         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1169
CA 12-00850
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, SCONIERS, AND MARTOCHE, JJ.


IN THE MATTER OF DEBORAH BURNS AND BRUCE HENRY,
PETITIONERS-RESPONDENTS,

                    V                             MEMORANDUM AND ORDER

CARLOS CARBALLADA, IN HIS OFFICIAL CAPACITY AS
COMMISSIONER OF NEIGHBORHOOD AND BUSINESS
DEVELOPMENT OF CITY OF ROCHESTER, AND CITY OF
ROCHESTER, RESPONDENTS-APPELLANTS.


ROBERT J. BERGIN, CORPORATION COUNSEL, ROCHESTER (ADAM M. CLARK OF
COUNSEL), FOR RESPONDENTS-APPELLANTS.

SANTIAGO BURGER ANNECHINO LLP, ROCHESTER (MICHAEL A. BURGER OF
COUNSEL), FOR PETITIONERS-RESPONDENTS.


     Appeal from a judgment of the Supreme Court, Monroe County
(Thomas A. Stander, J.), entered July 7, 2011 in a proceeding pursuant
to CPLR article 78. The judgment granted the petition.

     It is hereby ORDERED that the judgment so appealed from is
reversed on the law without costs and the petition is dismissed.

     Memorandum: Petitioners commenced this CPLR article 78
proceeding seeking to annul two determinations of the Municipal Code
Violations Bureau (Bureau) of respondent City of Rochester (City),
which separately found them guilty of a City Code violation set forth
in appearance tickets, i.e., owning property that was occupied without
a valid Certificate of Occupancy (CO) in violation of City Code § 90-
16 (A) (2) (d). That provision provides that a CO must be obtained
within a period of 90 days prior to the expiration or termination of
an existing CO.

     In their petition, petitioners sought annulment of the
determinations “on the grounds that [their] convictions violate the
Fourth Amendment and Article 1 section 12 of the New York
Constitution, unlawfully deprive [p]etitioners of the beneficial
enjoyment of their property and the right to derive income therefrom,
and are therefore in violation of lawful procedure, affected by an
error of law and were arbitrary and capricious.” While petitioners
had also argued before the Bureau that the appearance tickets should
be dismissed on the ground that they did not sufficiently allege their
commission of an offense for which a fine may be imposed, they failed
to pursue that argument in their petition.
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                                                         CA 12-00850

     Supreme Court transferred the proceeding to this Court pursuant
to CPLR 7804 (g), but we vacated the order of transfer and remitted
the matter to that court because we concluded that the petition did
not raise a substantial evidence issue (Matter of Burns v Carballada,
79 AD3d 1785). Upon remittal, the court granted the petition, holding
that the determinations were affected by an error of law and were
arbitrary and capricious (see generally CPLR 7803 [3]). Specifically,
the court held that the appearance tickets were facially insufficient.
Respondents now appeal.

     We note as an initial matter that our dissenting colleague
correctly states that petitioners did not raise a substantial evidence
issue in their petition. We therefore conclude that our dissenting
colleague erroneously addresses the sufficiency of the evidence at the
hearings. Moreover, we agree with respondents that the court erred in
annulling the determinations on facial sufficiency grounds inasmuch as
petitioners also never raised that contention in their petition (see
Matter of Faison v Goord, 298 AD2d 392, 392-393, lv denied 95 NY2d
510, rearg denied 100 NY2d 616; cf. Matter of Roth v Syracuse Hous.
Auth., 270 AD2d 909, 909, lv denied 95 NY2d 756), and we thus further
conclude that our dissenting colleague also erroneously addresses the
facial sufficiency of the appearance tickets. Indeed, petitioners
state in their brief that they agree with respondents that the
appearance tickets were, in fact, facially sufficient.

