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Alcorn v. Muhammad

Supreme Court, Monroe County

October 23, 2017

Stephen Alcorn, on behalf of Proas Partners, LLC, Carlos Alverio, Jr., and Karla Luna, Petitioners-Plaintiffs,
v.
Bayé Muhammad, Individually and as Commissioner of Neighborhood and Business Development for the City of Rochester, New York, Respondent-Defendant.

          Santiago, Burger, LLP Appearing on behalf of the petitioners By: Michael A. Burger, Esq., of Counsel Brian Curran, Corporation Counsel

          City of Rochester Law Department Appearing on behalf of respondent By: Patrick N. Beath, Esq., of Counsel

          HONORABLE EVELYN FRAZEE, JUSTICE.

         Petitioners-plaintiffs (plaintiffs) commenced this hybrid Article 78 proceeding and declaratory judgment action (action) seeking an order and judgment to (1) preliminarily enjoin and stay enforcement of the July 27, 2016 Final Determination (Final Determination) and Order (Order) of the Commissioner of Neighborhood and Business Development for the City of Rochester (Commissioner) issued by respondent-defendant (defendant or City) closing 299 Conkey Avenue for a year and summarily evicting its occupants without a court order; (2) vacate the Final Determination and Order; (3) declare Rochester City Charter section 3-15 (section 3- 15) in violation of the New York State and federal constitutions and laws including, without limitation, 42 USC § 1983; and (4) for an award of reasonable attorney's fees and costs to plaintiffs as prevailing parties under 42 USC § 1988 [1]. A temporary restraining order was issued enjoining defendants from enforcing the Final Determination and Order pending further court order.

         Plaintiffs assert that the Final Determination was issued in excess of jurisdiction, was in violation of lawful procedure, was affected by an error of law, and was arbitrary and capricious or an abuse of discretion. Plaintiffs seek a declaration that section 3-15 is unconstitutional insofar as it punishes property owners and tenants for the illegal acts of third parties over whom they have no control and specifically prohibits as a defense that the property owner or lessors are innocent, that is, that they lack knowledge of, acquiescence or participation in or responsibility for a public nuisance. Plaintiffs also seek a declaration that section 3-15 illegally supersedes the Real Property Actions and Proceeding Law, as well as articles of New York State Penal Law, and federal laws to which section 3-15 refers.

         Defendant's position is that section 3-15 is constitutional in all respects and does not improperly supercede or conflict with other laws. The City asserts that all procedural requirements for the administrative abatement proceeding were followed and plaintiffs were afforded due process. In this regard, defendant notes that the property owner, tenants, and mortgagee were properly served with the Notice of Charges and given the opportunity to demand a hearing, but only the property owner requested a hearing. Accordingly, the City argues that the tenants were in default and were not entitled to further notice after service of the Notice of Charges and lack standing to bring this Article 78 proceeding. It is the City's position that the underlying proceeding was not in excess of jurisdiction or affected by an error of law and that the determination was not arbitrary and capricious or an abuse of discretion.

         BACKGROUND

         In relevant part, section 3-15 provides:

B. Public nuisances defined. For purposes of this section, a public nuisance shall be deemed to exist whenever through violations of any of the following provisions resulting from separate incidents at a building, erection or place or immediately adjacent to the building, erection or place as a result of the operation of the business, 12 or more points are accumulated within a period of six months, or 18 or more points within a period of 12 months, in accordance with the following point system. Where more than one violation occurs during a single incident, the total points for the incident shall be the highest point value assigned to any single violation.
(1) The following violations shall be assigned a point value of six points:
(a) Article 220 of the Penal Law - Controlled Substance Offenses
(b) Article 221 of the Penal Law - Offenses involving Marihuana
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(4) For purposes of this section, a conviction for an offense in a court of competent jurisdiction or an administrative bureau shall not be required. Instead, the City shall prove by a preponderance of the evidence that the violations have occurred...
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C. Powers of the Mayor with respect to public nuisances.
(1) In addition to the enforcement procedures established elsewhere, the Mayor or the Mayor's designee, after notice and opportunity for a hearing with respect to a public nuisance, shall be authorized:
(a) To order the closing of the building, erection or place to the extent necessary to abate the nuisance;
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(2) Service of Notice.
(a)... Such notice shall be served upon an owner pursuant to Article 3 of the Civil Practice Law and Rules or by means of first-class mail with delivery confirmation sent to the owner's last known address, upon a lessee pursuant to ยง735 of the Real Property Actions and ...

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