposes by more than four families. The mere designation by the Church of this private residence as a parish house is not controlling (Slevin v. Long Island Jewish Medical Center, 66 Misc.2d 312, 319 N.Y.S.2d 937). A parish house is defined as 'an auxiliary building belonging to a church and used for its business, social or extension activities' (Webster's New International Dictionary, 3rd ed.). The uncontradicted evidence here is that the building is neither owned nor used by the church, and the incidental religious instruction provided to the occupants does not change this fact.

It is also our opinion, the Ordinance is not invalid under the Equal Protection Clause of the Federal Constitution because it restricts occupancy to families based on the relationship of the occupants of the dwelling rather than on the mode in which the house is occupied (See, Borass v. Village of Belle Terre, 476 F.2d 806 (...