Supreme Court, Schenectady County, April 8, 2021

The Legal Aid Society of Northeastern New York (David Crossman of counsel) for petitioner.

Andrew Koldin, Corporation Counsel, Schenectady, for respondents.

By a notice of petition dated January 18, 2021, and the verified petition of Gail Brown (petitioner) sworn to on January 14, 2021, petitioner instituted the instant proceeding pursuant to CPLR article 78 and CPLR 3001 against the City of Schenectady and the City of Schenectady Code Enforcement (respondents). The petition seeks a judgment:

1. Vacating the order to vacate issued by respondents on October 19, 2020;

2. Ordering the respondents to grant petitioner a hearing regarding the violations cited by respondents on October 19, 2020;

3. Declaring that Schenectady City Code chapter 138, as written, is constitutionally invalid;{**72 Misc 3d at 551}

4. Ordering personnel of the City of Schenectady Bureau of Code Enforcement to undergo training in the constitutional, statutory, and administrative requirements of due process of law;

5. Awarding costs and disbursements to petitioner pursuant to CPLR articles 81 and 83; and awarding attorneys' fees pursuant to CPLR article 86; and

6. Granting any further relief in favor of petitioner as this court deems just.

By an order to show cause, dated February 8, 2021, supported by the affidavit of Gail Brown, sworn to on January 14, 2021, petitioner moved for a temporary restraining order vacating the order to vacate. Respondents answered and served petitioner on February 25, 2021. Respondents opposed the application for a temporary restraining order arguing that petitioner is not entitled to such relief as she has not established the likelihood of success on the merits, that respondents did not remove petitioner from the building, that petitioner has not suffered immediate and irreparable harm and that petitioner is not entitled to a post-action hearing. Oral argument on the application for a temporary restraining order was heard by the court on February 16, 2021, at 1:30 p.m. via a video-teleconference on Microsoft Teams. The court reserved decision on the application. Since the court makes a final determination on the petition in this decision, order and judgment, the application for the temporary restraining order during the pendency of this proceeding is rendered moot and will not otherwise be addressed in this decision.

Respondents filed their answer on February 25, 2021; in it they asserted the following objection in point of law: "The City's determination to not provide a pre-action or post-action hearing was made in accordance with the law and was not arbitrary, capricious or irrational bordering on impropriety."

The respondents also asserted affirmative defenses: (1) that respondents' actions were at all times lawful, proper and reasonable; (2) that respondents fully complied with their statutory obligations; and (3) that petitioner has not satisfied the statutory requirements for an award of attorneys' fees.

On the return date of the petition, counsel for both parties stipulated that there were no factual issues requiring an evidentiary hearing. The court then heard oral argument on the petition and the parties submitted the matter on that argument and the papers submitted.{**72 Misc 3d at 552}

A. Case Background

Petitioner resides at 1530 Carrie Street, Second Floor, Schenectady, New York 12308 (the premises), which are the subject of this proceeding. (Petition ¶ 1.) Petitioner moved into the [*3]premises on January 28, 2020, with her boyfriend, two adult children, and three-year-old grandson. (Petition ¶ 36, exhibit A; Brown aff ¶ 2.) Petitioner signed a one year lease with a term from February 1, 2020, through to February 1, 2021, at 12:00 noon. (Brown aff ¶ 2, exhibit A.) Petitioner's rent is $975 a month, payable to Mohinie Narine, who personally picked up the rent checks and did not provide a mailing address. (Petition ¶ 37, exhibit A.) Mohinie Narine's daughter, Seema Narine, is identified as the record owner of the property, as of May 15, 2013. (Petition ¶¶ 38, 39, exhibits A, B, C; Brown aff ¶¶ 7, 8.) Seema Narine's address is identified as xx Union Street, Schenectady, New York 12308. (Id.) Mohinie Narine has power of attorney to act as Seema Narine's agent, as recorded in the Schenectady County Clerk's office on December 7, 2010. (Petition ¶ 40.)

