People v. Premier House, Inc.

• Citation: 174 Misc.2d 163,662 N.Y.S.2d 1006
• Parties: , 1997 N.Y. Slip Op. 97,528 The PEOPLE of the State of New York, Plaintiff, v. PREMIER HOUSE, INC., Dorothy Strauss, Issac Rokowsky and Victor Fein, Defendants.
• Decision Date: 08 September 1997
• Court: New York City Court

Page 1006

662 N.Y.S.2d 1006

174 Misc.2d 163, 1997 N.Y. Slip Op. 97,528

The PEOPLE of the State of New York, Plaintiff, v. PREMIER HOUSE, INC., Dorothy Strauss, Issac Rokowsky and Victor Fein, Defendants.

Criminal Court of the City of New York Kings County.

Sept. 8, 1997.

Rosenman & Colin, L.L.P., New York City (Joshua C. Nathan, of counsel), for defendants.

Paul A. Crotty, Corporation Counsel of New York City (Louise Moed, of counsel), for plaintiff.

KATHRYN M. SMITH, Judge.

The defendants are charged with 9 counts alleging violations of sections 131.15(a) and 3.09 of the New York City Health Code (24 RCNY), the "Window-Guard Law."

The individual defendants move to dismiss all the counts contained in the information on two grounds. First, the defendants move to dismiss pursuant to C.P.L. § 170.30, contending that there exists a legal impediment to their conviction; namely, that they cannot legally be held personally liable for the criminal violations of a cooperative corporation or its agent or employee. Additionally, the defendants move to dismiss in the interest of justice pursuant to C.P.L. § 170.40.

It should be noted that the People have agreed to dismiss counts 2, 4, 6, 8, 10, 12, 14, 16 and 18 of the information on the grounds that they are multiplicitous. Therefore, the court will not address this part of the defendants' motion.

The court has reviewed the defendants' moving papers, the People's response, the defendants' supplemental response, all relevant cases, pertinent court documents and for the reasons discussed hereafter, denies the defendants' motion to dismiss the information against the three individual defendants in its entirety.

HISTORY OF THE CASE:

The allegations with respect to all counts of the information concern the failure to properly install and/or maintain window guards pursuant to section 131.15(a) of the New York City Health Code, the "Window-Guard Law", in nine apartments located at 1401 Ocean Avenue, Brooklyn, New York. The subject premises is a 16-story, 185-unit cooperative apartment building. These alleged violations were discovered by city inspectors who conducted an inspection of the premises on July 6, 1994, following a report that a child had died after falling from one of the windows of the subject building. The instant information charging these violations was filed on June 24, 1996, nearly two years after that inspection.

Premier House, Inc., the named corporate defendant, has been the owner of the subject premises since June 29, 1984. The individually named defendants are all members of the Board of Directors of Premier House, Inc. At the time of the filing of the information, defendant Strauss was the president, defendant Rokowsky was the vice-president and defendant Fein was the secretary.

Maxwell Kates, Inc. was originally named as a defendant and charged as an operator and manager of the building. Jose Mendez was also originally named as a defendant in his capacity as the registered managing agent of the building. The defendants maintain that the information incorrectly designated Maxwell Kates, Inc. and Jose Mendez as managing agents, and attached to their motion to dismiss, a multiple dwelling registration (MDR) dated November 1994, which indicates that Efrain Lopez was in fact the managing agent at the time the alleged violations were discovered. In addition to the November 1994 MDR, the defense also proffers an affidavit of defendant Rokowsky which states that Efrain Lopez was the managing agent for the subject building and responsible for repairs and maintenance commencing March 1, 1993 and continuing through July 1994, when the alleged violations were discovered. A copy of a check for a management fee made out to Efrain Lopez and signed by Premier House on March 10, 1993, is also offered by the defendants as proof that Efrain Lopez was on Premier House's payroll as managing agent at the time the inspectors discovered the alleged violations. Although the People dismissed the charges against Maxwell Kates, Inc. and Jose Mendez on February 10, 1997, no charges were brought against Efrain Lopez, the statute of limitations for filing charges against Mr. Lopez apparently having expired.

