New York Law Review

Tag: administrative code

  • Yenem Corp. v. 281 Broadway Holdings, 18 N.Y.3d 481 (2012): Establishes Strict Liability for Excavation Damage Under NYC Administrative Code

    18 N.Y.3d 481 (2012)

    In New York City, Administrative Code § 27-1031(b)(1) (now § 3309.4 of the NYC Construction Code) imposes strict liability on parties undertaking excavation work exceeding ten feet below curb level who fail to protect adjoining structures, regardless of negligence.

    Summary

    This case addresses whether New York City Administrative Code § 27-1031(b)(1) imposes strict liability on excavators for damage to neighboring properties. The Court of Appeals held that it does, reversing the Appellate Division. Plaintiff Yenem, a tenant, and Plaintiff Randall, the building owner, sued the defendant developers after excavation work caused structural damage to their building. The Court reasoned that the code provision, originating from an 1855 state law, was intended to shift the burden of protecting adjoining properties to the excavator, imposing absolute liability for resulting damages. The court reinstated summary judgment for the plaintiffs on the issue of liability.

    Facts

    Defendant JBC, through its subsidiary 281 Broadway Holdings, began developing a commercial and condominium complex adjacent to Plaintiff Randall’s building at 287 Broadway. Defendant Hunter-Atlantic performed the excavation, reaching a depth of 18 feet. During the excavation, 287 Broadway shifted out of plumb. The Department of Buildings found the building leaning approximately nine inches and issued a vacate order, forcing Plaintiff Yenem to close its pizzeria and rendering Randall’s building vacant.

    Procedural History

    Yenem and Randall separately sued the defendants, claiming negligence and strict liability under Administrative Code § 27-1031(b)(1). The Supreme Court initially denied Yenem’s motion for summary judgment but granted Randall’s motion. The Appellate Division consolidated the appeals, reversing the order granting Randall summary judgment. The Court of Appeals granted leave to appeal and reversed the Appellate Division, reinstating the Supreme Court’s order in Randall and granting summary judgment to Yenem.

    Issue(s)

    Whether Administrative Code of the City of New York § 27-1031(b)(1) imposes strict liability on a party who causes excavation to be made, for damage to adjoining structures.

    Holding

    Yes, because the provision originated from an 1855 state law that imposed absolute liability on excavators for damage to adjoining properties when excavations exceed ten feet below curb level, and this liability remains despite recodification as a municipal ordinance.

    Court’s Reasoning

    The Court relied on the principle that violation of a state statute imposing a specific duty constitutes negligence per se or absolute liability, while violation of a municipal ordinance is merely evidence of negligence. However, the Court acknowledged an exception for Administrative Code sections originating from state law. Analyzing the origin of § 27-1031(b)(1), the Court found its language and purpose “virtually identical” to its state law predecessors, which imposed absolute liability as stated in Dorrity v. Rapp, 72 N.Y. 307, 311 (1878): “When the facts bring the case within the statute, the duty and liability which the statute imposes is absolute and unqualified.”

    The Court emphasized that the provision’s purpose—shifting the risk of injury from landowners to excavators—remained constant despite recodification. The Court quoted the dissent below stating “neither the wording nor the import of the statute was materially or substantively altered” upon recodification. Treating the provision as merely evidence of negligence would defeat the legislative intent. The Court also found the building’s allegedly poor condition irrelevant to the proximate cause analysis, affecting only the measure of damages.

  • City of New York v. Verizon New York, Inc., 5 N.Y.3d 255 (2005): Interpreting Penal Statutes Narrowly

    5 N.Y.3d 255 (2005)

    A statute imposing a penalty must be strictly construed, and any ambiguity in its language should be resolved in favor of the party against whom the penalty is sought.

    Summary

    The City of New York sought to fine Verizon for its delay in relocating above-ground telephone poles and wires pursuant to an “order out” related to a sewer construction project. The City relied on a provision of the New York City Administrative Code that mandates timely relocation of utility facilities when public works projects are underway. Verizon argued that the relevant code section applied only to underground facilities, not above-ground poles and wires. The New York Court of Appeals held that because the Administrative Code provision operated as a penal statute, it must be narrowly construed, and its language did not clearly encompass above-ground facilities. Therefore, the City could not assess a penalty against Verizon under that provision.

