New York Law Review

Tag: Certificate of Occupancy

  • Palm Management Corp. v. Goldstein, 9 N.Y.3d 337 (2007): Reissuance of Identical Certificate of Occupancy Does Not Restart Appeal Period

    Palm Management Corp. v. Goldstein, 9 N.Y.3d 337 (2007)

    The reissuance of a certificate of occupancy that is substantially identical to a prior certificate does not create a new 60-day period for appealing the determinations made in the original certificate.

    Summary

    Palm Management Corporation owned an inn with a staff dormitory and an awning, uses authorized by certificates of occupancy issued in 1989 and 1993. Neighbors, after failing to challenge these initial certificates, attempted to appeal the reissuance of a certificate in 2003, claiming the uses were unlawful. The New York Court of Appeals held that the reissuance of a substantially identical certificate of occupancy does not restart the 60-day appeal period under Village Law § 7-712-a (5) (b). This decision ensures repose for property owners who rely on unchallenged certificates, preventing endless cycles of appeals based on mere reissuances.

    Facts

    Palm Management Corporation operated an inn located in a residential zone, a lawful nonconforming use predating the zoning ordinance. The inn included a former barn used as a staff dormitory and an awning over the patio. In 1987, a building permit was issued for the awning. Certificates of occupancy issued in 1989 and 1993 approved both the dormitory and the awning. The 1989 certificate stated the inn could be occupied as a “legal preexisting nonconforming…building occupied as a hotel with…a detached two-story frame building occupied as help’s quarters.” The 1993 certificate contained the same language and referenced a “slate patio partially covered with an awning.” No appeals were filed within 60 days of either issuance.

    Procedural History

    In 1999, neighbors complained, but a Code Enforcement Officer declined to disturb the uses, citing the 1987 permit and 1993 certificate. The neighbors’ appeal to the ZBA was denied in 2001 because the officer made no new determination and challenges were time-barred. In 2003, a new certificate of occupancy was issued for refinancing purposes, mirroring the prior certificates. Within 60 days, neighbors appealed, and the ZBA annulled portions related to the dormitory and awning. Palm Management then initiated a CPLR article 78 proceeding to annul the ZBA’s determination. The Supreme Court dismissed the proceeding. The Appellate Division modified, holding res judicata barred the ZBA’s action. The Court of Appeals granted leave to appeal.

    Issue(s)

    Whether the issuance of a new certificate of occupancy that is substantially identical to prior certificates constitutes a new “order, requirement, decision, interpretation or determination” under Village Law § 7-712-a (5) (a), thereby restarting the 60-day appeal period for challenging the uses authorized by the original certificates.

    Holding

    No, because the reissuance of a substantially identical certificate of occupancy does not represent a new determination subject to a new appeal period under Village Law § 7-712-a (5) (b).

    Court’s Reasoning

    The Court of Appeals reasoned that Village Law § 7-712-a (5) (b) sets a 60-day limit for appeals to the ZBA from an administrative official’s determination. The purpose of this time limit is to provide certainty and repose for property owners and those who deal with the property, allowing them to rely on the validity of a certificate of occupancy once the appeal period has expired. The court emphasized that the 2003 certificate, as it related to the dormitory and awning, merely repeated prior authorizations. The village official did not make a new decision or determination regarding these uses; they were already approved years before. Allowing a new appeal period each time a certificate is reissued would undermine the purpose of the statute of limitations. The court stated, “[T]he mere repetition, in words or substance, of an authorization contained in the old certificate of occupancy should not be treated as a newly appealable ‘order, requirement, decision, interpretation or determination.’” The Court declined to address whether a certificate of occupancy unchallenged within the initial 60-day period provides perpetual immunity, limiting its holding to the specific facts: a substantially identical reissuance does not trigger a new challenge period. Judges Kaye, Ciparick, Graffeo, Read, and Pigott concurred. Judge Jones took no part.

  • Willow Tex, Inc. v. Dimacopoulos, 68 N.Y.2d 963 (1986): Establishing an Easement by Express Grant

    Willow Tex, Inc. v. Dimacopoulos, 68 N.Y.2d 963 (1986)

    To create an easement by express grant, there must be a written document containing plain and direct language evincing the grantor’s intent to create a right in the nature of an easement, demonstrating an intent to give a permanent right of use to the dominant estate.

