To be Argued by: .

HOWARD PROlTER
(Time Requested: 15 Minutes) .

New lurk §uprtmt Qtuurt

Apprllate iiuisinn-wltirll irpartmtnt .
•

In the Matter of the Application of

27 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, LLP

Attorneys for Petitioner-Appellant
158 Orange Avenue
P.O. Box 367
Walden, New York 12586
(845) 778-2121

Sullivan County Clerk's Index No. 1709/07

 TABLE OF CONTENTS

Questions Presented. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 1

Preliminary Statement ......................................... 3

Statement of Facts 4

Argument
Point I - Respondents Violated Lawful Procedure by Condemning Appellant's
Building and Vacating the Tenants Due to Alleged Violations of Property
Maintenance Code Section 108 and the Multiple Residence Law Without
Providing Notice or Hearing Either Before or After 10

Point II - Under the N.Y. Constitution, Appellant Cannot Be Deprived

of Property Without Due Process 20

Point III - Under the U.S. Constitution, Appellant Cannot Be Deprived

of Property Without Due Process' 22

Point IV - Since the Facts Warranting Appellant's Motion to Renew Did Not
Exist or Should Have Been Irrelevant in Prior Motions, the Court Below
Abused its Discretion by Holding There Was No Reasonable Justification
for Not Presenting the Facts Earlier 27

Point V - Courts Have Discretion to Grant a Motion to Renew in the

Interest of Justice Even When There is no Reasonable Justification Given
for Not Presenting Earlier the Facts Warranting the Renewal 29

Conclusion 31
 TABLE OF AUTHORITIES
Page(s)
Cases:
ADC Contracting & Construction, Inc. v. Town ofSouthampton,
800 N.Y.S.2d 342 (N.Y. Sup. Ct. 2004) 28
Alpert v. Wolf,
194 Misc. 2d 126 (N.Y. Civ. Ct. 2002)...................................................................... 27
Armstrong v. Manzo,
380 U.S. 545 (1965) ,.................................................... 23
Arnett v. Kennedy,
. 416 U.S. 134 (1974).......................... ......................................................................... 23
Ashon v. Board ofComm 'rs,
185 F. 221 (C.C.D. La. 1911)..................................................................................... 24
Boddie 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) ~ 20,24
Chicago Burlington & Quincy Railroad v. Chicago,
166 U.S. 226 (1897) :............................................................................... 22
Cippitelli v. County ofSchenectady,
307 A.D.2d 658 (3d Dep't 2003) 29
Framapac Delicatessen v. Aetna Casualty & Surety Co.,
249 A.D.2d 36 (1st Dep't 1998) ~ 29
Grannis v. Ordean,
234 U.S. 385 (1914).................................................................................................. 23
Hooker v. Town Board ofGuilderland,
60 A.D.2d 684 (3d Dep't 1977) 27
Lawton v. Steele,
152 U.S. 133 (1894) 23,24
McComb v. Town ofGreenville,
160 A.D.2d 779(2d Dep't 1990) passim
Mejia v. Nanni,
307 A.D.2d 870 (1st Dep't 2003) 29
Memphis Light, Gas & Water Division v. Craft,
436 U.S. 1 (1978) , ~... ................................. ................... .......... 18,24,30

i
Mendez v. Dinkins,
226 AD.2d 219 (1st Dep't 1996) ............................................•...................... 13, 18,24-26 .
Mindy's Wine Cellar, Inc. v. American & Foreign Ins. Co.,
51 A.D.2d 650 (4th Dep't 1976) .........•................•.......................... ~... ... ....... . .... 27,29-30
Poag v. Atkins,
787 N.Y.S.2d 680 (N.Y. Sup. Ct. 2004) 29
Roy v. National Grange Mutual Ins. Co.,
85 A.D.2d 832 (3d Dep't 1981) : ;............................................................ 27
Segall v. Heyer,
161 AD.2d471 (lstDep't 1990).............................................................................. 29
Sheehan v. County 0/Suffolk,
67 N.Y.2d 52 (1986), cert. denied, 478 U.S. 1006 (1986) 17, 18
Thomlow v. Long Island R. R. Co.,
33 AD.2d 1027 (2d Dep't 1979) ~...... 27
Town ofHuntington v. E.S.P. Corp.,
245 N.Y.S.2d 219 (N.Y. Sup. Ct. 1963)........................................... ......................... 16
Trinidad v. Lantigua,
2 A.D.3d 163 (Ist Dep't 2003) 29
Statutes & Other Authorities:
U.S. Constitution, 5th AInendment.................................................. ...................................... 22
U.S. Constitution, 14th AInendment..................... ................. ................................................ 22
N.Y.S. Const. Art. 1, § 6.... .................. .................................................................................. 20
N.Y.S. Const. Art. 1, § 7.. ............................................................. ......................................... 20
12-57 New York Civil Practice: CPLR P 5701.24 : - 27
1974 N.Y. Atty. Gen. Op. 258 11-12,20-21
19 N.Y.C.R.R. § 1203.2(a) 11
19 N.Y.C.R.R. § 1203.3(f)..................................................................................................... 11
New York Exec. Law Art. 18 11
New York Exec. Law § 381(1)........................... ....................................................... 11
New York Exec. Law § 381 (2)................................................................................. 11
N.Y. Multiple Residence Law passim
§ 304 : .- .- ...... 16
§ 305 ~ 12,14, 16, 19