On April 9, 2020, petitioner contacted the City of Schenectady Bureau of Code Enforcement (Code Enforcement) to report that only three windows in her apartment opened, and there was an ant infestation. (Petition ¶ 41; Brown aff ¶ 3.) Petitioner spoke to Code Enforcement Officer Nayeem Abzal during this call, but no inspection was scheduled. (Id.)

On April 17, 2020, Mohinie Narine went to the premises with a repairperson and repaired one of the windows that would not open. (Brown aff ¶ 4.) Respondents allege that on April 28, 2020, Abzal closed out the alleged complaints after discussions with individuals identifying themselves as Seema Narine, or her agent. (Answer ¶ 3.) Respondents further assert that on October 15, 2020, Seema Narine, or her agent, submitted an updated "Landlord Registration for Rental Certificate" to Code Enforcement. (Answer ¶ 4.)

Petitioner did not hear anything from Code Enforcement again until October 19, 2020, six months later, when Code Enforcement performed an inspection. (Petition ¶ 43; Brown aff ¶¶ 5, 9, 10.) On October 19, 2020, Abzal met Mohinie Narine at the premises, and performed an inspection that resulted in an order to vacate (order) the premises for "sealed emergency rescue openings." (Id.; Brown aff ¶ 6, exhibit B; answer ¶ 10.) The order detailed that all residents of the premises were{**72 Misc 3d at 553} ordered to "immediately vacate this property due to the unsafe condition(s)." (Id.) The order also contained the following statement: "Notice to Owner/Occupant. If you have reason to believe no such unsafe conditions or imminent danger exists and you wish to be heard, please contact the Corporation Counsel's office within 24 hours of this notice." (Petition ¶ 43, exhibit C.) The order along with a notice of violations was posted on the premises and required that the violations be corrected by October 20, 2020. (Petition ¶ 44.) The notice listed the following violations:

• 107.1 General^[FN1] • 304.13.2 Openable windows

• 304.10 Stairways, decks, porches, and balconies

• 304.12 Handrails and Guards

• 304.5 Foundation Walls

• 304.13 Window, skylight, and door frames (Id.)

The notice listed an additional violation of Schenectady City Code § 167-39 (a), Electrical Wiring and Equipment. (Id.) The notice stated: "Order to Vacate posted to second floor apartment due to emergency rescue windows throught [sic] the apartment being paint/silicone closed. Corrective actions: any and all occupants must vacate the premises immediately until the violations [sic] has been corrected." (Petition ¶ 44.) The notice indicated a comply by date of October 20, 2020, for this violation and cited PMC § 304.13.2 as part of the same violation. (Petition ¶ 44, exhibit C.) PMC § 304.13.2 provides: "[e]very window, other than a fixed window, shall be easily openable and capable of being held in position by window hardware." The notice also indicated that the front steps needed to be repaired, with a permit, by October 30, 2020 (citing to PMC § 304.10). (Petition ¶ 45, exhibit C.) The notice further provided that the following corrective actions be taken by November 5, 2020: reinstall guardrails, repair foundation wall,{**72 Misc 3d at 554} repair or replace cracked windows, and install GFCI receptacles. (Petition ¶ 46.) The notice did not cite any egress issues. (Petition ¶ 47.) The posted notice did not contain any indication of a right to a hearing for the owner, agent, or occupant. (Petition ¶ 48.) Petitioner contends that the front and back doors of the premises have been operational since October 19, 2020. (Petition ¶ 49.) And, despite sharing the same front porch as a point of egress, the occupants of the first-floor apartment have never been ordered to vacate. (Petition ¶¶ 50, 51.)

On the same day that order to vacate was posted (Oct. 19, 2020), petitioner and her family began their search for alternative housing. (Petition ¶ 52.) After a short stay with her mother, petitioner relocated to a local hotel on October 26, 2020; some of her family members went to stay with other family. (Id.; Brown aff ¶ 11.) Petitioner has been paying $400 a week for the hotel accommodations. (Id.)