    Facts

    The City of New York hired a contractor to construct sewers in Queens. As part of the project, Verizon was notified in December 2000 that certain above-ground telephone poles and wires needed to be relocated. After failing to reach an agreement regarding the relocation plan, the City issued an “order out” on February 5, 2001, directing Verizon to move its facilities. Verizon complied with the order 103 days late, after negotiating a price for the work. The City then assessed a penalty of $515,000 against Verizon, calculated at $5,000 per day of delay.

    Procedural History

    The City initiated an enforcement proceeding in the Supreme Court to collect the penalty. Verizon moved to dismiss the action, arguing that the Administrative Code provision did not apply to above-ground facilities. The Supreme Court denied the motion. The Appellate Division affirmed the Supreme Court’s decision, with one Justice dissenting. The Appellate Division certified the question of whether its order was properly made to the New York Court of Appeals.

    Issue(s)

    Whether New York City Administrative Code § 24-521, which requires utility companies to relocate their facilities when necessary for public works projects, applies to above-ground facilities such as telephone poles and wires, thereby allowing the City to impose a penalty for delays in relocating such facilities.

    Holding

    No, because section 24-521, in conjunction with section 19-150, is a penal provision that must be strictly construed, and its language does not unambiguously extend to above-ground facilities like telephone poles and wires.

    Court’s Reasoning

    The Court of Appeals acknowledged that utility companies have a common-law obligation to relocate their facilities when they interfere with municipal projects, citing Transit Commn. v Long Is. R.R. Co., 253 NY 345, 351 (1930). The court stated the issue was whether the City could assess a fine based on the Administrative Code, rather than pursuing actual damages under common law. The Court found the language of section 24-521 ambiguous, noting that while it refers to “pipes, mains and conduits, and all fixtures and appliances connected therewith or attached thereto,” it does not explicitly mention above-ground or below-ground facilities. Because the statute refers to facilities being laid “in any street,” and the terms “pipes” and “mains” generally refer to underground infrastructure, the court construed the term “conduits” to apply only to underground facilities.

    The Court emphasized that because section 24-521 operates as a penal provision, it must be strictly construed. Quoting Osborne v International Ry. Co., 226 NY 421, 426 (1919), the court stated, “[a] statute awarding a penalty is to be strictly construed, and before a recovery can be had a case must be brought clearly within its terms.” The Court further noted that any reasonable doubt in the interpretation of a statute should be resolved in favor of the party facing the penalty, citing Goodspeed v Ithaca St. Ry. Co., 184 NY 351, 354 (1906). Since the City did not argue that the penalties were remedial, and violating the Code provision could lead to jail time, the Court declined to extend the statute’s reach to Verizon’s conduct regarding above-ground facilities. The court emphasized it was for the City Council, not the court, to clarify the Code text if it intended to cover above-ground facilities.

  • Matter of Joel v. Bratton, 99 N.Y.2d 223 (2002): Civil Service Appeals for Firefighters

    Matter of Joel v. Bratton, 99 N.Y.2d 223 (2002)

    Firefighters disciplined under Section 15-113 of the New York City Administrative Code cannot appeal their discipline to the New York City Civil Service Commission.

    Summary

    This case addresses whether a New York City firefighter disciplined under Administrative Code § 15-113 can appeal the disciplinary action to the New York City Civil Service Commission. The Firefighter, Robert Joel, was terminated for calling in false alarms. He attempted to appeal to the Civil Service Commission, which initially asserted jurisdiction. The Fire Commissioner then filed an Article 78 proceeding. The Court of Appeals held that, similar to police officers as established in Matter of Montella v. Bratton, firefighters disciplined under the specified Administrative Code provision are not entitled to appeal to the Civil Service Commission. The Court emphasized the Fire Commissioner’s “sole and exclusive power” over Fire Department discipline, as outlined in the City Charter.

    Facts

    Robert Joel, a New York City firefighter, was charged with violating Fire Department regulations by calling in two false alarms.
    At a hearing before an administrative law judge (ALJ), Joel admitted his guilt.
    The ALJ recommended that Joel be terminated from his position.
    The Fire Commissioner adopted the ALJ’s recommendation and ordered Joel’s termination.

