ARE LOCAL "GOOD CAUSE EVICTION LAWS" VALID?

"ORDERED, that the GCEL enacted by the City of Poughkeepsie Common Council is deemed unconstitutional, thereby rendering it VOID and UNENFORCEABLE under New York State's "Preemption Doctrine"; and it is further"

LAKR KAAL ROCK, LLC v. Paul, 2023 NY Slip Op 23070 - Dutch Co. City Court 2023:

"As a preliminary matter, this Court is a court constitutionally enacted pursuant to the New York State Constitution [NY CONST. Art. IV, §17] with jurisdiction to adjudicate constitutional legal issues. People v. Jackson, 76 Misc 2d 872 affirmed 36 NY2d 726 (1975); People v. Zongone, 102 Misc 2d 265 (Yonkers City Court 1979)(court held that NY disorderly conduct statute was constitutional); People v. Milio, 112 Misc 2d 949 (Yonkers City Court 1982) citing National Psych. Assn. et al v. University of State of NY, 18 Misc 2d 722, 725-26 affirmed 10 AD2d 688 affirmed 8 NY2d 197 (court should declare statutes unconstitutional that affect life and liberty and where the invalidity of the statute is apparent on its face); People v. Jack Resnick and Sons, Inc., 127 Misc 2d 1031(Yonkers City Court 1985)(upholding local ordinance and finding that if the constitutional questions raised in a court of limited jurisdiction are debatable, the court must declare the ordinance constitutional, and must not substitute its judgment for that of the legislative body); People v. Trolio, 170 Misc 2d 1017 (Village of Scarsdale 1996)(finding code limiting leaf blowers constitutional).

Secondly, respondent incorrectly contends that petitioner is seeking declaratory relief from this Court. The instant proceeding was commenced by petitioner pursuant to R.P.A.P.L. § 711(1), and the constitutionality and enforceability of the GCEL is inextricably intertwined with the facts set forth within the instant summary proceeding and central to the issues.

Third, Corporation Counsel's Office was timely and properly notified pursuant to C.P.L.R. § 1012. There are no procedural timing requirements setting forth when or how notice must be provided under C.P.L.R. § 1012(b). Moreover, in local government challenges, there is nothing that even imposes the notice obligation on the party raising the constitutional issue. Rather it is only implied. The statutory requirement that a motion for intervention be "timely" under C.P.L.R. § 1012, adds an element of judicial discretion to the "right" to intervene. (Alexander Practice Commentaries, McKinney's Cons. Laws of NY, Book 7B, CPLR C102:5) "The principal guideposts in the valuation of timeliness are whether disposition of the action will be unduly delayed and whether the original parties will be prejudiced." Id. citing Norstar Apts., Inc. v. Town of Clay, 112 AD2d 750, 751 (4th Dept. 1985). Cf. C.P.L.R. 1013. See, e.g., Halstead v. Dolphy, 70 AD3d 639 (2d Dept. 2010)(intervention was not sought until more than four years from action's commencement). Here, once petitioner constitutionally challenged the GCEL, the parties were ordered by this Court that Corporation Counsel's Office was to be notified by petitioner and provided an opportunity to intervene. It is undisputed that notice was timely provided by petitioner to Corporation Counsel's Office, and undisputed that Corporation Counsel consented to the documentation being emailed. O'Fallon affirmation, dated January 23, 2022 [sic], ¶ 1-14. Petitioner complied with this Court's Order, Corporation Counsel intervened on behalf of the City of Poughkeepsie, their papers have been considered, and the parties have not demonstrated prejudice in any way. Halstead v. Dolphy, supra (holding that intervention may occur at any time provided it does not unduly delay the action or prejudice existing parties).

Fourth, Corporation Counsel's erroneous claim that it has been deprived of its right to appeal an adverse decision as an intervenor^[3], is wrong. A successful intervenor acquires the same status as that of an original party. See, e.g., NY Central RR Co., v. Lefkowitz, 19 AD2d 548 (2d Dept. 1963)(holding that once intervenors become parties to an action, they are to all intents and purposes considered original parties); Halstead v. Dolphy, supra at 640; Berkoski v. Trustees of Inc. Village of Southampton, 67 AD3d 840 (2d Dept. 2009); Paez v. Varveris, 12 Misc 3d 101 (App. Term 2d Dept. 2006).

