New York Family Law Blog
The defendant, Ms. G, a landlord and owner, is charged with various violations of the Incorporated Village of Westbury Building Code at 463 Franklin Street, Westbury, New York on January 31, 2007.
The Facts
Ms. GA, an alleged owner and landlord of real property, to wit: a single family dwelling within the Incorporated Village of Westbury, rented the split level home to various individuals including her niece, Ms. K. Others then sublet or shared space with Ms. K. Ms. K was originally charged with the identical violations as Ms. GA. Just prior to the commencement of trial, the prosecutor moved to dismiss the charges against Ms. K and simultaneously announced that he was conferring immunity upon her and asked the Court to so Order a subpoena for her testimony at trial.
Neither the defendant nor the prosecution submitted a demand notice, C.P.L. §240.20 or an Omnibus Motion. Both sides answered ready for trial. No speedy trial issues were raised. Following trial, post-trial memorandums were submitted by both parties in support of their respective positions. This is a decision after trial. For the reasons detailed hereinafter, this Court finds the defendant guilty with respect to Summons 5916, and not guilty of the remaining charges. Accordingly, all remaining summons are dismissed.
Specific Allegations of Statutory or Code Violations
A. Summons No. 5908 §79-12 Construction, alteration, conversion without a permit. Mr. GO, counsel for defendant, asserts in his post-trial memorandum that, each and every summons is in connection with an alleged basement/cellar apartment. Therefore, an essential element of the charge is to prove that the premises actually had a cellar.
Post Trial Memorandum from Mr. GO asserts that, it is not disputed that the premises is a split level home. A split-level home is a home that is constructed in such a manner that the floor level of one part of the home is located about halfway between the floor level of the lower level of the home and the ceiling of the upper level of the home. The blueprints, building permits, and photographs confirm the home owned by Ms. GA, the defendant, is, in fact, a split-level home.
Prosecutor KM contends the home has a basement and/or cellar apartment. Mr. KM contends that based on Ms. K’s alleged testimony to Building Inspector L, the defendant is maintaining a cellar apartment in the home. It is not a violation of local law to have a cellar, but it is if used as habitable space. Ms. K may, in fact, have claimed there was a cellar apartment in the home, and both building inspectors and Mr. KM may believe there is a cellar apartment in the home.
However, for our purposes, the subjective definitions of what Ms. K, Mr. KM or the building inspectors believe a cellar to be are not legally relevant here. For our purposes, the only cellar that can be present in the home is such that is defined by the Village Code of Westbury. Village Code Section 83-2 defines a cellar as, “that space of a building that is partly or entirely below grade, which has more than ½ of its height, measured floor to ceiling, below the average established finished grade of the ground adjoining the building.” Therefore, the burden is on the prosecution to prove that “the space of the building that is partly or entirely below grade has more than ½ of its height, measured floor to ceiling, below the average established finished grade of the ground adjoining the building.”
Building plans from 1955 were introduced into evidence by the prosecution. But the Court cannot determine from these architectural plans how much of the so-called cellar was below grade at the time of the construction or when these charges were initiated in March, 2007. The testimony at trial did not add to the Court’s understanding in that regard. Furthermore, the testimony did not prove that the cellar was used as an apartment.
Neither building inspector actually observed or physically went in to the alleged cellar. There is no evidence of a cellar existing in Ms. GA’s home as defined by the Code of the Village of Westbury, Section 83-2. The only evidence of the existence of a cellar is the alleged statements by Ms. K to building inspectors when they visited the home, and the building plans received in evidence which do not tell us how much of the alleged cellar is below grade, and whether it is being used as habitable space. This alleged testimony is lacking in credibility, as Ms. K’s testimony at trial is in direct contravention to the statements by her that Building Inspector Mr. L alleged were made to him when he visited defendant GA’s property.
While the statements have been received in evidence, more is required to meet the burden of proof beyond a reasonable doubt. Here, the prosecution has provided alleged statements that were ultimately contravened by the declarant witness during the course of the trial, to substantiate the claim that construction, alteration and conversion took place.
The Court declared Ms. K to be a hostile witness, however, the prosecution was unable to impeach the witness for prior inconsistent statements since she denied making those statements, and there was no independent proof aside from the Inspectors that would establish those facts. If the prosecutor had a photo of the lower level showing a bed and measurements to reveal how much of the area is below grade, then sufficient proof might be made out.
