300 West 154th Street Realty Co. v. Department of Buildings

Stevens, J. P. Petitioner appeals from a judgment entered November 9,1967, dismissing its petition. This is an article 78 proceeding to declare unconstitutional the “Emergency Repair Program” insofar as it authorizes respondent to make repairs without the permission and consent of the landlord or lienors, and to collect the rents in payment therefor, should landlord fail to reimburse the City of New York for the same. Petitioner is the owner of a multiple dwelling, premises 116 West 139th Street, in the Borough of Manhattan. Apartment 5E therein is occupied by a welfare tenant and her seven children. According to the affidavit of the tenant attached to the answer herein, on December 23, 1966, she discovered a stoppage in her toilet, causing overflow of liquid waste and fecal matter. She telephoned the office of the landlord, notified the landlord of the condition and requested its repair. On December 27,1966 tenant states she telephoned the agent or one of the officials of petitioner [353] concerning the condition and was informed that it would not be repaired by petitioner. A visit to the official’s office at 5:00 p.m. on that date also proved unsuccessful. Tenant states she was threatened with eviction if she complained to the authorities. On December 27,1966 an employee of the Department of Welfare advised the tenant to notify the Department of Buildings. This was done. On the evening of December 27 an inspection of the apartment was made and the condition corrected on December 28, 1966. Incidentally, the answer of respondent alleges that on December 27, 1966 one of its employees notified petitioner of the complaint. Petitioner was billed later for $58.10, the cost of the repairs. Accompanying the bill was a form letter which would be sent to the tenants of the premises if the bill was not paid, advising the tenants to pay their rents to the city. Petitioner paid the charges and the form letter was never sent. Subsequently, petitioner commenced this article 78 proceeding to declare unconstitutional the Emergency Repair Program, or to declare it unconstitutional as applied to petitioner. Petitioner asserts that its first knowledge of the stoppage and .repair work done came on March 2,1967, when it received .the bill and notice from respondent. Petitioner alleges the condition was the fault of the tenant and its correction the tenant’s responsibility,»and that the charge is excessive. In its brief petitioner asserts (1) the Emergency Repair Program (Program) violates constitutional due process and/or is constitutionally invalid as applied; (2) the Program violates constitutional guarantees of equal protection and/or is unconstitutional as applied; (3) Special Term should have permitted petitioner to prove discriminatory enforcement; and (4) notice to petitioner is “immaterial” and was not constitutionally given. The basic issue is whether petitioner’s constitutional rights were violated by the procedures adopted in correcting the hazardous condition. Petitioner complains that it had no opportunity to contest the necessity for the work or to question the cost for which reimbursement is demanded. Pursuant to chapter 22 of the Administrative Code of the City of New York, the resolution of the Board of Health dated January 29, 1965, and a later executive order of the Mayor, respondent was designated by the Department of Health to cause the repair of conditions constituting an immediate danger to the life or health of occupants of dwellings. Such conditions constitute a nuisance (Administrative Code, § 564-15.0) which may be abated by the Department of Health or any agency of the City of New York designated by it as its agent (Administrative Code, ch. 22, § 556-10.0 et seq.). “ [0]rders of the board of health are [354] to be treated as prima facie just and legal ” (Matter of Silverman v. Department of Health of City of N. Y., 252 App. Div. 678, 682), and the board could properly designate or approve the designation of respondent as an agency to abate the nuisance. While the record permits the conclusion that petitioner, despite its denials, did in fact receive prior notice of the condition, our determination does not rest upon such a finding. “The right of summary abatement of nuisances without judicial process or proceeding, was an established principle of the common law long before the adoption of our Constitution, and it has never been supposed that this common-law principle was abrogated by the provision for the protection of life, liberty and property in our state Constitution, although the exercise of the right might result in the destruction of property” (Lawton v. Steele, 119 N. Y. 226, 235-236, affd. 152 U. S. 133; see, also, Administrative Code, §§ 556-10.0, 566-11.0). In this case there was no destruction of property but its preservation and even its improvement. The condition which was abated had existed for four or five days and clearly constituted a health hazard not only to the immediate occupants, of the subject apartment but to others as well (see Administrative Code, § 564-15.0). Its correction cannot be regarded as the imposition of punishment upon the owner, or as the forfeiture of the owner’s right of property in the nature of punishment. The burden of showing unreasonableness or unconstitutionality is upon the party attacking the procedure and that burden has not been met by petitioner. The police power of the sovereign includes matters essential to public health or safety. The charges leveled here represent a joint and several charge against the owners, lessees, or occupants of the apartment and the expenses are or may be a lien against rent (Administrative Code, § 564-22.0) or, upon proper finding, a lien upon land or buildings (§ 564-24.0). Such a provision has been held constitutional (Matter of Barkin [Dept. of Health, City of N. Y.], 189 Misc. 358). The Department of Health may sue anyone liable and recover the expenses incurred. The parties made responsible shall be liable to contribute or to make payment as between themselves in respect of such expenses, etc. (Administrative Code, §§ 564r-23.0, 564-17.0). It is neither unreasonable nor discriminatory that reimbursement is sought first from the owner. He may contest the validity of the claim by refusal to pay and may sue to recover if rents are collected or paid to the city in response to the notice (§ 564r-31.0). The procedure used does not constitute invidious treatment or intentional discrimination, for petitioner at most has shown nonenforcement as to the tenants (cf. Matter [355] of DiMaggio v. Brown, 19 N Y 2d 283). Mere selectivity in enforcement, if founded upon a rational basis, is not arbitrary and discriminatory. The initial obligation to keep water closets, toilets and sinks in good repair rests upon the owner of a multiple dwelling (Multiple Dwelling Law, § 77) and any liability of the tenant for a violation must depend upon a determination that such violation “is caused by his willful act, assistance or negligence” or that of a member of his household or his guest (Multiple Dwelling Law, § 78). As noted, ‘ ‘landlords of welfare recipients, secure in their receipt of rents directly from public funds, have even less incentive than other landlords to make repairs. Under circumstances such as these, if the Legislature chooses to select one class of landlords and impose a special sanction against them, the equal protection clause does not forbid it” (Matter of Farrell v. Drew, 19 N Y 2d 486,492). The end sought by the applicable sections of the code is legitimate and the measures taken reasonable and appropriate to such end. The sections of the code attacked are constitutional, and the procedures should not be stricken as unconstitutional (cf. Matter of Farrell v. Drew, supra). The judgment appealed from should be affirmed, without costs to either party.