Fifth, the Court rejects the City's argument that petitioner has unclean hands.

Sixth, the Court rejects the City's argument that the motion should be decided without passing on the constitutionality of the GCEL. While courts must exercise judicial restraint, a court may not avoid a constitutional issue by interpreting a challenged statute in a manner that produces an absurd or unreasonable result. Matter of Shernise C., 91 AD3d 26 (2d Dept. 2011). Likewise, legislative enactments are to be construed so as to avoid constitutional issues if doing so is fairly possible. Matter of Waterways Dev. Corp. v. Town of Brookhaven Zoning Board of Appeals, 126 AD3d 708 (2d Dept. 2015). However, here, central to the proceeding, is the GCEL, and whether it is constitutional, or void and unenforceable. This Court cannot avoid addressing the legality surrounding the challenged statute without reaching an absurd result. A decision on this issue dictates the course of this proceeding. As such, the merits of the statute's constitutionality and enforceability are addressed below.

Finally, contrary to arguments made by Corporation Counsel [Longcore affirmation, dated January 4, 2023, ¶ 29], the function of the judicial branch is not to render decisions that ensure public debate and outcry, nor is it to ensure input from the media. Indeed, its role and decisions must be insulated from such things. The judiciary must exercise fairness and impartiality in its decisions. It must protect the rights of individuals, ensure equal justice, interpret and apply the law, and be a guardian of the Constitution. As such, to the extent that the City argues that the Court should decline to exercise its power to rule on this issue for these reasons, same is wholly rejected.

The GCEL's constitutionality and enforceability

The general rule of law is that municipalities have the right to enact ordinances that tend to preserve good order, peace, health, and the safety and welfare of its inhabitants. Second Class Cities Law § 30; Poughkeepsie City Code § 1-2. Questions as to the wisdom, need, or appropriateness of the statute are to be left to the Legislature. Olsen v. Nebraska, 313 U.S. 236, 246 (1941). Moreover, courts are bound to construe statutes as they have been drawn and are not to review the expediency, wisdom or propriety of a Legislature's actions if such matters are performed within its powers. Lawrence Construction Corp. v. State of New York, 293 NY 634, 639 (1944).

And while municipalities have broad authority to enact legislation that promotes the welfare of their constituents, the New York State Constitution limits that power to local governments to the extent that they may not adopt laws inconsistent with the provisions of the Constitution or any general law relating to its property, affairs, or government. NY Const. art. IX, 2(c). Pusatere v. City of Albany, Sup. Ct. Albany Co., June 30, 2022, Ryba, S.C.J. Index No. 909653-21, citing NY Const. art. IX, 2(c); Municipal Home Rule Law 10(1)(i), (ii); Nyack v. Daytop Vill. Inc., 78 NY2d 500, 505 (1991); see also, Albany Area Bldrs. Assn. v. Town of Guilderland, 74 NY2d 372, 377 (1989).

There is a strong presumption that a legislative statute is constitutional, and its invalidity must be demonstrated by the party opposing it beyond a reasonable doubt. People v. Pagnotta, 25 NY2d 333, 337 (1969). Only in rare cases should courts of the first instance — like here — find acts of the Legislature unconstitutional. People v. Zongone, supra citing People v. Mason, 99 Misc 2d 583, 587 (Richmond County 1979). Facial challenges to statutes are generally disfavored because legislative enactments carry a strong presumption of constitutionality. People v. Taylor, 9 NY3d 129, 150 (2007). Moreover, the burden of proof in demonstrating that the statute is unconstitutional rests with the one who seeks to invalidate it. People v. Bright, 71 NY2d 376, 382 (1988). And, in those instances, courts should declare statutes unconstitutional only as a last unavoidable resort. South Buffalo Ry. Co. v. Ahern, 303 NY 545, 555 affirmed 344 U.S. 367 (1953). Matter of Pratt v. Tofany, 37 AD2d 854 (2d Dept. 1971).

The Preemption Doctrine limits municipalities' law-making authority. People v. Torres, 37 NY3d 256, 265 (2021) citing Albany Area Bldrs. Assn., supra. Specifically, "Conflict Preemption" prohibits a local government from adopting any laws inconsistent with state law, while "Field Preemption" prohibits a local government from legislating in a field or area of the law where the "legislature has assumed full regulatory responsibility." People v. Torres, supra; Matter of Highway Super. Assn. of Rockland, Inc. v. Town of Clarkstown, 150 AD3d 731, 734 (2017).