In his post-trial memorandum, prosecutor KM asserts, “Testimony received from Mr. L and Janet K established that this area of the premises has been altered and converted to a kitchen and living space without a permit.” However, without corroborating evidence such as the aforementioned, these alleged statements will not provide enough evidence to permit this Court to convict on this charge, especially since Ms. K has recanted any corroborative statements alleged to have been made by her.
Accordingly, Summons No. 5908 charging Ms. GA with construction, alteration and conversion without a permit is appropriately dismissed.
B. Summons No. 590979-15B Occupancy without obtaining a Certificate of Occupancy (Basement Apartment)
Here, neither investigator actually established that PB and C were occupying the portion of the alleged cellar apartment in the house. The only evidence to convict on this charge is testimony from Mr. L, a building investigator, stating that Ms. K told him that PB and C lived in a cellar apartment. Neither investigator actually physically observed anyone living in the basement, or confirmed that anyone was living in the basement area, outside of the statements the building investigators allegedly received from Ms. K during their trip to the property. PB and C did not testify. No other alleged tenants testified.
Accordingly, Summons No. 5909 charging Ms. GA with occupancy without obtaining a Certificate of Occupancy is dismissed.
C. Summons No. 591079-15C Conversion (Change of Use)
Here, the presumptions provided by law to prove violation under consideration have not been sufficiently proven in this case. Accordingly, this charge is dismissed.
D. Summons No. 591183-6C(2) Cellar used as habitable space
A cellar may be used for storage and recreation. A cellar is there defined as: “That space of a building that is partly or entirely below grade which has more than one-half of its height, measured floor to ceiling, below the average established finished grade of the ground adjoining the building.”
It should not be used as a sleeping area. There is insufficient proof in this record to show that this section has been violated. Accordingly, this charge is dismissed.
E. Summons No. 5912112-7 Electrical work performed without a license
It appears that Mr. KM would have this Court believe that the defense is obligated to submit proof demonstrating that work was performed by a licensed electrician, even if no work was, in fact, performed. Mr. KM’s statement is based on the presumption that because the Building Inspector alleged that Ms. K told him electrical work on the lighting in the alleged basement area of the house was done, it in fact, was. However, Ms. K’s testimony during trial does not confirm that electrical work was conducted in the basement; rather, it is in direct contravention to statements Mr. L alleged Ms. K made to him.
What we have here is a classic he-said, she-said. In such an instance, in order to prove this charge beyond a reasonable doubt, the People would have to provide something further than the alleged statements made to the Building Inspector by Ms. K. There needs to be some corroborating evidence. The People have failed to provide anything to corroborate what the Building Inspector alleges that Ms. K told him. Therefore, the People have not proven this charge beyond a reasonable doubt, and Summons No. 5912 charging Ms. GA with having electrical work performed without a license, is accordingly dismissed.
F. Summons No. 5914184-4 Plumbing without obtaining a license. (Basement/apartment/bathroom)
The prosecution asserts in its post-trial memorandum: “Mr. L testified that a gas stove was installed in the lower level of the premises.” Yet, Mr. L never actually observed a gas stove installed in the lower level of the premises, because he did not enter the lower level of the premises at any time. Yet, the prosecution asserts in its post-trial memo that, “The Defendant has offered no testimony that the plumbing to install the stove was performed by her.”
Similarly to the charges outlined above, prosecutor KM is asserting that defendant is obligated to offer testimony establishing that plumbing work, which he has not proven beyond a reasonable doubt was conducted at all, was performed by her. To sustain a conviction, there needs to be some corroborating evidence. Again, prosecutor KM has failed to provide anything to corroborate what the Building Inspector alleges that Ms. K told him. Accordingly, Summons No. 5914 charging the defendant with plumbing without a license is dismissed.
G. Summons No. 5915184-7A Plumbing without a permit
Here, again, there was no observation by any building inspector of any stove installed in lower level of premises, or any evidence of any plumbing being conducted to install stove. Prosecutor KM is asserting that defendant should produce a permit for plumbing which he has not proven beyond a reasonable doubt was conducted at all. Accordingly, Summons No. 5915 charging the defendant with plumbing without a permit is dismissed.
H. Summons No. 5916248-283 Renting without obtaining a Permit
The testimony here is that there were tenants in the premises which was not occupied by Ms. GA, the owner. There was also testimony that the tenants contributed toward the payment of the mortgage. While not referred to as rent per se, the Court finds that this was rent under these circumstances and sustains that charge. The tenants’ names do not appear on any note or mortgage and they receive no benefit for their contributions to the mortgage other than a place to stay. The owner can label it whatever she wishes, but as far as this Court is concerned, it is rent and the owner is renting without a required permit. The defendant is guilty of renting without a permit.
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