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Town of Babylon, Respondent v. Peter A. Pekich

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


August 16, 2011

TOWN OF BABYLON, RESPONDENT,
v.
PETER A. PEKICH, APPELLANT.

Town of Babylon v Pekich

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This opinion is uncorrected and will not be published in the printed Official Reports.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 August 16, 2011

PRESENT: NICOLAI, P.J., TANENBAUM and LaCAVA, JJ

Appeals, in 10 separate actions, from orders of the District Court of Suffolk County, Second District (Joseph A. Santorelli, J.), entered October 19, 2009

(Appeal Nos. 2010-113 S C, 2010-114 S C, 2010-506 S C, 2010-508 S C, 2010-510 S C, and 2010-513 S C) and December 7, 2009 (Appeal Nos. 2010-518 S C, 2010-522 S C, 2010-524 S C, and 2010-525 S C). The orders, in each of the 10 actions, denied defendant's motion for a protective order vacating a notice of inspection served by plaintiff and directed defendant to permit inspection.

ORDERED that, on the court's own motion, the appeals are consolidated for purposes of disposition; and it is further,

ORDERED that the orders are reversed, without costs, defendant's motion in each action for a protective order vacating the notice of inspection is granted, the provisions directing defendant to permit inspection are stricken, and the matters are remitted to the District Court for further proceedings in accordance with the decision herein.

In these 10 actions, plaintiff seeks restraining orders, costs and civil penalties for defendant's alleged violations of the Babylon Town Code at six different properties which he owned. In each of the 10 cases, 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 each of the properties.

Defendant moved in each action for the issuance of a protective order, pursuant to CPLR 3103, vacating the respective 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 the motions, disputing the applicability of the Fourth Amendment to a civil proceeding, such as involved herein, 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 orders entered October 19, 2009 and December 7, 2009, the District Court denied defendant's 10 motions for protective orders vacating the notices of inspection and directed defendant to permit inspection.

In accordance with our recent decision in Town of Babylon v Gatti (31 Misc 3d 148[A], 2011 NY Slip Op 50983[U] [App Term, 9th & 10th Jud Dists, decided May 24, 2011]), we find that the Fourth Amendment applies to this quasi-criminal action to enforce provisions of a municipal code and recover penalties (see Marcus v Village of Mamaroneck, 283 NY 325 [1940]; Village of Southampton v Platt, 55 AD2d 603 [1976], mod on other grounds 43 NY2d 848 [1978]; cf. Village of Muttontown v Port Washington Holding Corp., 74 AD3d 793 [2010]), as it would were plaintiff seeking to conduct an administrative inspection or criminal investigation (see Camara v Municipal Court of City and County of San Francisco, 387 US 523, 533-534 [1967]; Sokolov v Village of Freeport, 52 NY2d 341, 348 [1981]; Matter of Yee v Town of Orangetown, 76 AD3d 104, 111 [2010]).

On appeal, plaintiff, for the first time, challenges defendant's standing to assert the Fourth Amendment claims. As the record does not conclusively establish that defendant lacks standing, and defendant could have countered plaintiff's objection had it been raised in the District Court, this contention will not be considered (see Sega v State of New York, 60 NY2d 183, 190 n 2 [1983]). Here, defendant implicitly asserted his standing based on his ownership of the properties, and since plaintiff made no argument other than the Fourth Amendment's general inapplicability to the instant civil actions, there was no reason for defendant to adduce further evidence in support of his standing (see People v Hunter, 17 NY3d 725 [decided June 2, 2011]).

Accordingly, the orders are reversed, each of defendant's 10 motions seeking a protective order is granted, the provisions directing defendant to permit inspection are stricken, and the matters are remitted to the District Court for all further proceedings.

Nicolai, P.J., Tanenbaum and LaCava, JJ., concur.

Decision Date: August 16, 2011

20110816

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