Here, this Court finds that the GCEL passed by the City of Poughkeepsie is void and unenforceable under the New York State Constitution because the GCEL is inconsistent with duly enacted New York State Laws on eviction proceedings. NY Const., Art. IX, 2; Albany Area Builders Assn. v. Town of Guilderland, 74 NY2d 372, 377 (1989); People v. Torres, 37 NY3d 256, 265 (2021). Under the legal doctrine of Conflict Preemption, the GCEL is preempted by numerous New York State Laws. Pusatere v. City of Albany, Sup. Ct. Albany Co., June 30, 2022, Ryba, S.C.J. Index No. 909653-21.

The City of Poughkeepsie Common Council's GCEL, adopted in 2021, prohibits landlords from evicting tenants except under special circumstances. For example, it prevents landlords from evicting tenants who refuse to pay rent if they consider rent increases to be "unconscionable" — otherwise described as "predatory" rent increases. Moreover, the GCEL imposes a "good cause" requirement to institute a summary eviction proceeding; and it caps rental increases to 5% annually.

Under the legal doctrine of "Conflict Preemption," the GCEL is inconsistent with New York State Real Property Law § 226-c — which authorizes evictions based upon an expired lease or non-renewal lease — in that the GCEL precludes a landlord from evicting a tenant without good cause.

Moreover, the GCEL is inconsistent with New York State Real Property Law § 226-c(1)(a) — which authorizes rental increases of greater than 5% provided the tenant is given appropriate statutory notice — in that the GCEL prohibits a landlord from increasing rent by 5% in any twelve-month period without good cause.

In addition, the GCEL is inconsistent with New York State Real Property Law § 228 — which authorizes a landlord to evict based upon expiration of a tenancy — in that the GCEL requires a landlord to establish good cause to evict someone even if the lease has expired.

As well, the GCEL is inconsistent with New York State Real Property Actions and Proceedings Law § 711(1) — which authorizes a landlord to evict a tenant based upon an expired lease — in that the GCEL requires a landlord to establish good cause to evict someone even if the lease has expired.

"Conflict Preemption" — once again — prohibits a local government from adopting a law inconsistent with state law, and here the GCEL is in direct conflict with R.P.L. § 226-c(1)(a) and R.P.L. § 228, as well as R.P.A.P.L. § 711(1), because it strips a landlord's New York State statutorily enacted right to terminate, or otherwise not elect to renew a tenancy, without good cause. Moreover, it prohibits a landlord from increasing rent by more than 5% annually without good cause. Since the City of Poughkeepsie Common Council is prohibited from enacting a law inconsistent with general laws of New York State, the GCEL is void and unenforceable.

Even if this Court found that the GCEL was valid — which it has not — while respondent has the benefit of a strong presumption set forth in the GCEL, that presumption is rebuttable. Here, petitioner set forth sufficient evidence in admissible form to rebut the presumption that would have defeated respondent's motion to dismiss. In addition, even if this Court found the GCEL to be valid and enforceable, issues of fact have been raised in the papers, including market analysis of current rentals in several nearby apartment complexes, that would have defeated the motion to dismiss. Notwithstanding same, this Court would have had to reach an absurd result by not addressing these constitutional issues."

TRUANCY IN NY AND RIGHT TO REMAIN SILENT

MATTER OF TYLER D., 166 AD 3d 612 - NY: Appellate Div., 2nd Dept. 2018:

"In September 2015, the assistant principal of the appellant's high school filed a petition pursuant to Family Court Act article 7 seeking to have the appellant adjudicated a person in need of supervision (hereinafter the PINS petition) on the grounds that, among other things, the appellant was persistently truant from school. Thereafter, the appellant, represented by counsel, admitted to truancy and consented to the entry of an order by the Family Court adjourning the matter in contemplation of dismissal (hereinafter the ACD order). After two extensions of the ACD order, the Putnam County Probation Department filed an application to restore the matter to the calendar, alleging that the appellant violated the terms of the ACD order by failing to regularly attend school.

On March 1, 2017, after several other appearances and receipt of a forensic report, the Family Court held a fact-finding and dispositional hearing and heard testimony from three witnesses regarding the appellant's failure to regularly attend school. In the March 17, 2017, order appealed from, the court, having determined that the appellant violated the terms of the ACD order, restored the matter to the calendar, vacated the ACD order, adjudged the appellant to be a person in need of supervision, and directed that he be placed in the custody of the Putnam County Commissioner of Social Services for a period of up to 12 months.

