Opinion
No. 013103–2011.
2012-07-18
Anthony LOSQUADRO, Plaintiff, v. INCORPORATED VILLAGE OF SEA CLIFF and Andrew Lawrence, Individually and as Building Inspector of the Incorporated Village of Sea Cliff, Defendants.
Meyer, Suozzi, English & Klein, PC, attorneys for plaintiff. Siller & Ingber, LLP, attorneys for defendants.
Meyer, Suozzi, English & Klein, PC, attorneys for plaintiff. Siller & Ingber, LLP, attorneys for defendants.
STEVEN M. JAEGER, J.
The following papers read on this motion:
+-----------------------------------------------------------------------------+ ¦Notice of Motion, Affirmation, and Exhibits ¦X¦ +---------------------------------------------------------------------------+-¦ ¦Memorandum of Law In Support of Plaintiff's Motion ¦X¦ +---------------------------------------------------------------------------+-¦ ¦Affirmation in Opposition ¦X¦ +---------------------------------------------------------------------------+-¦ ¦Reply Affidavit ¦X¦ +---------------------------------------------------------------------------+-¦ ¦Memorandum of Law in Further Support of Plaintiff's Motion and In ¦X¦ ¦Opposition to Defendants' Request for Summary Relief ¦ ¦ +-----------------------------------------------------------------------------+
Motion by plaintiff for partial summary judgment on his third cause of action, declaring that Section 48–7 of the Code of the Incorporated Village of Sea Cliff is unconstitutional, is granted.
Plaintiff is the owner of the property at 7 Lafayette Place in Sea Cliff, New York. Defendant Andrew Lawrence is the Superintendent of Buildings for the Village of Sea Cliff.
According to Lawrence, the Building Department received a complaint from plaintiff's next door neighbor that plaintiff's dog was continually whining and crying. On October 12, 2010, Lawrence visited the neighbor's house and viewed plaintiff's property from there. He testified that he saw an enclosure that consisted of a six foot high chain link fence with a blue tarp covering a portion thereof. A dog was within the enclosure. Lawrence took photos and recommended to the neighbor that she work out an agreement with plaintiff.
Approximately a month later the Building Department received another call from the neighbor. On November 12, 2010, Lawrence visited the plaintiff's property. A woman answered the door, and Lawrence said he gave her his card, and told her to tell plaintiff to come down to the Building Department. The parties dispute whether the woman, plaintiff's housekeeper, consented to Lawrence's entry onto the property.
Shortly thereafter plaintiff met with Lawrence at the Building Department. On November 16, 2010, the neighbor made another complaint.
Lawrence returned to the property on or about November 20, 2010. He observed that a shed had been erected where the enclosure had been, although the roofing on the shed was missing. Lawrence issued a Stop Work Order with the following comments:
You are ordered to cease & desist with the construction of the dog run. Application for a building permit is required as well as approval. No use of this accessory structure is permitted until certificate has been issued.
(Exhibit B to the moving papers.) By letter dated November 23, 2010 (Exhibit C to the moving papers), plaintiff inquired as to the section of the building code that was being violated, and advised that Village employees were not permitted on his property.
Lawrence testified that he visited the property again on November 30, 2010, and this time the roofing of the shed had been completed. Consequently summonses for violation of the Stop Work Order were issued to plaintiff by the Building Department.
By letter dated December 7, 2010 (Exhibit D to the moving papers), defendant Lawrence quoted various sections of the Village Code in support of the Stop Work Order. He also quoted Section 48–7 of the Village Code, as the authority for the Building Department to enter upon a property in the discharge of its duties.
In September, 2011, plaintiff commenced this action for declaratory and injunctive relief, damages, and attorneys' fees. Plaintiff alleges, inter alia, that his rights under the Fourth and Fourteenth Amendments of the United States Constitution, and under the New York State Constitution, had been violated. Defendants Lawrence and the Village served an answer with twenty-five affirmative defenses.
On this motion plaintiff seeks partial summary judgment declaring that Section 48–7, on its face, is unconstitutional. Plaintiff argues that to the extent this Section authorizes warrentless entries onto private property without the consent of the property owner, such entries are in violation of the Fourth and Fourteenth Amendments of the United States Constitution, and the New York State Constitution. Defendants oppose the motion, arguing that Section 48–7 is a proper exercise of the Village's police power. Summary Judgment Standard
Summary judgment is the procedural equivalent of a trial (S.J.Capelin Associates, Inc. v. Globe Mfg. Corp., 34 N.Y.2d 338, 341 [1974] ). It is a valuable tool for resolving cases that involve only questions of law (Brill v. City of New York, 2 NY3d 648 [2004] ). The proponent must make a prima facie showing of entitlement to judgment as a matter of law (Giuffrida v. Citibank Corp., 100 N.Y.2d 72, 82 [2003];Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 [1986] ). Once a prima facie case has been made, the party opposing the motion must come forward with proof in evidentiary form establishing the existence of triable issues of fact or an acceptable excuse for its failure to do so (Zuckerman v.. City of New York, 49 N.Y.2d 557, 562 [1980] ). Analysis
The Village Code provision at issue herein, provides:
Right of Entry
The Building Inspector, upon showing proper credentials and in the discharge of his duties, may lawfully enter upon any building, structure or premises at any reasonable hour, and no person shall interfere with or prevent such lawful entry. Any person interfering with or preventing or impeding the Building Inspector from effecting lawful entry into premises or upon vacant land in the course of the discharge of his duties shall be deemed guilty of a violation under the provisions of this Code
Section 48–7 of the Village of Sea Cliff Code. The question presented, whether this provision is constitutional on its face, is a question of law for the Court.
