27 north street llc vs. village of monticello, et al. - petitioner's brief on appeal

8/14/2019 27 North Street LLC vs. Village of Monticello, et al. - Petitioner's Brief On Appeal

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To be Argued by: .HOWARD PROlTER

(Time Requested: 15 Minutes) .

New lurk uprtmt QtuurtApprllate iiuisinn-wltirll irpartmtnt .

In the Matterof the Application of27 NORTH STREET, LLC, .

Petitioner-Appellant,

For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules

- against-

VILLAGE OF MONTICELLO and SUE FLORA, Code Enforcement Official,

Respondents-Respondents.

BRIEF FOR PETITIONER-APPELLANT

JACOBOWITZ & GUBITS, LLPAttorneysfor Petitioner-Appellant158 Orange AvenueP.O. Box 367Walden, New York 12586(845) 778-2121

Sullivan County Clerk's Index No. 1709/07


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TABLE OF CONTENTS

Questions Presented. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1Preliminary Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3Statement ofFacts 4ArgumentPoint I - Respondents Violated Lawful Procedure by Condemning Appellant'sBuilding and Vacating the Tenants Due to Alleged Violations ofPropertyMaintenance Code Section 108 and the Multiple Residence Law WithoutProviding Notice or Hearing Either Before or After 10Point II - Under the N.Y. Constitution, Appellant Cannot Be DeprivedofProperty Without Due Process 20Point III - Under the U.S. Constitution, Appellant Cannot Be DeprivedofProperty Without Due Process' 22Point IV - Since the Facts Warranting Appellant's Motion to Renew DidNotExist or ShouldHave Been Irrelevant in Prior Motions, the Court BelowAbused its Discretion by Holding ThereWas No Reasonable Justificationfor Not Presenting the Facts Earlier 27Point V - Courts Have Discretion to Grant a Motion to Renew in theInterest of Justice Even When There is no Reasonable Justification Givenfor Not Presenting Earlier the Facts Warranting the Renewal 29Conclusion 31


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TABLE OF AUTHORITIESPage(s)

Cases:ADC Contracting& Construction, Inc. v. Town ofSouthampton,800 N.Y.S.2d 342 (N.Y. Sup. Ct. 2004) 28Alpert v. Wolf,194Misc. 2d 126 (N.Y. Civ. Ct. 2002)...................................................................... 27Armstrong v. Manzo,380 U.S. 545 (1965) ,.................................................... 23Arnett v. Kennedy,. 416 U.S. 134 (1974).......................... ......................................................................... 23Ashon v. BoardofComm 'rs,185F. 221 (C.C.D. La. 1911)..................................................................................... 24Boddie v. Connecticut,401 U.S. 371 (1971) 22-23 .Central Savings Bank in the City ofNew York v. City ofNew York,279 N.Y. 266 (1938) 20,24Chicago Burlington & Quincy Railroad v. Chicago,166 U.S. 226 (1897) :............................................................................... 22Cippitelli v. County ofSchenectady,307 A.D.2d 658 (3dDep't 2003) 29Framapac Delicatessen v. Aetna Casualty & Surety Co.,

249 A.D.2d 36 (1st Dep't 1998) 29Grannis v. Ordean,234 U.S. 385 (1914).................................................................................................. 23Hooker v. Town Board ofGuilderland,60 A.D.2d 684 (3d Dep't 1977) 27Lawton v. Steele,152 U.S. 133 (1894) 23,24McComb v. Town ofGreenville,160A.D.2d 779(2d Dep't 1990) passimMejia v. Nanni,307 A.D.2d 870 (1stDep't 2003) 29Memphis Light, Gas & Water Division v. Craft,436 U.S. 1 (1978) , ~ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18,24,30

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Mendez v. Dinkins,226 AD.2d 219 (1st Dep't 1996) .................................................................. 13, 18,24-26 .

Mindy's WineCellar, Inc. v. American & Foreign Ins. Co.,51 A.D.2d 650 (4th Dep't 1976) ................................................... ~ . . . . . . . . . . . . . . . . 27,29-30Poag v. Atkins,

787 N.Y.S.2d 680 (N.Y. Sup. Ct. 2004) 29Roy v. National GrangeMutual Ins. Co.,

85 A.D.2d 832 (3d Dep't 1981) : ;...................................... ...................... 27Segall v. Heyer,

161 AD.2d471 (lstDep't 1990).............................................................................. 29Sheehan v. County0/Suffolk,67N.Y.2d 52 (1986), cert. denied, 478 U.S. 1006 (1986) 17, 18Thomlow v. Long Island R. R. Co.,

33 AD.2d 1027 (2d Dep't 1979) ~ . . . . . . 27Town ofHuntington v. E.S.P. Corp.,245 N.Y.S.2d 219 (N.Y. Sup. Ct. 1963).................................................................... 16Trinidad v. Lantigua,

2 A.D.3d 163 (Ist Dep't 2003) 29Statutes & OtherAuthorities:U.S. Constitution, 5th AInendment.................... ................ .............. ............ ......................... . 22U.S. Constitution, 14th AInendment...................................................................................... 22N.Y.S. Const. Art. 1, 6.... .................................................................................................... 20N.Y.S. Const. Art. 1, 7.. ................. .............. ................... ........... ........ ....................... .......... 2012-57 New York Civil Practice: CPLR P 5701.24 : - 271974 N.Y. Atty. Gen. Op. 258 11-12,20-2119N.Y.C.R.R. 1203.2(a) 1119N.Y.C.R.R. 1203.3(f)..................................................................................................... 11New York Exec. Law Art. 18 11

New York Exec. Law 381(1)........................... ............ ............ ............................. .. 11New York Exec. Law 381 (2)................................................................................. 11

N.Y. Multiple Residence Law passim 304 : .- .- ...... 16 305 12,14, 16, 19

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305(1) ,. 14-15 305(2) : 14, 15 306 12, 14, 16

N.Y. CPLR Art: 78 . . . . . . . . . . . . . . . . . . . . . . passimN.Y. CPLR 5517(b) '.................................. 27N.Y. CPLR 7804(f) ,...... 6N.Y.Mu1t. Dwelling Law 301-309.................................................................................... 12N.Y. Gen. City Law 20(35) 12N.Y.S. Property Maintenance Code.................................................................................. passim

102.9............................................................................................................... 12 103.1 : ,....................................................................................... 12 104.1..................................... .......................................................................... 12 104.3............................................................................................................... 12 106.1............................................................................................................... 12 108 ;...................... passim 108.1.1 ;............................................................................... 5, 12

Village ofMonticello Code Chapter 119 ;........................................ passimLocal Laws, 1987,No.2oftheT()wnofGreenville 16,17

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QUESTIONS PRESENTED1. Whether it is a violation of lawful procedure under the Village ofMonticello

Code, the N.Y.S. Property Maintenance Code, and the Multiple Residence Law for amunicipality to condemn an apartment building and order tenants to vacate due to allegedviolations ofPropertyMaintenance Code Section 108 and the and the Multiple Residence Lawwithout providing a hearing either before or after such government action.

