State of New York
Supreme Court : County of Monroe

- against -

Index No. 2002/3314

This opinion is uncorrected and is subject to revision in the official Reports

ANDREW V. SIRACUSE, J.

Plaintiff in this action seeks an injunction against the municipal defendant incident to an action to declare certain sections of the City Code unconstitutional. During the course of this litigation, in which the City has moved to dismiss on grounds of res judicata and on the merits, plaintiff has amended his complaint to add a cause of action alleging violation of his civil rights. None of the plaintiff's claims have any merit.

This action arose after the City of Rochester took possession of a piece of real property owned by plaintiff in a tax foreclosure sale. The plaintiff was in arrears in certain taxes and charges, but most of what he owed the city were fines for building code violations; by his own admission he had incurred thirty of these between November 2, 1995 and August 18, 1999. As authorized by section 13A-11 (D) (2) of the City Code, these sums were added to the plaintiff's property tax bill.

Plaintiff defaulted in the tax foreclosure proceeding, and does not make any argument that his default should be reopened. He provides no excuse for his failure to appear. He does, instead, claim that the City is not authorized by the provisions of the Municipal Home Rule Law to add fines for building code violations to his taxes.

As the City correctly argues, the propriety of the charges which supported the tax foreclosure could and should have been raised in the foreclosure proceeding itself. The plaintiff's failure to do this precludes him from raising the issue in a collateral proceeding such as this one. He had a full and fair opportunity to argue this question, but he failed to take it. The question is res judicata.

That opportunity also constitutes the due process mandated by the Constitutions of the United States and New York. Neither document prohibits the taking of private property; the sole prohibition is of the taking of private property without due process of law.

The result would be the same were the matter properly before the Court. The plaintiff relies solely on a twenty-year-old opinion of the State Comptroller (Opn State Compt. No. 82-72), which construed language in the Municipal Home Rule Law identical to the section of the Statute of Local Governments on which the City relies. That opinion is not binding on this Court, and seems indefensible on close examination.

The provision in the Municipal Home Rule Law in effect allows municipalities to add to taxes "local government rentals, charges, rates or fees, penalties and rates of interest thereon." The Comptroller's opinion parses this as authorizing the addition of only "rentals, charges, rates or fees" to the tax bill, interpreting "penalties and rates of interest thereon" as modifying "rentals, charges, rents or fees". Thus, an independent penalty, such as one for violation of the building code, could not be added to the tax bill.

But this makes little sense grammatically. To split the clause at the word "or" would contradict the Comptroller's position; expressing the two lists in the disjunctive would either authorize the independent addition of fees and penalties or apply "thereon" to "fees" as well as to "penalties and rates of interest"; and what is a fee on a charge? To support the Comptroller's interpretation the split between items which can be added to the tax bill and items which refer to increases of those charges must, therefore, come between "fees" and "penalties", so that the word "thereon" modifies both "penalties" and "rates of interest."

One would ordinarily expect a conjunction here, however. It would be more natural to write, "local government rentals, charges, rates or fees, and the penalties and rates of interest thereon." In addition, one would not expect the legislature to use "or" in the first list. The clearest way of conveying the Comptroller's construction would be, "local government rentals, charges, rates and fees, and the penalties and rates of interest thereon."

The whole passage as written looks less peculiar once it is realized that rates and fees are two common names for the same thing. Rentals are payments for the use of objects or real property. Charges are payments for specific services. Rates or fees are payments for ongoing services, such as water. And penalties are not sums added for failure to pay the other charges, which is the only interpretation that is consistent with the Comptroller's opinion. Surely the Legislature intended it to mean what the term is usually taken to mean: payments levied for violations of rules. All of these may be added to the tax bill along with interest thereon.

Thus, the proper interpretation of the clause is that municipalities may add to the tax bill "rentals, charges, rates or fees, penalties" and the "rates of interest thereon". This is not the most elegant of draftsmanship, but it is the interpretation that does least violence to the language of the statute and makes most sense of all the words used. The city was thus acting properly in adding the fines for building code violations to plaintiff's tax bill.

The amended complaint, therefore, is dismissed in its entirety, with costs. Counsel for the City may prepare the order, with approval as to form by plaintiff's counsel.

DATED: Rochester, New York

June 24, 2002

Andrew V. Siracuse, J.S.C.

This opinion is not available for publication in any official or unofficial reports, except the New york Law Journal, without the approval of the State Reporter or the Committee on Opinions (22 NYCRR 7300.1)

Design © 1997 Michael Steinberg. No copyright subsists in the decision texts, which are government documents.

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