Although the appellant's term of custody has expired by the terms of the order appealed from, the order is not academic in light of the enduring consequences which might flow from the 614*614 finding that the appellant violated the terms of the ACD order (see generally Matter of Gabriela A., 23 NY3d 155, 161 n 2 [2014]; Matter of Bickwid v Deutsch, 87 NY2d 862, 863 [1995]; Matter of Corey WW., 93 AD3d 1130, 1131 [2012]).

Family Court Act § 741 (a) provides, in relevant part: "[a]t the initial appearance of a respondent in a proceeding and at the commencement of any hearing under this article, the respondent and his or her parent or other person legally responsible for his or her care shall be advised of the respondent's right to remain silent" (emphasis added). The failure to apprise a respondent of the right to remain silent constitutes reversible error, even if the respondent consents to the disposition in the presence of counsel (see Matter of Nichole A., 300 AD2d 947, 948 [2002]; Matter of Jodi VV., 295 AD2d 659, 659 [2002]; see also Matter of Aaron UU., 125 AD3d 1155, 1156 [2015]) or fails to seek to withdraw his or her admissions based on the failure (see Matter of Corey WW., 93 AD3d at 1131).

Here, the Family Court never apprised the appellant of his right to remain silent—not at the initial appearance on the PINS petition, nor prior to accepting his admission to the allegations in the petition and entering the ACD order, nor at the fact-finding and dispositional hearing on March 1, 2017, addressing the alleged violation of the ACD order. The court's failure to advise the appellant of his right to remain silent cannot be considered harmless error (see Matter of Mark J., 259 AD2d 40, 42-43 [1999]), as the court never advised the appellant of his right to remain silent at any time during the course of this proceeding or the original PINS proceeding. Thus, the order must be reversed (see Matter of Daniel XX., 149 AD3d 1231, 1232 [2017]; Matter of Jodi VV., 295 AD2d 659, 660 [2002]; see also Matter of Chad M., 208 AD2d 541 [1994])."

RENT OVERCHARGES UNDER THE JUNE ACT ADDRESSED BY COURT OF APPEALS

While we were in the beginning throes of the health crisis and tenants began to wonder how they will pay their rent, a reminder that 2 weeks ago, the New York Court of Appeals struck down the retroactive application of the rent overcharge provisions of the June 2019 Housing Stability and Tenant Protection Act on constitutional grounds. The full opinion (4-3) and the dissent can be found here:

MATTER OF REGINA METROPOLITAN CO., LLC v. NEW YORK STATE DIVISION OF HOUSING AND COMMUNITY RENEWAL 2020 NY Slip Op 2127 - NY: Court of Appeals, April 2, 2020

NO "AID-IN-DYING" IN NEW YORK

Sara Myers et al. v. Eric Schneiderman et al., NYS Court of Appeals, Opinion 77, September 7, 2017:

"Plaintiffs ask us to declare a constitutional right to "aid-in-dying," which they define (and we refer to herein) as the right of a mentally competent and terminally ill person to obtain a prescription for a lethal dosage of drugs from a physician, to be taken at some point to cause death.  Although New York has long recognized a competent adult's right to forgo life-saving medical care, we reject plaintiffs' argument that an individual has a fundamental constitutional right to aid-in-dying as they define it.  We also reject plaintiffs' assertion that the State's prohibition on assisted suicide is not rationally related to legitimate state interests."

The full decision can be found here: http://www.nycourts.gov/ctapps/Decisions/2017/Sep17/77opn17-Decision.pdf

UNEMPLOYMENT INSURANCE - FRAUD

Yesterday, an investigative reporter called me regarding my experiences with fraud in Unemployment Insurance matters. Later, I found this case most interesting, one of the few federal cases in New York federal courts dealing with the New York State Unemployment Insurance Law:


Dominick SAFFIOTI, Plaintiff, v. Martin P. CATHERWOOD as Industrial Commissioner of the State of New York, Defendant, 305 F.Supp. 989 (S. D. New York. April 9, 1969)

Dominick Saffioti, pro se.

Louis J. Lefkowitz, Atty. Gen. of State of New York, by Robert S. Hammer, Asst. Atty. Gen., for defendant.