ii
 § 305(1) ~ ,. 14-15
§ 305(2) : 14, 15
§ 306 12, 14, 16
N.Y. CPLR Art: 78 ~ . . .. . . . . .. . . . . .. . . . . .. ... ... . .. . . . .. .. . .. . . .. .. .. . . passim
N.Y. CPLR § 5517(b) '.................................. 27
N.Y. CPLR § 7804(f) ,...... 6
N.Y. Mu1t. Dwelling Law §§ 301-309.................................................................................... 12
N.Y. Gen. City Law § 20(35) 12
N.Y.S. Property Maintenance Code.................................................................................. passim
§ 102.9............................................................................................................... 12
§ 103.1 : ,....................................................................................... 12
§ 104.1............................................................................................................... 12
§ 104.3............................................................................................................... 12
§ 106.1............................................................................................................... 12
§ 108 ;...................... p assim
§ 108.1.1 ;............................................................................... 5, 12
Village ofMonticello Code Chapter 119 ;........................................ passim
Local Laws, 1987,No.2oftheT()wnofGreenville 16,17

iii
 QUESTIONS PRESENTED

1. Whether it is a violation of lawful procedure under the Village of Monticello

Code, the N.Y.S. Property Maintenance Code, and the Multiple Residence Law for a

municipality to condemn an apartment building and order tenants to vacate due to alleged

violations ofProperty Maintenance Code Section 108 and the and the Multiple Residence Law

without 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 of due process

under the N.Y. Constitution.

The court below ruled that there was no violation of lawful procedure.

3. Whether the aforementioned circumstances constitute a violation ofdue process

under the U.S. Constitution.

The court below ruled that there was no violation oflawful procedure.

4. Whether there is a reasonable justification 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 reasonable justification 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 ofresolving cases on the merits even when the

court determines there was no reasonable justification 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

1
 STATEMENT OF FACTS

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

which is located at 27 North Street in the Village of Monticello, Sullivan County, New York

(the "premises'')[R 6,20,81-82]. The source of the fire was a burning mattress and was not

caused by any defect in the building [R 20, 81-82]. The fire was responded to by the Monticello

Fire Department [R 6, 20]. On or about June 6, 2007, respondents Sue Flora, Code Enforcement

Officer of the Village ofMonticello, and John Barbarite, Village of Monticello Deputy Manager,

visited the subject premises, affixed red stickers labeled "Violation - Vacate and Remove" to the

doors of various units within the building, purported to "condemn" the building, and summarily

forced 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 community

and has been inspected and utilized by government agencies such as the Sullivan County

Department of Social 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 year

ensuring the building and apartments are safe and properly maintained prior to tenants moving in

[R 138-141]. The inspecting agencies have included the Department of Social Services, adult

protective services, Section 8 housing inspectors, and the Recovery Center inspectors [R 138-

141]. Even respondent Sue Flora as the Village of Monticello code enforcement officer has

inspected 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 immediately

addressed and cured [R 138-141].

4
there was no reasonable justification given for not presenting earlier the facts warranting the

renewal.

2
 PRELIMINARY STATEMENT

The 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 of Monticello and Sue Flora, Code Enforcement Officer of the Village of Monticello,

whereby respondents, acting allegedly pursuant to Section 108 of the Property Maintenance Code

ofNew York State and the New York State Multiple Residence Law, purported to condemn

appellant's apartment building located at 27 North Street in the Village of Monticello and

summarily vacated the tenants without adequate notice, opportunity to cure, or a hearing either

before or after the action. Respondents also terminated water service to the building, removed

the water meter, terminated the electric service, removed the dumpster, and terminated refuse

collection. Taking these actions and depriving appellant of p~pertywithout an opportunity for a

hearing violated lawful procedure under the Village ofMonticello Code, the New York State

Multiple Residence Law and the New York State and United States Constitutions.

The court below denied appellant's Article 78 petition holding due process rights to

notice and an opportunity to be heard did not arise unless respondents took a direct action to

remedy the conditions on appellant's property.

Appellant then made a motion to renew and presented new evidence of facts that the court

could have deemed sufficient to constitute such remedial action. However, the court below

denied the motion to renew without considering the facts.

Appellant 27 North Street, LLC now appeals both the denial ofthe Article 78 petition and

the denial of the motion to renew.

3
 STATEMENT OF FACTS

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

which is located at 27 North Street in the Village of Monticello, Sullivan County, New York

(the "premises")[R 6,20,81-82]. The source of the fire was aburning mattress and was not

caused by any defect in the building [R 20, 81-82]. The fire was responded to by the Monticello

Fire Department [R 6,20]. On or about June 6, 2007, respondents Sue Flora, Code Enforcement

Officer of the Village of Monticello, and John Barbarite, Village of Monticello Deputy Manager,

visited the subject premises, affixed red stickers labeled "Violation - Vacate and Remove" to the

doors of various units within the building, purported to "condemn" the building, and summarily

forced 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 community

and has been inspected and utilized by government agencies such as the Sullivan County

Department of Social Services to temporarily house needy individuals [R 81-82, 138-141]. Since

November 200 I, various government agency inspectors have made as many as ten visits per year

ensuring the building and apartments are safe and properly maintained prior to tenants moving in

[R 138-141]. The inspecting agencies have included the Department of Social Services, adult

protective services, Section 8 housing inspectors, and the Recovery Center inspectors [R 138-

141]. Even respondent Sue Flora as the Village of Monticello code enforcement officer has

inspected 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 immediately

addressed and cured [R 138-141].

4
 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 upon

determination that the notices were issued in error. In fact, respondents have been attempting

unsuccessfully for over four years to prove that appellant had improperly altered a six family

dwelling 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 providing

adequate notice to the tenants before putting them out on the street and providing appellant

property owner with a hearing and an opportunity to correct the alleged violations.

After the red stickers were placed on the building and tenants were ordered to vacate, that

same day, appellant through counsel requested written documentation stating the code and

sections 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 was

aware ofthe findings of the Code Enforcement Officer and that it could take up to 48 hours to

provide the list of violations [R 31].

