Clements v. N.Y. Sec'y

208 N.Y.S.3d 337

In the Matter of Keionzie CLEMENTS, Appellant, et al., Petitioners,

v.NEW YORK SECRETARY OF STATE, Respondent.

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: January 18, 2024

Decided and Entered: March 28, 2024

Legal Assistance of Western New York, Inc., Ithaca (David A. Kagle of counsel), for appellant.

Letitia James, Attorney General, Albany (Dustin J. Brockner of counsel), for respondent.

Legal Services of the Hudson Valley, White Plains (Marcie Kobak of counsel) and Center for Elder Law & Justice, Buffalo (Kevin M. Quinn of counsel) and Legal Services of Central New York, Oswego (Kenneth B. Ehresman of counsel) and Legal Services of Northeastern New York, Plattsburgh (Tara Glynn of counsel), for United Tenants of Albany and others, amici curiae.

Before: Egan Jr., J.P., Clark, Lynch, McShan and Mackey, JJ.

OPINION AND ORDER

McShan, J.

Appeal from a judgment of the Supreme Court (Adam W. Silverman, J.), entered October 3, 2022 in Albany County, which, in a proceeding pursuant CPLR article 78, granted respondent’s motion to dismiss the petition.

In June 2021, petitioner Keionzie Clements filed a code enforcement complaint with the Village of Dryden concerning her rental apartment located in the Village of Dryden, Tompkins County. Clements al- leged, among other things, that the apartment’s bathroom sink was on the floor, the bathroom fan exhausted into the kitchen and the apartment showed evidence of water leaks and mold. Code enforcement officials for the Village conducted two inspections of the premises, one in June and another in September 2021, and found several violations of the Property Maintenance Code of New York State (see 19 NYCRR part 1226) - one of the codes comprising the New York State Uniform Fire Prevention and Building Code (see 19 NYCRR 1219.1 [hereinafter the Uniform Code]). On both occasions, officials issued an order to remedy to the building’s landlord, who took no action to remedy the deficient conditions, Subsequently, a periodic fire inspection of Clements’ building was performed in October 2021, identifying the same code violations in her apartment, and an order to remedy was again issued to her landlord, The conditions remained unremedied, and based upon the findings from the periodic fire inspection, the Village issued an order at the end of October 2021 directing all occupants to vacate within four days, finding the premises to be a "clear and imminent danger to the life or health of occupants."

Thereafter, petitioners, who consist of Clements and other individuals who resided in the same building, commenced this CPLR article 78 proceeding, alleging, among other things, that respondent had failed to comply with his mandatory duty to promulgate regulations governing the quality of a code inspection or response to code violations by municipal code officials as required by Executive Law § 381. In turn, petitioners sought a writ of mandamus directing respondent to promulgate new regulations establishing "meaningful minimum standards for inspection and enforcement of the Uniform Code." Respondent moved to dismiss the petition and Supreme Court granted the motion, determining, in sum and substance, that petitioners failed to establish a clear legal right to relief inasmuch as respondent had met the duty imposed by Executive Law § 381 by promulgating rules under 19 NYCRR part 1203 that govern the administration and enforcement of the Uniform Code. Clements appeals.¹

[1–5] "[I]t is axiomatic that a writ of mandamus is an extraordinary remedy that is available only in limited circumstances. Such remedy will lie only to enforce a clear legal right where the public official has failed to perform a duty enjoined by law. While mandamus to compel is an appropriate remedy to enforce the performance of a ministerial duty, it is well settled that it will not be awarded to compel an act in respect to which a public officer may exercise judgment or discretion" (Matter of Woodside Manor Nursing Home, Inc. v. Zucker, 223 A.D.3d 94, 99, 204 N.Y.S.3d 256 [3d Dept. 2024] [internal quotation marks, brackets and citations omitted]; see Matter of Hoffmann v. New York State Ind. Redistricting Commn., 217 A.D.3d 53, 60–61, 192 N.Y.S.3d 763 [3d Dept. 2023], affd — N.Y.3d —, — N.Y.S.3d —, — N.E.3d —, 2023 N.Y. Slip Op. 06344 [2023]). "To be entitled to such relief, petitioners must establish both a clear legal right to the relief demanded and a corresponding nondiscretionary duty - both are equally necessary for mandamus to lie" (Matter of Woodside Manor Nursing Home, Inc. v. Zucker, 223 A.D.3d at 99, 204 N.Y.S.3d 256). Said differently, "[m]andamus is not available to compel an officer or body to reach a particular out- come with respect to a decision that turns on the exercise of discretion or judgment" that could theoretically produce a variety of acceptable outcomes (Matter of Hussain v. Lynch, 215 A.D.3d 121, 126, 187 N.Y.S.3d 426 [3d Dept. 2023] [internal quotation marks and citation omitted]; see Matter of Willows Condominium Assn. v. Town of Greenburgh, 153 A.D.3d 535, 536, 60 N.Y.S.3d 233 [2d Dept. 2017]).