The court below ruled there was no a violation of lawful procedure.2. Whether the aforementioned circumstances constitute a violation ofdue process

under the N.Y. Constitution.The court below ruled that there was no violation of lawful procedure.3. Whether the aforementioned circumstances constitutea violation ofdue process

under the U.S. Constitution.The court below ruled that there was no violation oflawful procedure.4. Whether there is a reasonablejustification for not presenting facts warranting a

motion to renew when the facts did not exist or should have been irrelevant.The court below ruled that there was no reasonablejustification for not presenting earlier

the facts warranting the motion to renew.5. Whether a court has discretion to grant a motion to renew in the interest ofjustice

and in light of the strong public policy in favor of resolving cases on the merits even when thecourt determines there was no reasonablejustification given for not presenting earlier the facts

warranting the renewal.The court below ruled that it is constrained to deny a motion to renew once it determined

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STATEMENTOF FACTSOn June 5, 2007, a minor fire occurred at an apartment building owned by appellant,

which is located at 27 North Street in the Village ofMonticello, SullivanCounty, New York(the "premises'')[R6,20,81-82]. The source of the fire was a burning mattress and was notcausedby any defect in the building [R 20, 81-82]. The fire was responded to by the MonticelloFire Department [R 6, 20]. On or about June 6, 2007, respondents Sue Flora, Code EnforcementOfficer of the Village ofMonticello, and John Barbarite, Village ofMonticello DeputyManager,visited the subject premises, affixed red stickers labeled "Violation - Vacate and Remove" to thedoors ofvarious units within the building, purported to "condemn" the building, and summarilyforced all the tenants from the 17 units in the building to vacate the premises [R 6, 17, 19-22, 29,81-82, 138-141].

The building in question has historically provided affordable housing in the communityand has been inspected and utilized by government agencies such as the Sullivan CountyDepartment ofSocial Services to temporarilyhouse needy individuals (R 81-82, 138-141]. SinceNovember 2001, various government agency inspectors have made as many as ten visits per yearensuring the building and apartments are safe and properly maintained prior to tenants moving in[R 138-141]. The inspecting agencies have included the Department ofSocial Services, adultprotective services, Section 8 housing inspectors, and the RecoveryCenter inspectors [R 138141]. Even respondent Sue Flora as the Village ofMonticello code enforcement officer hasinspected the building prior to this incident [R 25-26, 81-82, 138-141]. Over the years, anycondition brought to the attention of appellant which required remediation was immediatelyaddressed and cured [R 138-141].

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there was no reasonable justification given for not presenting earlier the facts warranting therenewal.

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PRELIMINARYSTATEMENTThe court below erred in holding that appellant, 27 North Street, LLC, has not been

denied due process by respondents, and the court erred by denying appellant's motion to renew.Appellant brought an Article 78 proceeding to challenge actions taken by respondents

Village ofMonticello and Sue Flora, Code Enforcement Officer of the Village ofMonticello,whereby respondents, acting allegedly pursuant to Section 108 of the PropertyMaintenance CodeofNew York State and the New York State Multiple Residence Law, purported to condemnappellant's apartment building located at 27 North Street in the Village ofMonticello andsummarilyvacated the tenants without adequate notice, opportunity to cure, or a hearing eitherbefore or after the action. Respondents also terminated water service to the building, removedthe water meter, terminated the electric service, removed the dumpster, and terminated refusecollection. Taking these actions and depriving appellant of p ~ p e r t y without an opportunity for ahearing violated lawful procedure under the Village ofMonticello Code, the New York StateMultiple Residence Law and the New York State and United States Constitutions.

The court below denied appellant's Article 78 petition holding due process rights tonotice and an opportunity to be heard did not arise unless respondents took a direct action toremedy the conditions on appellant's property.

Appellant then made a motion to renew and presented new evidence of facts that the courtcould have deemed sufficient to constitute such remedial action. However, the court belowdenied the motion to renew without considering the facts.

Appellant 27 North Street, LLC now appeals both the denial of the Article 78 petition andthe denial of the motion to renew.

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STATEMENT OF FACTSOn June 5, 2007, a minor fire occurred at an apartment building owned by appellant,

which is located at 27 North Street in the Village o fMonticello, Sullivan County,Ne w York(the "premises")[R6,20,81-82]. The source of the fire wa s aburning mattress and was notcaused by any defect in the building [R 20, 81-82] . The fire was responded to by the MonticelloFire Department [R 6,20]. On or about June 6, 2007, respondents Sue Flora, Code EnforcementOfficer o f the Village ofMonticello, and John Barbarite, Village o fMonticello DeputyManager,visited the subject premises, affixed red stickers labeled "Violation - Vacate and Remove" to thedoors o fvarious units within the building, purported to "condemn" the building, and summarilyforced all the tenants from the 17 units in the building to vacate the premises [R 6, 17, 19-22,29,81-82, 138-141].

The building in question has historically provided affordable housing in the communityand has been inspected and utilized by government agencies such as the Sullivan CountyDepartment ofSocial Services to temporarily house needy individuals [R 81-82, 138-141]. SinceNovember 200 I, various government agency inspectors have made as many as ten visits pe r yearensuring the building and apartments are safe and properlymaintained prior to tenants moving in[R 138-141]. Th e inspecting agencies have included the Department ofSocial Services, adultprotective services, Section 8 housing inspectors, and the Recovery Center inspectors [R 138141]. Even respondent Sue Flora as the Village ofMonticello code enforcement officer hasinspected the building prior to this incident [R 25-26, 81-82, 138-141]. Over the years, any

condition brought to the attention of appellant which required remediation was immediatelyaddressed and cured [R 138-141].

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Although respondents had in the recent past issued prior violation notices, theyhavegenerally withdrawn them [R 81-82] upon remedial action having been taken or upondetermination that the notices were issued in error. In fact, respondents have been attemptingunsuccessfully for over four years to prove that appellant had improperly altered a six familydwelling into a seventeen-unit apartment building without zoning approval or a building permit[R 25-28,81-82, 138-141].

Clearly, there was no urgent need to vacate the building without at least providingadequate notice to the tenants before putting them out on the street and providing appellantproperty ownerwith a hearing and an opportunity to correct the alleged violations.

After the red stickers were placed on the building and tenantswere ordered to vacate, thatsame day, appellant through counsel requested written documentation stating the code andsections of the alleged violations so that appellant could properly respond [R 21-23,30].Respondents alleged in theirwritten reply that appellant was present for the inspection and was

aware of the findings of the Code Enforcement Officer and that it could take up to 48 hours toprovide the list ofviolations [R 31].

On June 7, 2007, appellant was faxed a Violation Notice that appellee alleges was affixedto appellant's premises [R 84-88]. This ViolationNotice stated, inter alia, that there wereviolations of ' 'PM 108.1.1"1 and "MultipleResidence Law" and that ' 'you are hereby notified to

'Property Maintenance Code 108.1.1 states:An unsafe structure is one that is found to be dangerous to the life, health,property or safety of the public or the occupants of the structure by not providingminimum safeguards to protect or warn occupants in the event of fire, or becausesuch structure contains unsafe equipment or is so damaged, decayed, dilapidated,structurally unsafe, or of such faulty construction or unstable foundation, thatpartial or complete collapse is possible.

