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ORIENTAL BOULEVARD COMPANY ET AL. v. AUSTIN N. HELLER (01/27/69)

SUPREME COURT OF NEW YORK, SPECIAL TERM, KINGS COUNTY 1969.NY.40291 <http://www.versuslaw.com>; 297 N.Y.S.2d 431; 58 Misc. 2d 920 January 27, 1969 ORIENTAL BOULEVARD COMPANY ET AL., PLAINTIFFS,v.AUSTIN N. HELLER, AS COMMISSIONER OF THE DEPARTMENT OF AIR POLLUTION CONTROL OF THE CITY OF NEW YORK, ET AL., DEFENDANTS Dreyer & Traub (Sylvan D. Freeman and Manuel Taxel of counsel), for plaintiffs. J. Lee Rankin, Corporation Counsel (Milton Weinberg, Stephen M. Clayton, Edward Walla and Neil F. Murphy of counsel), for defendants. Walter R. Hart, J. Author: Hart


Walter R. Hart, J.

Author: Hart

 In their complaint and supplemental complaint, certain individual property owners and the Real Estate Board of New York, Inc. seek a judgment declaring unconstitutional amendments to chapter 41 of the Administrative Code of the City of New York, known as Local Law No. 14 of the Laws of 1966, and enjoining the enforcement of said law. The thrust of plaintiffs' challenge is directed to the requirements contained in said local law, as enacted in 1966, and as amended in 1968 (Local Laws, 1968, No. 14), for the upgrading of incinerators and oil burners in buildings such as those operated by the plaintiff owners.

The supplemental complaint was served by plaintiffs as the result of the 1968 amendment of the law here involved. The relief sought in the complaint, as supplemented, is as follows:

1. For judgment declaring Local Law No. 14 as enacted in 1966 and as amended in 1968 to be unconstitutional, illegal and void and not binding upon the plaintiffs and others similarly situated;

2. Enjoining defendants from instituting and maintaining any court action or proceeding against plaintiffs and others similarly situated by reason of noncompliance with the provisions of Local Law No. 14, and further enjoining defendants from entering plaintiffs' buildings and sealing the refuse burning equipment located thereat;

3. Compelling the Commissioner of Sanitation of the City of New York to collect refuse from plaintiffs' multiple dwellings without charge in the event that operation of plaintiffs' incinerators is discontinued.

Plaintiffs now move (1) for summary judgment declaring Local Law No. 14, as enacted, unconstitutional, or in lieu thereof (2) for an injunction pendente lite enjoining defendants from enforcing said law through court action or proceeding and from sealing the refuse burning equipment of plaintiff owners and others similarly situated, and (3) for a mandatory injunction pendente lite compelling the Sanitation Department to collect without charge refuse from the premises of the plaintiff property owners.

Defendants cross-move for an order (1) dismissing the complaint as to plaintiff the Real Estate Board of New York, Inc. upon the ground that there is no justiciable controversy affecting the rights or other legal relations between said plaintiff and the defendants herein; and (2) dismissing as to all the plaintiffs the cause of action alleged in the complaint and supplemental complaint, on the ground that no cause of action is stated therein, and granting judgment declaring that Local Law No. 14, as amended in 1968, is constitutional.

In view of the amendment of Local Law No. 14 in 1968, the challenge posed with respect to the constitutionality of said local law as originally enacted in 1966 becomes academic, for there is presently presented a justiciable controversy only as to the amended Local Law No. 14. Accordingly, the present inquiry is directed to so much of the plaintiffs' constitutional challenge as pertains to the amended law, and any mention herein of Local Law No. 14 as originally enacted is only for reference purposes or to furnish the background for a discussion of the issues herein.

Local Law No. 14 as enacted in 1966 required the upgrading within specified periods of incinerators in multiple dwellings and in buildings other than multiple dwellings as well as upgrading of municipal incinerators. As stated by the defendant Heller, Commissioner of the Department of Air Pollution Control, in an affidavit submitted in opposition to plaintiffs' instant motion and in support of the cross motion, the upgrading of other than municipal incinerators is intended to be accomplished by improving the combustion of the refuse and by installation of an efficient water scrubber or similar device through which gases and particulates (such as soot, fly ash, dirt, etc.) are treated, thus reducing the emissions of particulates into the air and bringing such incinerators into compliance with the performance standards adopted by the Board of Air Pollution Control. The law further provides for the upgrading of residual fuel oil burning equipment to improve combustion and thus reduce particulate emissions into the air. The law as originally enacted also contained provisions and a time table requiring the use of fuel with lowered sulphur content.