On June 7, 2007, appellant was faxed a Violation Notice that appellee alleges was affixed

to appellant's premises [R 84-88]. This Violation Notice stated, inter alia, that there were

violations of ''PM 108.1.1"1 and "Multiple Residence 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 providing
minimum safeguards to protect or warn occupants in the event of fire, or because
such structure contains unsafe equipment or is so damaged, decayed, dilapidated,
structurally unsafe, or of such faulty construction or unstable foundation, that
partial or complete collapse is possible.

5
~~ •.. . .

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's

rights [R 17-63]. Appellant specifically alleged, among other things, that it had not been

afforded 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 hearing

procedures embodied in Chapter 119 of the Village ofMonticello Code, which governs ''Unsafe

Buildings" [R 5-7,22]. That local law requires the Code Enforcement Officer to provide a

written report to the Village ofMonticello Board, and action by the Village Board, with an order

to repair and an order of hearing [R 22]. Appellant averred that it has been left to guess as to the

specific Village and Building Code violations upon which the respondents were relying [R 6, 20-

23]. Appellant further averred that the violation notice claimed that there was no fire protection

yet the subject premises had fire extinguishers on every floor and hardwired smoke detectors that

worked 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 any

of 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) [R

64-73, 74-89]. The motion was denied on September 10, 2007, and respondents were directed to

serve 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 [R

123-128]. At no time has appellant been provided a hearing on whether the building should have

6
 STATEMENT OF FACTS

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

which is located at 27 North Street in the Village of Monticello, Sullivan County, New York

(the "premises")[R 6,20,81-82]. The source ofthe fire was a burning mattress and was not

caused by any defect in the building [R 20, 81-82]. The fire was responded to by the Monticello

Fire Department [R 6, 20]. On or about June 6, 2007, respondents Sue Flora, Code Enforcement

Officer ofthe Village ofMonticello, and John Barbarite, Village ofMonticello Deputy Manager,

visited the subject premises, affixed red stickers labeled "Violation - Vacate and Remove" to the

doors of various units within the building, purported to "condemn" the building, and summarily

forced 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 community

and has been inspected and utilized by government agencies such as the Sullivan County

Department of Social 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 year

ensuring the building and apartments are safe and properly maintained prior to tenants moving in

[R 138-141]. The inspecting agencies have included the Department of Social Services, adult

protective services, Section 8 housing inspectors, and the Recovery Center inspectors [R 138-

141]. Even respondent Sue Flora as the Village of Monticello code enforcement officer has

inspected 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 immediately

addressed and cured [R 138-141].

4
 ----------
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 upon

determination that the notices were issued in error. In fact, respondents have been attempting

unsuccessfully for over four years to prove that appellant had improperly altered a six family

dwelling 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 providing

adequate notice to the tenants before putting them out on the street and providing appellant

property owner with a hearing and an opportunity to correct the alleged violations.

After the red stickers were placed on the building and tenants were ordered to vacate, that

same day, appellant through counsel requested written documentation stating the code and

sections 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 was

aware of the findings of the Code Enforcement Officer and that it could take up to 48 hours to

provide the list of violations [R 31].

On June 7, 2007, appellant was faxed a Violation Notice that appellee alleges was affixed

to appellant's premises [R 84-88]. This Violation Notice stated, inter alia, that there were

violations of"PM 108.1.1"1 and "Multiple Residence 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 ofthe structure by not providing
minimum safeguards to protect or warn occupants in the event of fire, or because
such structure contains unsafe equipment or is so damaged, decayed, dilapidated,
structurally unsafe, or of such faulty construction or unstable foundation, that
partial or complete collapse is possible.

5
been condemned and vacated immediately or whether there were in fact any violations at all [R

5-8, 123-128, 130-132, 135-136, 140-142].

On January 8,2008, the Supreme Court issued and entered its Decision & Judgment [R 5-

8]. The decision incorrectly stated that appellant only sought a determination of whether there

was a violation of the due process requirements contained in the Village ofMonticello Code [R

5]. Through these Article 78 proceedings, appellant has sought, inter alia, a determination of

whether there was a violation oflawful procedure, including due process violations under the

N.Y. or U.S. Constitution such as failure to grant a hearing either before or after the building was

condemned and the tenants summarily forced to vacate [R 17-24, 74-89, 123-128].

The court in its Decision & Judgment held that when a structure is alleged to be in

violation of Section 108 ofthe Property Maintenance Code ofNew York State, such structure

shall be condemned and no person shall occupy the structure [R 7-8]. The court then agreed with

respondents' arguments [R 7-8, 91-93] and held that since respondents "did not take any direct

action to remedy the condition on petitioner's subject premises, i.e., it did not remove, repair or

cause the subject premises to be demolished" due process rights to notice and an opportunity to

be heard do not arise [R 8]. The court thereby denied appellant any opportunity for a hearing on

whether the building should have been condemned and vacated immediately and whether there

were in fact any violations at all. Thus, respondents have essentially been allowed to take and

deprive appellant and its tenants of their property without any due process oflaw. Under the

court's decision, respondents could deprive appellant of its property rights indefinitely without

any hearing until respondents decided to take some further remedial action in addition to

removing all occupants from the building, depriving the occupants oftheir residences, and

7
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 action was a violation of appellant's

rights [R 17-63]. Appellant specifically alleged, among other things, that it had not been

afforded 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 hearing

procedures embodied in Chapter 119 of the Village ofMonticello Code, which governs "Unsafe

Buildings" [R 5-7, 22]. That local law requires the Code Enforcement Officer to provide a

written report to the Village ofMonticello Board, and action by the Village Board, with an order

to repair and an order ofhearing [R 22]. Appellant averred that it has been left to guess as to the

specific Village and Building Code violations upon which the respondents were relying [R 6, 20-

23]. Appellant further averred that the violation notice claimed that there was no fire protection

yet the subject premises had fire extinguishers on every floor and hardwired smoke detectors that

worked 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 any

of 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) [R

64-73, 74-89]. The motion was denied on September 10, 2007, and respondents were directed to

serve 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 [R

123-128]. At no time has appellant been provided a hearing on whether the building should have

6
denying the property owner their rental payments.