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.. . .

vacate and remove immediately" [R 87].On June 8, 2007, appellant brought an Article 78 proceeding seeking a determination that

the decision to condemn the building and vacate the tenants without providing any notice,opportunity to cure, or right to a hearingbefore or after the action was a violation of appellant'srights [R 17-63]. Appellant specifically alleged, among other things, that it had not beenafforded an opportunity for a hearing and had been denied due process of law [R 17-23].Appellant further alleged that respondents were required to follow the notice 'and hearingprocedures embodied in Chapter 119 of the Village ofMonticello Code, which governs ''UnsafeBuildings" [R 5-7,22]. That local law requires the Code Enforcement Officer to provide awritten report to the Village ofMonticello Board, and action by the Village Board, with an orderto repair and an order ofhearing [R 22]. Appellant averred that it has been left to guess as to thespecificVillage and Building Code violations uponwhich the respondents were relying [R 6, 2023]. Appellant further averred that the violation notice claimed that there was no fire protectionyet the subject premises had fire extinguishers on every floor and hardwired smoke detectors thatworked properly to alert tenants during the fire [R 6, 20-23,81-82, 139-140]. Without more .specificity from respondents, appellant asserted that its ability to defend itself and to address anyof these purported violations is adversely impacted [R 6, 2Q..23].

On July 6, 2007, respondents moved to dismiss the petition pursuant to CPLR 7804(f) [R64-73, 74-89]. The motion was denied on September 10, 2007, and respondents were directed toserve a verified answer upon appellant [R 13-16]. Respondents served the Verified Answer onOctober 3, 2007 [R 90-122], and appellant served a Reply Affirmation on October 17,2007 [R123-128]. At no time has appellant been provided a hearing on whether the building should have

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STATEMENTOF FACTSOn June 5, 2007, a minor fire occurred at an apartment building owned by appellant,

which is located at 27 North Street in the Village ofMonticello, Sullivan County, New York(the "premises")[R 6,20,81-82]. The source of the fire was a burning mattress and was notcaused by any defect in the building [R 20, 81-82]. The fire was responded to by the MonticelloFire Department [R 6, 20]. On or about June 6, 2007, respondents Sue Flora, Code EnforcementOfficer of the Village ofMonticello, and John Barbarite, Village ofMonticello DeputyManager,visited the subject premises, affixed red stickers labeled "Violation - Vacate and Remove" to thedoors ofvarious units within the building, purported to "condemn" the building, and summarilyforced all the tenants from the 17units in the building to vacate the premises [R 6, 17, 19-22,29,81-82, 138-141].

The building in question has historically provided affordable housing in the communityand has been inspected and utilized by government agencies such as the Sullivan CountyDepartment ofSocial Services to temporarily house needy individuals [R 81-82, 138-141]. Since

November 2001, various government agency inspectors have made as many as ten visits per yearensuring the building and apartments are safe and properlymaintained prior to tenants moving in[R 138-141]. The inspecting agencies have included the Department ofSocial Services, adultprotective services, Section 8 housing inspectors, and the Recovery Center inspectors [R 138141]. Even respondent Sue Flora as the Village ofMonticello code enforcement officer hasinspected the building prior to this incident [R 25-26,81-82, 138-141]. Over the years, anycondition brought to the attention of appellant which required remediation was immediatelyaddressed and cured [R 138-141].

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----------Although respondents had in the recent past issued prior violation notices, they have

generally withdrawn them [R 81-82] upon remedial action having been taken or upondetermination that the notices were issued in error. In fact, respondents have been attemptingunsuccessfully for over four years to prove that appellant had improperly altered a six familydwelling into a seventeen-unit apartment building without zoning approval or a buildingpermit[R 25-28,81-82, 138-141].

Clearly, there was no urgent need to vacate the buildingwithout at least providingadequate notice to the tenants before putting them out on the street and providing appellantproperty owner with a hearing and an opportunity to correct the alleged violations.

After the red stickerswere placed on the building and tenants were ordered to vacate, thatsame day, appellant through counsel requestedwritten documentation stating the code andsections of the alleged violations so that appellant could properly respond [R 21-23, 30].Respondents alleged in their written reply that appellant was present for the inspection and wasaware of the findings of the Code Enforcement Officer and that it could take up to 48 hours toprovide the list ofviolations [R 31].

On June 7, 2007, appellant was faxed a Violation Notice that appellee alleges was affixedto appellant's premises [R 84-88]. This ViolationNotice stated, inter alia, that there wereviolations of"PM 108.1.1"1 and "MultipleResidence Law" and that ''you are hereby notified to

'PropertyMaintenance Code 108.1.1 states:An unsafe structure is one that is found to be dangerous to the life, health,property or safetyof the public or the occupants of the structure by not providingminimum safeguards to protect orwarn occupants in the event of fire, or becausesuch structure contains unsafe equipment or is so damaged, decayed, dilapidated,structurallyunsafe, or of such faulty construction or unstable foundation, thatpartial or complete collapse is possible.

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been condemned and vacated immediately or whether there were in fact any violations at all [R5-8, 123-128, 130-132, 135-136, 140-142].

On January 8,2008, the SupremeCourt issued and entered its Decision & Judgment [R 58]. The decision incorrectly stated that appellant only sought a determination ofwhether therewas a violation of the due process requirements contained in the Village ofMonticello Code [R5]. Through these Article 78 proceedings, appellant has sought, inter alia, a determination ofwhether there was a violation oflawful procedure, including due process violations under theN.Y. or U.S. Constitution such as failure to grant a hearing eitherbefore or after the buildingwascondemned and the tenants summarilyforced to vacate [R 17-24, 74-89, 123-128].

The court in itsDecision & Judgment held thatwhen a structure is alleged to be inviolation of Section 108 of the PropertyMaintenance Code ofNew York State, such structureshall be condemned and no person shall occupy the structure [R 7-8]. The court then agreed withrespondents' arguments [R 7-8, 91-93] and held that since respondents "did not take any directaction to remedy the condition on petitioner's subject premises, i.e., it did not remove, repair orcause the subject premises to be demolished" due process rights to notice and an opportunity tobe heard do not arise [R 8]. The court thereby denied appellant any opportunity for a hearing onwhether the building should have been condemned and vacated immediatelyand whether therewere in fact any violations at all. Thus, respondents have essentiallybeen allowed to take anddeprive appellant and its tenants of their property without any due process oflaw. Under thecourt's decision, respondents could deprive appellant of its property rights indefinitelywithoutany hearing until respondents decided to take some further remedial action in addition toremoving all occupantsfrom the building, depriving the occupants of their residences, and

