Kase v. City of Rochester

15 A.D.3d 928, 789 N.Y.S.2d 577, 2005 N.Y. App. Div. LEXIS 1091

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 4, 2005
• Status: Published

Opinion

Appeal from a judgment (denominated order and judgment) of the Supreme Court, Monroe County (Andrew V. Siracuse, J.), entered May 7, 2004. The judgment granted defendant’s motion for summary judgment and dismissed the complaint in an action for declaratory and other relief.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously modified on the law by vacating the first decretal paragraph and granting judgment in favor of defendant as follows:

“It is adjudged and declared that City of Rochester Code § 90-25 is not preempted by the Multiple Residence Law and as modified the judgment is affirmed without costs.”

Memorandum: In this action for declaratory and other relief, Supreme Court properly determined that City of Rochester Code § 90-25, which requires a certificate of occupancy for two-family dwellings, is not preempted by the Multiple Residence Law. The Multiple Residence Law was enacted to regulate certain conditions in multiple dwellings, i.e., dwellings “occupied as the temporary or permanent residence or home of three or more families living independently of each other” (Multiple Residence Law § 4 [33]; see § 2). We therefore conclude that the New York State Legislature has not “evinced a desire” to preempt regulation of dwellings where fewer than three families live independently, and we further conclude that no “express conflict exists between the [s]tate and local laws” with respect to two-family dwellings (Jancyn Mfg. Corp. v County of Suffolk, 71 NY2d 91, 96-97 [1987]; cf. Matter of Cohen v Board of Appeals of Vil. of Saddle Rock, 100 NY2d 395, 401-402 [2003]). Nevertheless, inasmuch as plaintiff sought declaratory relief, the court erred in dismissing the complaint rather than declaring the rights of the parties (see Arrowsmith v City of Rochester, 309 AD2d 1201 [2003]). We therefore modify the judgment by vacating the first decretal paragraph dismissing the complaint and granting judgment declaring that City of Rochester Code § 90-25 is not preempted by the Multiple Residence Law. Present — Green, J.E, Scudder, Martoche, Smith and Lawton, JJ.