On February 5,2008, appellant filed notice of the present 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 to

due process because respondents did not take any direct action to remedy the condition on

petitioner's subject premises [R 8], the motion to renew sought to draw attention to facts that the

court could deem sufficient to constitute remedial action to implicate due process requirements

under the court's analysis [R 129-146]. These facts did not exist at the time the Article 78

petition was filed [R 129-146]. Afterthe Article 78 petition was filed up through the time the

motion to renew was filed, the Village of Monticello ("respondent" or ''the Village") took the

following actions: the Village entered the premises and removed the water meter from the

property and terminated water service to the premises without notice to the property owner and

without an opportunity to be heard before or after the action [R 131-132, 140-142];·the Village

terminated electric service to the premises without notice and without an opportunity to be heard

before or after the action [R 131-132, 140-142]; and the Village terminated refuse collection

services to the premises and removed appellant's dumpster without notice and without an

opportunity to be heard before or after the action [R 131-132, 140-142]. The Village continued

to refuse to restore water service or refuse collection to the property up through the date of the

motion to renew, thereby exercising continuing control over the premises and preventing

appellant from, among other things, making repairs, cleaning, or painting [R 131-132, 140-142].

8
 Despite the presentation ofthese facts that had become relevant given the courts previous

decision, 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 ofthe present appeal from the aforementioned

Decision & Order dated May 16, 2008 and entered May 28,2008 [R 9].

9
 ARGUMENT

POINT I

RESPONDENTS VIOLATED LAWFUL PROCEDURE BY CONDEMNING

APPELLANT'S BUILDING AND VACATING THE TENANTS DUE TO
ALLEGED VIOLATIONS OF PROPERTY MAINTENANCE CODE
SECTION 108 AND mE MULTIPLE RESIDENCE LAW WITHOUT
PROVIDING NOTICE OR HEARING EITHER BEFORE OR AFfER

The Village ofMonticello Code, the Property Maintenance Code ofNew York State, and

the N.Y. Multiple Residence Law require that appellant be given a hearing under the

circumstances in this case. Respondents failed to follow the procedures required by Chapter 119

of the Village Code in conjunction with the Property Maintenance Code as well as those required

by the Multiple Residence Law. Respondents summarily vacated appellant's premises without

providing appellant any advance notice, any opportunity to contest a finding that the building was

unsafe, 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 respondents may summarily condemn and vacate a

building under Section 108 ofthe Property Maintenance Code without affording appellant notice

and an opportunity to be heard because respondents "did not take any direct action to remedy the

condition on petitioner's subject premises, i.e., it did not remove, repair or cause the subject

premises to be demolished" and there was no evidence that any such action was pending. The

court thereby allowed respondents to indefinitely deprive appellant and the tenants oftheir

property rights without due process, i.e., without any hearing or review ofwhether there were .in

fact violations of Section 108.

10
 A. The court below erred when it held that the village code enforcement officer
did not have to comply with the due process provisions in the Village of
Monticello Code when enforcing the Property Maintenance Code

The court below failed to recognize the relationship between theN.Y.S. Property

Maintenance Code and the Village of Monticello Code. The Property Maintenance Code

provides the standards> while the Village Code provides the procedure for administration and

enforcement 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 Property Maintenance Code is contained in the New YorkState Uniform Fire

Prevention and Building Code ("Unifonn Code''). The Uniform Code is promulgated pursuant to

the New York State Uniform Fire Prevention and Building Code Act (the "Act"), New York

Exec. Law Art. 18. Section 381(2) of the Act provides that "every local government shall

administer and enforce" the Uniform Code. New York Exec. Law § 381(2).

Section 381(1) ofthe Act directs the Secretary of State to promulgate rules and

regulations setting minimum standards for such administration and enforcement. New York

Exec. Law § 381(1). The regulations provide that a village shall provide for such administration

and enforcement of the Uniform Code by local law, ordinance, or other appropriate regulation.

19 N.Y.C.R.R. § 1203.2(a).

It should be noted that the local program for administration and enforcement of the

Uniform Code must include "procedures regarding unsafe structures and equipment. n 19

N.Y.C.R.R. § 1203.3(f). Such procedures must afford a property owner due process oflaw,

including notice and an opportunity to be heard. See McComb v. Town of Greenville, 160

A.D.2d 779 (2d Dep't 1990); 1974 N.Y. Atty. Gen. Op. 258 (A village may adopt a local law to

11 ,
remove unsafe or dangerous buildings constituting a nuisance, provided that the local law is

consistent with 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 ofthe various provisions of the Property Maintenance Code demonstrates that

for other than state facilities, its provisions are all enforced and implemented under the local law

of the jurisdiction. For example, the authority ofthe code enforcement officer to enforce the

Property Maintenance Code is established pursuant to local law. PM 103.1;"PM 104.1 (Sections

ofthe Property Maintenance Code can be reviewed in Exhibit B of respondents' Verified Answer

at R 99-100). The property maintenance inspections conducted by the officer are required to be

conducted in accordance with and pursuant to local law. PM 104.3 (R 99). Violations ofthe

property maintenance law are required to be dealt with and proscribed in accordance with and

pursuant to local law.' PM 106.1 (R 99). The Property Maintenance Code further states, ''The

provisions of this code shall not be deemed to nullify any provisions oflocal, state or federal

laws and regulations." PM 102.9.