    Procedural History

    Joel sought to appeal the Fire Commissioner’s ruling to the New York City Civil Service Commission.
    The Civil Service Commission ordered briefs on the issue of its jurisdiction over the appeal and subsequently determined that it did have jurisdiction.
    The Fire Commissioner then filed a CPLR Article 78 proceeding seeking to annul the Civil Service Commission’s determination.
    Supreme Court upheld the Civil Service Commission’s jurisdiction and dismissed the Article 78 proceeding.
    The Appellate Division reversed, holding that Matter of Montella v. Bratton was controlling and thus, the Civil Service Commission lacked jurisdiction.
    The Court of Appeals affirmed the Appellate Division’s decision.

    Issue(s)

    Whether a New York City firefighter, disciplined pursuant to section 15-113 of the Administrative Code, can appeal the disciplinary action to the New York City Civil Service Commission under Civil Service Law § 76(1)?

    Holding

    No, because the New York City Charter and Administrative Code grant the Fire Commissioner sole and exclusive power over Fire Department discipline, which is outside the scope of Civil Service Law §§ 75 and 76.

    Court’s Reasoning

    The Court of Appeals relied heavily on its prior decision in Matter of Montella v. Bratton, which held that police officers disciplined under Administrative Code § 14-115 could not appeal to the Civil Service Commission.
    The Court found that the Charter and Administrative Code provisions applicable to Fire Department discipline closely parallel those for the Police Department. Section 487(a) of the New York City Charter grants the Fire Commissioner “sole and exclusive power and perform all duties for the government, discipline, management, maintenance and direction of the fire department.”
    Administrative Code § 15-113 provides that the Commissioner “shall have power, in his or her discretion … to punish the offending party.”
    The Court emphasized that these provisions were in existence before Civil Service Law §§ 75 and 76 were enacted. Therefore, Civil Service Law § 76(4), which states that nothing in sections 75 or 76 “shall be construed to repeal or modify” other laws, applies.
    The Court rejected the argument that Montella was distinguishable due to Civil Service Law § 75(3-a) and Administrative Code § 14-116, which apply specifically to the Police Department. The Court clarified that while those sections supported the holding in Montella, they were not essential to it.
    The Court concluded that Fire Department discipline, like Police Department discipline, is outside the scope of Civil Service Law §§ 75 and 76 and thus not subject to the jurisdiction of the Civil Service Commission. The Court emphasized that the legislative intent, as evidenced by the City Charter and Administrative Code, was to grant the Fire Commissioner broad discretion over disciplinary matters within the Fire Department.

  • Garricks v. City of New York, 2 N.Y.3d 23 (2004): Municipality’s Duty and Reliance on Abutting Landowners for Snow Removal

    2 N.Y.3d 23 (2004)

    A municipality’s duty to maintain reasonably safe sidewalks after a snowstorm is not extinguished by an ordinance requiring abutting landowners to remove snow; however, the municipality’s reasonable reliance on landowners’ compliance and its enforcement efforts are relevant to determining the reasonableness of the municipality’s response.

    Summary

    Beverly Garricks sued the City of New York for negligence after slipping and falling on an icy sidewalk. The City argued its snow removal efforts were reasonable, given the prioritization of roadways and crosswalks. The trial court prevented the City from presenting evidence of an Administrative Code provision that requires landowners to clear snow from sidewalks. The Court of Appeals held that the exclusion of this evidence was reversible error because the City’s reliance on landowners and its enforcement efforts were relevant to the jury’s determination of the reasonableness of the City’s actions.

    Facts

    Beverly Garricks fell on an ice-covered sidewalk in the Bronx on February 6, 1995, sustaining injuries. A significant snowfall had occurred on February 4, 1995, followed by below-freezing temperatures and high winds. Garricks testified that the sidewalk was covered in thick ice with no cleared path and no salt or sand. The City’s snow removal operations began on February 4 and continued through February 10, 1995. The City prioritized clearing main highways, streets with bus stops, streets connecting residential areas with main roads, and finally, residential streets. Crosswalk cleaning was generally undertaken after roadways were cleared.

    Procedural History

    Garricks sued the City and abutting property owners. After obtaining a default judgment against the property owners, the case against the City proceeded to trial. The trial court reserved decision on the City’s motions for dismissal and a directed verdict. The jury found the City negligent and awarded damages to Garricks. The trial court reduced the award for future pain and suffering and entered judgment. The Appellate Division affirmed. The City appealed to the Court of Appeals based on a two-Justice dissent.

