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Re:Ruling Gives Evicted Tenants Hope: THE ACTUAL DECISION: landlords can't put possessions out on street like trash

Posted by Link on March 22, 2000 at 13:46:01:

In Reply to: Newsday: Ruling Gives Evicted Tenants Hope posted by Mark Smith on March 21, 2000 at 12:27:32:

: In New York City, city marshals cart off the possessions of evicted tenants and place them in storage, but in Nassau County and other parts of the state, tenants' possessions are routinely left on the sidewalk. Anti-littering laws are now being used to stop placing tenants' possessions on the sidewalk.

: From the March 21st online edition of Newsday:

: http://www.newsday.com/coverage/current/news/tuesday/nd4881.htm

THE ACTUAL DECISION:


Appellate Division, Second Department

March 13, 2000

INCORPORATED VILLAGE OF HEMPSTEAD v JABLONSKY

SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE DIVISION : SECOND JUDICIAL
DEPARTMENT

0237B

K/hu

AD2d Argued - January 25, 2000

DAVID S. RITTER, J.P. MYRIAM J. ALTMAN GABRIEL M. KRAUSMAN LEO F. McGINITY, JJ.

1999-03892

DECISION & ORDER

Incorporated Village of Hempstead, appellant, v Joseph P.
Jablonsky, etc., respondent.

Matthew Feinberg, West Hempstead, N.Y., for appellant.

Richard S. Leffer, Chief Deputy County Attorney, Mineola,
N.Y. (Gerald R. Podlesak and Charles Horn of counsel), for
respondent .

In an action to enjoin the defendant Joseph P. Jablonsky,
Sheriff of Nassau County, from placing the personal
property of evicted tenants on the sidewalk area within the
Village of Hempstead, allegedly in violation of the Village of
Hempstead Code 116-6, the plaintiff appeals, as limited by
its brief, from so much of an order of the Supreme Court,
Nassau County (DiNoto, J.), dated March 9, 1999, as, upon
reargument , granted the defendant's cross motion to
dismiss the complaint.

ORDERED that the order is reversed insofar as appealed
from, on the law, with costs, and upon reargument, the
cross motion is denied and the complaint is reinstated.

In executing a warrant of eviction , the Sheriff of Nassau
County (hereinafter the Sheriff) hires a moving company, at
the landlord's expense , to remove any remaining personal
property of a tenant, and places it at curbside. The Village
of Hempstead (hereinafter the Village) commenced this
action to enjoin the Sheriff from continuing this practice
which, it alleges, is in violation of the Village of Hempstead
Code 116-6 (hereinafter the Code). That section prohibits
any person from placing or permitting to be placed, inter
alia, any boxes, papers, or goods on a street or sidewalk
area in the Village. The Supreme Court dismissed the
complaint on the ground that enforcement of 116-6 of the
Code against the Sheriff would violate Municipal Home
Rule Law 11(1)(e).

Municipal Home Rule Law 11(1)(e) prohibits the
adoption of a local law which supersedes a State statute if
such local law "[a]pplies to or affects the courts as required
or provided by article six of the constitution." If applied to
the Sheriff, 116-6 of the Code would not conflict with any
existing State statute. Since enforcement of the local law
would not supersede a State statute, the Supreme Court
erred in dismissing the complaint based on Municipal
Home Rule Law 11(1)(e) (see, Hausser v Giunta, 88
NY2d 449).

In light of our determination, we need not reach the
plaintiff's remaining contentions.

RITTER, J.P., ALTMAN, KRAUSMAN, and McGINITY,
JJ ., concur.

ENTER:

James Edward Pelzer

Clerk

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