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PEOPLE STATE NEW YORK v. JEROME HALPERN AND LILLIAN UDELEFSKY (08/26/69)

CITY COURT OF NEW YORK, LONG BEACH 1969.NY.42781 <http://www.versuslaw.com>; 304 N.Y.S.2d 183; 60 Misc. 2d 873 August 26, 1969 THE PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF,v.JEROME HALPERN AND LILLIAN UDELEFSKY, DEFENDANTS Arthur B. Welsher, Corporation Counsel (Joseph Goldenberg of counsel), for plaintiff. R. Harold Paltrow for defendants. Abraham Schlissel, J. Author: Schlissel


Abraham Schlissel, J.

Author: Schlissel

 Defendants here are charged in four separate and distinct counts with violations of various sections of the Municipal Code of the City of Long Beach governing maintenance and use of multi-occupied structures.

By Count 1 they are charged with owning, operating, managing and controlling "a non-fireproof building used in whole or part as a rooming house without installing or causing to be installed therein an automatic sprinkler system throughout the entire structure and building known as premises 416 West Penn Street, Long Beach, N. Y., all in violation of Chapter 10, Article 8, Section 10-814.3 of the Municipal Code of the City of Long Beach."

"Count 2 alleges that they did 'wilfully, wrongfully and unlawfully permit a person or persons to cook in premises within a rooming house, which said rooms were not kitchens or kitchenettes shown on a plan duly filed with and approved by the Building Dept. of the City of Long Beach, all in violation of Chapter 7, Article 1, Sec. 7-132 of the Municipal Code of the City of Long Beach.'

"Count 3 charges that defendants 'did wilfully, wrongfully and unlawfully cause or permit an accessory building, located in Residence "A" District, to be used for residence purposes, all in violation of Chapter 9, Article 1, Section 9-105.1 of the Municipal Code of the City of Long Beach.'

"Count 4 asserts that these owners 'did wilfully, wrongfully and unlawfully cause or permit premises occupied for human habitation, to wit: a rooming house, being three (3) stories in in height and having at least five (5) habitable rooms on the third floor, without providing two (2) or more means of egress available from each story thereof, all in violation of Chapter 10, Article 11, Section 10-1107.6 of the Municipal Code of the City of Long Beach.'"

Defendants attack Counts 1, 2 and 4 on constitutional and other grounds; it must be assumed that their silence as to Count 3 suggests their recognition of its constitutionality.

In their memorandum of law defendants rely on a nonconforming use resulting from a 1961 adjudication, and insist that they have a vested right to continue such use; additionally they claim and rely upon the allegedly confiscatory nature of the 1967 sprinkler ordinance, suggesting, as they do, that retroactive application thereof imposes an unnecessary hardship on them; finally they assert that they have substantially complied with the requirements of the ordinance here in issue.

The sprinkler ordinance (ch. 10, art. 8, ยง 10-814.3) as amended on September 12, 1967 provides, so far as presently pertinent, that "Every non-fireproof building used in whole or in part as a hotel or rooming house, irrespective of when such building may have been constructed or altered, shall not later than March 1st, 1968 be provided by the owner with an automatic sprinkler system throughout the entire structure."

The egress provisions are found in section 1107-6 of article 11 of chapter 10 of the Long Beach Municipal Ordinances and state: "There shall be at least two means of egress available from each story of every multifamily dwelling and of every rooming house if the dwelling is four or more stories in height or is three stories in height and has at least five habitable rooms on the third story. A basement used as a dwelling unit shall not count as a story for the purpose of this section."

The court considers to be without merit and therefore rejects defendants' contention that they are insulated from the effect of either or both of the quoted ordinances by the 1961 adjudication mentioned above. (People v. 310 Riverside Corp., a decision of this court; Adamec v. Post, 273 N. Y. 250, 258.)

In 310 Riverside, this court (whose determination was thereafter affirmed by the Appellate Term) said: "It clearly appearing that enforcement of this ordinance would not render 'valueless substantial improvements or businesses built up over the years' or 'cause serious financial harm to the property owner', the Court has concluded that there is no merit to defendants' claims that they would be protected by a prior nonconforming use even if it were found as a fact that such existed.

"The Court believes also that the statute here under consideration represents a valid exercise of the City's police powers and of its inherent right and obligation to protect the health, safety and welfare of its citizens."

In so concluding this court relied upon the unanimous determination of the Court of Appeals in Adamec (supra, pp. 254-256, ...


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