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Town of Babylon v. Barry Goldstein

New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS


October 11, 2012

TOWN OF BABYLON,
RESPONDENT,
v.
BARRY GOLDSTEIN,
APPELLANT.

Appeal from an order of the District Court of Suffolk County, Second District (Joseph A. Santorelli, J.), dated April 22, 2011.

Town of Babylon v Goldstein

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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 11, 2012

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

The order, insofar as appealed from, denied defendant's motion for a protective order vacating a notice of inspection served by plaintiff and directed defendant to permit inspection.

ORDERED that the order, insofar as appealed from, is reversed, without costs, defendant's motion for a protective order vacating the notice of inspection is granted and the provision directing defendant to permit inspection is stricken.

Plaintiff commenced this action seeking, among other things, a restraining order, costs and civil penalties for defendant's alleged violation of the Babylon Town Code at a property which he owns. Plaintiff served a notice of 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 subject property.

Defendant moved for 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 the motion, 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 an order which implicitly consolidated this action with two other actions brought by the same plaintiff against the same defendant for the sole purpose of disposing of nearly identical motions, the District Court denied defendant's motion and directed defendant to permit inspection.

For the reasons stated in Town of Babylon v Pekich (32 Misc 3d 141[A], 2011 NY Slip Op 51605[U] [App Term, 9th & 10th Jud Dists 2011]) and Town of Babylon v Gatti (31 Misc 3d 148[A], 2011 NY Slip Op 50983[U] [App Term, 9th & 10th Jud Dists 2011]), the Fourth Amendment applies to this quasi-criminal action to enforce provisions of a municipal code and recover penalties. Accordingly, the order, insofar as appealed from, is reversed, defendant's motion for a protective order vacating the notice of inspection is granted and the provision directing defendant to permit inspection is stricken.

Iannacci, J.P., Molia and LaCava, JJ., concur. Decision Date: October 11, 2012

20121011

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