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vacate and remove immediately" [R 87].On June 8, 2007, appellant brought an Article 78 proceeding seeking a determination that

the decision to condemn the building and vacate the tenants without providing any notice,opportunity to cure, or right to a hearing before or after the actionwas a violation of appellant'srights [R 17-63]. Appellant specifically alleged, among other things, that it had not beenafforded an opportunity for a hearing and had been denied due process oflaw [R 17-23].Appellant further alleged that respondents were required to follow the notice and hearingprocedures embodied in Chapter 119 of the Village ofMonticello Code, which governs "UnsafeBuildings" [R 5-7, 22]. That local law requires the Code Enforcement Officer to provide awritten report to the Village ofMonticello Board, and action by the Village Board, with an orderto repair and an order ofhearing [R 22]. Appellant averred that it has been left to guess as to thespecificVillage and BuildingCode violations uponwhich the respondents were relying [R 6, 2023]. Appellant further averred that the violation notice claimed that there was no fire protectionyet the subject premises had fire extinguishers on every floor and hardwired smoke detectors thatworked properly to alert tenants during the fire [R 6, 20-23, 81-82, 139-140]. Without more .specificityfrom respondents, appellant asserted that its ability to defend itselfand to address anyof these purported violations is adversely impacted [R 6, 20-23].

On July 6,2007, respondents moved to dismiss the petition pursuant to CPLR 7804(f) [R64-73, 74-89]. Themotionwas denied on September 10, 2007, and respondents were directed toserve a verified answer upon appellant [R 13-16]. Respondents served the Verified Answer on

October 3, 2007 [R 90-122], and appellant served a Reply Affirmation on October 17,2007 [R123-128]. At no time has appellant been provided a hearing on whether the building should have

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denying the property owner their rental payments.On February 5,2008, appellant filed notice of thepresent appeal from the aforementioned

Decision & Judgment entered on January 8,2008 [R 3-4].On February 25, 2008, appellant made a motion for reargument [R 129-146], which the

Supreme Court properly held was in fact a motion to renew in that new evidence was submitted[R 11-12]. Since the court had held in the previous decision that appellant was not entitled todue process because respondents did not take any direct action to remedy the condition onpetitioner's subject premises [R 8], the motion to renew sought to draw attention to facts that thecourt could deem sufficient to constitute remedial action to implicate due process requirementsunder the court's analysis [R 129-146]. These facts did not exist at the time the Article 78petition was filed [R 129-146]. Afterthe Article 78 petitionwas filed up through the time themotion to renew was filed, the Village of Monticello ("respondent" or ''theVillage") took thefollowing actions: the Village entered the premises and removed the water meter from theproperty and terminatedwater service to the premiseswithout notice to the property owner andwithout an opportunity to be heard before or after the action [R 131-132, 140-142]; the Villageterminated electric service to the premises without notice and without an opportunity to be heardbefore or after the action [R 131-132, 140-142]; and the Village terminated refuse collectionservices to the premises and removed appellant's dumpster without notice and without anopportunity to be heard before or after the action [R 131-132, 140-142]. The Village continuedto refuse to restore water service or refuse collection to the property up through the date of themotion to renew, thereby exercising continuing control over the premises and preventingappellant from, among other things, making repairs, cleaning, or painting [R 131-132, 140-142].

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Despite the presentation of these facts that had become relevant given the courts previousdecision, the court in its Decision& Order dated May 16, 2008 denied the motion to renew,refused to consider these facts, and thereby avoided deciding the case on its merits [R 10-11].The court held that appellant had not presented "reasonable justification for not discussing these'facts' in the initial proceeding," and therefore, the court was "constrained" to deny the motion[R 11-12].

On June 10,2008, appellant filed notice of the present appeal from the aforementionedDecision & Order dated May 16, 2008 and entered May 28,2008 [R 9].

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ARGUMENTPOINT I

RESPONDENTS VIOLATED LAWFUL PROCEDURE BYCONDEMNINGAPPELLANT'S BUILDINGANDVACATINGTHE TENANTS DUE TOALLEGEDVIOLATIONS OF PROPERTYMAINTENANCE CODESECTION 108 ANDmE MULTIPLE RESIDENCE LAW WITHOUTPROVIDINGNOTICE ORHEARING EITHERBEFORE OR AFfER

The Village ofMonticello Code, the PropertyMaintenance Code ofNew York State, andthe N.Y. Multiple Residence Law require that appellant be given a hearing under thecircumstances in this case. Respondents failed to follow the procedures required by Chapter 119of the Village Code in conjunction with the PropertyMaintenance Code as well as those requiredby the Multiple Residence Law. Respondents summarilyvacated appellant's premises withoutproviding appellant any advance notice, any opportunity to contest a finding that the buildingwasunsafe, or any opportunity to remedy the.alleged deficiencies (See, e.g., R 17-24, 79-85, 138-142).

The court below erred by holding that respondentsmay summarily condemn and vacate abuilding under Section 108 of the PropertyMaintenance Codewithout affording appellant noticeand an opportunity to be heard because respondents "did not take any direct action to remedythecondition on petitioner's subject premises, i.e., it did not remove, repair or cause the subjectpremises to be demolished" and there was no evidence that any such action was pending. Thecourt thereby allowed respondents to indefinitely deprive appellant and the tenants of theirproperty rights without due process, i.e., without any hearing or review ofwhether there were.infact violations ofSection 108.

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A. The court below erred when it held that the village code enforcement officerdid not have to comply with the due processprovisions in the Village o fMonticello Code when enforcing the PropertyMaintenance CodeThe court below failed to recognize the relationship between theN.Y.S. Property

Maintenance Code and the Village ofMonticello Code. The PropertyMaintenance Codeprovides the standards>while the Village Code provides the procedurefor administration andenforcement of the standards>including "procedures regarding unsafe structures and .equipment,"New York Exec. Law 381(1 (2); 19 N.Y.C.R.R 1203.2(a), 1203.3(f).

The PropertyMaintenance Code is contained in the NewYorkState Uniform FirePrevention and Building Code ("Unifonn Code''). The Uniform Code is promulgated pursuant tothe New York State Uniform Fire Prevention and Building Code Act (the "Act"), New YorkExec. Law Art. 18. Section 381(2) of the Act provides that "every local government shalladminister and enforce" the Uniform Code. New York Exec. Law 381(2).

Section 381(1) of the Act directs the Secretary ofState to promulgate rules andregulations setting minimum standards for such administration and enforcement. New YorkExec. Law 381(1). The regulationsprovide that a village shall provide for such administrationand enforcement of the Uniform Code by local law, ordinance, or other appropriate regulation.19N.Y.C.R.R. 1203.2(a).

It should be noted that the local program for administration and enforcement of theUniform Code must include "procedures regarding unsafe structures and equipment.n 19N.Y.C.R.R. 1203.3(f). Such procedures must afford a property owner due process oflaw,includingnotice and an opportunity to be heard. See McComb v. Town ofGreenville, 160A.D.2d 779 (2d Dep't 1990); 1974 N.Y. Atty. Gen. Op. 258 (A villagemay adopt a local law to

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remove unsafe or dangerous buildings constituting a nuisance, provided that the local law isconsistentwith constitutional due process requirements); see also N.Y. Mult. Dwelling Law 301-309; N.Y. Mult. Res . Law 305-306; N.Y. Gen. City Law 20(35).