    Issue(s)

    Whether the trial court erred in precluding the City from presenting evidence of the Administrative Code provision requiring property owners to remove snow from sidewalks, and the City’s reliance on landowners’ compliance with the ordinance, in determining the reasonableness of the City’s snow removal efforts.

    Holding

    Yes, because evidence of the City’s reliance on property owners to perform their duty under the Administrative Code and the City’s enforcement efforts is relevant to determining whether the City breached its duty to maintain sidewalks in a reasonably safe condition.

    Court’s Reasoning

    The Court of Appeals recognized that while a municipality cannot abdicate its responsibility for sidewalk safety, an ordinance requiring landowners to clear snow allows the City to wait a reasonable time for compliance before acting itself. The court cited Valentine v City of New York, 86 AD2d 381, 387 (1st Dept 1982), affd 57 NY2d 932 (1982), stating that a municipality “may, before taking any action itself, wait a reasonable time for them to perform their legal duty”. Evidence of the City’s reliance on property owners and its efforts to enforce the ordinance is relevant to determining whether the City acted reasonably. The court emphasized that excluding this evidence prejudiced the City’s defense. The Court stated, “Here, the trial court precluded the City from introducing testimony as to the existence of the ordinance, the City’s enforcement measures or its reliance on property owners as part of its snow removal response plan. Had such evidence been admitted, it would have been proper for the jury…to consider the ordinance and whatever efforts the City undertook in relation to the ordinance in reaching its verdict.” Therefore, the error was not harmless, and a new trial was ordered to allow the City to present this evidence. The court noted that it’s decision was based on the state of the law at the time of the incident, before the 2003 amendments to the Administrative Code which shifted more responsibility to property owners.

  • Safir v. Civil Service Commission, 93 N.Y.2d 579 (1999): Limits on NYC Civil Service Commission’s Disciplinary Appeal Jurisdiction

    Safir v. Civil Service Commission, 93 N.Y.2d 579 (1999)

    The New York City Civil Service Commission lacks jurisdiction to hear appeals from uniformed police officers disciplined under § 14-115 of the New York City Administrative Code; its jurisdiction is limited to discipline imposed under Civil Service Law § 75.

    Summary

    This case addresses whether the New York City Civil Service Commission has the power to review disciplinary actions taken against police officers by the Police Commissioner under § 14-115 of the New York City Administrative Code. The Court of Appeals held that the Commission’s authority is limited to reviewing disciplinary actions taken under Civil Service Law § 75. Because the Police Commissioner acted under the Administrative Code, the Commission’s review was improper. The Court emphasized the comprehensive nature of the City’s disciplinary provisions for police officers and the intent of the Civil Service Law to maintain the Police Commissioner’s authority in these matters, subject to Article 78 review.

    Facts

    Officer Montella tested positive for cocaine metabolites and was charged with violating police regulations. He argued he unknowingly ingested the cocaine. After a departmental hearing, the Police Commissioner dismissed him under § 14-115 of the Administrative Code. Montella initially challenged the dismissal via an Article 78 proceeding, which resulted in a new hearing. Following the second dismissal, Montella appealed to the Civil Service Commission, which reversed the dismissal and ordered his reinstatement. The Police Department requested the Commission withdraw its determination, arguing a lack of jurisdiction. The Commission refused.

    Procedural History

    Montella filed an Article 78 proceeding to enforce the Commission’s order. The Police Department and Police Commissioner then filed a separate Article 78 proceeding challenging the Commission’s jurisdiction. The Supreme Court consolidated the cases, finding the Commission had jurisdiction under the New York City Charter. The Appellate Division affirmed, holding that § 14-115 administered Civil Service Law § 75, giving officers the option of Article 78 review or an appeal to the Commission. The Court of Appeals reversed.

    Issue(s)

    Whether the New York City Civil Service Commission has subject matter jurisdiction to hear appeals from disciplinary determinations made by the Police Commissioner pursuant to § 14-115 of the Administrative Code of the City of New York.

    Holding

    No, because the Civil Service Law explicitly limits the Commission’s jurisdiction to appeals from discipline imposed pursuant to Civil Service Law § 75, and punishment imposed by the New York City Police Commissioner pursuant to section 14-115 does not fall within that provision.