On October 26, 2020, the Legal Aid Society of Northeastern New York sent a letter to the City of Schenectady's Corporation Counsel, Andrew Koldin, Esq., on petitioner's behalf. (Petition ¶ 53; Crossman affirmation ¶ 3, exhibit E; answer ¶ 11.) The letter noted that petitioner had reported the window issues six months prior (with no immediate response), requested that the City vacate the order to vacate, and requested that the City provide petitioner an opportunity to be heard. (Id.)

On October 30, 2020, Koldin responded to the October 26 letter via email stating:

"The founded violation is a life safety concern since necessary means of egress are unavailable. As you know, in the event of a fire, for example, the inability to safely vacate a structure through an emergency rescue window may be the difference between life and death. . . .

"The City of Schenectady, by and through its code enforcement officers, has the power to make a determination during an inspection that a building or equipment constitutes a clear and imminent threat to human life, safety or health. Unsafe equipment [*5]include [sic] equipment within the structure that is in such condition that it is a hazard to life, health or safety of the occupants of the structure. In addition, the City is authorized to order and require occupants to vacate premises when defective equipment exists. There is little doubt that sealed windows in a second floor apartment constitute{**72 Misc 3d at 555} defective equipment, thereby creating a life, health and safety condition to the apartment's occupants." (Petition ¶ 54; Crossman affirmation ¶ 4, exhibit D; answer ¶ 12.)

The October 30th email further asserts that Koldin reviewed the file and found the violation merited the order to vacate, despite the noted frustrations of petitioner. (Id.) The email claims that petitioner was not forcibly removed, and inquired about communications between petitioner and the owner of the premises. (Id.) It also inquired as to whether any steps had been taken to abate the violations. (Id.) The correspondence stated that Koldin was willing to engage in further discussions of the matter but did not address the request for a hearing. (Petition ¶ 54.)

On November 4, 2020, via email, petitioner again requested a hearing.^[FN2] (Id.; Crossman affirmation ¶ 5; answer ¶ 13.) Petitioner asserts that the second request was ignored. (Id.; Crossman affirmation ¶ 6.) Respondents contend that on December 3, 2020, Abzal performed an exterior re-inspection of the property as he was unable to gain access to re-inspect the windows. (Answer ¶ 14.) On December 16, 2020, Abzal again attempted, without success, to gain access to the interior of the property to perform a re-inspection. (Answer ¶ 15.) Abzal served an appearance ticket on the owner of the premises for the violations identified in the notice of violation. (Answer ¶ 16.) On February 3, 2021, the premises owner was arraigned in Schenectady City Court. (Answer ¶ 17.)

B. COVID-19 Stay of Evictions

On September 4, 2020, the U.S. Centers for Disease Control (CDC) issued a stay of residential evictions to "Prevent the Further Spread of COVID-19." (Petition ¶ 33, citing Dept of Health & Human Services, CDC, and 85 Fed Reg 55294.) The CDC justified the moratorium finding that people forced to move will often end up in shared housing situations with friends, or family, or in shelters, which presents a potential for the increase in COVID-19 infections. (Petition ¶¶ 34, 35; 85 Fed Reg 55292, 55296 [2020].) New York enacted its own moratorium on evictions known as the COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020 (L 2020, ch 381; 2020 NY Senate-Assembly Bill S9114, A11181), which now provides for stays on pending eviction actions until May 1, 2021.{**72 Misc 3d at 556}

Petitioner's petition asserts causes of action for failure to provide proper notice in violation of due process; failure to provide a pre-deprivation hearing in violation of due process; failure to provide a hearing in violation of federal and state law, including the New York State Uniform Fire Prevention and Building Code (Uniform Code), and right to due process; failure to enact a code section providing for pre-action hearings, post-action hearings, or proper notice to occupants, in violation of constitutional and statutory due process rights; failure to enact a local law that comports with the due process guaranteed by the New York State Constitution; and action [*6]by the City outside its legislative powers. Respondents' asserted affirmative defenses were discussed in the introduction and will not be repeated here.