    Summary

    Willow Tex, Inc. and George Dimacopoulos are adjacent property owners. Willow Tex sought a declaration of an easement over Dimacopoulos’s property to access fire doors on Willow Tex’s building. The alleged easement stemmed from a 1966 certificate of occupancy application where Dimacopoulos’s predecessor in title, Davis, allowed Willow Tex’s predecessor to use the driveway for exits. After Dimacopoulos obstructed access to the fire doors, Willow Tex sued, claiming easements by express grant, implication, and necessity. The trial court found an easement by express grant. The Appellate Division modified the judgment. The Court of Appeals reversed, holding that the certificate of occupancy created a revocable license, not a permanent easement.

    Facts

    Willow Tex, Inc. owned a factory building (parcel No. 1) adjacent to George Dimacopoulos’s property (parcel No. 2). The factory had fire doors opening onto Dimacopoulos’s property, which were necessary for access to a public road. In 1966, when parcel No. 2 was owned by Davis, who was also the lessor of parcel No. 1 (through his company Sida Realty Corp.), Davis joined Sida’s application for a certificate of occupancy, proposing to legalize exits including the fire doors. Dimacopoulos purchased his parcel in 1976, and Willow Tex purchased its parcel in 1980. A dispute arose when Willow Tex’s tenant tried using the fire doors, and Dimacopoulos blocked them.

    Procedural History

    Willow Tex and its tenant sued Dimacopoulos, seeking damages and a declaration of an easement based on implied grant, prescription, and necessity. The trial court amended the pleadings to conform to the proof and decreed an easement by express grant, ordering Dimacopoulos to keep his driveway gate unlocked. The Appellate Division modified the judgment, requiring the gate to be unlocked at all times. Dimacopoulos appealed to the Court of Appeals based on the issue of easement by express grant.

    Issue(s)

    Whether the joint certificate of occupancy application constituted an express grant of easement over Dimacopoulos’s property for access to the fire doors on Willow Tex’s building.

    Holding

    No, because the certificate of occupancy, at most, created a license that terminated upon the transfer of parcel No. 2, not an easement by express grant.

    Court’s Reasoning

    The Court of Appeals reasoned that an easement by express grant requires a written document with clear language demonstrating the grantor’s intent to create a permanent easement, not a revocable license. The court emphasized that the writing must unequivocally establish the grantor’s intention to grant a permanent use of the servient estate to the dominant estate. “The policy of the law favoring unrestricted use of realty requires that where there is any ambiguity as to the permanence of the restriction to be imposed on the servient estate, the right of use should be deemed a license, revocable at will by the grantor, rather than an easement.” The court found that Davis’s participation in the certificate of occupancy application primarily benefited his own corporation and did not demonstrate an intent to grant a permanent easement to future tenants of parcel No. 1. At most, it created a license that terminated when Davis sold parcel No. 2. The court also agreed with the trial court’s rejection of an easement by implied grant.

  • Garrett v. Holiday Inns, Inc., 58 N.Y.2d 253 (1983): Municipal Liability for Negligent Issuance of Certificate of Occupancy

    Garrett v. Holiday Inns, Inc., 58 N.Y.2d 253 (1983)

    A municipality can be held proportionately liable to property owners for negligently issuing a certificate of occupancy despite the absence of a direct duty to injured third parties, if the municipality breached a special duty to the owners, leading to foreseeable harm.

    Summary

    Following a motel fire, the motel guests sued, among others, the Town of Greece. The town was dismissed from the primary suit because the plaintiffs alleged only a general duty owed to the public. The motel owners then filed a third-party complaint against the town, alleging negligence in approving building plans and issuing a certificate of occupancy despite known fire and safety violations. The New York Court of Appeals held that while the town owed no duty to the motel guests directly, it could still be proportionately liable to the motel owners if a special duty to them was breached, causing foreseeable harm.

    Facts

    An extensive fire occurred at the Holiday Inn in the Town of Greece, resulting in wrongful death, personal injury, and property damage claims by motel guests. The guests sued Holiday Inns, the developers, owners, and the Town of Greece. The claims against the town were based on its failure to enforce fire and safety laws and adequately inspect the motel’s construction. The original complaints against the town were dismissed because they alleged only a violation of a general duty owed to the public.

    Procedural History

    The remaining defendants (motel owners and lessee/operator) then filed third-party complaints against the Town of Greece, seeking contribution or indemnification. Special Term denied the town’s motion to dismiss the third-party complaints. The Appellate Division reversed, holding the town could not be liable to the third-party plaintiffs absent a duty owed to the original plaintiffs (motel guests). The motel owners appealed to the New York Court of Appeals.