For the Village of Monticello to find appellant's property in violationof PM 108.1.1 (R

99), i.e. an unsafe building, required an inspection conducted in accordance with local law, PM

104.3 (R 99), by a code enforcement officer authorized in accordance with local law, PM 104.1··

(R 99) and dealing withviolations ofthe Property Maintenance Code in accordance with local

law. PM 106.1 (R 99).

2"Unlawful acts. Violations ofthis code shall be dealt with in a manner appropriate to the
applicable provisions of a city, town, village or county and shall be in accordance with the
applicable provisions of local law."

12
p

Section 108.1 of the Property Maintenance Code provides that property may be

condemned in accordance with the provisions of the Code "[ w]hen a structure or equipment is

found to be unsafe." In order to find conditions rendering a building unsafe in the Village of .

Monticello, the Code Enforcement Officer must comply with Chapter 119 of the Village Code.

Chapter 119 of the Village Code, which governs ''Unsafe Buildings," sets forth the required

procedures applicable in this instance (Sections of the Village of Monticello Code Chapter 119

can 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 Officer must first conduct an inspection and issue a report to the Village

Board ofTrustees. The Board ofTrustees may then confirm the finding and order either repair or

demolition but must hold a hearing on the order on at least five days notice by personal service

upon the owner ofthe building in order to provide the owner an opportunity to contest the order

and findings. The notice is specifically required to provide the property owner a specified time

within which it must commence and complete that the securing' orremoval of the building.

Only at the conclusion of the hearing may the Village Board of Trustees decide whether to

revoke, modify, or continue and affirm the order. If it continues the order, it must provide the

property owner a specific time frame within which it must complete the work.

Appellant does not dispute a municipality may have power in appropriate circumstance to

compel the vacation or closing of an unsafe building. But notice and a hearing and an

opportunity 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).

3S ec uring would require removal of the occupants from the premises.

13

II
 Appellant asserts that the process contemplated by the Property Maintenance Code is that

contained in the Village of Monticello Code, and the court below erred in holding that the code

enforcement officer did not have to comply with the Village Code when enforcing the Property

Maintenance Code.

B. Respondents havefailed to follow the procedures required by New York's

Multiple Residence Law, and their actions should be annulled

After respondents vacated tenants from appellant's building, they faxed to appellant a

violation notice and order to vacate, which charged appellant with violation ofNew York's

Multiple Residence Law (R 87-88). In respondents' Verified Answer, they submitted the Code

Enforcement Officer's report, which again alleged that therewereviolations ofthe Multiple

Residence Law (R 92, 101, 103, 110, 109-114). Yet, respondents have failed to follow the

procedures required by the Multiple Residence Law. Under the Multiple Residence Law,

respondents are required to provide notice.and an opportunity for a hearing prior to remedial

action being taken such as vacating appellant's building. See, e.g., N.Y. Mull. Res. Law§§

305(2), 306.

Section'306 of the Multiple Residence Law provides:

Every notice or order issued by the department relative to a premises shall be

served at least thirty days before the time for compliance therewith. It shall be
sufficient service . . . if it is posted in a conspicuous place upon the premises
affected and a copy thereof mailed; on the same day it is posted, to the person to
whom it is directed ...

ld. (emphasis added).

Section 305 ofthe 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

14
dangerous to human life or detrimental to health and shall include ... a dwelling that, in

violation 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 . .. and

the 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 serve
a notice or order in the manner prescribed by section three hundred six ofthis
chapter, reciting the facts constituting such nuisance, specifying in what respect
the dwelling is dangerous to human life or detrimental to health and requiring the
owner to remove such nuisance within thirty days after service of such notice or
order or such lesser period of time where an emergency exists as may be
determined by the department head ...

Section 305(2) further states:

Such notice or order shall provide that, if the owner fails to remove such nuisance
within such period ... the department may remove or cause the removal of such
nuisance by cleansing, repairing, vacating, demolishing or by taking such other
corrective action deemed necessary and shall notify the owner ofhis right to a
hearing . . .

[d. (emphasis added). Section 305(2) then states that the hearing must be given ''prior to the

expiration 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 of

the Multiple Residence Law (R 87,92, 101, 103, 110, 109-114). Appellant again asserts that it

will refute such claims if it is ever given a hearing on the matter. However, the problem is that

appellant has not been given notice or any opportunity for a hearing, and respondents have

wholly disregarded the procedural requirements and safeguards ofthe MultipleResidence Law.

15
F 1

Appellant draws this Court's attention to the following relevant case. In Town of

Huntington v. E.S.P. Corp., 245 N.Y.S.2d 219 (N.Y. Sup. Ct. 1963), the Town sought a

temporary injunction to prevent use of a certain premises as a multiple dwelling unless fire

escapes were installed on the third floor. The Town commenced an Order to Show Cause on

three days notice, and the court held that:

[I]n [the Town's] zeal to effectuate the most immediate abatement ofthe hazard to
the public welfare and safety by means of injunction because "Repeated criminal
prosecutions do not afford complete satisfactory relief', plaintiffhas placed itself
in an untenable position. Since the statute provides penalties for violations as
misdemeanors only 30 days after service of a notice or order to remove them
without compliance (Multiple Residence Law § 304), and this approach is not
satisfactory, then it must be assumed that this proceedingfalls within the
provisions of section 305, that the dwelling is a nuisance . .. Nevertheless, the
owner is entitled to request a hearing prior to the expiration of the compliance
period. Moreover, the manner and method of service of such notice or order is
prescribed in section 306. The need for some notice is undeniable in view of this
section and those cited (supra). It is quite obvious that this proceeding, instituted
by order to show cause on three days' notice, is beyond either ofthe specific
statutory methods provided for enforcement of the requirements imposed by the
Multiple 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 three

days notice and sought court assistance unlike in the current case.

c. The court below erred when it misconstrued McComb v. Town ofGreenville

and held that appeUant was not entitled to due process until direct action was
taken to remedy the alleged conditions on appellant'spremises

The 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 inspectors

determined that the storage oftires on the property represented a fire and health hazard so the

town's board, pursuant to Local Laws, 1987, No.2 of the Town of Greenville, notified the owner

that its property was a "dangerous property"~athad to be made safe within 60 days. The notice

16
 issued by the board included the date ofa public hearing scheduled on the matter. Id. The

owner 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. Following

the hearing, the board issued a resolution directing the building inspector to prepare contingency

plans for a cleanup of the property in the event that the owner did not comply with the notice.

