City Code and Charter Not Unconstitutionally Applied Re: Searches Related to Certificates of Occupancy

The Fourth Department reversed Supreme Court’s grant of an Article 78 petition. In granting the petition, Supreme Court found that the relevant provisions of the city code and charter were unconstitutional as applied with respect to searches of petitioner’s property in connection with the issuance of certificates of occupancy.  In reversing that determination, the Fourth Department wrote:

We have previously upheld as constitutional the City’s CO requirement as well as its procedure for issuing judicial warrants for inspections of premises in cases where the City has failed to obtain the consent of the homeowners or tenants … .  Petitioner concedes that the laws at issue are valid on – their face, but contends that the determination that he violated City Code § 90-16 (A) (2) (d) is unconstitutional because, as a result of the determination, he will be required to consent to a warrantless inspection of his property or risk prosecution and fines.  That contention, however, was specifically considered and rejected by this Court in Matter of Burns v Carballada (101 AD3d 1610, 1611-1612), which involved facts nearly identical to those herein.  The petitioners in Burns commenced a CPLR article 78 proceeding seeking to annul two determinations of the Municipal Code Violations Bureau finding that they violated City Code § 90-16 (A) (2) (d), the same provision at issue here, by owning rental property that was occupied without a valid CO (id. at 1610).  In the Burns petition, like the petition in this case, petitioners asserted, inter alia, that the determinations that they failed to comply with the City Code CO provision violated the Fourth Amendment and article I, § 12 of the New York State Constitution (id.).  Specifically, petitioners contended that the City’s CO inspection and warrant system was unconstitutional as applied to them because it prevented them from obtaining a CO without first consenting to a warrantless search of their properties (id. at 1611-1612).  We rejected that contention and stated that, “[u]nder the City’s ordinance, . . . an inspection can take place either upon consent or upon the issuance of a warrant (see City Charter § 1-11).  On the record before us, petitioners have not shown that they were actually penalized for refusing to allow an inspection inasmuch as there is no evidence that they ever applied for a CO and thereafter refused to consent to the required inspection of their properties” (id. at 1612).  Matter of Capon v Carballada…, 858, 4th Dept 9-27-13