    Court’s Reasoning

    The Court of Appeals reasoned that the Civil Service Commission’s jurisdiction is limited by statute to actions taken under Civil Service Law § 75. The Police Commissioner acted under the authority of the New York City Administrative Code § 14-115, which grants broad power to discipline officers for various infractions. The court noted the comprehensive nature of the City’s disciplinary provisions, including Administrative Code § 14-116, which provides for Article 78 review of the Commissioner’s decisions, demonstrating a legislative intent to grant substantial deference to the Police Commissioner’s disciplinary determinations, “because he * * * is accountable to the public for the integrity of the Department”. The Court cited Matter of Scornavacca v Leary, holding that the Police Commissioner’s power to discipline is governed by the Administrative Code, not Civil Service Law § 75. Civil Service Law § 75(3-a) acknowledges that NYC police officers are disciplined under Administrative Code §§ 14-115 and 14-123, further evidencing the separate statutory scheme. Allowing appeals to the Commission would circumvent the Article 78 review process established in the Administrative Code and undermine the Police Commissioner’s disciplinary authority. The Court emphasized that Administrative Code § 14-115 predates the relevant Civil Service Law provisions, indicating the Legislature did not intend to supplant the Administrative Code’s disciplinary framework. The Court concluded that the Commission’s determination was void for lack of subject matter jurisdiction, quoting Editorial Photocolor Archives v Granger Collection: “a judgment or order issued without subject matter jurisdiction is void, and that defect may be raised at any time and may not be waived”.

  • People v. Construction Refuse, Inc., 81 N.Y.2d 861 (1993): Interpreting Ambiguous Statutes Regarding Builder Responsibilities

    People v. Construction Refuse, Inc., 81 N.Y.2d 861 (1993)

    An ambiguous penal statute should be interpreted narrowly and in favor of the defendant, especially when the statute’s language and context suggest a specific intended application.

    Summary

    Construction Refuse, Inc. was charged with violating a New York City Administrative Code provision related to builders placing equipment on roadways. The company’s employee placed a dumpster on the street without protective planking. The Court of Appeals reversed the Appellate Term’s order, finding that the statute, at best ambiguous, applied to “builders,” not equipment “owners” like the defendant. The Court emphasized that the restrictions, including the planking requirement, were tied to permits issued to builders, and a broader interpretation would lead to unintended, far-reaching criminal penalties. The information was dismissed.

    Facts

    An employee of Construction Refuse, Inc. placed a dumpster on an asphalt roadway in New York City without first laying down protective planking.

    The City of New York charged Construction Refuse, Inc. with violating former Section 19-122 of the Administrative Code of the City of New York.

    Procedural History

    The case reached the New York Court of Appeals after an order from the Appellate Term.

    The Court of Appeals reversed the Appellate Term’s order and granted the defendant’s motion to dismiss the information.

    Issue(s)

    Whether former section 19-122 of the Administrative Code of the City of New York applied to equipment owners like Construction Refuse, Inc., or only to “builders”.

    Holding

    No, because the penal statute, ambiguous at best, applied on its face to “builders,” not to equipment “owners” such as defendant.

    Court’s Reasoning

    The court reasoned that the statute was ambiguous, and penal statutes should be narrowly construed. The court examined the language and structure of former section 19-122 of the Administrative Code.

    The court noted that the restrictions listed in subdivision (d) of the statute, including the planking requirement, related to permits issued to builders under subdivision (a). The court found support in the fact that subdivision (d)(2) also required every permit to contain a notice that protective planking is required.

    The court reasoned that interpreting the statute broadly to apply to “any person” who places “any equipment” in the street without protective planking would lead to an absurd result that the City Council could not have intended.

    The court stated: “Were this provision not limited in application to “builders,” the broad statutory language would subject to criminal penalties “any person” who places any equipment’ in the street without protective planking. Such a far-reaching result could not have been the intent of the City Council.”

    Therefore, the court reversed the Appellate Term’s order and dismissed the information against Construction Refuse, Inc.

  • Property Clerk v. Ferris, 77 N.Y.2d 428 (1991): Forfeiture Proceedings and the Limits of Prosecutorial Discretion

    Property Clerk v. Ferris, 77 N.Y.2d 428 (1991)

    In civil forfeiture proceedings under the New York City Administrative Code, courts lack the authority to dismiss a forfeiture petition in the interests of justice once it is established that the property was used unlawfully, and a prosecutor’s promise to release seized property does not bind the Property Clerk, an independent agency.

