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Town of Babylon v. Gary Gatti

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS


May 24, 2011

TOWN OF BABYLON,
RESPONDENT,
v.
GARY GATTI,
APPELLANT.

Appeal from an order of the District Court of Suffolk County, Second District (Joseph A. Santorelli, J.), entered February 8, 2010. The order, insofar as appealed from, denied the branch of defendant's motion seeking a protective order vacating a notice of inspection.

Town of Babylon v Gatti

Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 24, 2011

PRESENT: TANENBAUM, J.P., MOLIA and IANNACCI, JJ

ORDERED that the order, insofar as appealed from, is reversed, without costs, and the matter is remitted to the District Court for a determination de novo, following a hearing, of the branch of defendant's motion seeking a protective order vacating the notice of inspection, in accordance with the decision herein.

By service of a summons and a verified complaint, plaintiff commenced this civil action against defendant seeking a restraining order, costs and civil penalties. The complaint alleges, in pertinent part: "That upon information and belief at all times hereinafter mentioned, Defendant GARY GATTI is the record owner of the premises located at 128 West 3rd Street, Deer Park, New York, 11729, which is located in an C' Residence District and bears Suffolk County Tax Map No. 0100-63.00-03.00-36.00 (hereinafter referred to as the Premises'). . . . [F]rom August 8th, 2008 through August 22nd, 2008, Defendant as owner of the premises did allow, permit or suffer the existence of more than one non-owner occupied dwelling units than permitted by the Certificate of Occupancy at the Premises in violation of 153-28(A) of the Babylon Town Code." The complaint further asserts that defendant had not obtained a variance or certificate of occupancy so as to excuse his noncompliance.

Plaintiff filed a notice for inspection, pursuant to CPLR 3120 (1) (ii), seeking to inspect "all buildings, structures, accessory structures, basements, attics, property and stock in trade, including fuel tanks, fuel pumps, storage areas and office areas located at [the premises] . . ."

Defendant moved, in relevant part, for the issuance of a protective order, pursuant to CPLR 3103, vacating the notice of inspection of property served by plaintiff on the ground that, under the Fourth Amendment, no agent of the government may enter onto his property absent a judicial warrant or his consent. Plaintiff opposed this branch of the motion, disputing the applicability of the Fourth Amendment and arguing that it was well settled that where a litigation involves the subject matter of a premises, inspection pursuant to CPLR 3120 (1) (ii) is appropriate.

In an order entered February 9, 2010, insofar as appealed from, the District Court denied the branch of defendant's motion seeking a protective order vacating the notice of inspection, and the instant appeal ensued.

On appeal, defendant notes that he is not challenging the general availability of CPLR discovery in the instant action, but argues that the Fourth Amendment requires that plaintiff obtain a search warrant prior to inspecting his property pursuant to CPLR 3120 (1) (ii).

In this quasi-criminal action to enforce provisions of a municipal code and recover penalties (see Marcus v Village of Mamaroneck, 283 NY 325 [1940] [holding that actions which seek to recover civil penalties are quasi-criminal in nature]; Village of Southampton v Platt, 55 AD2d 603 [1976] [same], mod on other grounds 43 NY2d 848 [1978]), the Fourth Amendment applies, as it would were plaintiff seeking to conduct an administrative inspection or criminal investigation (Camara v Mun. Ct. of City and County of San Francisco, 387 US 523, 533-534 [1967]; Sokolov v Village of Freeport, 52 NY2d 341, 348 [1981]).

Given the undeveloped factual record before us, it is not clear whether defendant has standing to maintain his Fourth Amendment claim. To establish standing under the Fourth Amendment, a claimant must demonstrate a legitimate expectation of privacy in the place or object to be searched (see People v Ramirez-Portoreal, 88 NY2d 99, 108 [1996]). For example, a landlord does not have an unqualified reasonable expectation of privacy in rental premises, and factors such as whether the portions of the premises in question are leased to tenants, and whether they are open to the public, must be taken into consideration (see People v M. Santulli, LLC, 29 Misc 3d 54 [App Term, 9th & 10th Jud Dists 2010]; People v Rosa, NYLJ, June 11, 1996, at 33, col 3 [App Term, 9th & 10th Jud Dists 1996]; see also Tarantino v City of Hornell, 615 F Supp 2d 102, 109 [WD NY 2009], affd 2010 WL 2025757 [2d Cir 2010]; Arrowsmith v City of Rochester, 309 AD2d 1201 [2003]; cf. Sokolov v Village of Freeport, 52 NY2d 341). Accordingly, the order, insofar as appealed from, is reversed, and the matter is remitted to the District Court for a determination de novo of the branch of defendant's motion seeking a protective order vacating the notice of inspection, following a hearing on the issue of defendant's standing to assert a Fourth Amendment claim in support of his motion.

Tanenbaum, J.P., Molia and Iannacci, JJ., concur.

Decision Date: May 24, 2011

20110524

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