State of New York
Supreme Court : County of Monroe

_______________________________

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

ANDREW V. SIRACUSE, J.

The plaintiff in this case seeks to invalidate the City of Rochester's ordinance that requires owners of two family homes to obtain a Certificate of Occupancy for the unit. The basis for this claim is an argument that the state's Multiple Residence Law preempts such local legislation by not requiring certification of two-family dwellings. (In fact, that law is completely silent on the subject of two-family dwellings.) The City has moved to dismiss this proceeding on the grounds that the result is controlled by a case decided in this court by Justice Galloway, a decision affirmed by the Appellate Division (Arrowsmith v City of Rochester, decided April 24, 2002, mod by 309 AD2d 1201), and has requested costs and attorneys' fees. The plaintiff, in turn, has cross-moved for summary judgment.

While the court holds for the City here, the basis for its decision is not the one urged by the defendant. Whatever its merits, the plaintiff's argument is not foreclosed by the Arrowsmith decision.

In Arrowsmith Justice Galloway dealt, inter alia, with the preemptive force of the state building code. While his logic could easily be extended to the present circumstances, the precise issue raised here was not addressed in the Arrowsmith decision and so far as the court knows has not been addressed elsewhere.

The claim, in a nutshell, can be found in Mr. Dimassimo's citation at oral argument of a phrase from Multiple Residence Law § 329 (1): "The provisions of this chapter shall supersede all other state laws and all local laws, ordinances and regulations of municipalities." He went on to add that when the legislature said "all" it meant "all", and that therefore--in his words--no other law or ordinance could be maintained whether it concerned single family homes or even peanut vendors. This interpretation would suggest that the city is powerless to require licensed electricians to work on single-family houses, and that no legal action could be taken against peanut vendors as destructive as the one played by Chico in the Marx Brothers' film Duck Soup.

This was surely not the intent of the Legislature. Even if Multiple Residence Law § 329 (1) were to be reduced to the torso presented by Mr. Dimassimo, the court would find it difficult to believe that the Legislature intended by such language to invalidate the remainder of the consolidated laws and the entirety of the state's local and municipal codes. And, in fact, the section is somewhat more limited in scope than the plaintiff would like the court to believe. It reads, in toto, as follows:

The provisions of this chapter shall supersede all other state laws and all local laws, ordinances and regulations of municipalities to the extent that such laws, ordinances or regulations are inconsistent with the provisions of this chapter; provided, however, that the provisions of any other state law or of any local law, ordinance or regulation of any municipality, or the supplementary rules or regulations of any state department having the force and effect of law, now in effect or hereafter enacted or adopted, which are more restrictive than those provided in this chapter, shall govern during the period in which they are in effect.

The scope of the statute's preemptive force is thus circumscribed by the scope of its subject matter. That subject matter is the state of multiple dwellings outside of New York City and Buffalo, where the Multiple Dwelling Law remains in effect; and the legislature helpfully defined the term "multiple dwelling" in § 4 (33):

"Multiple dwelling." A dwelling which is either rented, leased, let or hired out, to be occupied, or is occupied as the temporary or permanent residence or home of three or more families living independently of each other, including but not limited to the following: a tenement, flat house, maisonette apartment, apartment house, apartment hotel, tourist house, bachelor apartment, studio apartment, duplex apartment, kitchenette apartment, hotel, lodging house, rooming house, boarding house, boarding and nursery school, furnished room house, club, sorority house, fraternity house, college and school dormitory, convalescent, old age or nursing homes or residences. It shall also include a dwelling, two or more stories in height, and with five or more boarders, roomers or lodgers residing with any one family.

In short, Mr. Dimassimo wishes to redefine the scope of the Multiple Residence Law to include two-family dwellings, a subject never addressed therein. He than infers a legislative intent to forbid regulation of these dwellings from the fact that they are not mentioned in that law.

But there is nothing to be inferred from the legislature's silence on two-family dwellings besides the obvious fact that the legislature was never concerned with them in the first place. The argument from silence cannot cut both ways. Two-family dwellings fall outside the concern of the Multiple Residence Law in every respect. They are not regulated by the state, and neither does the state impede their regulation by local or municipal governments. Even if they were so regulated, though, the complete text of § 329 (1) shows that more restrictive rules by the city would not be preempted by state law.

The complaint is therefore dismissed, with costs and disbursements. The court has given serious attention to the city's request for attorneys' fees, but declines to do so in this instance. Ms. Wonder may prepare the order.

DATED: Rochester, New York

March 26, 2004

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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