    Summary

    This case concerns the forfeiture of an automobile seized following respondent Ferris’s arrest for drug possession. The Property Clerk sought forfeiture under the New York City Administrative Code. While the lower courts found the vehicle subject to forfeiture, they dismissed the petition in the interest of justice, believing its release was part of Ferris’s plea bargain. The New York Court of Appeals reversed, holding that the courts lacked the authority to dismiss the forfeiture action based on equitable considerations or prosecutorial promises, as the Administrative Code mandates forfeiture once unlawful use is established, and the Property Clerk is an independent agency not bound by the prosecutor’s actions.

    Facts

    Respondent Ferris was arrested for drug possession after being observed purchasing drugs and driving away with passengers, who also possessed drugs. A search revealed Ferris was holding a packet containing PCP. Ferris later pleaded guilty to disorderly conduct. As part of the plea agreement, the prosecutor agreed to release Ferris’s vehicle and notified the Property Clerk that the vehicle was no longer needed as evidence. The Property Clerk then initiated a civil forfeiture proceeding to retain possession of the vehicle.

    Procedural History

    The trial court initially found the vehicle subject to forfeiture but dismissed the petition in the interests of justice, influenced by the plea agreement in the criminal case. The Appellate Division affirmed this decision. The Property Clerk appealed to the New York Court of Appeals.

    Issue(s)

    Whether a court has the authority to dismiss a civil forfeiture petition under the New York City Administrative Code in the interests of justice, based on a plea agreement in the related criminal case where the prosecutor promised to release the seized property.

    Holding

    No, because the New York City Administrative Code mandates forfeiture once it’s established that the property was used unlawfully, and courts lack the power to dismiss the petition absent express statutory authorization. The prosecutor’s promise does not bind the Property Clerk, an independent agency.

    Court’s Reasoning

    The Court of Appeals emphasized the mandatory language of Section 14-140 of the Administrative Code, stating that once the Property Clerk establishes unlawful use, the property “should have been declared forfeited.” The Court distinguished this case from CPLR 1311(4), which allows dismissal of forfeiture actions in the interest of justice, noting that this provision applies to a different forfeiture scheme and does not supersede the authority to enforce other legal remedies. The Court also distinguished this case from Matter of Chaipis v. State Liq. Auth., where a prosecutor’s promise was given weight in a licensing decision. Here, the Property Clerk is an independent agency without discretion to recognize respondent as a “lawful claimant,” and the court cannot compel the Property Clerk to return the vehicle without statutory authorization. The court noted that if Ferris was misled by the prosecutor’s promise, his remedy was to move to vacate his plea. The court reasoned, “The Property Clerk is a separate and independent agency and has no discretion under the Code to recognize respondent as a ‘lawful claimant entitled to * * * such * * * property’ (Administrative Code § 14-140 [e] [1]).” Therefore, the Court reversed the Appellate Division’s order and granted the petition for forfeiture.

  • Moreno v. City of New York, 69 N.Y.2d 435 (1987): Replevin Action After Criminal Charges Dismissed

    Moreno v. City of New York, 69 N.Y.2d 435 (1987)

    A property owner’s common-law right to demand the return of seized property, or its value in a replevin action, is not extinguished by a city administrative code provision that allows the property clerk to transfer unclaimed money to another fund after a statutory period.

    Summary

    Mayra Moreno was arrested, and money was seized by New York City police. After the criminal charges were dismissed, she assigned her rights to her attorney, who then demanded the money’s return more than 90 days after the dismissal. The City refused, claiming the demand was untimely under the Administrative Code and the *McClendon v. Rosetti* ruling, asserting the funds were abandoned. Moreno then commenced a replevin action. The New York Court of Appeals held that the City’s administrative code provision merely fixed the point at which the property clerk could transfer funds, not extinguish the owner’s common-law right to demand the property’s return via a replevin action.

    Facts

    On December 15, 1982, Mayra Moreno was arrested in New York City on gambling charges, and $156,150 was seized by the police.
    The seized money was delivered to the New York City Police Department property clerk.
    On March 8, 1983, Moreno served a notice of claim on the City while criminal charges were pending.
    The criminal charges against Moreno were dismissed on September 19, 1983.
    Six months later, Moreno assigned her rights to the seized funds to her attorney, Paul Lieber.
    On March 19, 1984, Lieber demanded the Police Department return the money.
    On March 27, 1984, the Police Department informed Lieber that his demand was untimely based on the Administrative Code and *McClendon v. Rosetti*, claiming the funds were deemed abandoned and paid over to the City.