The primary issue before this court is: Was petitioner denied procedural due process, in violation of the New York State Constitution and U.S. Constitution, when the respondents issued an order to vacate directing her and her family to immediately vacate the apartment she leased at 1530 Carrie Street, Second Floor, without providing her notice and an opportunity to be heard in a pre-deprivation or post-deprivation hearing? And, if so, should Schenectady City Code § 138-30 be declared constitutionally invalid?

A. Standard of Law

No person shall be deprived of property without due process of law. (US Const, Amend XIV, § 1; NY Const, art I, § 6.) The United States Supreme Court has held that due process requires holding a hearing when government action results in the deprivation of an individual's property interest. (Mathews v Eldridge, 424 US 319 [1976].) In Mathews, the Supreme Court detailed a three-part test for evaluating whether the hearing should be held before or after the deprivation. (Id.) A court must weigh and balance:

1. The private interest at stake;

2. The possibility of an erroneous deprivation under the current procedures and the value of any other safeguards; and

3. The government's interest, together with any financial or administrative burdens imposed by the proposed additional or alternative safeguards. (Id.){**72 Misc 3d at 557}

The New York Court of Appeals adopted this three-part test in County of Nassau v Canavan (1 NY3d 134 [2003]).

The highest courts at the state and federal levels have found that a leasehold is property, entitling the lessee to due process upon a taking by a government entity. (United States v Petty Motor Co., 327 US 372, 379 [1946]; Great Atl. & Pac. Tea Co. v State of New York, 22 NY2d 75, 84 [1968].) This is true even where the deprivation is "temporary" or "partial." (Connecticut v Doehr, 501 US 1, 12 [1991]; see also Alcorn v Muhammad, [*7]58 Misc 3d 350, 362 [Sup Ct, Monroe County 2017].)

Here, the private property interest at stake is petitioner's immediate loss of use of the rented apartment she and her family called home, for an indefinite period of time, as well as the cost and inconvenience of immediately securing affordable and acceptable housing. The analysis of the second prong, the possibility of an erroneous deprivation under the current procedures and the value of any other safeguards, is detailed below. The governmental interest is in maintaining public health and safety and avoiding potential liability.

1. The Possibility of Erroneous Deprivation under the Current Procedures and the Value of Any Other Safeguards

Where there are no procedural safeguards in place, the likelihood of an erroneous deprivation is considerable. (Goldberg v Kelly, 397 US 254, 267 [1970].) A pre-termination hearing is the initial opportunity to test the validity of the grounds for the deprivation. (Id.) In such an instance, a full evidentiary hearing is not required. (Id. at 266.) However, the hearing must take place before an individual that did not participate in the initial decision. (Id. at 270.) To comport with due process the party facing deprivation must be afforded:

• Timely and adequate notice of the hearing including the right to have counsel present;

• The opportunity to present a statement or evidence; and

• The opportunity to confront and cross-examine witnesses. (Goldberg, 397 US at 268-270.)

Additionally, the decision in the deprivation hearing shall specifically identify the reasons for the determination and the evidence relied upon in rendering that determination, which must be limited to the evidence submitted at the hearing. (Id. at 271.)

Respondents argue that requiring a pre-determination hearing, where an imminent danger exists, prior to issuing an order{**72 Misc 3d at 558} to vacate is unreasonable, dangerous, and potentially creates liability. Section 101.2.6.7.8 of chapter 1 of the Building Code of New York State (2017 Uniform Code Supp) (Imminent Danger) provides that occupants

"shall vacate premises when there exists:

"1. Imminent danger of failure or collapse of a building or structure which endangers life;

"2. A structure where the entire or part of the structure has fallen and life is endangered by the occupation of the structure;

"3. Actual or potential danger to the building occupants or those in the proximity of any structure because of explosives, explosive fumes or vapors or the presence of toxic fumes, gases or materials; or

"4. Operation of defective or dangerous equipment."