Plea negotiations in this case have been unsuccessful, mainly due to the fact that the People's offer to accept a misdemeanor plea and the payment of an appropriate fine by the corporate defendant would also require a plea to violations by any one of the individual defendants. Although the defense is willing to accept the plea offer on behalf of the corporation, the defense disavows any culpability on the part of the individual defendants.

A. MOTION TO DISMISS PURSUANT TO C.P.L. § 170.30:

The defendants move to dismiss the information pursuant to C.P.L. § 170.30, contending that they cannot legally be held personally liable for the criminal violations of the cooperative corporation or its agents or employees.

Legal Arguments:

The People, citing People v. Ben-Nemadi, 140 Misc.2d 712, 531 N.Y.S.2d 693 (1988), contend that the Window-Guard Law is a strict liability law which permits a finding of liability as to any individual who is responsible for the premises where such code violations are alleged to have occurred, without regard to any culpable mental state. The People further contend that by virtue of the defendants' positions as officers of the board it is implicit that they exert some influence in or control over the daily functioning of the subject premises. The People reject any claim that these board positions are merely honorary, noting: "The management of a 185 unit multiple dwelling is not for amateurs and it is offensive for the defendants to put forth the proposition that their positions on the Board of Directors were merely honorary and entailed no responsibility for the health and safety of the building's occupants."

The defendants argue that the People are attempting to extend the concept of "strict liability" to incorporate "vicarious liability", in an effort to hold the individual defendants criminally liable for code violations of the corporation and managing agent, because of their status as officers of the cooperative corporation, without any proof of their personal knowledge of, control over or participation in the maintenance of the building. The defendants further argue that a managing agent is hired by a co-op board to be solely responsible for the daily maintenance of the building. The defense contends that holding the individual defendants liable for the code violations would have an adverse impact on the policies and procedures governing cooperatives across the city. The defense asserts that the "criminal prosecution of volunteer co-op board members would be a shocking application of the law and would threaten the very nature of co-ops in the city", and further notes that, "No one in their right mind will volunteer to be a co-op board member or officer if such prosecutions were permitted."

Conclusions of Law:

The sole issue for this court's determination, with respect to this branch of the defendants' motion is whether the individuals named can be personally charged with the criminal violations in question.

N.Y.C. Health Code section 131.15(a) states in pertinent part:

"The owner, lessee, agent or other person who manages or controls a multiple dwelling shall provide, install, and maintain, a window guard, of a type deemed acceptable by the Department, installation to be made pursuant to specifications provided by the Department on the windows of each apartment in which a child or children ten (10) years of age and under reside, and on the windows, if any, in the public halls of a multiple dwelling in which such children reside, except that this section shall not apply to windows giving access to fire escapes or to a window on the first floor that is a required means [sic] egress from the dwelling unit. It shall be the duty of each person who manages or controls a multiple dwelling to ascertain whether such child resides therein." (Emphasis added).

It is well settled that a corporation acts only through the individuals who act on its behalf, including its officers, and that a corporate officer cannot escape individual criminal liability for violations of the law, even though the corporate entity may also be named as a defendant. See United States v. Dotterweich, 320 U.S. 277, 64 S.Ct. 134, 88 L.Ed. 48 (1943); People v. Byrne, 77 N.Y.2d 460, 568 N.Y.S.2d 717, 570 N.E.2d 1066 (1991); see also Penal Law § 20.25, Penal Law § 20.05. Whether or not these individual defendants can be deemed to be "in control" of the subject premises in their capacities as officers of the board, and whether their proper duties and responsibilities were fully discharged with regard to the window guards in the subject apartments, are issues of fact, more appropriately reserved for trial.

Whether the managing agent, as the defendants...