The Appellate Term of the Supreme Court for the Ninth and Tenth Judicial Districts held that a local municipality is not precluded from charging a defendant with a criminal violation of its zoning code, which is a misdemeanor, without providing said defendant with prior written notice to remedy said condition
The Rye Town Justice Court dismissed several accusatory informations issued by the Village of Rye Brook Building Department asserting misdemeanor violations of the Rye Brook Zoning Code because they did not include the assertion that prior to instituting the charge the Code Enforcement Officer served defendant with an Order To Remedy said violations and defendant failed to do so pursuant to New York Executive Law §382(2) (McKinney’s 2018).
In reaching this decision, the Justice Court found that Executive Law Section 382(2) mandates that prior to instituting a misdemeanor criminal action, the local municipality must serve the defendant with a written Order To Remedy the violation and provide it with time to do so. The Justice Court found that the failure to provide this prior written notice in an accusatory instrument alleging misdemeanor violation only under a local ordinance (Chapter 250 of the Village of Rye Brook Code) and not under the New York State Uniform Fire Prevention and Building Code) rendered the accusatory instrument fatally defective. The Village appealed this decision.
The Appellate Term, by its Decision entered on May 9, 2019, reversed the Justice Court decision. It concluded that a local municipality had the right to institute a misdemeanor criminal action pursuant to its ordinance (not the New York State Fire Prevention and Building Code), without providing defendant with prior written notice set forth in Executive Law Section 382(2). The Court held that this section relates to violations asserted under the Uniform Fire Prevention and Building Code, not those of a local municipal code. The Appellate Term concluded that Executive Law §382(2) is not applicable to a local municipality’s enforcement of its Code. It does not prohibit the institution of a criminal proceeding without providing prior Notice to Cure to the defendant even where the alleged violation constitutes a misdemeanor under the local municipality’s Code.
The Village of Rye Brook was represented in this action by Edward F. Beane, Senior Counsel for Keane & Beane before the Appellate Term and Edward F. Beane, Esq. and Suzanne Volpe, Esq. in the Justice Court.