McComb, 160 A.D.2d at 779.

The owner in McComb argued on appeal that the procedures in Local Laws, 1987, No.2

deprived him of due process and that the law was invalid. Id. The McComb court held that the

local law was a valid exercise of the Town's authority to regulate unsafe properties and that "the

statute provided notice and an opportunity to be heard before the Town took any direct action to

remedy the condition on the property, which is all that due process requires." Id. (citing Sheehan

v. County ofSuffolk, 67 N.Y.2d 52 (1986), cert. denied, 478 U.S. 1006 (1986». This is the

language the court below in the current case misconstrued.

McComb certainly does not stand for the proposition that a code enforcement officer can,

under the Property Maintenance Code, vacate all the tenants in a building without any

opportunity for due process or review. In McComb, the plaintiffwas given an opportunity to be

heard even before there was a final determination as to whether the property was in fact

dangerous. In other words, the hearing in McComb provided the due process that was required

before the town took further action such as holding there were in fact violations and preparing a

contingency plan. The reason for upholding the town's actions in McComb was not that no direct

action had been taken to remedy the conditions on appellant's premises. The action's of the town

Were upheld because the town gave the plaintiff due process, i.e., an opportunity for a hearing.

17

L
 This is supported by the case cited by the McComb court on the issue, Sheehan v. County

ofSuffolk, in which the New York Court of Appeals held, "Once taxpayers are provided with

notice and an opportunity to be heard on the adjudicative facts concerning the valuation of

properties subject to tax, as was done here, they have received all the process that is due."

Sheehan v. County ofSuffolk, 67 N.Y.2d at 59 (emphasis added).. This is further supported by

discussions in this briefofdue process required by the N.Y. and U.S. Constitutions.

Under the court below's decision, there is no recourse to arbitrary and capricious

enforcement actions. Without the right to a hearing, it is axiomatic that the application and

enforcement ofbuilding codes would be left to the unbridled discretion of the enforcement

official. The lower court ruling granting full discretionary power in an administrative officer,

without the opportunity for a hearing to determine that a building is unsafe or a fire menace or

otherwise a public nuisance creates an unlawful delegation ofpower.

D. The court below erred when it held that there were no direct actions taken to
remedy the alleged conditions on appellant's premises

Appellant contests the lower court's conclusion that no direct action was taken to remedy

the condition on the premises. The actions ofrespondents in forcing the removal ofthe

occupants from the premises, terminating the water service, removing the water meter,

terminating the electric service, removing the dumpster, and terminating refuse collection (R

131-132, 140-142) were all direct remedial actions. Cf Mendez v. Dinkins, 226 A.D.2d 219 (Ist

Dep't 1996) (vacating tenants was first step in repairing apartment building; due process satisfied

by post-evacuation hearing); Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1 (1978)

(utilities cut off to force compliance; adequate notice and some sort ofhearing had to be made

18
made prior to terminating the utilities); N.Y. Mult. Res. Law § 305 (ways ofremedying a

violation include "cleansing, repairing, vacating, demolishing ... " the dwelling; owner must be

notified of "his right to a hearing" (emphasis added)).

19
r

POINT II

UNDER THE N.Y. CONSTITUTION, APPELLANT CANNOT BE

DEPRIVED OF PROPERTY WITHOUT DUE PROCESS

Respondents violated lawful procedure required under the New York State Constitution

by condemning appellant's building and vacating the tenants without providing a hearing either

before or after this deprivation ofproperty. The court below erred by overlooking or

misconstruing the due process requirements ofthe N.Y Constitution. Under the court's

decision, respondents could deprive appellant of its property rights indefinitely without any due

process 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 for

public use without just compensation." N.Y. Const. Art. I, § 7. Appellant has been deprived of

property without due process and without compensation.

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

the interest of the public health, safety and welfare. Therefore, respondents were at least required

to 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 condemn

property for public purposes, but even in these instances, notice and hearing are afforded the

owner."); 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

20
 r
constituting a nuisance, provided that the local law is consistent with constitutional due process

requirements).

21

i
L
 POINT III

I I
I
UNDER THE U.S. CONSTITUTION, APPELLANT CANNOT BE
DEPRIVED OF PROPERTY WITHOUT DUE PROCESS

Respondents violated lawful procedure required under the United States Constitution by

I condemning appellant's building and vacating the tenants without providing a hearing either

, before or after this deprivation ofproperty. The Court below erred by overlooking or

misconstruing the due process requirements ofthe U.S. Constitution.

t
!
t The 14th Amendment ofthe U.S. Constitutionstates, "nor shall any state deprive any

person of life, liberty, or property, without due process of law." The 5th Amendment ofthe

!
I
~
Constitution states "nor shall private property be taken for public use, without just

compensation," and this is applicable to the states through the 14th Amendment. See, e.g.,

Chicago Burlington & Quincy Railroad v. Chicago, 166 U.S. 226 (1897). Appellant has been

deprived of significant property rights without due process and without compensation.