A reading of the various provisions of the PropertyMaintenance Code demonstrates thatfor other than state facilities, its provisions are all enforced and implemented under the local lawof the jurisdiction. For example, the authority ofthe code enforcement officer to enforce thePropertyMaintenance Code is established pursuant to local law. PM 103.1;"PM 104.1 (Sectionsof the PropertyMaintenance Code can be reviewed in Exhibit B of respondents' Verified Answerat R 99-100). The propertymaintenance inspections conductedby the officer are required to beconducted in accordance with and pursuant to local law. PM 104.3 (R 99). Violations of thepropertymaintenance law are required to be dealt with and proscribed in accordance with andpursuant to local law.' PM 106.1 (R 99). The PropertyMaintenance Code further states, ''Theprovisions of this code shall not be deemed to nullify any provisions oflocal, state or federallaws and regulations." PM 102.9.

For the Village ofMonticello to find appellant's property in violationo fPM 108.1.1 (R99), i.e. an unsafe building, required an inspection conducted in accordance with local law, PM104.3 (R 99), by a code enforcement officer authorized in accordancewith local law, PM 104.1(R 99) and dealing withviolations ofthe Property Maintenance Code in accordance with locallaw. PM 106.1 (R 99).

2"Unlawful acts. Violations of this code shall be dealt with in a manner appropriate to theapplicable provisions of a city, town, village or county and shall be in accordancewith theapplicable provisions of local law."

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p

Section 108.1 of the PropertyMaintenance Code provides that property may becondemned in accordancewith the provisions of the Code "[w]hen a structure or equipment isfound to be unsafe." In order to find conditions rendering a building unsafe in the Village of .Monticello, the Code Enforcement Officer must complywith Chapter 119 of the Village Code.Chapter 119 of the Village Code, which governs ''Unsafe Buildings," sets forth the requiredprocedures applicable in this instance (Sections of the Village ofMonticello Code Chapter 119can be reviewed at R 38-42).

Chapter 119 of the Village Code requires that in order for a structure to be found unsafe,the Code Enforcement Officermust first conduct an inspection and issue a report to the VillageBoard ofTrustees. The Board ofTrustees may then confirm the finding and order either repair ordemolition butmust hold a hearing on the order on at least five days notice by personal serviceupon the owner of the building in order to provide the owner an opportunityto contest the orderand findings. The notice is specifically required to provide the property owner a specified timewithin which itmust commence and complete that the securing' or removal of the building.Only at the conclusion of the hearingmay the Village Board ofTrustees decide whether torevoke, modify, or continue and affirm the order. I f it continues the order, itmust provide theproperty owner a specific time frame within which it must complete the work.

Appellant does not dispute a municipalitymay have power in appropriate circumstance tocompel the vacation or closing of an unsafe building. But notice and a hearing and anopportunity to correct the defect must be afforded the owner. See, e.g., Mendez v. Dinkins,226 A.D.2d 219 (1st Dep't 1996); McComb v. Greenville, 160 A.D.2d 779 (2d Dep't 1990).

3Securing would require removal of the occupants from the premises.13

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Appellant asserts that the process contemplated by the PropertyMaintenance Code is thatcontained in the Village ofMonticello Code, and the court below erred in holding that the codeenforcement officer did not have to complywith the Village Code when enforcing the PropertyMaintenance Code.

B. Respondents havefailed to follow theprocedures requiredby New York'sMultiple Residence Law, and their actions shouldbe annulledAfter respondents vacated tenants from appellant's building, they faxed to appellant a

violation notice and order to vacate, which charged appellantwith violationofNew York'sMultiple Residence Law (R 87-88). In respondents' Verified Answer, they submitted the CodeEnforcement Officer's report, which again alleged that therewereviolations of the MultipleResidence Law (R 92, 101, 103, 110, 109-114). Yet, respondents have failed to follow theprocedures required by the MultipleResidence Law. Under the Multiple Residence Law,respondents are required to provide notice.and an opportunity for a hearing prior to remedialaction being taken such as vacating appellant's building. See, e.g., N.Y. Mull. Res. Law305(2), 306.

Section'306 of the Multiple Residence Law provides:Every notice or order issued by the department relative to a premises shall beserved at least thirty days before the time for compliance therewith. It shall besufficient service . . . if it is posted in a conspicuous place upon the premisesaffected and a copy thereofmailed;on the s am e day it is posted, to the person towhom it is directed . . .

ld. (emphasis added).Section 305 of the Multiple Residence Law outlines how a municipality can declare a

premises a nuisance. Under Section 305(1), the term nuisance is defined as "whatever is

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dangerous to human life or detrimental to health and shall include . . . a dwelling that, inviolation of this chapter or of any other state or local law . . . does not have adequate egress,safeguards against fire, . . . [or] plumbing, . . . is overcrowded or inadequately cleaned . . . andthe condition constituting such violation is dangerous to human life . . ."

Section 305(2) states:Whenever the department shall declare that a dwelling is a nuisance, it shall servea notice or order in the manner prescribed by section three hundred six of thischapter, reciting the facts constituting such nuisance, specifying in what respectthe dwelling is dangerous to human life or detrimental to health and requiring theowner to remove such nuisance within thirty days after service of such notice ororder or such lesserperiod of time where an emergency exists as may bedetermined by the department head . . .

Section 305(2) further states:Such notice or order shall provide that, if the owner fails to remove such nuisancewithin suchperiod . . . the departmentmay remove or cause the removal of suchnuisance by cleansing, repairing, vacating, demolishing or by taking such othercorrective action deemed necessary andshall notify the ownerofhis right to ahearing . . .

[d. (emphasis added). Section 305(2) then states that the hearingmust be given ''prior to theexpiration of the period for compliance." [d. (emphasis added).

Respondents have claimed appellant's property does not have adequate egress, plumbing,or fire protection and that it is overcrowded or inadequately cleaned or repaired in violation ofthe Multiple Residence Law (R 87,92, 101, 103, 110, 109-114). Appellant again asserts that itwill refute such claims if it is ever given a hearing on the matter. However, the problem is thatappellant has not been given notice or any opportunity for a hearing, and respondents havewholly disregarded the procedural requirements and safeguards of the MultipleResidenceLaw.