However, PMC § 103.2.1 allows for a post-deprivation hearing:

"In cases of imminent danger, posting, placarding, and condemning a building or structure and removing owners and occupants or causing owners and occupants to be removed without first providing an opportunity to be heard shall be permitted to the extent consistent with applicable Constitutional provisions, provided that the affected persons and entities are afforded the opportunity for a post-action hearing to the extent required by applicable Constitutional provisions."

While respondents assert that they did not remove petitioner, or the other occupants from the home, the facts regarding this issue are uncontroverted. Respondents posted a notice of violations (directed to the property owner), along with an order to vacate that informed the residents that they were to leave the premises immediately.^[FN3] So while respondents did not physically remove petitioner, the order to vacate and the legal consequences thereof did.

[1] The evidence also establishes that petitioner was not afforded an opportunity for a pre- or post-deprivation hearing regarding her right to occupy, use and enjoy the premises or to contest the nature of the alleged violations and whether same{**72 Misc 3d at 559} warranted a notice to vacate. Respondents assert that the immediate removal of the residents was warranted because the cited violations posed imminent dangers. Such assertions further demonstrate respondents' intention to enforce the order to vacate. Curiously, the evidence is also clear that the same conditions existed when petitioner informed respondents about the issues with the windows six months prior to the inspection and immediate order to vacate. Respondents argue that they did nothing during these six months because they dealt directly with the owner/agent of the premises and closed out the alleged complaints after discussions with the owner/agent. Notably, the complaints were closed out (per respondents) with knowledge that the violation involved windows that would not open, and that no in-person inspection was conducted to ensure the windows were fixed. As the history of this case demonstrates, not only does respondents' current process fail to provide a hearing procedure for building tenants being deprived of their property rights, but the process lacks any form of administrative oversight. As outlined in respondents' papers, a Code Enforcement Officer (in this case Nayeem Abzal) investigates the potential violation, exercising his judgment and discretion to issue notices of violation or to "close out" complaints, chooses to reexamine complaints and potential violations, assesses any threats to human life, safety or health and issues orders to vacate, all without needing to consult with any other city staff or other professionals. The orders to vacate are made without legal or court involvement, even during this time when state and federal moratoria on evictions were in place and despite the provision of Schenectady City Code § 138-30 (F), which permits the Building Inspector to enter the structure and take steps to make the building or a portion thereof safe. In this case, that may have involved removing some paint or caulk from a few windows to make them operable.

Respondents' actions/inaction raise a legitimate issue as to whether the alleged [*9]danger posed by the inoperable windows was imminent and whether the order to vacate was justified. Accordingly, there is at least a significant possibility that a hearing officer could determine that the deprivation of the property was erroneous. Therefore, petitioner should have been provided the opportunity to be heard in a post-deprivation hearing.{**72 Misc 3d at 560}

B. The code is constitutionally invalid as it is arbitrary and capricious and contrary to law in failing to provide for a pre- or post-deprivation hearing.

New York's Constitution provides local governments the right to pass laws under article IX, § 2, which states: "In addition to powers granted in the statute of local governments or any other law, (i) every local government shall have power to adopt and amend local laws not inconsistent with the provisions of this constitution." (NY Const, art IX, § 2 [c].)

Respondents argue that the courts "should not interfere with a legislative body's actions or exercise of discretion regarding matters within that body's authority absent fraud, corruption, oppression, illegality, unconstitutionality or a violation of public policy." (Matter of Kelch v Town Bd. of Town of Davenport, 36 AD3d 1110, 1111 [3d Dept 2007].) Moreover, if the court requires a hearing, respondents argue that they should not be responsible for holding such a hearing as that is not required under PMC § 103.2.1, 19 NYCRR, or Schenectady City Code chapter 138. But here, the illegality and unconstitutionality of a section of the Schenectady City Code is at issue.

