State v. Rutkowski

• Decision Date: 09 June 1977
• Citation: 58 A.D.2d 14,395 N.Y.S.2d 729
• Parties: STATE of New York et al., Appellants-Respondents, v. Alexander RUTKOWSKI et al., Respondents-Appellants, and Charles E. Babcock et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 729

395 N.Y.S.2d 729

58 A.D.2d 14

STATE of New York et al., Appellants-Respondents, v. Alexander RUTKOWSKI et al., Respondents-Appellants and Charles E. Babcock et al., Respondents.

Supreme Court, Appellate Division, Third Department.

June 9, 1977.

Louis J. Lefkowitz, Atty. Gen. (Francis J. Keehan and Ruth Kessler Toch, Albany, of counsel), for appellants-respondents.

Galman & Krutman, Woodridge (Robert Krutman, Woodridge, of counsel), for Alexander Rutkowski and another, respondents-appellants.

Goldstein & Goldstein, Monticello (Benjamin M. Goldstein, Monticello, of counsel), for Gloria Stevens, respondent.

Before KOREMAN, P. J., and GREENBLOTT, KANE, MAIN and HERLIHY, JJ.

MAIN, Justice.

On July 17, 1971, defendants Rutkowski and Conti purchased a parcel of land in the Town of Neversink, Sullivan County. Subsequently, between August 7, 1971 and March 17, 1973, they proceeded to sell from this parcel to the other defendants herein or their predecessors in title lots ranging in size from 0.62 of an acre to 2.02 acres, and then on February 8, 1974 Conti sold his interest in the two remaining lots from the original parcel to Rutkowski. Since no subdivision plans showing adequate water supply and sewage disposal facilities for the parcel have as yet been filed with the Department of Health, according to plaintiffs, all of the above sales by Rutkowski and Conti were allegedly made in direct contravention of section 1116 of the Public Health Law and section 17-1505 of the Environmental Conservation Law.

As a result, plaintiffs commenced the present action, and in the first cause of action pleaded they sought, inter alia, a judgment enjoining Rutkowski from selling, offering for sale, leasing or renting any lot from the parcel or erecting a permanent building thereon unless and until a subdivision plan is approved by the Department of Health and further directing Rutkowski and the Conti to file such a plan and the other defendants, all owners of lots in the parcel, to allow Rutkowski and Conti to enter upon their lots to make the tests and surveys necessary for the preparation of the plan. For their second and third causes of action they sought the assessment of civil penalties against Rutkowski and Conti, pursuant to section 12 of the Public Health Law and section 71-1707 of the Environmental Conservation Law, for their violations of section 1116 of the Public Health Law and section 17-1505 of the Environmental Conservation Law. Finally, as a fourth cause of action, they sought a judgment requiring Rutkowski and Conti to abate an alleged public nuisance as purportedly evidenced by the faulty operation of the septic system on the lot of defendants Steven and Mary Lu Drobysh.

Ultimately, plaintiffs decided to move for summary judgment on all four causes of action, and their motion came on to be heard on October 10, 1975. Thereafter, Special Term denied the motion on the first three causes of action and instead granted to defendants summary judgment declaring sections 1115 and 1116 of the Public Health Law and section 17-1505 of the Environmental Conservation Law unconstitutional. With regard to the fourth cause of action, however, the motion was granted, and Rutkowski and Conti were ordered to abate the public nuisance caused by the failure of the Drobysh's septic system. These appeals ensued.

Largely for the same reasons enunciated by Special Term in its opinion, we find ourselves in agreement with its grant of summary judgment to defendants on the first three causes of action and its corresponding holding that the statutes in question are so vague and indefinite as to be unconstitutional. Generally, these statutes prohibit the selling, leasing or renting of any portion of a subdivision or the erection of a permanent building thereon until a plan or map showing adequate water supply and sewage disposal facilities for the subdivision has been approved by an appropriate department of health. The major difficulty is presented by the use in the enactments of the term "subdivision", which the Legislature has defined as:

* * * any tract of land which is hereafter divided into five or more parcels along an existing or proposed street, highway, easement or right-of-way for sale or for rent as residential lots or residential building plots * * * regardless of whether the lots or plots to be sold or offered for sale, or leased for any period of time, are described by metes and bounds or by reference to a map or survey of the property or by any other method of description (Public Health Law, § 1115; Environmental Conservation Law, § 17-1501).

