Seril v. New York State Div. of Housing and Community Renewal

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before ELLERIN
• Citation: Seril v. New York State Div. of Housing and Community Renewal, 613 N.Y.S.2d 157, 205 A.D.2d 347 (N.Y. App. Div. 1994)
• Decision Date: 09 June 1994
• Parties: In re Application of Lillian SERIL, et al., Petitioners, For a Judgment, etc., v. NEW YORK STATE DIVISION OF HOUSING AND COMMUNITY RENEWAL, Respondent, and Belnord Tenants Association, et al., Intervenors.

Page 157

613 N.Y.S.2d 157

205 A.D.2d 347

In re Application of Lillian SERIL, et al., Petitioners For a Judgment, etc., v. NEW YORK STATE DIVISION OF HOUSING AND COMMUNITY RENEWAL, Respondent and Belnord Tenants Association, et al., Intervenors.

Supreme Court, Appellate Division First Department.

June 9, 1994.

Before ELLERIN, J.P., and ASCH, RUBIN, NARDELLI and WILLIAMS, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Stanley Parness, J.), entered August 2, 1993, which, in a proceeding pursuant to CPLR Article 78 to terminate respondent New York State Division of Housing and Community Renewal's finding of tenant harassment, held that respondent's refusal to terminate such findings does not constitute an "excessive fine" under either the U.S. Constitution, 8th Amendment or the N.Y. Constitution, article I, § 5, and transferred the remainder of the proceeding to this Court, unanimously affirmed, without costs. Determination of respondent dated May 26, 1992, which denied petitioners' application to terminate findings of tenant harassment, unanimously annulled, without costs, on the law, the facts, and in the exercise of discretion, the petition granted, and the matter remanded to respondent for the purpose of conducting a current re-inspection with specific reference to the conditions and repairs at issue in these proceedings and for an administrative re-determination thereupon.

We reject petitioners' excessive fine claim, since it was, and continues to be, a matter of their own choice to do what is necessary to correct the conditions that led to the findings of harassment and thereby lift the restrictions imposed (see, Matter of Krax Perapatie Apanu Stu Krokodrilos Tus Platos v. New York City Loft Bd., 157 A.D.2d 611, 550 N.Y.S.2d 629; cf., Saunders v. Kennedy, 154 N.Y.S.2d 523, 525, affd. 3 A.D.2d 679, 159 N.Y.S.2d 113). Petitioners' argument that the challenged determination effects a taking of property without just compensation...