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F

Appellant draws this Court's attention to the following relevant case. In Town ofHuntington v. E.S.P. Corp., 245 N.Y.S.2d 219 (N.Y. Sup. Ct. 1963), the Town sought atemporary injunction to prevent use of a certain premises as a multiple dwelling unless fireescapes were installed on the third floor. The Town commenced an Order to ShowCause onthree days notice, and the court held that:

[I]n [the Town's] zeal to effectuate the most immediate abatement of the hazard tothe public welfare and safety by means of injunction because "Repeated criminalprosecutions do not afford complete satisfactory relief', plaintiffhas placed itselfin an untenable position. Since the statute provides penalties for violations asmisdemeanors only 30 days after service of a notice or orderto remove themwithout compliance (Multiple Residence Law 304), and this approach is notsatisfactory, then it must be assumed that this proceedingfalls within theprovisions of section 305, that the dwelling is a nuisance . . . Nevertheless, theowner is entitled to request a hearing prior to the expiration of the complianceperiod. Moreover, the manner andmethod of service of such notice or order isprescribed in section 306. The need for some notice is undeniable in view of thissection and those cited (supra). It is quite obvious that this proceeding, institutedby order to show cause on three days' notice, is beyond eitherof the specificstatutorymethods provided for enforcement of the requirements imposed by theMultiple Residence Law, whether or not it ultimately be applicable in this case.

Town ofHuntington, 245 N.Y.S.2d at 220. Note that the Town ofHuntington at least gave threedays notice and sought court assistance unlike in the current case.

c. The court below erred when it misconstrued McComb v. Town ofGreenvilleand heldthat appeUant was no t entitled to dueprocess untildirect action wastaken to remedy the alleged conditions on appellant'spremisesThe court below misconstrued and misapplied McComb v. Greenville, 160 A.D.2d 779

(2d Dep't 1990). In McComb, 160 A.D .2d at 779, the town's building and fire inspectorsdetermined that the storage of tires on the property represented a fire and health hazard so thetown's board, pursuant to Local Laws, 1987, No.2 of the Town ofGreenville, notified the ownerthat its propertywas a "dangerous p r o p e r t y " ~ a t had to be made safe within 60 days. The notice

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L

issued by the board included the date ofa public hearing scheduled on the matter. Id. Theowner acknowledged receiving the notice but did not attend the public hearing. Id. However,note that plaintiffwas given the opportunity for a hearing, unlike in the current case. Followingthe hearing, the board issued a resolution directing the building inspector to prepare contingencyplans for a cleanup of the property in the event that the owner did not complywith the notice.McComb, 160 A.D.2d at 779.

The owner in McComb argued on appeal that the procedures in Local Laws, 1987,No.2deprived him ofdue process and that the law was invalid. Id. The McComb court held that thelocal law was a valid exercise of the Town's authority to regulate unsafe properties and that "thestatute provided notice and an opportunity to be heard before the Town took any direct action toremedy the condition on the property, which is all that due process requires." Id. (citing Sheehanv. County ofSuffolk, 67N.Y.2d 52 (1986), cert. denied, 478 U.S. 1006 (1986. This is thelanguage the court below in the current case misconstrued.

McComb certainly does not stand for the proposition that a code enforcement officer can,under the PropertyMaintenance Code, vacate all the tenants in a buildingwithout anyopportunity for due process or review. InMcComb, the plaintiffwas given an opportunity to beheard even before there was a final determination as to whether the propertywas in factdangerous. In other words, the hearing inMcComb provided the due process that was requiredbefore the town took further action such as holding there were in fact violations and preparing acontingencyplan. The reason for upholding the town's actions inMcComb was not that no direct

action had been taken to remedy the conditions on appellant's premises. The action's of the townWereupheld because the town gave the plaintiffdue process, i.e., an opportunity for a hearing.

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This is supported by the case cited by the McComb court on the issue, Sheehan v. CountyofSuffolk, in which the Ne w York Court o fAppeals held, "Once taxpayers are provided withnotice and an opportunity to be heard on th e adjudicative facts concerning th e valuation ofproperties subject to tax, as was done here, they have received all th e process that is due."Sheehan v. Countyo fSuffolk, 67 N.Y.2d at 59 (emphasis added).. This is further supported bydiscussions in this briefo f du e process required by the N.Y. and U.S. Constitutions.

Under the court below's decision, there is no recourse to arbitrary and capriciousenforcement actions. Without the right to a hearing, it is axiomatic that the application andenforcement o fbuilding codeswould be left to the unbridled discretion o f the enforcementofficial. Th e lower court ruling granting full discretionarypower in an administrative officer,without th e opportunityfor a hearing to determine that a building is unsafe or a fire menace orotherwise a public nuisance creates an unlawful delegation o fpower.

D. The court below erredwhen it held that there were no direct actions taken toremedy the allegedconditions on appellant'spremisesAppellant contests the lower court's conclusion that no direct action wa s taken to remedy

the condition on the premises. Th e actions o f respondents in forcing the removal o f theoccupants from th e premises, terminating th e water service, removing the water meter,terminating the electric service, removing th e dumpster, and terminating refuse collection (R131-132, 140-142) were all direct remedial actions. Cf Mendez v. Dinkins, 22 6 A.D.2d 219 (IstDep't 1996) (vacating tenants was first step in repairing apartment building; du e process satisfiedby post-evacuation hearing); Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1 (1978)(utilities cu t of f to force compliance; adequate notice and some sort o fhearing ha d to be made

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made prior to terminating the utilities); N.Y. Mult. Res. Law 305 (ways of remedying aviolation include "cleansing, repairing, vacating, demolishing . . . " the dwelling; owner must benotified of "his right to a hearing" (emphasis added)).

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r

POINT IIUNDER THE N.Y. CONSTITUTION, APPELLANT CANNOT BE

DEPRIVED OF PROPERTY WITHOUT DUE PROCESSRespondents violated lawful procedure required under the New York State Constitution

by condemning appellant's building and vacating the tenants without providing a hearing eitherbefore or after this deprivation ofproperty. The court below erred by overlooking ormisconstruing the due process requirements of the N.Y Constitution. Under the court'sdecision, respondents could deprive appellant of its property rights indefinitelywithout any dueprocess until respondents decided to take some further remedial action in addition to forcing the

removal of all occupants from the building.The N.Y. Constitution states, ''No person shall be deprivedoflife, liberty, or property

without due process of law," N.Y. Const.Art. 1, 6, and ''Private property shall not be taken forpublic use without just compensation." N.Y. Const. Art. I, 7. Appellant has been deprived ofpropertywithout due process and without compensation.

Respondents' actions deprived appellant ofproperty and effected a taking purportedly in

the interest of the public health, safetyand welfare. Therefore, respondents were at least requiredto provide due process. See, e.g., N.Y. Const. Art. 1, 7; Central Savings Bank in the City 0/New York v. City ofNew York, 279 N.Y. 266,281 (1938) ("The city always had the authority,and still has, to close up or demolish buildings which are a public nuisance, or it may condemnproperty for public purposes, but even in these instances, notice and hearing are afforded theowner."); McComb v. Town ofGreenville, 160 A.D.2d 779 (2d Dep't 1990); 1974 N.Y. Atty.Gen. Op. 258 (A village may adopt a local law to remove unsafe or dangerous buildings

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r

i

constituting a nuisance, provided that the local law is consistent with constitutionaldue processrequirements).

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IIII,t!t

!

