Council for Owner Occupied Housing, Inc. v. Abrams

Majority

p. 553

Council for Owner Occupied Housing, Inc., et al., Respondents, v Robert Abrams, as Attorney-General of the State of New York, Appellant.

Argued October 19, 1988;

decided November 22, 1988

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POINTS OF COUNSEL

Robert Abrams, Attorney-General (Nancy Kramer, O. Peter Sherwood, Lawrence S. Kahn and Frederick K. Mehlman of counsel), appellant pro se.

The Attorney-General has authority to require sponsors of cooperative conversions to promise in their offering plans to comply with State and local laws which require the correction of dangerous or hazardous building conditions. (Matter of Ottinger v State Civ. Serv. Commn., 240 NY 435 ; People v Federated Radio Corp., 244 NY 33 ; People v Lexington Sixty-First Assocs., 38 NY2d 588 ; Madden v Queens County Jockey Club, 296 NY 249 ; Matter of Small v Moss, 279 NY 288 ; Matter of Barton Trucking Corp. v O’Connell, 7 NY2d 299 ; Wnek Vending & Amusements v City of Buffalo, 96 Misc 2d 983 ; Matter of Berger v Leach, 103 AD2d 1018 ; People ex rel. Schwab v Grant, 126 NY 473 .)

Herbert Teitelbaum, Thomas P. Battistoni, Mona R. Millstein and Alan Epstein for respondents.

I. The Attorney-General has no power to engraft onto the disclosure purposes of the Martin Act substantive requirements that the offeror cure or eliminate certain building conditions. (Matter of Guardian Life Ins. Co. v Bohlinger, 308 NY 174 ; Matter of Dairylea Coop. v Walkley, 38 NY2d 6 ; Boreali v Axelrod, 71 NY2d 1 ; Matter of Nicholas v Kahn, 47 NY2d 24 ; Matter of Whalen v Lefkowitz, 36 NY2d 75 ; People v Lexington Sixty-First Assocs., 38 NY2d 588 ; Council for Owner Occupied Hous. v Koch, 119 Misc 2d 241 , 61 NY2d 942 ; State of New York v Rachmani Corp., 71 NY2d 718 ; All Seasons Resorts v Abrams, 68 NY2d 81 ; Sopher v Abrams, 554 F Supp 532 .) II. The challenged regulations cannot be predicated on any other statute. (Matter of Badem Bldgs. v Abrams, 70 NY2d 45 ; Matter of Greenthal & Co. v Lefkowitz, 32 NY2d 457 ; Phoenix Tenants Assn. v 6465 Realty Co., 119 AD2d 427 ; Matter of Trump-Equitable Fifth Ave. Co. v Gliedman, 57 NY2d 588 ; Freitas v Geddes Sav. & Loan Assn., 63 NY2d 254 ; Matter of Jones v Berman, 37 NY2d 42 ; Matter of Barry v O’Connell, 303 NY 46 ; Matter of Picone v Commissioner of Licenses, 241 NY 157 ; Subcontractors Trade Assn. v Koch, 62 NY2d 422 .) III. Appellant’s argument that he is a "licensor” is a tortured misinterpreta

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tion of the Martin Act. (Matter of Bologno v O’Connell, 7 NY2d 155 ; Matter of Small v Moss, 279 NY 288 .)

Peter L. Zimroth, Corporation Counsel (Fay Leoussis and Francis F. Caputo of counsel), for the City of New York, amicus curiae.

The Attorney-General’s regulation requiring sponsors of cooperative conversions to promise in their offering plans to comply with laws which require the correction of dangerous or hazardous conditions is not ultra vires. (Park W. Mgt. Corp. v Mitchell, 47 NY2d 316 .)

Richard L. Levenson and Michele Cortese for Metropolitan Council on Housing and another, amici curiae.

I. Principles of statutory construction compel the conclusion that the Attorney-General has authority under the Martin Act to promulgate the regulations at issue. (We’re Assocs. Co. v Cohen, Stracher & Bloom, 65 NY2d 148 ; Matter of Industrial Commr. v Five Corners Tavern, 47 NY2d 639 ; United States v Nova Scotia Food Prods. Corp., 568 F2d 240 ; Rankin v Shanker, 23 NY2d 111 ; Matter of Anderson v Board of Educ., 46 AD2d 360 , 38 NY2d 897 ; Matter of Schacht v Allen, 20 AD2d 507 ; Matter of Martinez v Ficano, 28 AD2d 215 ; Matter of Adesso [Roberts], 89 AD2d 662 ; People v Lexington Sixty-First Assocs., 38 NY2d 588 ; Lizby Assocs. v Baron, 130 Misc 2d 834 .) II. The Attorney-General’s view that he has authority to promulgate the regulations at issue must be upheld if not irrational or unreasonable. (Matter of Johnson v Joy, 48 NY2d 689 ; Matter of Nisnewitz v Board of Regents, 95 AD2d 950 ; Matter of Reader’s Digest Assn. v State Tax Commn., 103 AD2d 926 ; 58 W. 58th Tenant Assn. v 58 W. 58th Assocs., 126 Misc 2d 500 ; Matter of Bates v Toia, 45 NY2d 460 ; Matter of City of New York v Tully, 88 AD2d 701 ; Matter of Fein v Rent Stabilization Assn., 101 Misc 2d 216 ; State of New York v Winter, 121 AD2d 287 ; Matter of Wiener v Abrams, 119 Misc 2d 970 ; State of New York v Solil Mgt. Corp., 128 Misc 2d 767 .) III. The decision in Matter of Council for Owner Occupied Hous. v Abrams ( 125 AD2d 10 ) is not applicable to the regulations in the instant case.