This court has previously stated that this definition 'lease much to conjecture in the absence of a definition of the words 'tract', 'parcel', 'residential lots', and 'residential building plots' " (Matter of Slavin v. Ingraham, 44 A.D.2d 874, 875, 355 N.Y.S.2d 658, 661; affd, 37 N.Y.S.2d 653, 376 N.Y.S.2d 463). In our view, it would often be impossible for a person who wishes to sell portions of his property to determine with any degree of certainty whether or not he would thereby be creating a subdivision and thus must comply with the challenged statutes. Consider, for example, whether contiguous lands acquired under separate deeds from different grantors at different times constitute a single tract for purposes of creating a subdivision or whether a subdivision results when portions of a parcel are sold to five different persons over a long period of time and each constructs a residence on the purchased land. Although the answers to these queries are far from clear, the questions themselves are illustrative of the myriad problems and impossible predicaments created for landowners by the obvious imprecision in the statutory language under consideration here. Such being the case, the term "subdivision" is plainly not sufficiently definite so as to give warning to "men of common intelligence" as to the meaning and application of the enactments, and the enactments, therefore, do not pass constitutional muster (cf. Cramp v. Board of Public Instruction of Orange County, 368 U.S. 278; Trio Distr. Corp. v. City of Albany, 2 N.Y.2d 690, 163 N.Y.S.2d 585, 143 N.E.2d 329).

We note, also, that the dissenting opinion in the Court of Appeals in Slavin v. Ingraham, 37 N.Y.2d 653, 658-62, 376 N.Y.S.2d 463, 465-68, supra provides support for our holding here that the challenged statutes are constitutionally invalid. In their argument that the determination of the Commissioner of Health should be reinstated in that case, the dissenters obviously assume the validity of the enactments and state that, should a close case involving few and random sales be presented, the Commissioner might conceivably conclude that there is no subdivision (37 N.Y.2d at 661, 376 N.Y.S.2d at 467). Not only does this statement indicate how these statutes inject an unnecessarily broad and indefinite element of land use control by the State into affairs best handled by local zoning regulations (cf. Public Health Law, §§ 1118, 1120), but, more significantly for our determination, it evidences the impossible vagueness of statutory language by conceding, in effect, that in many situations it will be impossible to predict with any degree of certainty, absent a factual determination by the Commissioner, whether or not a subdivision is involved.

Turning now to the fourth cause of action, we find that Special Term improvidently granted plaintiffs summary judgment therein. Triable issues of fact exist as to whether the subject septic system is actually malfunctioning and, if such be the case, as to whose responsibility it is to rectify the situation. Under these circumstances, the grant of summary judgment is improper (Phillips v. Kantor & Co., 31 N.Y.2d 307, 338 N.Y.S.2d 882, 291 N.E.2d 129).

The judgment should be modified, on the law, by reversing so much thereof as granted plaintiffs summary judgment on their fourth cause of action, and, as so modified, affirmed, without costs.

Judgment modified, on the law, by reversing so much thereof as granted plaintiffs summary judgment on their fourth cause of action, and, as so modified, affirmed, without costs.

KOREMAN, P. J., and KANE, J., concur.

GREENBLOTT and HERLIHY, JJ., concur in part and dissent in part in an opinion by HERLIHY, J.

HERLIHY, Justice (concurring in part and dissenting in part).

We agree with so much of the majority decision herein as would affirm the denial of summary judgment to the plaintiffs on their first three causes of action; however, we do not agree with the affirmance of the grant of summary judgment in favor of the defendants, Rutkowski and Conti (sellers) declaring that sections 1115 and 1116 of the Public Health Law and section 17-1505 of the Environmental Conservation Law are unconstitutional. Further, we would not only reverse the grant of summary judgment to plaintiffs on their fourth cause of action, but we would also dismiss the complaint in its entirety without prejudice to further proceedings against the individual lot owners.

The...