    Procedural History

    Moreno commenced a common-law replevin action to recover the funds and served a second notice of claim.
    The City moved to dismiss, arguing the demand was untimely.
    The trial court granted the City’s motion, dismissing the complaint for failure to state a cause of action.
    The Appellate Division affirmed without opinion.
    The New York Court of Appeals granted Moreno’s motion for leave to appeal.

    Issue(s)

    Whether a replevin action to recover property seized by the City of New York in connection with a criminal prosecution may be maintained when the owner has not demanded return of the property within 90 days of the dismissal of the criminal charges, given the City’s administrative code provision regarding unclaimed property.

    Holding

    No, because the Administrative Code provision cited by the City merely fixes the point at which the property clerk may transfer the money to another fund, but it does not impose an obligation on the owner to demand the money within 90 days nor does it impair the owner’s common-law right to demand return of the property seized or its value in a replevin action.

    Court’s Reasoning

    The Court of Appeals considered the interplay between the City’s Administrative Code § 435-4.0(e) (now § 14-140(e)), which addresses the handling of unclaimed property by the police property clerk, and the common-law right to replevin.
    The Court acknowledged that the Administrative Code allows the property clerk to transfer unclaimed money to the Police Pension Fund after three months.
    However, the Court emphasized that the code provision does not impose an affirmative duty on the owner to demand the money within 90 days of the dismissal of criminal charges, nor does it impose a penalty for failing to do so. The court stated: “It does not, in short, impair the owner’s common-law right to demand return of the property seized or its value in a replevin action.”
    The court distinguished the City’s reliance on *McClendon v. Rosetti*, noting that while *McClendon* established a procedure for demanding property within 90 days to avoid having to commence a court action, it did not eliminate the owner’s right to pursue other remedies, such as replevin or an Article 78 proceeding.
    The Court rejected the City’s argument that failing to claim the funds within three months resulted in the loss of any right of possession. The court clarified that the code provision simply relieves the property clerk of the responsibility of retaining the moneys in custody after the statutory period.
    The Court also noted that the claimant bears the burden of proving title and lawful use of the money, but this burden does not negate the right to bring a replevin action.

  • Matter of Buerk v. Erie County Legislature, 43 N.Y.2d 230 (1977): Legislative Equivalency Doctrine for Abolishing Public Offices

    Matter of Buerk v. Erie County Legislature, 43 N.Y.2d 230 (1977)

    An office created by a County Charter or Administrative Code can only be abolished through legislative action of equal dignity, such as a local law, and not merely by omitting salary appropriations from the county budget.

    Summary

    This case concerns the power of the Erie County Legislature to abolish positions established by the County Charter and Administrative Code by simply removing their salary appropriations from the budget. The Court of Appeals held that such positions can only be abolished through a legislative act of equal dignity, such as a local law, which is subject to the County Executive’s veto power. The Court reasoned that omitting salary items from the budget, which is not subject to the same veto power, is not equivalent to amending the Charter or Code and is therefore ineffective to abolish the positions. This maintains the check and balance between the legislative and executive branches.

    Facts

    The Erie County Executive submitted a tentative budget for 1977 to the County Legislature, which included salary items for the positions of Deputy County Executive, Deputy Commissioner of Public Works-Buildings and Grounds, Deputy Director of Purchasing, Deputy Commissioner-Recreation, and County Forester. Subsequently, the County Legislature adopted an amended budget, excising the salary items for these five positions. The County Executive contended that these deletions were invalid, as the positions were created by the County Charter or Administrative Code.

    Procedural History

    The petitioners, members of the Erie County Legislature and citizen-taxpayers, initiated litigation by submitting a controversy on an agreed statement of facts to the Appellate Division. The Appellate Division directed that the 1977 budget should not include the positions. The County Executive appealed to the Court of Appeals.

    Issue(s)

    Whether the Erie County Legislature can abolish positions in county government, established by the County Charter and Administrative Code, by striking salary appropriations for those positions from the budget submitted by the County Executive.