The 1968 amendment of Local Law No. 14, effective March 12, 1968, left intact the provisions requiring the upgrading of oil burners, the use of lower content sulphur fuel, and the upgrading of municipal incinerators. As to the upgrading of refuse burning equipment (that is, incinerators) in multiple dwellings and structures other than multiple dwellings, the amended local law provides that owners, lessees or operators of incinerators which were in operation at any time after January 1, 1965 shall resume or continue operation thereof and shall, except as hereinbelow stated, upgrade such equipment as a prior condition of obtaining an operating certificate; or, in lieu thereof, election may be made to install and operate a refuse compacting system which would reduce the volume of unburned refuse. The amended law then specifies with regard to the requirements for upgrading that, in the case of multiple dwellings containing 20 or less, or more than 100, dwelling units per incinerator, application for an operating certificate, based on conformance to the upgrading requirements, must be made by July 20, 1968 and the upgrading accomplished by December 28, 1968. The deadline dates for applying for an operating certificate and for completion of upgrading in the case of multiple dwellings containing 61 to 100 dwelling units per incinerator are, respectively, February 20, 1969 and October 20, 1969; for multiple dwellings containing 21 to 60 dwelling units per incinerator, the respective dates for filing applications and for completion of upgrading are November 20, 1969 and May 20, 1970. As to structures other than multiple dwellings, application for an operating certificate must be made by February 20, 1969, and upgrading must be accomplished by October 20, 1970. In the case of a multiple dwelling containing 40 dwelling units or less per incinerator, the amended law provides that authorization to discontinue incineration will be granted by the Commissioner of Air Pollution Control on an application satisfactorily showing that it would not be reasonably practicable to fully meet the standards and requirements by reason of the physical characteristics of the multiple dwelling or otherwise, and upon such discontinuance, the unburned refuse will be collected without charge by the Department of Sanitation.

The local law further provides that the Commissioner may seal refuse burning equipment which is not operated or maintained as required by and in the manner provided for in the law; that in the event of such violation, an owner or lessee of the equipment may be subject to the payment of a penalty in the sum of $25 for each day that said equipment remains sealed, to be recovered in a civil action brought in the name of the Commissioner, and any collection of any refuse by the Department of Sanitation shall in such case be at the expense of the owner or lessee of the equipment, said expenses to be recovered in a civil action brought in the name of the Sanitation Commissioner. Moreover, the law provides that any failure to comply with the requirements hereinabove referred to shall be deemed a separate and distinct violation as to each day of said failure, and any person convicted of violating any of the provisions as indicated, shall be punished for each offense by a fine of not less than $25 nor more than $200, or by imprisonment for not more than 60 days, or by both such fine and imprisonment.

The court first finds that there is merit to that branch of defendants' cross motion which seeks dismissal of the complaint and supplemental complaint as regards plaintiff the Real Estate Board of New York, Inc., in that there is absent any justiciable controversy between said plaintiff and the defendants herein. The validity of a statute or ordinance is open to attack only by a person or organization whose constitutional rights are injuriously affected by the legislation in the features complained of (Jeffrey Mfg. Co. v. Blagg, 235 U.S. 571, 576; People v. Beakes Dairy Co., 222 N. Y. 416, 429); hence, a membership organization such as the plaintiff Real Estate Board, which is not suing by reason of any violation of its own constitutional rights and direct interests, is without standing to bring this action. (See 8 N. Y. Jur., Constitutional Law, ยง 53. See, also, Ann. "Validity of Statute -- Who May Question," 2 ALR 2d 917.) (Cf. J. & T. Cousins Co. v. Shoe & Leather Workers Ind. Union, 150 Misc. 575, affd. 241 App. Div. 760.) The plaintiff Real Estate Board has not shown the existence of a justiciable controversy between it and the defendants which would afford said plaintiff a right to bring the action in its own name. Accordingly, that branch of the defendants' cross motion which seeks dismissal of the complaint as supplemented, insofar as said pleading purports to be that of the Real Estate Board, is granted. It follows, of course, that said plaintiff's motion for summary judgment is denied as academic.

There is still presented by the motion of the individual plaintiff property owners and defendants' cross motion the issue as to the constitutionality of Local Law No. 14. In view of the evidentiary material submitted on these motions, the defendants' ...


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