Wisoff v. City of Schenectady

• Decision Date: 10 April 2014
• Parties: Andrew E. WISOFF, Appellant, v. CITY OF SCHENECTADY, Respondent.
• Court: New York Supreme Court — Appellate Division

116 A.D.3d 1187

984 N.Y.S.2d 207

2014 N.Y. Slip Op. 02479

Andrew E. WISOFF, Appellant,

v.CITY OF SCHENECTADY, Respondent.

Supreme Court, Appellate Division, Third Department, New York.

April 10, 2014.

Andrew E. Wisoff, Niskayuna, appellant pro se.

John R. Polster, Corporation Counsel, Schenectady (Frank Salamone of counsel), for respondent.

Before: PETERS, P.J., LAHTINEN, ROSE and EGAN JR., JJ.

EGAN JR., J.

Appeals (1) from an order of the Supreme Court (Caruso, J.), entered January 27, 2012 in Schenectady County, which, among other things, granted defendant's cross motion for summary judgment declaring a portion of the Code of the City of Schenectady to be constitutional, and (2) from an order of said Court, entered May 18, 2012 in Schenectady County, which denied plaintiff's motion for reconsideration.

Plaintiff, the owner of a number of two-family rental properties located in the City of Schenectady, Schenectady County, commenced this declaratory judgment action in January 2007 seeking to declare certain portions of the Code of the City of Schenectady—specifically, the Rental Certificate Ordinance (hereinafter RCO) ( see Code of City of Schenectady former § 167–56 et seq.)—to be unconstitutional.¹ In so doing, plaintiff contended that the RCO violated his right to be free from unwarranted and unreasonable searches under U.S. Constitution 4th Amendment and the parallel provisions of N.Y. Constitution, article I, § 12. Defendant answered and counterclaimed and, in conjunction therewith, removed the action to the United States District Court for the Northern District of New York. District Court (Mordue, J.) retained jurisdiction over plaintiff's 4th Amendment claims, remanded plaintiff's state law claims to Supreme Court and stayed the federal action pending resolution of the state action. Plaintiff then moved for summary judgment declaring the RCO to be unconstitutional on its face, and defendant cross-moved for, among other things, summary judgment dismissing plaintiff's state law claims. Supreme Court denied plaintiff's motion, granted defendant's cross motion and declared that the RCO was facially valid. Plaintiff's subsequent motion for reconsideration was denied, prompting these appeals.

We affirm. The RCO provided, in relevant part, that “[i]t shall be unlawful for any owner to permit the occupancy of any rental unit subject to [former article X of the Code of the City of Schenectady], unless such unit has a current and valid rental certificate or temporary rental certificate” (Code of City of Schenectady former § 167–59[A] ). Thus, “[w]henever a vacancy shall exist in a rental unit and a leasing is about to occur, or whenever there is a change in occupancy, the owner [must] submit a written application for a rental certificate” (Code of City of Schenectady former § 167–60[A][1] ) and, “within five working days of receipt of [such] application, the Building Inspector [must] inspect the rental unit to determine if [it] is in compliance with” certain enumerated housing standards (Code of City of Schenectady former § 167–60[A][2] ). If the Building Inspector is unable to perform the necessary inspection within the five-day window, the property owner may apply for a temporary rental certificate, which “is valid for 30 days or until the unit is inspected ..., whichever is less” (Code of the City of Schenectady former § 167–60[B] ).² In the event that the property owner refuses to grant access to the premises, “the Building Inspector shall apply for a search warrant or court order in an appropriate court and upon a showing that there [are] reasonable grounds to believe that a building or rental unit within [the] building is rented and occupied in violation of” the RCO (Code of the City of Schenectady former § 167–61). A property owner's violation of the RCO may result in the imposition of a fine or other civil or criminal penalties ( see Code of the City of Schenectady former § 167–67).

“It is well established that the 4th Amendment protection against unreasonable searches and seizures extends to administrative inspections of private commercial premises. [Thus,] to the extent that the challenged ordinance directly or in practical effect authorizes or requires a warrantless inspection, it will not pass constitutional muster” ( Stender v. City of Albany, 188 A.D.2d 986, 987, 592 N.Y.S.2d 70 [1992],appeal dismissed81 N.Y.2d 1006, 599 N.Y.S.2d 805, 616 N.E.2d 160 [1993] [citations omitted]; see Sokolov v. Village of Freeport, 52 N.Y.2d 341, 345–346, 438 N.Y.S.2d 257, 420 N.E.2d 55 [1981];ATM One, LLC v. Incorporated Vil. of Hempstead, 91 A.D.3d 585, 587, 936 N.Y.S.2d 263 [2012];Town of Brookhaven v. Ronkoma Realty Corp., 154 A.D.2d 665, 666, 547 N.Y.S.2d 68 [1989] ).³ Here, however, the RCO expressly required either the consent of the property owner or the issuance of a valid search warrant in order for the Building Inspector to conduct the administrative inspection. As the inclusion of the warrant requirement is sufficient to safeguard plaintiff's constitutional rights, his challenge to the facial validity of the RCO must fail ( see Pashcow v. Town of Babylon, 53 N.Y.2d 687, 688, 439 N.Y.S.2d 103, 421 N.E.2d 498 [1981];Matter of Cappon v. Carballada, 109 A.D.3d 1115, 1117, 971 N.Y.S.2d 615 [2013],appeal dismissed and lv. denied22 N.Y.3d 1132, 983 N.Y.S.2d 488, 7 N.E.3d 318 [2014]; McLean v. City of Kingston, 57 A.D.3d 1269, 1271, 869 N.Y.S.2d 685 [2008],lv. dismissed12 N.Y.3d 848, 881 N.Y.S.2d 392, 909 N.E.2d 85 [2009];Stender v. City of Albany, 188 A.D.2d at 987, 592 N.Y.S.2d 70;see also Arrowsmith v. City of Rochester, 309 A.D.2d 1201, 1201–1202, 765 N.Y.S.2d 130 [2003];see generally Matter of Burns v. Carballada, 101 A.D.3d 1610, 1611–1612, 956 N.Y.S.2d 357 [2012],appeal dismissed and lv. denied22 N.Y.3d 926, 976...