Ordinarily, due processoflaw requires an opportunity for some kind of hearing prior to

the 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 process

is "that an individual be given an opportunity for a hearing before he is deprived ofany

significant property interest, except for extraordinary situations where some valid governmental

interest 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 hearing

should 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

22
 Process Clause." !d. at 379 (emphasis added); see also Arnett v. Kennedy, 416 U.S. 134,

178-179 (1974) ("A fundamental requirement of due process is 'the opportunity to be heard.'

Grannis v. Ordean,234 U.S. 385, 394 (1914). 'It is an opportunity which must be granted at a

meaningful time and in a meaningful manner.' Armstrong v.Manzo, 380 U.S. 545, 552 (1965).").

Because ofthe risk of erroneous deprivation ofproperty, as in the current case, both

fundamental fairness and due process require adequate notice and, absent emergency conditions,

a meaningful opportunity to be heard before the deprivation. If emergency conditions truly

existed, although appellant asserts there was no imminent danger requiring immediate

evacuation, appellant should still at least have been given the opportunity for a hearing after the

tenants were vacated.

The court below cited Lawton v. Steele, 152 U.S. 133 (1894), in support ofits holding

that appellant was not entitled to due process because the Village code enforcement officer took

no action other than to condemn the building and vacate all the tenants and because

municipalities have broad police power (R 8). However, this case is not on point, and the court

misconstrued it.

In Lawton, 152 U.S. at 140-141, the issue was essentially whether illegally placed fishing

nets could be destroyed without a hearing, and the U.S. Supreme Court held that the nets could

be summarily destroyed because of their "trifling value." The Court stated that the value ofthe

nets in question was "but $15 apiece," and the cost of condemning one by judicial proceedings

"would largely exceed the value ofthe net." Id. at 141. The Court further held that inother

circumstances such as when the property has greater value, the owner would be entitled to a

hearing or judicial proceeding, and the Court gave a number of examples including "buildings

23
 standing upon or near the boundary line between the United States and another country, and used

as depots for smuggling goods." [d. at 140-141 (emphasis added); see also Ashon v. Board of

Comm'rs, 185 F. 221, 222 (C.C.D. La. 1911)(holding "[Pjlaintiff's seines are alleged to be of

considerable value, some $450 apiece ... [T]o permit their seizure and destruction in the

summary manner authorized by the act would be violative of [plaintiff's] rights." (distinguishing

Lawton, 152 U.S. 133».

Given Lawton, it is clear that it is not a trifling matter to deprive appellant indefinitely of

the use of its property and the rent from its tenants, not to mention the termination'ofits water,

electric, and refuse collection services. Most importantly, other cases more on point than Lawton

show that appellant could not be deprived ofits property without a hearing. See, e.g., Memphis

Light, Gas & Water Div. v. Craft, 436 U.S. 1 (1978); Central Savings Bank in the City ofNew

Yorkv. City ofNew York, 279 N.Y. 266 (1938); Mendez v. Dinkins, 226 A.D.2d219 (1stDep't

1996); 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 vacated

from an apartment building due to numerous "immediately hazardous" violations. The building

in Mendez was in terrible condition compared to appellant's building. The Mendez court stated

the following about the building:

Constructed more than 125 years ago, the building in question contains 26
single-room-occupancy units with a common bathroom on each floor, and one
Class A apartment. It is made ofnon-fireproof materials, and at the time of the
vacate order, only six ofthe units (three ofwhich were occupied) had direct
access to the solitary fire escape. The sprinkler system did not conform to safety
regulations (sprinkler heads were located only in public hallways, four heads were
missing, and others were more than 14 feet apart), there was a combustible oil
tank stored in the cellar, electrical wiring was exposed, and debris was scattered
throughout the building. An inadequately vented gas combustion heatlhot water
boiler in the cellar allowed smoke and flue gases (including carbon monoxide) to

24
 escape inside this and an adjoining building. Tenants were illegally cooking in
their rooms on small electric stoves or hot plates, arid fires had been reported in
the 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 drug
traffickers and prostitutes.

Mendez, 226 A.D.2d at 220.

In September 1992, inspectors from the Department ofBuildings, the Fire Department,

and New York City Department of Housing Preservation and Development ("HPD") descended

on the building and issued numerous code violation notices (some ofwhich were duplicative of

earlier notices) and orders to repair. [d. at 220-221. Over 100 of these new violations were

classified as "hazardous" or "immediately hazardous". [d. at 221. HPD's Manhattan Borough

ChiefInspector personally inspected the building on September 24, 1992, and recommended a

vacate 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 allowing

dangerous 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 for

packing their belongings immediately, and were relocated temporarily to the Riverview Hotel at

government expense. Id. All remaining possessions were placed in storage. [d.

The tenants brought an Article 78 proceeding to contest the evacuation, and the Appellate

Division held that "[t]he government has a paramount interest in protecting the public from

imminent danger. Summary administrative action, even which results in deprivation of a

significant property interest without a prior hearing, is justified when it responds to a situation in

which 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 .
· 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 than

the alleged conditions in appellant's building and when the tenants are relocated to a hotel at

government expense, an opportunity for a hearing must still be given.

26
 POINT IV

SINCE THE FACTS WARRANTING APPELLANT'S MOTION TO RENEW

DID NOT EXIST OR SHOULD HAVE BEEN IRRELEVANT IN PRIOR MOTIONS,
THE COURT BELOW ABUSED ITS DISCRETION BY HOLDING THERE WAS NO
REASONABLE JUSTIFICATION FOR NOT PRESENTING mE FACTS EARLIER

A motion to renew is appealable. See, e.g., Roy v. National Grange Mutual Ins. Co., 85

A.D.2d 832 (3d Dep't 1981). Motions to reargue are not appealable, but if a movant presents

additional facts that were not before the court on the original motion, the motion to reargue can

be deemed a motion to renew. See, e.g., Hooker v. Town Board ofGuilderland, 60 A.D.2d684

(3d Dep't 1977); Thornlow v. Long Island R. R. Co., 3JA.D.2d 1027(2d Dep't1970). Insuch

cases the standard on review is whether the court below's refusal to grantthe renewal motion

was an abuse of discretion. Id.