POINT II IUNDERTHE U.S. CONSTITUTION, APPELLANTCANNOTBE

DEPRIVED OF PROPERTYWITHOUT DUE PROCESSRespondents violated lawful procedure required under the United States Constitution by

condemning appellant's building and vacating the tenants without providing a hearing eitherbefore or after this deprivation ofproperty. The Court below erred by overlooking ormisconstruing the due process requirements of the U.S. Constitution.

The 14th Amendment ofthe U.S. Constitutionstates, "nor shall any state deprive anyperson of life, liberty, or property, without due process of law." The 5th Amendmentof theConstitution states "nor shall private property be taken for public use, without justcompensation," and this is applicable to the states through the 14th Amendment. See, e.g.,Chicago Burlington & QuincyRailroadv. Chicago, 166 U.S. 226 (1897). Appellant has beendeprived of significant property rights without due process and without compensation.

Ordinarily, due processoflaw requires an opportunity for some kind ofhearing prior tothe deprivation ofa significant property interest. See, e.g., Boddie v. Connecticut, 401 U.S. 371,379 (1971). In Boddie, the U.S. Supreme Court stated that the "root requirement" of due processis "that an individual be given an opportunityfor a hearing before he is deprived ofanysignificantproperty interest, except for extraordinary situations where some valid governmentalinterest is at stake that justifies postponing the hearing until after the event" ld. at 378-379(emphasis added). Note that the Court held that even in extraordinary situations a hearingshould still at least be provided after the event. The Court further held that "a State must afford

to all individuals a meaningful opportunity to be heard if it is tofulfiU the promise of the Due

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Process Clause." !d. at 379 (emphasis added); see also Arnett v. Kennedy, 416 U.S. 134,178-179 (1974) ("A fundamental requirement ofdue process is 'the opportunity to be heard.'Grannis v. Ordean,234 U.S. 385, 394 (1914). 'I t is an opportunity which must be granted at ameaningful time and in a meaningful manner.' Armstrong v.Manzo, 380 U.S. 545, 552 (1965).").

Because of the risk oferroneous deprivation ofproperty, as in the current case, bothfundamental fairness and due process require adequate notice and, absent emergency conditions,a meaningful opportunity to be heard before the deprivation. I f emergency conditions trulyexisted, although appellant asserts there was no imminent danger requiring immediateevacuation, appellant should still at least have been given the opportunity for a hearing after thetenants were vacated.

The court below cited Lawton v. Steele, 152U.S. 133 (1894), in support ofits holdingthat appellantwas not entitled to due process because the Village code enforcement officer tookno action other than to condemn the building and vacate all the tenants and becausemunicipalities have broad police power (R 8). However, this case is not on point, and the courtmisconstrued it.

In Lawton, 152 U.S. at 140-141, the issue was essentiallywhether illegally placed fishingnets could be destroyed without a hearing, and the U.S. Supreme Court held that the nets couldbe summarily destroyed because of their "trifling value." The Court stated that the value of thenets in questionwas "but $15 apiece," and the cost ofcondemning one by judicial proceedings"would largely exceed the value of the net." Id. at 141. The Court further held that inother

circumstances such as when the propertyhas greater value, the ownerwould be entitled to ahearing or judicial proceeding, and the Court gave a numberofexamples including "buildings

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standing upon or near the boundary line between the United States and another country, and usedas depots for smuggling goods." [d. at 140-141 (emphasis added); see also Ashon v. BoardofComm'rs, 185 F. 221, 222 (C.C.D. La. 1911)(holding "[Pjlaintiff's seines are alleged to be ofconsiderable value, some $450 apiece . . . [T]o permit their seizure and destruction in thesummarymanner authorized by the act would be violative of [plaintiff's] rights." (distinguishingLawton, 152 U.S. 133.

Given Lawton, it is clear that it is not a triflingmatter to deprive appellant indefinitelyofthe use of its property and the rent from its tenants, not to mention the termination 'o f its water,electric, and refuse collection services. Most importantly, other cases more on point than Lawtonshow that appellant could not be deprived of its propertywithout a hearing. See, e.g., MemphisLight, Gas & Water Div. v. Craft, 436 U.S. 1 (1978); Central Savings Bank in the City ofNewYorkv. City ofNew York, 279 N.Y. 266 (1938); Mendez v. Dinkins, 226 A.D.2d219 (1stDep't1996); McComb v. Town ofGreenville, 160 A.D.2d 779 (2d Dep't 1990).

In Mendez v. Dinkins, 226 A.D.2d 219,219-221 (1st Dep't 1996), tenants were vacatedfrom an apartment building due to numerous "immediately hazardous" violations. The buildingin Mendez was in terrible condition compared to appellant's building. The Mendez court statedthe following about the building:

Constructed more than 125 years ago, the building in question contains 26single-room-occupancy units with a common bathroom on each floor, and oneClass A apartment. It is made ofnon-fireproofmaterials, and at the time of thevacate order, only six of the units (three ofwhich were occupied) had directaccess to the solitary fire escape. The sprinkler system did not conform to safetyregulations (sprinkler heads were located only in public hallways, four heads weremissing, and others were more than 14 feet apart), there was a combustible oiltank stored in the cellar, electricalwiringwas exposed, and debris was scatteredthroughout the building. An inadequately vented gas combustion heatlhotwaterboiler in the cellar allowed smoke and flue gases (including carbonmonoxide) to

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escape inside this and an adjoining building. Tenants were illegally cooking intheir rooms on small electric stoves or hot plates, arid fires had been reported inthe building. In addition to the numerous violations, there was a lack of security,and the building had gained notoriety in the local press as a haven for drugtraffickers and prostitutes.

Mendez, 226 A.D.2d at 220.In September 1992, inspectors from the DepartmentofBuildings, the Fire Department,

and New York CityDepartment ofHousing Preservation and Development ("HPD") descendedon the building and issued numerous code violation notices (some ofwhich were duplicative ofearlier notices) and orders to repair. [d. at 220-221. Over 100 of these new violations wereclassified as "hazardous" or "immediatelyhazardous". [d. at 221. HPD's Manhattan BoroughChiefInspector personally inspected the building on September24, 1992, and recommended avacate order, which was concurred in the following morning by other higher level officials. [d.The order cited 264 pending violations on the premises, including a missing vent allowingdangerous fumes, including carbon monoxide, to enter the building from the boiler in the cellar.Id. The notice was posted on the morning ofSeptember 25, tenants were given plastic bags forpacking their belongings immediately, and were relocated temporarily to the Riverview Hotel atgovernment expense. Id. All remaining possessions were placed in storage. [d.

The tenants brought an Article 78 proceeding to contest the evacuation, and the AppellateDivision held that "[t]he government has a paramount interest in protecting the public fromimminent danger. Summary administrative action, even which results in deprivation of asignificant property interest without a prior hearing, is justifiedwhen it responds to a situation inwhich swift governmental action is necessary to protect the public health and safety." Mendez, .226 A.D.2d at 223. However, the court further held that evenunder these circumstances, due .


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process requires a post-evacuation hearing to confirm whether there were in fact any violations.u.