     Petitioners contend, however, that the judgment should
nevertheless be affirmed (see generally Parochial Bus Sys. v Board of
Educ. of City of N.Y., 60 NY2d 539, 545-546) because, in their view,
the City’s CO inspection and warrant system is unconstitutional as
applied. We note by way of background that, at the time petitioners
were issued the relevant appearance tickets, the City required both
single-family dwellings not occupied by the owner and all two-family
dwellings to have a valid CO that would need to be renewed every six
years (see City Code § 90-16 [former (G) (1) (a)]). Because the City
must inspect a rental property in order to issue or renew a CO, it
enacted Local Law No. 3 of 2009, which amended the City Charter to
establish a procedure for issuing judicial warrants to inspect
premises that are owned or occupied by uncooperative individuals (see
City Charter § 1-9). We recently rejected a facial constitutional
challenge by several tenants and a homeowner to the inspection
warrants authorized by Local Law No. 3 of 2009 (Matter of City of
Rochester [449 Cedarwood Terrace], 90 AD3d 1480, 1482-1483, appeal
dismissed 19 NY3d 937), and we now likewise reject petitioners’
current as-applied constitutional challenge to those warrants.

     Petitioners, correctly noting that a landlord may not be
penalized for renting property without first consenting to its
warrantless search (see Sokolov v Village of Freeport, 52 NY2d 341,
343, 346), contend that their rights under the Fourth Amendment of the
United States Constitution and article I, § 12 of the New York
Constitution were violated because the City’s CO inspection and
warrant system prevents them from obtaining a CO without first
consenting to a search of their properties. Under the City’s
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                                                         CA 12-00850

ordinance, however, 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.

     All concur except MARTOCHE, J., who dissents and votes to affirm
in the following Memorandum: I respectfully dissent. My fundamental
disagreement with the majority is based on its conclusion that the
Municipal Code Violations Bureau (Bureau) of respondent City of
Rochester (City) properly found petitioners guilty of owning property
that was occupied without a valid Certificate of Occupancy (CO) in
violation of the City Code. Although the appearance tickets described
the violations as follows: “The subject property is occupied without
a valid Certificate of Occupancy,” in fact, the tickets issued to
petitioners alleged that they violated section 90-16 (A) (2) (d) of
the City Code, which provides that a CO must be obtained within a
period of 90 days prior to the expiration or termination of an
existing CO. As Supreme Court noted in its decision, a footnote in
the City Code indicates that a prior provision imposing a penalty for
failure to apply for a CO had been repealed. I therefore agree with
the court that no language in the City Code section relied upon by the
Bureau actually prohibits a property from being occupied without a
valid CO.

     In my view, the majority construes the petition and the arguments
in petitioners’ brief in an overly restrictive manner. In the
petition, petitioners sought to have the determinations annulled on
constitutional grounds as well as on the ground that they were “in
violation of lawful procedure, affected by an error of law and were
arbitrary and capricious.” Notably, when the court initially
transferred this proceeding to this Court pursuant to CPLR 7804 (g),
we vacated the order of transfer and remitted the matter because the
petition did not raise a substantial evidence issue (Matter of Burns v
Carballada, 79 AD3d 1785). We thus necessarily considered the
remaining CPLR article 78 claims to be grounds for review of
administrative acts, including those asserting that the determinations
were affected by an error of law and were arbitrary and capricious.
The court, carrying out the mandate on remittitur, specifically held
that the Bureau’s determinations were without sound basis and reason
and were irrational because the City Code section that it relied upon
was not actually violated. I cannot conclude that the court erred in
reaching that result.

     Resolution of this proceeding is complicated by the fact that
petitioners do not argue that the determinations were unsupported by
substantial evidence, even though, in my view, the City Code permits a
person charged with a violation to answer by appearing at a hearing
held before a hearing examiner (see § 13A-5 [A] [1]), as occurred
here. Thus, there having been a “hearing” on the alleged violations,
petitioners’ challenge to the resulting determinations should have
been analyzed under the substantial evidence standard of CPLR 7803
(4). Petitioners, however, elected not to raise a substantial
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                                                           CA 12-00850

evidence issue in their petition or in their briefs to this Court,
either in the prior transferred proceeding or on the present appeal,
and thus have prevented the judicial system from adjudicating this
proceeding under the proper legal standard. The court therefore
considered upon remittal the only other possible grounds for reviewing
the challenged administrative determinations and reached, in my view,
a reasonable conclusion that they were arbitrary and capricious
because they convicted petitioners in connection with conduct that was
neither “charged nor what the conviction [was] based upon.”

     I would therefore affirm the judgment annulling the
determinations.




Entered:   December 21, 2012                    Frances E. Cafarell
                                                Clerk of the Court