MEMORANDUM

BONSAL, District Judge.

Plaintiff, Dominick Saffioti, instituted this action against Martin P. Catherwood, as Industrial Commissioner of the State of New York, seeking $100,000 damages for alleged violations of his constitutional rights, 42 U.S.C. §§ 1983, 1985.

Defendant Catherwood now moves, pursuant to Rule 56, F.R.Civ.P., for summary judgment in his favor; plaintiff also moves for summary judgment in his favor.

Back in 1962, plaintiff was receiving unemployment insurance benefits in the State of New York. The Department of Labor, Division of Employment Security (the Department) ascertained that while plaintiff was receiving these benefits, he was running advertisements in Newburgh, New York Newspapers soliciting offers on various parcels of real estate; the Department investigated further and discovered that plaintiff held a real estate salesman's license and was working for Joseph Parisi, a licensed real estate broker.

An administrative hearing was held on May 14 and June 20, 1963, at which plaintiff appeared with counsel; the Referee found that plaintiff had made false statements in connection with his application for unemployment insurance benefits, and that plaintiff was not totally unemployed, as required by statute, Labor Law, McKinney's Consol. Laws, c. 31, § 522. Plaintiff's unemployment insurance benefits were reduced, and plaintiff was required to pay back $1,025 as an overpayment.

On September 16, 1963, the Unemployment Insurance Appeals Board affirmed the decision of the Referee. Plaintiff applied to re-open the proceedings on two occasions and hearings were held on November 26, 1963, at which plaintiff voluntarily appeared without counsel, and on August 17, 1963, at which plaintiff appeared with counsel. On both occasions, the Referee's decision was adhered to.

Plaintiff appealed to the Appellate Division, Third Department, which unanimously affirmed the decision of the Appeals Board, 28 A.D.2d 1013, 283 N.Y.S.2d 738 (3d Dept. 1967). Leave to appeal to the Court of Appeals was denied, 21 N.Y.2d 641, 287 N.Y.S.2d 1025, 234 N.E.2d 715 (1967), and again denied on reconsideration, 21 N.Y.2d 643, 288 N.Y.S.2d 1026, 235 N.E.2d 926 (1968).

A review of the record of the various proceedings supports the finding that plaintiff, during the period he was receiving unemployment insurance benefits, was a licensed real estate salesman working for Mr. Parisi, and that he placed several ads in the local papers soliciting purchasers for parcels of real estate. The record further discloses that plaintiff is a carpenter by trade, who appears to have been befriended by Mr. Parisi and that his total income from his real estate activities during the period involved was $50, which he received as a commission on December 20, 1962.

As defendant concedes, "this is an unfortunate case, in that plaintiff was found to be disqualified from receiving unemployment compensation on the basis of having been engaged in unsuccessful, unremunerative attempts to sell real estate. Understandably, it must seem to a layman, a rather technical and unnecessarily harsh ruling." On the other hand, there was evidence to support the findings made by the Referee, and plaintiff sought and was provided review at the administrative level and in the New York courts, see Labor Law, §§ 621, 622, 624.

The Referee's findings having been affirmed at all stages, plaintiff is not entitled to further review in the Federal court.

In his papers, and at argument, plaintiff contended that he had been found guilty of fraud and misrepresentation, without due process of law and in violation of his constitutional rights. However, the record does not show that the Referee found plaintiff guilty of any crime, but only that he found that the plaintiff represented that he was totally unemployed when, in fact, he had this unremunerative connection with the real estate business. Therefore, plaintiff is not in the position of a defendant in a State criminal proceeding who contends that his Federal constitutional rights were violated.

The record indicates that plaintiff received due process in the State proceedings, in accordance with State law, see Labor Law, §§ 620-626. At most, he has been the victim of perhaps an overzealous interpretation of the New York Labor Law relating to unemployment insurance benefits, but he has alleged no violation of his Federal constitutional rights. Sarelas v. Sheehan, 326 F.2d 490 (7th Cir. 1963).

Finally, there is no jurisdictional basis for this court to entertain an action between a citizen of New York and the Industrial Commissioner of New York since there is no diversity of citizenship between the parties.

Since this court is without jurisdiction to entertain plaintiff's action, defendant's motion for summary judgment is granted and plaintiff's motion for summary judgment is denied.

Settle order on notice.