    Issue(s)

    Whether a municipality, not owing a duty to injured motel guests, can be held proportionately liable to the motel owners and operator for breaching an independent duty owed to them regarding the issuance of a certificate of occupancy and approval of construction alterations.

    Holding

    Yes, because a municipality can be held proportionately liable to property owners if it breaches a special duty owed to them, leading to foreseeable harm, even if no direct duty was owed to the injured third parties.

    Court’s Reasoning

    The court reasoned that apportionment rights arise when tortfeasors share responsibility for an injury, violating respective duties to the injured party. However, the court emphasized that proportionate liability among tortfeasors is analytically distinct from the duties owed to the injured person. Citing Nolechek v. Gesuale, the court noted that a duty to prevent foreseeable harm could exist independently of a duty to the injured party. The court stated, “If an independent obligation can be found on the part of a concurrent wrongdoer to prevent foreseeable harm, he should be held responsible for the portion of the damage attributable to his negligence, despite the fact that the duty violated was not one owing directly to the injured person.”

    The court determined that municipalities can be liable for negligently exercising governmental functions when a special duty exists to the injured person, distinct from a general duty to the public. A special duty arises when a statute is enacted for the benefit of particular persons, a duty is voluntarily assumed and justifiably relied upon, or positive direction and control are assumed with a known, blatant, and dangerous safety violation. The court noted that the third-party complaints alleged known, blatant fire and safety code violations, yet the town approved building plan changes and issued a certificate of occupancy representing the premises as safe. If these allegations are proven, a basis for imposing liability on the town exists, potentially including economic damages suffered due to judgments in favor of the motel guests.

    The court distinguished the discretionary nature of granting or denying a building permit from the mandatory duty to refuse a certificate of occupancy when blatant code violations are known. The court concluded there was no basis for implied indemnification as the third-party complaints did not support the theory that the appellants were being cast in damages solely for the negligence of the town.

  • People v. Gottlieb, 36 N.Y.2d 629 (1975): Defining ‘Written Instrument’ in False Filing Statutes

    People v. Gottlieb, 36 N.Y.2d 629 (1975)

    An application for a certificate of occupancy is not a “written instrument” within the meaning of Penal Law § 175.35, which prohibits offering a false instrument for filing.

    Summary

    The defendants were convicted of offering a false instrument for filing after submitting an application for a certificate of occupancy containing false information to the Yonkers Building Department. The New York Court of Appeals reversed the conviction, holding that the application was not a “written instrument” as the term is used in Penal Law § 175.35. The court reasoned that the statute’s scope is narrower than its predecessor and that the definition of “written instrument” should be narrowly construed, consistent with prior case law and legislative intent. The Court emphasized that a broader definition, such as that used in the context of forgery, would risk turning harmless misstatements into felonies.

    Facts

    The defendants submitted an “Application For Certificate of Occupancy” to the Building Department of the City of Yonkers for an apartment complex. The prosecution alleged that the application contained false information. The defendants were subsequently convicted of offering a false instrument for filing in the first degree, in violation of section 175.35 of the Penal Law.

    Procedural History

    The defendants were convicted at trial. The Appellate Division affirmed the convictions. The case then came before the New York Court of Appeals.

    Issue(s)

    Whether an application for a certificate of occupancy is a “written instrument” within the meaning of Penal Law § 175.35, which prohibits offering a false instrument for filing.

    Holding

    No, because the term “written instrument” in Penal Law § 175.35 should be narrowly construed, and an application for a certificate of occupancy does not fall within that narrow definition.

    Court’s Reasoning

    The court began by examining the legislative intent behind Penal Law § 175.35 and its predecessor, Penal Law § 2051. The court noted that while the older statute was broader, the revised statute was more limited in its application to “false instruments.” Referencing People v. Sansanese, 17 N.Y.2d 302, the court emphasized the narrow construction historically given to the term “instrument.” The court quoted Sansanese, stating that an instrument is typically defined as a “formal or legal document in writing, such as a contract, deed, will, bond, or lease.”

    The court rejected the argument that the broader definition of “written instrument” found in Penal Law Article 170 (relating to forgery) should apply. The court pointed out that the legislature specifically defined the term broadly for the purposes of Article 170 to expand the scope of forgery crimes, and applying that definition to Article 175 could lead to felony prosecutions for otherwise harmless misstatements. The court stated, “Penal responsibility * * * cannot be extended beyond the fair scope of the statutory mandate.”

    The court concluded that if the Legislature had intended the broader definition of Article 170 to apply to Article 175, it would have explicitly stated so. Therefore, the court reversed the Appellate Division’s order and dismissed the indictment.