Village of Southampton v. Platt

• Citation: 373 N.E.2d 1229,43 N.Y.2d 848,402 N.Y.S.2d 1005
• Parties: , 373 N.E.2d 1229 VILLAGE OF SOUTHAMPTON, Appellant, v. Elaine PLATT, Respondent.
• Decision Date: 07 February 1978
• Court: New York Court of Appeals

Page 1005

402 N.Y.S.2d 1005

43 N.Y.2d 848, 373 N.E.2d 1229

VILLAGE OF SOUTHAMPTON, Appellant, v. Elaine PLATT, Respondent.

Court of Appeals of New York.

Feb. 7, 1978.

Richard E. De Petris and Emil F. De Petris, Riverhead, for appellant.

Elaine Platt, respondent pro se.

OPINION OF THE COURT MEMORANDUM.

Order modified to reinstate plaintiff's complaint to the extent that it seeks to recover a fine not exceeding $250, and otherwise affirmed, without costs.

Section 20-2010 (subd. 1, par. a) of the Village Law authorizes villages to enforce ordinances by prescribing "fines for each violation thereof not to exceed two hundred fifty dollars". This provision does not permit imposition of cumulative fines in excess of $250 for a single but continuing violation (Incorporated Vil. of Mill Neck v. Fronsdal, 39 A.D.2d 549, 550, 332 N.Y.S.2d 53, 55; see People v. Briary Improvement Corp., 34 N.Y.2d 788, 358 N.Y.S.2d 775, 315 N.E.2d 814, affg. 77 Misc.2d 797, 357 N.Y.S.2d 336, involving a similar provision in the Second Class Cities Law; cf. People v. Fremd, 41 N.Y.2d 372, 374-375, 393 N.Y.S.2d 331, 332-333, 361 N.E.2d 981, 982-983, construing a provision of the General City Law which contained no equivalent limitation). Hence, defendant's motion for partial summary judgment was properly granted.

Plaintiff's complaint should not, however, have been dismissed in its entirety. The notice of violation substantially complies with the notice requirement in the local ordinance. As noted by Mr. Justice Martuscello in dissent at the Appellate Division, "(i)n a civil action for penalties, there is no requirement that the removal notice served by the building inspector be based upon probable cause. Notice which is based upon a report that a violation exists, and which affords the alleged offender the opportunity to remove the violation, satisfies due process." (55 A.D.2d 603, 604, 389 N.Y.S.2d 625, 627.) Nor is there any constitutional invalidity (Village of Belle Terre v. Boraas, 416 U.S. 1, 8-9, 94 S.Ct. 1536, 39 L.Ed. 797; cf. City of White Plains v. Ferraioli, 34 N.Y.2d 300, 305, 357 N.Y.S.2d 449, 452, 313 N.E.2d 756, 758).

BREITEL, C. J., and JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and COOKE, JJ., concur.

Order modified, without costs, in accordance with the memorandum herein and, as so modified, affirmed, and the case remitted to Supreme Court, Suffolk County.