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In re Cappon

Supreme Court of New York, Fourth Department

September 27, 2013

IN THE MATTER OF CHRISTOPHER CAPPON, PETITIONER-RESPONDENT,
v.
CARLOS CARBALLADA, COMMISSIONER, NEIGHBORHOOD AND BUSINESS DEVELOPMENT OF CITY OF ROCHESTER, AS SUCCESSOR TO JULIO VASQUEZ, COMMISSIONER, COMMUNITY DEVELOPMENT OF CITY OF ROCHESTER, RESPONDENT-APPELLANT.

Appeal from a judgment (denominated judgment and order) of the Supreme Court, Monroe County (John J. Ark, J.), entered April 18, 2012 in a proceeding pursuant to CPLR article 78. The judgment granted the petition.

ROBERT J. BERGIN, CORPORATION COUNSEL, ROCHESTER (ADAM M. CLARK OF COUNSEL), FOR RESPONDENT-APPELLANT.

SANTIAGO BURGER ANNECHINO LLP, ROCHESTER (MICHAEL A. BURGER OF COUNSEL), FOR PETITIONER-RESPONDENT.

PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, VALENTINO, AND WHALEN, JJ.

It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law without costs and the petition is dismissed.

Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking to annul the determination that he violated Rochester City Code § 90-16 (A) (2) (d), which requires owners of rental properties to obtain a valid certificate of occupancy (CO) within a period of 90 days prior to the expiration or termination of an existing CO. Supreme Court granted the petition, concluding that the CO code provisions of the City of Rochester (City) require owners of rental property to effectively consent to an unconstitutional warrantless search. We agree with respondent that the court erred in granting the petition. We therefore reverse the judgment and dismiss the petition.

We have previously upheld as constitutional the City's CO requirement as well as its procedure for issuing judicial warrants for inspections of premises in cases where the City has failed to obtain the consent of the homeowners or tenants (see Matter of City of Rochester [449 Cedarwood Terrace], 90 A.D.3d 1480, 1482-1483, appeal dismissed 19 N.Y.3d 937; Arrowsmith v City of Rochester, 309 A.D.2d 1201, 1201-1202). Petitioner concedes that the laws at issue are valid on their face, but contends that the determination that he violated City Code § 90-16 (A) (2) (d) is unconstitutional because, as a result of the determination, he will be required to consent to a warrantless inspection of his property or risk prosecution and fines. That contention, however, was specifically considered and rejected by this Court in Matter of Burns v Carballada (101 A.D.3d 1610, 1611-1612), which involved facts nearly identical to those herein. The petitioners in Burns commenced a CPLR article 78 proceeding seeking to annul two determinations of the Municipal Code Violations Bureau finding that they violated City Code § 90-16 (A) (2) (d), the same provision at issue here, by owning rental property that was occupied without a valid CO (id. at 1610). In the Burns petition, like the petition in this case, petitioners asserted, inter alia, that the determinations that they failed to comply with the City Code CO provision violated the Fourth Amendment and article I, § 12 of the New York State Constitution (id.). Specifically, petitioners contended that the City's CO inspection and warrant system was unconstitutional as applied to them because it prevented them from obtaining a CO without first consenting to a warrantless search of their properties (id. at 1611-1612). We rejected that contention and stated that, "[u]nder the City's ordinance, ... an inspection can take place either upon consent or upon the issuance of a warrant (see City Charter § 1-11). On the record before us, petitioners have not shown that they were actually penalized for refusing to allow an inspection inasmuch as there is no evidence that they ever applied for a CO and thereafter refused to consent to the required inspection of their properties" (id. at 1612).

Here, petitioner was charged by appearance ticket with violating City Code § 90-16 (A) (2) (d) after the CO for a rental property that he owned expired and he failed to renew it. Contrary to the contention of petitioner, he was not penalized for refusing to consent to an inspection of his property (see Burns, 101 A.D.3d at 1612). Although petitioner is correct that the issuance or renewal of a CO requires an inspection of the relevant premises (see § 90-16 [G] [1]), the record establishes that petitioner did not apply for a new CO prior to receipt of the appearance ticket and thus the inspection requirement was never triggered. It therefore cannot be said that petitioner was penalized for refusing to consent to an inspection that, in fact, the City never requested (see Burns, 101 A.D.3d at 1612). In any event, section 1-11 of the City Charter specifically provides that "[w]hen applying for a license, permit, certificate or other City approval which calls for an inspection, a person shall have the right to decline to consent to the inspection." The City may then apply for an inspection warrant to conduct the required inspection (see id.; see also Matter of Brockport Sweden Prop. Owners Assn. v Village of Brockport, 81 A.D.3d 1416, 1418; see generally Camara v Municipal Court of the City and County of San Francisco, 387 U.S. 523, 540).

The cases cited by petitioner are inapposite inasmuch as the ordinances at issue in those cases explicitly or implicitly required property owners to submit to warrantless inspections of their property (see Sokolov v Village of Freeport, 52 N.Y.2d 341, 345-346; Town of Brookhaven v Ronkoma Realty Corp., 154 A.D.2d 665, 666; People v Northrup, 106 Misc.2d 440, 441, mod on other grounds 53 N.Y.2d 689). Here, by contrast, the City Code and Charter require either owner consent or a judicial warrant to inspect property for code compliance (see Burns, 101 A.D.3d at 1612; see also Pashcow v Town of Babylon, 53 N.Y.2d 687, 688; McClean v City of Kingston, 57 A.D.3d 1269, 1271, appeal dismissed 12 N.Y.3d 848; Stender v City of Albany, 188 A.D.2d 986, 987, appeal dismissed 81 N.Y.2d 1006).

We further agree with respondent that the court erred in granting the petition based upon an interpretation of City Charter § 1-23 that would render that provision unconstitutional. It is well established that legislative enactments are afforded a "presumption of constitutionality, " and that reviewing courts must "avoid interpreting a statute in a way that would render it unconstitutional if such a construction can be avoided and to uphold the legislation if any uncertainty about its validity exists" (Alliance of Am. Insurers v Chu, 77 N.Y.2d 573, 585; see Overstock.com, Inc. v New York State Dept. of Taxation & Fin., 20 N.Y.3d 586, 593; LaValle v Hayden, 98 N.Y.2d 155, 161). Because, as the court itself recognized, there is an "obvious" constitutional interpretation of the City Charter provision at issue, the court erred insofar as it granted the petition based upon an alternative, unconstitutional interpretation of that provision (see generally People v Correa, 15 N.Y.3d 213, 233).


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