Infinite Green, Inc., respondent, v Town of Babylon, et al., appellants.
2019-00182 (Index No. 602914/17)
Appellate Division, Second Judicial Department, Supreme Court of the State of New York
January 26, 2022
2022 NY Slip Op 00407
FRANCESCA E. CONNOLLY, J.P., CHERYL E. CHAMBERS, SYLVIA O. HINDS-RADIX, ROBERT J. MILLER, JJ.
Published by New York State Law Reporting Bureau pursuant to
Devitt Spellman Barrett, LLP, Smithtown, NY (John M. Denby of counsel), for appellants.
Edward S. Raskin, Deer Park, NY, for respondent.
DECISION & ORDER
In an action, inter alia, for a judgment declaring that the
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the plaintiff‘s motion for summary judgment on the first cause of action, for a judgment declaring that the
The plaintiff owns real property located in the defendant Town of Babylon. In 2014, the senior zoning inspector of the Town accused the plaintiff of violating the Town‘s rental permit law, codified at
The plaintiff commenced this action alleging, inter alia, that the law was unconstitutional because it required the plaintiff to consent to a warrantless inspection of its property as a precondition to the issuance of a rental permit. The plaintiff moved for summary judgment on the first cause of action and sought to enjoin the defendants from enforcing the law to the extent that it required the plaintiff to either submit to an inspection by a Town building inspector or provide a certification of compliance after an inspection by a state-licensed professional engineer as a condition of the issuance of a rental permit. The Supreme Court, among other things, granted the motion. The defendants appeal.
Legislative enactments are entitled to an “exceedingly strong presumption of constitutionality” (Lighthouse Shores v Town of Islip, 41 NY2d 7, 11; see Matter of Calverton Manor, LLC v Town of Riverhead, 160 AD3d 838, 841; Nicholson v Incorporated Vil. of Garden City, 112 AD3d 893, 894). Local laws and ordinances of municipalities are “‘cloaked with the same strong presumption of constitutionality as a statute‘” (Matter of Calverton Manor, LLC v Town of Riverhead, 160 AD3d at 841, quoting Nicholson v Incorporated Vil. of Garden City, 112 AD3d at 894; see Lighthouse Shores v Town of Islip, 41 NY2d at 11). “While this presumption is rebuttable, unconstitutionality must be demonstrated beyond a reasonable doubt and only as a last resort should courts strike down legislation on the ground of unconstitutionality” (Lighthouse Shores v Town of Islip, 41 NY2d at 11).
It is well-settled that “the imposition of a penalty upon a landlord for renting his [or her] premises without first consenting to a warrantless search violates the property owner‘s Fourth Amendment rights” (Sokolov v Village of Freeport, 52 NY2d 341, 343; see Pashcow v Town of Babylon, 53 NY2d 687, 688; ATM One, LLC v Incorporated Vil. of Hempstead, 91 AD3d 585, 587). Here, however, the Town‘s rental permit law does not “expressly require . . . an inspection before the issuance or renewal of a permit” (ATM One, LLC v Incorporated Vil. of Hempstead, 91 AD3d at 587), since a property owner who is applying for a rental permit has the option of obtaining a certification from a state-licensed professional engineer in lieu of submitting to an inspection by a Town building inspector (see
Contrary to the plaintiff‘s contention and the finding of the Supreme Court, the option of an inspection by a state-licensed professional engineer does not render the rental permit law unconstitutional on its face merely because a professional engineer is licensed by the State (see
Accordingly, the Supreme Court should have denied the plaintiff‘s motion, and we search the record and award the defendants summary judgment declaring that the
We note that the first cause of action is the only cause of action before this Court on this appeal.
Since this is, in part, a declaratory judgment action, we remit the matter to the Supreme Court, Suffolk County, for the entry of a judgment, inter alia, declaring that the
CONNOLLY, J.P., CHAMBERS, HINDS-RADIX and MILLER, JJ., concur.
ENTER:
Maria T. Fasulo
Clerk of the Court