Summary
In Anthony, the Second Department held that §§ 2-104(B)(3) and 2-113 of the Town of North Hempstead Code (the "Code") were unconstitutional.
Summary of this case from MacPherson v. Town of SouthamptonOpinion
2003-00923.
December 1, 2003.
In an action for a judgment declaring that Town of North Hempstead Code §§ 2-104(B)(3) and 2-113 are unconstitutional, the plaintiffs appeal from an order of the Supreme Court, Nassau County (DeMaro, J.), dated January 6, 2003, which denied their motion for summary judgment and granted the defendant's cross motion for summary judgment.
Edward M. Gould, Islip, N.Y., for appellants.
Snitow Kanfer Holtzer Millus, LLP, New York, N.Y. (Paul F. Millus and Orrit Hersh-Kovitz of counsel), for respondent.
Before: BARRY A. COZIER, WILLIAM F. MASTRO, JJ.
DECISION ORDER
ORDERED that the order is reversed, on the law, with costs, the motion is granted, the cross motion is denied, and the matter is remitted to the Supreme Court, Nassau County, for the entry of a judgment declaring that Town of North Hempstead Code §§ 2-104(B)(3) and 2-113 are unconstitutional.
The Town of North Hempstead Code (hereinafter the Code) § 2-103 prohibits an owner of a dwelling unit from, inter alia, renting such unit without a permit. Pursuant to section 2-104(B)(3) of the Code, the permit application must contain "[t]he names, ages and relationships, if any, to the owner of the premises of each person presently residing in or occupying such premises intended for rental occupancy." Pursuant to section 2-101 of the Code, "owner" is defined as any person having the right to possession of a dwelling unit, and the definition expressly includes a tenant in relation to a subtenant. Section 2-113 of the Code requires the owner of the dwelling unit to file a new rental registration form whenever a dwelling unit or portion thereof becomes vacant and the owner intends to permit a new tenant or other person to take up residence.
The plaintiff Neville Anthony owns dwelling units in the Town of North Hempstead and the remaining plaintiffs were his tenants. The Town's Code Enforcement Officer filed 13 criminal informations charging Anthony with violating section 2-103 of the Code by failing to apply for or obtain rental occupancy permits. The plaintiffs commenced this action for a judgment declaring that sections 2-104(B)(3) and 2-113 of the Code are unconstitutional on the ground that they violate the tenants' constitutional right to privacy. The plaintiffs subsequently moved for summary judgment and the Town cross-moved for summary judgment. The Supreme Court denied the plaintiffs' motion and granted the Town's cross motion, concluding that sections 2-104(B)(3) and 2-113 of the Code are constitutional. The plaintiffs appeal.
Sections 2-104(B)(3) and 2-113 of the Code are unconstitutional because they limit the tenants' right to privacy and are not narrowly tailored to achieve the Town's compelling interest ( see Marcin v. Incorporated Vil. of Hempstead, 238 A.D.2d 389; see generally Whalen v. Roe, 429 U.S. 589, 599-600; compare Matter of Schulman v. New York City Health and Hosps. Corp., 38 N.Y.2d 234).
The plaintiffs' request that section 2-103 of the Code be declared unconstitutional, made for the first time in their brief on appeal, is not properly before this court ( see Bestafka v. County of Suffolk, 121 A.D.2d 670, 672).
SANTUCCI, J.P., KRAUSMAN, COZIER and MASTRO, JJ., concur.