Therefore, even under conditions that are far worse and more imminently dangerous thanthe alleged conditions in appellant's building and when the tenants are relocated to a hotel atgovernment expense, an opportunity for a hearing must still be given.

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POINT IVSINCE THE FACTSWARRANTINGAPPELLANT'SMOTION TO RENEW

DID NOT EXIST OR SHOULDHAVE BEEN IRRELEVANT IN PRIORMOTIONS,THE COURT BELOW ABUSED ITS DISCRETION BYHOLDING THEREWAS NOREASONABLE JUSTIFICATION FOR NOT PRESENTINGmE FACTS EARLIER

A motion to renew is appealable. See, e.g., Roy v. National Grange Mutual Ins. Co., 85A.D.2d 832 (3d Dep't 1981). Motions to reargue are not appealable, but if a movant presentsadditional facts that were not before the court on the original motion, the motion to reargue canbe deemed a motion to renew. See, e.g., Hooker v. Town Boardo fGuilderland, 60 A.D.2d684(3d Dep't 1977); Thornlow v. Long IslandR. R. Co., 3JA.D.2d 1027(2d Dep't1970). Insuchcases the standard on review is whether the court below's refusal to grantthe renewal motionwas an abuse of discretion. Id.

The court below properlyheld that because new evidence wassubmitted in appellant'smotion to reargue, it was in fact a motion to renew. See, e.g., Mindy's Wine Cellar, Inc. v.American & Foreign Ins. Co., 51 ~ D . 2 d 650 (4thDep't 1976); Thornlowv. Long IslandR. R.Co., 33 A.D.2d 1027 (2d Dep't 1970);Alpert v. Wolf, 194Misc. 2d 126 (N.Y. Civ. Ct. 2002).4However, the court below abused its discretion by holding there was no reasonable justificationfor not presenting earlier the facts warranting the motion to renew. The facts warranting themotion did not exist or should have been irrelevant in prior motions.

Appellant presented, in its motion to renew, new facts that could not have been offered onthe prior motions because the facts did not exist at that time or there was a reasonable

"Appellant also draws this Court's attention to NY CPLR 5517(b) which gives anappellate court reviewing an order the discretion to review any subsequent orderof the courtbelow, whetheror not a direct appeal is taken from the subsequent order. See also 12-57NewYorkCivil Practice: CPLR P 5701.24.


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justificationfor not offering them in the prior motions. Actions such as removing the watermeter, terminating the electricity, terminating refuse collection, and removing appellant'sdumpster occurred after appellant filed its Article 78 petition and were ongoing at the time ofappellant 's motion to renew. To the extent that appellant could have offered such facts inopposition to respondents' motion to dismiss, the burden in a motion to dismiss is not on thenon-movant to present sufficient evidence, see, e.g., ADC Contr. & Constr., Inc. v. Town ofSouthampton, 800 N.Y.S.2d 342 (N.Y. Sup. Ct. 2004), and such facts as removing the watermeter should have been irrelevant to the court below's decision on whether appellant is entitledto due process under the circumstances .in this case.

Once the court below reached its incorrect conclusion of law that since respondents "didnot take any direct action to remedythe condition on petitioner's subject premises; i.e., it did notremove, repair or cause the subject premises to be demolished" due process rights to notice andan opportunity to be heard do not arise, appellant found it was then important to point out via themotion to renew that respondents in fact took actions beyond vacating the tenants that could beconsidered direct action to remedy the alleged conditions on appellant's premises.

Therefore, appellant had a reasonable justification for not presenting the facts at issueearlier, and itwas unjust and an abuse ofdiscretion for the court to deny appellant'smotion torenew.

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POINT VCOURTS HAVE DISCRETION TO GRANT AMOTIONTO RENEWIN TH E INTEREST OF JUSTICE EVENWHEN THERE IS NO REASONABLEJUSTIFICATION GIVEN FO R NO T PRESENTING EARLIER TH E FACTSWARRANTINGTH E RENEWAL

The court below should not have denied appellant's motion to renew and incorrectly heldthat it was "constrained" to deny the motion once it determined no reasonable justificationwasgiven for not presenting earlier the facts warranting the renewal (R 12).

The Third Department has held that a party seeking renewal must demonstrate newlydiscovered facts to support the motion and a "reasonablejustification" for not presenting thosefacts in opposition to the opposing party's previous motion to dismiss. Cippitelli v. Countyo fSchenectady, 307 AD.2d 658 (3d Dep't 2003).

The First Department has held that "[a]lthough renewal motions generally should bebased on newly discovered facts that could not be offered on the priormotion, courts havediscretion to relax this requirement and to grant such a motion in the interest o fjustice." Mejia v.Nanni, 307 AD.2d 870, 871 (IstDep't 2003) (emphasis added); see also Trinidad v. Lantigua, 2AD.3d 163 (IstDep't 2003) (renewal granted despite "inexplicabl[e]" failure to earlier submitevidence); Poag v. Atkins, 787 N.Y.S.2d 680 (N.Y. Sup. Ct. 2004) (A court has discretion togrant a motion for leave to renew, based upon facts "inexplicably omitted on the priormotion."(citingMejia, 307 A.D.2d 870. The First Department's view is arguably supported by thestrong public policy in favor o fresolving cases on the merits. Cf Framapac Delicatessen v.Aetna Casualty&Surety Co., 249 A.D.2d 36,37 (1st Dep't 1998) (Supreme Court's grant o frenewal comported with "the strong public policy in favor o f resolving cases on the merits,");Segall v. Heyer, 161 AD.2d 471,473 (Ist Dep't 1990);Mindy's Wine Cellar, Inc. v.American &

29

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fIIiJI1J

Foreign Ins. Co., 51 A.D.2d 650 (4th Dep't 1976).In appellant's case, this Court should hold that the court below should have granted

appellant's motion to renew in the interest ofjustice and in light of the strong public policy infavor of resolving cases on the merits. This Court should at least h ~ l d that the court below is notconstrained to deny a motion to renew because of a perceived omission of a reasonablejustification for not presenting facts earlier and has to discretion to grant the motion in theinterest ofjustice. It certainly does not serve the interests ofjustice for the court to denyappellants motion to renew and thereby avoid determining this case on the merits, particularlysince the facts presented in the motion to renew could have altered the courts decision. CfMemphis Light, Gas & Water Div. v. Craft, 436 U.S. 1 (1978) (homeowners were entitled to dueprocess before their utilities services were cut off; some sort ofhearing, had to be available, priorto termination, considering the importance ofutilities, and the magnitude of the deprivation thatwould be suffered ifutilities were terminated).


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CONCLUSIONFor all the foregoing reasons, this Court should annul the actions of respondents and

reverse the lower court's decision to dismiss appellant's Article 78 petition and to denyappellant's motion to renew.Dated: Walden, New York

October 20, 2008

Howar Prott , sq.Jacobowitz and Gubits, LLPAttorneysfo r Petitioner-Appellant158 OrangeAvenue, P. O. Box 367Walden, NY 12586845-778-2121

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27 north street llc vs. village of monticello, et al. - petitioner's brief on appeal

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