Our federal and state Constitutions protect “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” (U.S. Const. Amendment IV; NYS Const. Art. 1, x12). The Fourth Amendment is enforceable against the States pursuant to the Due Process clause of the Fourteenth Amendment (Mapp v. Ohio, 367 U.S. 643, 655 [1961] ).
“What is a reasonable search depends on the context within which a search takes place” (O'Connor v. Ortega, 480 U.S. 709, 719 [1987] quoting New Jersey v. T.L.O., 469 U.S. 325, 337 [1985] ). In Camara v. Municipal Court of City and County of San Francisco (387 U.S. 523 [1967] ), a Housing Code provision very similar to Section 48–7 was at issue. There, the Housing Code allowed municipal employees the right to enter any building, structure or premises at reasonable times and upon presentation of proper credentials, for the purpose of performing any duty imposed by the municipal code. When the occupant of a premises refused to allow an inspector onto his property on several occasions, the occupant was ultimately arrested and charged with a criminal violation.
Although the Camara Court noted that a routine inspection of the physical condition of private property for regulatory purposes is less hostile than a policeman's search for the fruits of crime, it nevertheless found that the Fourth Amendment interests at stake in inspection cases are not “merely peripheral.” ( Camara, at 530). The Camara Court quoted from its holding in Johnson v. United States, as follows:
The right of officers to thrust themselves into a home is also a grave concern, not only to the individual but to a society which chooses to dwell in reasonable security and freedom from surveillance. When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or government enforcement agent.
Camara, at 529 quoting Johnson v. U.S., 333 U.S. 10, 14 [1948].
The Camara Court further noted that the practical effect of the San Francisco inspection system was such that an occupant had no way of knowing the limits of an inspector's power to search, and this left the occupant subject to the discretion of the official in the field ( Camara at 532). It concluded that “broad statutory safeguards are no substitute for individualized review.” As for the public interest in the enforcement of minimum fire, housing and sanitation codes, the Supreme Court rephrased the inquiry: the question is not whether such “inspections may be made, but whether they may be made without a warrant.” ( See, Camara at 532–533).
“ “... [R]easonableness is still the ultimate standard. If a valid public interest justifies the intrusion contemplated, then there is probable cause to issue a suitably restricted warrant” ( Camara at 539). In short, warrants should normally be sought only after entry is refused, except in cases where there has been a citizen complaint or other satisfactory reason for securing immediate entry (Id.). In other words, warrants should be sought only after entry is refused, except in cases presenting emergency situations. In the non-emergency situation presented by Camara, the appellant had a constitutional right to insist that the inspectors obtain a warrant in order to search his premises.
Camera is persuasive authority supporting plaintiff herein. Although the instant case was initiated on the basis of a citizen complaint, the barking of a dog without more, does not present an emergency scenario. Pursuant to Camera, plaintiff was within his rights to deny defendant Lawrence entry onto his premises in the absence of a warrant.
In Sokolov v. Village of Freeport (52 N.Y.2d 341 [1981] ), the Court of Appeals expressly followed Camera, and reinstated a trial court determination holding that a village ordinance requiring warrantless inspection by municipal building inspectors of residential rental property was unconstitutional. See also Village of Fairport v. Teremy, 266 A.D.2d 909 [4th Dept 1999], app dsmd 94 N.Y.2d 898 [2000](judgment for a municipality reversed and suppression motion granted, where code enforcement officer had conducted warrantless search of defendant's property to determine that defendant built a deck without a permit). Most recently, in ATM One, LLC v. Incorporated Vil of Hempstead, 91 AD3d 585 [2nd Dept 2012], a local ordinance requiring a warrantless site inspection of all rental dwelling units was held unconstitutional on its face in reliance upon the holding in Sokolov.
In contrast, courts have upheld ordinances requiring consent or a warrant for an administrative search except in emergency situations (Pashcow v. Town of Babylon, 53 N.Y.2d 687 [1981];McLean v. City of Kingston, 57 AD3d 1269 [3rd Dept 2008], lv app dsmd 12 NY3d 848 [2009] ).
On this record plaintiff has made out a prima facie case for partial summary judgment.
The arguments made by defendants in opposition are inapposite and fail to distinguish the legal precedent that support plaintiff's motion. The fact that municipalities have broad police powers to provide for the welfare of citizens, including the power to summarily abate nuisances, is not questioned. Furthermore, whether the plaintiff has a reasonable expectation of privacy in his yard is not relevant to the facial validity of Section 48–7. The issue of consent to enter the property is sharply disputed, and whether defendant Lawrence is entitled to qualified immunity cannot be determined on this record. Overall, defendants have failed to raise any triable issue of fact, or any legal authority to support the constitutionality of Section 48–7.
Based upon Camara, Sokolov, and ATM One, LLC, this Court is compelled to find that because Section 48–7 of the Code of the Village of Sea Cliff authorizes unconsented and warrantless inspections of residential real property without regard to an emergency situation, it is unconstitutional.
Based on the foregoing the plaintiff is entitled to partial summary judgment declaring that Section 48–7 of the Code of the Village of Sea Cliff is unconstitutional on its face. Settle Judgment on Notice.
The foregoing constitutes the determination and order of the Court.