    Holding

    No, because the abolition of such positions requires a legislative act of equal dignity to the act that created them, such as a local law, and simply removing salary appropriations from the budget does not meet this requirement.

    Court’s Reasoning

    The Court reasoned that the positions in question were expressly created by provisions of the County Charter or Administrative Code. Amendments to the Charter and Code require a local law, which is subject to an initial veto by the County Executive. The adoption of the county budget, however, is effected by a majority vote of the County Legislature, and the County Executive’s veto power is limited to increases over the tentative budget, not legislative decreases. The Court emphasized the importance of the check and balance assured by the executive veto, stating that omitting salary items from the budget “was not, in terms of the required procedures, the legislative equivalent of the adoption of a local law amending the County Charter and Administrative Code to eliminate the positions.” The Court cited Matter of Moran v La Guardia, stating, “To repeal or modify a statute requires a legislative act of equal dignity and import. Nothing less than another statute will suffice.” The Court also noted that the doctrine of legislative equivalency has been applied with respect to the abolition of offices in local government. The Court rejected the argument that Section 204 of the County Law authorized the abolition of these positions by budget adoption because even if it did, the County Law would conflict with the Charter and Code, and the Charter and Code would prevail. The Court concluded that the petitioners were not entitled to the judgment directing that the positions not be included in the budget.

  • Corcoran v. Village of Saddle River, 16 N.Y.2d 463 (1965): Determining Lateral Support Obligations Under City Administrative Code

    Corcoran v. Village of Saddle River, 16 N.Y.2d 463 (1965)

    When an owner insists on maintaining land higher or lower than the legal regulation, the necessity and permissibility of applying administrative code provisions regarding retaining structures require careful factual inquiry into alternative improvement methods and cost burdens.

    Summary

    This case addresses whether a provision of the New York City Administrative Code regarding lateral support obligations applies when an owner excavates their land, leaving an adjacent property significantly higher. The plaintiff excavated their land to curb level, creating a vertical height difference with the defendant’s property. The plaintiff then demanded the defendant build a retaining wall at her own expense. The court reversed the lower court’s decision, finding that the application of the Administrative Code and the permissibility of such application depended on the specific facts of the case, including whether the plaintiff could have improved their land without such extensive excavation and the reasonableness of the burden placed on the defendant.

    Facts

    Plaintiff acquired land on 75th Street in Queens to construct two-family residences. The property consisted of two parcels separated by defendant’s land. The natural slope of the land was upward from the street, with defendant’s property at a higher elevation. Plaintiff, unable to purchase defendant’s land, excavated their property to street level, leaving defendant’s land significantly elevated above the plaintiff’s property. Plaintiff then demanded that defendant construct a retaining wall to support her property at an estimated cost of $25,000, citing the New York City Administrative Code.

    Procedural History

    Special Term granted summary judgment to plaintiff. The Appellate Division reversed, holding that the Administrative Code provision was inapplicable. The New York Court of Appeals reversed the Appellate Division’s order and remitted the case to the Supreme Court for trial.

    Issue(s)

    Whether the Administrative Code provision requiring an owner maintaining land higher than legal regulation to build a retaining wall applies to the defendant in this case, and whether such application is permissible, considering the specific facts and potential burden on the defendant.

    Holding

    No, the case was remitted because the applicability and permissibility of applying the Administrative Code provision cannot be determined without further factual development regarding alternative methods of improvement and the reasonableness of the burden imposed on the defendant.

    Court’s Reasoning

    The court reasoned that the application of the Administrative Code provision was contingent on further factual findings. It was unclear whether the plaintiff could have improved their land without the extensive excavation. The court considered whether a retaining wall was actually necessary, as opposed to alternative solutions like decline grading. The court also noted a lack of clarity regarding offers by the plaintiff to share the cost of the wall or grading. The court emphasized that applying the Administrative Code as the plaintiff desired could place a disproportionately heavy economic burden on the defendant. The court observed that the record was incomplete and prevented the Court from determining the extent of the offers made by the plaintiff to share the cost of appropriate grading or retaining wall construction between the properties. The Court thus needed more information to decide if the Administrative Code applied and, if so, whether its application was permissible under the circumstances. As the Court stated, ‘If eventually held applicable, as now contended by plaintiff, the provisions of the Administrative Code would impose what appears to be at least a disproportionately heavy economic burden of compliance.’