New York Law Review

Tag: Self-Executing Statute

  • Village of Upper Nyack v. Christian, 30 N.Y.2d 577 (1972): Self-Executing Statute for Nuisance Removal

    Village of Upper Nyack v. Christian, 30 N.Y.2d 577 (1972)

    When a statute grants a power and provides a detailed procedure for its exercise, the statute is self-executing and does not require a separate ordinance for implementation.

    Summary

    This case addresses whether Section 89(7-a) of the Village Law, which empowers villages to remove unsafe buildings, is self-executing without the need for a separate implementing ordinance. The Village of Upper Nyack sought to compel the removal of a fire-damaged building under this law. The executor of the mortgagee’s estate argued that the law was merely enabling and required an ordinance. The Court of Appeals held that the statute was self-executing because it provided a complete procedure, including inspection, notice, survey, and judicial review, without requiring further legislative action by the village.

    Facts

    A nightclub and restaurant in the Village of Upper Nyack was partially destroyed by fire in 1963 and subsequently abandoned. The executor of the first mortgagee’s estate took possession, paying taxes and maintaining the property. In 1969, the village, acting under Village Law § 89(7-a), initiated proceedings to declare the building unsafe and order its removal. The village appointed an inspector who reported the building was unsafe. The executor received notice of the unsafe condition and a deadline to secure or remove the building. A survey was conducted, but the executor’s experts did not submit reports.

    Procedural History

    The Village of Upper Nyack petitioned in Supreme Court for a determination that the building was unsafe and for its removal. The executor moved to intervene and dismiss the petition, arguing that an implementing ordinance was required. The Supreme Court ruled in favor of the Village. The Appellate Division affirmed. The Court of Appeals granted leave to appeal to resolve the question of whether the statute required an implementing ordinance.

    Issue(s)

    1. Whether Section 89(7-a) of the Village Law is self-executing, allowing a village to proceed with nuisance removal without first enacting an implementing ordinance.

    2. If Section 89(7-a) is self-executing, whether a village can remove or compel removal of a particular building by resolution, rather than through the more formal enactment of an ordinance.

    Holding

    1. Yes, Section 89(7-a) of the Village Law is self-executing because it provides a complete framework with standards and procedures for addressing unsafe buildings.

    2. Yes, the procedure by village board resolution suffices because the statute itself dictates the required actions and safeguards, rendering a separate ordinance unnecessary.

    Court’s Reasoning

    The Court reasoned that when a statute provides a complete grant of power with specific standards, procedures, and opportunities for judicial review, it is self-executing. Section 89(7-a) provides a detailed two-step administrative procedure for determining a building to be unsafe, a method for notifying interested parties, a requirement of judicial review, and the power to assess expenses on the property. "Generally, where a statutory grant of power is complete within itself, providing standards, procedures, and penalties, the statute is self-executing, and no other legislation is required." The court distinguished this statute from those that grant only a general power to prevent and remove nuisances, which might require further definition through ordinances.

    The Court also highlighted that the Village Law, unlike the Town Law, does not have an introductory paragraph requiring a public hearing before exercising powers. While acknowledging that the State Comptroller’s office had previously issued opinions suggesting an ordinance was necessary, the Court found those opinions unpersuasive in light of the statute’s comprehensive nature. The Court emphasized that the statute requires a judicial determination before a building can be removed, providing sufficient protection to property owners and obviating the need for a preliminary ordinance. According to the court, "In this instance, the Legislature has chosen to protect property owners from arbitrary determinations by local officials by requiring a judicial determination, rather than a public hearing or a referendum."

    The court noted the difference between an ordinance, which provides a permanent rule of government, and a resolution, which deals with temporary or special matters. The village, by proceeding via resolution, was addressing a specific case based on findings of fact. The court reasoned that when general legislation (either statute or ordinance) is in effect, a municipal corporation may act in particular instances by resolution.

  • Matter of Klein v. McCoy, 19 N.Y.2d 512 (1967): Self-Executing Transfer of Non-Judicial Personnel in Court Reorganization

    Matter of Klein v. McCoy, 19 N.Y.2d 512 (1967)

    In the context of court reorganization, legislation providing for the transfer of non-judicial personnel to courts exercising the jurisdiction of their former courts is self-executing, entitling transferred employees to the compensation associated with their new roles from the effective date of the reorganization.

    Summary

    This case concerns a petitioner who was a Secretary to a Bronx County Court Judge before court reorganization. After reorganization, the County Court was abolished, and the judge became a Supreme Court Justice. The petitioner continued working for the same judge, performing the duties of a Clerk to a Supreme Court Justice. The petitioner sought the difference in salary between a County Court Secretary and a Supreme Court Clerk for the period between the reorganization and when he began receiving the higher salary. The Court of Appeals held that the legislation mandating the transfer of non-judicial personnel was self-executing, entitling the petitioner to the higher Supreme Court Clerk salary from the date of reorganization.

    Facts

    Prior to September 1, 1962, the petitioner was the Secretary to a Judge of the Bronx County Court.
    With court reorganization on September 1, 1962, the Bronx County Court was abolished, and the Judge became a Justice of the Supreme Court.
    The petitioner continued in employment, performing the duties of a Clerk to a Justice of the Supreme Court.
    He was not paid the salary of a Supreme Court Clerk until July 1, 1963.
    The petitioner sought the difference in salary for the 10-month period from September 1, 1962, to July 1, 1963.

    Procedural History

    The petitioner initiated a proceeding to recover the salary difference.
    The lower courts’ decisions are not explicitly stated, but the Court of Appeals reversed the order appealed from, implying a prior unfavorable ruling.
    The Court of Appeals remitted the case to the Supreme Court, New York County, for further proceedings.

    Issue(s)

    Whether section 223 of the Judiciary Law, concerning the transfer of non-judicial personnel during court reorganization, is self-executing.
    Whether the petitioner was entitled to be compensated at the rate of pay for a Supreme Court Clerk from September 1, 1962, the date of the court reorganization.

    Holding

    Yes, section 223 of the Judiciary Law is self-executing because it mandates the transfer and appointment of non-judicial personnel to positions in the reorganized courts where their skills can be utilized.
    Yes, the petitioner was entitled to be compensated as a Supreme Court Clerk from September 1, 1962, because the transfer provision was self-executing and he was, in effect, “appointed” to the analogous position of Clerk to a Supreme Court Justice.

    Court’s Reasoning

    The court reasoned that the abolition of the Secretary position in the County Court coincided with the court’s abolishment, indicating the Legislature’s intent for a seamless transition during reorganization.
    The court relied on the New York Constitution, Article VI, § 35, subd. 1, which directs that nonjudicial personnel be assigned to like functions in the reorganized courts “to the extent practicable” and “as may be provided by law.”
    The court interpreted section 223 of the Judiciary Law as implementing this constitutional directive by mandating the transfer of personnel to positions where their skills could be fully utilized.
    The court found section 223 to be self-executing, meaning it took effect immediately without requiring further legislative action to define the specific terms of employment.
    The court analogized the petitioner’s situation to its decision in Matter of Rein v. Wagner, 18 N.Y.2d 989 (1967), where former County Court employees were deemed Supreme Court employees for salary increase purposes after reorganization. The court stated, “Manifestly, if the Legislature intended to treat former County Court employees as Supreme Court employees after September 1, 1962, for purposes of giving them a salary increase, it must necessarily have intended that they be similarly treated for purposes of their salary base.”
    The dissenting judges, Burke and Scileppi, voted to affirm the lower court’s decision, but their reasoning is not detailed in the majority opinion.