[2] As Schenectady City Code § 138-30, Structurally Unsafe Buildings,^[FN4] fails to provide for a pre-deprivation or post-deprivation hearing, it is arbitrary and capricious and contrary to law such that it violates both the U.S. and N.Y. Constitutions. (US Const, Amend XIV, § 1; NY Const, art I, § 6; Building Code of NY St § 103.2 [2020]; PMC § 103.2; see also Good Humor Corp. v City of New York, 290 NY 312 [1943]; Matter of Bon-Air Estates v Bldg. Inspector of Town of Ramapo, 31 AD2d 502 [2d Dept 1969]; Consolidated Edison Co. of N.Y. v Town of Red Hook, 60 NY2d 99 [1983].) Section 138-30 has no mechanism for tenants to receive notice of their right to a hearing, to request a hearing, to have a hearing before being ordered to vacate, or (in cases of imminent danger) to have a hearing after they are ordered to vacate the building. Enactment of such a code that deprives an individual of a property interest without a hearing is violative of due process, contrary to law, and outside the City's legislative powers. (See Alcorn v Muhammad, 58 Misc 3d 350, 366 [Sup Ct, Monroe County[*10] 2017].) For{**72 Misc 3d at 561} these reasons, section 138-30 is unconstitutional and invalid and the order to vacate in this case, issued pursuant to the process outlined in that section, must be vacated and declared null and void.

C. Attorneys' Fees and Costs

Petitioner requests an award of attorneys' fees and costs under CPLR articles 81, 83, and 86. CPLR 8101 provides for costs where a judgment is entered against a party; CPLR 8301 (a) provides for taxable disbursement in actions; and CPLR 8601 provides for fees against the state in certain actions, unless the court finds that the position of the state was substantially justified or that special circumstances make an award unjust. (CPLR 8101, 8301–8303-a, 8601.) Petitioner shall be entitled to costs under article 81 and taxable disbursements under article 83 for prevailing on the petition, and fees under CPLR article 86 as the action of the City of Schenectady in failing to provide for due process prior to a deprivation of property was not substantially justified.

Ordered and adjudged that petitioner's request for a declaratory judgment is granted in that Schenectady City Code § 138-30, as written, be and hereby is declared invalid as it fails to afford either pre- or post-deprivation hearing procedures for tenants ordered to vacate structures alleged to be unsafe; and it is further ordered and adjudged that respondents' action in issuing the subject order to vacate was contrary to public policy in that it effectively removed petitioner from her leased residential premises during a pandemic and when state and federal legal protections against evictions were in place; and it is further ordered and adjudged that respondents' October 19, 2020 order to vacate the premises known as 1530 Carrie Street, Second Floor, Schenectady, New York be and is hereby vacated and declared null and void; and it is further ordered and adjudged that respondents are enjoined from enforcement of the October 19, 2020 order to vacate as against petitioner unless and until respondents provide petitioner with a meaningful post-determination due process hearing; and it is further ordered and adjudged that petitioner's request that the City of Schenectady Bureau of Code Enforcement be ordered to undergo training in the constitutional, statutory, and administrative requirements of due process of law is hereby denied; and it is further ordered and adjudged that petitioner is{**72 Misc 3d at 562} entitled to costs, disbursements, and fees pursuant to CPLR 8101, 8301–8303-a, and 8601. Petitioner is to submit an affirmation under penalty of perjury specifically outlining the requested costs, disbursements and fees for the court's review within 30 days of the entry of this order.

"If the authority having jurisdiction determines, during the inspection or otherwise, that a premises, building or structure, or any building system or equipment, in whole or in part, constitutes a clear and imminent threat to human life, safety or health, the authority having jurisdiction shall exercise its powers in due and proper manner so as to extend to the public protection from the hazards of threat to human life, safety, or health."