The court below properlyheld that because new evidence was submitted in appellant's

motion to reargue, it was in fact a motion to renew. See, e.g., Mindy's Wine Cellar, Inc. v.

American & Foreign Ins. Co., 51 A~D.2d 650 (4th Dep't 1976); Thornlowv. Long Island R. R.

Co., 33 A.D.2d 1027 (2d Dep't 1970); Alpert v. Wolf, 194 Misc. 2d 126 (N.Y. Civ. Ct. 2002).4

However, the court below abused its discretion by holding there was no reasonable justification

for not presenting earlier the facts warranting the motion to renew. The facts warranting the

motion 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 on

the 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 an
appellate court reviewing an order the discretion to review any subsequent order ofthe court
below, whether or not a direct appeal is taken from the subsequent order. See also 12-57 New
York Civil Practice: CPLR P 5701.24.
justificationfor not offering them in the prior motions. Actions such as removing the water

meter, terminating the electricity, terminating refuse collection, and removing appellant's

dumpster occurred after appellant filed its Article 78 petition and were ongoing at the time of

appellant's motion to renew. To the extent that appellant could have offered such facts in

opposition to respondents' motion to dismiss, the burden in a motion to dismiss is not on the

non-movant to present sufficient evidence, see, e.g., ADC Contr. & Constr., Inc. v. Town of

Southampton, 800 N.Y.S.2d 342 (N.Y. Sup. Ct. 2004), and such facts as removing the water

meter should have been irrelevant to the court below's decision on whether appellant is entitled

to due process under the circumstances .in this case.

Once the court below reached its incorrect conclusion of law that since respondents "did

not take any direct action to remedy the condition on petitioner's subject premises; i.e., it did not

remove, repair or cause the subject premises to be demolished" due process rights to notice and

an opportunity to be heard do not arise, appellant found it was then important to point out via the

motion to renew that respondents in fact took actions beyond vacating the tenants that could be

considered direct action to remedy the alleged conditions on appellant's premises.

Therefore, appellant had a reasonable justification for not presenting the facts at issue

earlier, and it was unjust and an abuse ofdiscretion for the court to deny appellant's motion to

renew.

28
 POINT V

COURTS HAVE DISCRETION TO GRANT A MOTION TO RENEW

IN THE INTEREST OF JUSTICE EVEN WHEN THERE IS NO REASONABLE
JUSTIFICATION GIVEN FOR NOT PRESENTING EARLIER THE FACTS
WARRANTING THE RENEWAL

The court below should not have denied appellant's motion to renew and incorrectly held

that it was "constrained" to deny the motion once it determined no reasonable justification was

given for not presenting earlier the facts warranting the renewal (R 12).

The Third Department has held that a party seeking renewal must demonstrate newly

discovered facts to support the motion and a "reasonable justification" for not presenting those

facts in opposition to the opposing party's previous motion to dismiss. Cippitelli v. County of

Schenectady, 307 AD.2d 658 (3d Dep't 2003).

The First Department has held that "[a]lthough renewal motions generally should be

based on newly discovered facts that could not be offered on the prior motion, courts have

discretion to relax this requirement and to grant such a motion in the interest ofjustice." Mejia v.

Nanni, 307 AD.2d 870, 871 (Ist Dep't 2003) (emphasis added); see also Trinidad v. Lantigua, 2

AD.3d 163 (Ist Dep't 2003) (renewal granted despite "inexplicabl[e]" failure to earlier submit

evidence); Poag v. Atkins, 787 N.Y.S.2d 680 (N.Y. Sup. Ct. 2004) (A court has discretion to

grant a motion for leave to renew, based upon facts "inexplicably omitted on the prior motion."

(citing Mejia, 307 A.D.2d 870». The First Department's view is arguably supported by the

strong public policy in favor ofresolving 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 of

renewal comported with "the strong public policy in favor of 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

....... , __ ..... £'_........ _1 .....:__ .................... __ +L ..... _ _

~ -=..... T'L': .... r"4 ........ _--'- _1-' 1...J _ ... 1 ... 1-_1..1· ...L ........ 4-'L ......... 1.......1_.... ··.;... __ ....
1
~
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
f

I appellant's motion to renew in the interest ofjustice and in light of the strong public policy in

favor ofresolving cases on the merits. This Court should at least h~ld that the court below is not

I
!
i
J
constrained to deny a motion to renew because of a perceived omission of a reasonable

I
1
justification for not presenting facts earlier and has to discretion to grant the motion in the
J
interest ofjustice. It certainly does not serve the interests ofjustice for the court to deny

appellants motion to renew and thereby avoid determining this case on the merits, particularly

since the facts presented in the motion to renew could have altered the courts decision. Cf

Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1 (1978) (homeowners were entitled to due

process before their utilities services were cut off; some sort ofhearing, had to be available, prior

to termination, considering the importance ofutilities, and the magnitude ofthe deprivation that

would be suffered if utilities were terminated).

 CONCLUSION

For 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 deny

appellant's motion to renew.

Dated: Walden, New York

October 20, 2008

Howar Prott , sq.

Jacobowitz and Gubits, LLP
Attorneysfor Petitioner-Appellant
158 Orange Avenue, P. O. Box 367
Walden, NY 12586
845-778-2121

31