Acknowledging the lack of "a single, adequate, enforceable code establishing minimum standards for fire protection and construction, maintenance and use of materials in buildings" applicable to all areas of the state (Executive Law § 371[1][b]), the New York State Uniform Fire Prevention and Building Code Act (L 1981, ch 707, § 1) was adopted in order to, among other things, "provide a basic minimum level of protection to all people of the state from hazards of fire and inadequate building construction," which would allow for, and "[e]ncourage[,] local governments to exercise their full powers to administer and enforce" the code (Executive Law § 371[2][b], [d]; see Matter of Tarquini v. Town of Aurora, 77 N.Y.2d 354, 359, 568 N.Y.S.2d 538, 570 N.E.2d 186 [1991]). With these underlying goals in mind, Executive Law § 381 requires respondent to "promulgate rules and regulations prescribing minimum standards for administration and enforcement of" the Uniform Code (Executive Law § 381[1]; see Governor’s Program Bill Mem at 2, 4, Bill Jacket, L 1981, ch 707 ["As important as the need for adequacy and uniformity may be, even the most stringent code is worth little if it is not enforced. In New York there is wide disparity in the quality of code enforcement. This stems from lack of trained enforcement personnel, lack of consistent qualifications for these positions, poor coordination between fire and building departments, and inability of local governments to afford enforcement programs. The problems are compounded by overlapping jurisdictions"]). In response to this mandate, respondent adopted 19 NYCRR part 1203, entitled "Uniform Code and the Energy Code: Minimum Standards for Administration and Enforcement" (19 NYCRR 1203.1[a]; see 19 NYCRR 1203.5[a]).

[6] To begin, there is no dispute that, pursuant to the statutory scheme, the administration and enforcement of the Uniform Code is delegated to local governments - towns, cities and villages - which may choose to enforce on their own or in conjunction with another local government (see Executive Law § 381[2]; see Executive Law § 371[2][c]-[e]; see also Governor’s Approval Mem at 2, Bill Jacket, L 1981, ch 707 ["Enforcement of the uniform code would be a local responsibility"]; Governor’s Program Bill Mem at 2, Bill Jacket, L 1981, ch 707 ["The uniform code will be administered and enforced locally"]). To this end, Clements takes the position that respondent has failed to set forth any "meaningful" standard for local governments to inspect and enforce compliance with the Uniform Code and that, "[i]nstead of establishing the required minimum statewide standards, the plain language of [r]espondent’s own regulations and writings expressly and unlawfully delegate the duty to establish minimum statewide standards to the myriad municipalities across the state[ ]." In other words, as posited by Clements, the current regulatory scheme is the equivalent of providing no minimum standard at all, inasmuch as the regulations fail to identify what means must be used to remedy code violations so as to provide predictability in the process.

In our view, the statute does not require that respondent go to such specific lengths. Rather, the provisions that Clements assails specifically require re- spondent to "address the nature and quality of enforcement" by promulgating rules concerning the "adequacy of inspections, [and the] adequacy of means for insuring compliance with the [Uniform Code]" (Executive Law § 381[1][d], [e] [emphasis added]).² Turning briefly to inspections, we note that Clements’ arguments do not suggest any disagreement with the manner of routine inspections that respondent has set forth in the regulations (see generally Executive Law § 381[1][a]; 19 NYCRR 1203.3[b], [h]). Rather, her contentions are more specifically directed at the manner of inspections that occur in response to a tenant complaint, which are more aptly characterized as enforcementbased measures. In any event, we find that respondent has met his duty to set forth adequate means for addressing complaints, inasmuch as the regulations require localities to establish procedures "for addressing bona fide complaints" by requiring implementation of a process that "shall include, when appropriate, provisions for inspection of the buildings, structures, conditions, and/or activities alleged to be in violation" (19 NYCRR 1203.3[i]; see also 19 NYCRR 1203.3[f]).

[7] As to enforcement, Clements’ assentations amount to a belief that respondent is required to promulgate regulations that articulate the use of specific enforcement measures in every instance in which a code violation is identified. In this respect, Clements’ arguments take issue with the fact that respondent’s regulations do not require the issuance of an order of remedy upon identifying a...