Stuart M. Saft and Eric B. Levine for Council of New York Cooperatives, Inc., amicus curiae.

I. The courts below erroneously believed that the decision in Matter of Council for Owner Occupied Hous. v Abrams ( 125 AD2d 10 [3d Dept 1987]) is controlling. II. The Attorney-General has the implied authority to withhold his consent to the conversion of a building

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with known illegal conditions. (Matter of Barton Trucking Corp. v O’Connell, 7 NY2d 299 ; Dr. Bloom Dentist, Inc. v Cruise, 259 NY 358 , 260 NY 571 , 288 US 588 ; Matter of City of Rochester v County of Monroe, 81 Misc 2d 462 ; Matter of Berger v Leach, 103 AD2d 1018 ; Matter of Smith v University of State of N. Y., 81 Misc 2d 956 , 49 AD2d 969 ; Under 21 v City of New York, 65 NY2d 344 ; Subcontractors Trade Assn. v Koch, 62 NY2d 422 ; Rapp v Carey, 44 NY2d 157 ; Matter of Bologno v O’Connell, 7 NY2d 155 .)

OPINION OF THE COURT

This action challenges the authority of the Attorney-General under article 23-A of the General Business Law (the Martin Act), specifically his authority to promulgate and enforce 13 NYCRR 18.3 (hh) (3) governing the conversion of rental buildings to cooperative status. The regulation requires sponsors to state in their offering plans "that prior to closing or within a reasonable period of time thereafter, sponsor will cause to be cured all violations of record as of the closing date (except violations caused by acts or omissions of tenants of the building in their own units), and will eliminate all dangerous or hazardous conditions that sponsor has notice of, and comply with all work orders from mortgagees” (13 NYCRR 18.3 [hh] [3]).

Plaintiffs are the Council for Owner Occupied Housing, a not-for-profit corporation that comments upon rules, regulations and legislation affecting cooperative and condominium housing in New York, and three individual sponsors of cooperative housing. They instituted this action for declaratory judgment, successfully arguing in the courts below that the regulation exceeds the authority granted the Attorney-General by section 352-e of the General Business Law because it improperly purports to establish enforcement measures. We granted the Attorney-General leave to appeal and we now affirm, concluding that the regulation in question goes beyond the language and purpose of the statute.

Article 23-A of the General Business Law governs the offer and sale of securities in and from New York State. Section 352-e of the article authorizes the Attorney-General to require sponsors of real estate syndication offerings to file an offering plan prior to selling or offering for sale real estate securities, including cooperative interests in realty (see, General Business

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Law § 352-e ^[1] [b]; [6]). It provides that the offering plan must include the detailed terms of the transaction "and such additional information as the attorney general may prescribe in rules and regulations” promulgated under subdivision 6 "as will afford potential investors, purchasers and participants an adequate basis upon which to found their judgment” (General Business Law § 352-e ^[1] [b]). Subdivision 6 (a) authorizes the Attorney-General to adopt suitable rules and regulations to carry out the provisions of the statute, including regulations concerning the method, contents and filing procedures with respect to statements required by the statute. If the offering plan filed is not adequate to satisfy the informational purpose, the Attorney-General may refuse to accept it, and thereby prevent the property from being sold or offered for sale (General Business Law § 352-e [2]).

Notwithstanding these powers and our commitment to interpret the statute containing them liberally to achieve the remedial purpose intended (see, All Seasons Resorts v Abrams, 68 NY2d 81 , 86-87), section 352-e is not, in any sense, an omnibus enforcement statute (see, Matter of Badem Bldgs. v Abrams, 70 NY2d 45 ). As its language and our decisions make clear, it is a disclosure statute, designed to protect the public from fraudulent exploitation in the sale of real estate securities. To that end, the required offering statement is intended to provide an adequate factual basis upon which "potential investors, purchasers and participants” can intelligently make their choice and "found their judgment” to buy or not to buy (see, id.; Matter of Whalen v Lefkowitz, 36 NY2d 75 , 78; Matter of Greenthal & Co. v Lefkowitz, 32 NY2d 457 , 462; Council for Owner Occupied Hous. v Koch, 119 Misc 2d 241 , 244-245, affd 61 NY2d 942 ).

The present regulation goes far beyond that purpose, however, and requires not only the disclosure of all building and code violations,^[1] "dangerous or hazardous conditions” and all

* The Attorney-General cites a number of overlapping laws and regulations requiring multiple dwelling units to be maintained in good repair and to correct inadequate conditions (State Uniform Fire Prevention and Building Code, 9 NYCRR parts 600-611, 650-652, 1230-1234, 1240-1246, 1300; Multiple Dwelling Law §§ 4, 77-80; Multiple Residence Law §§ 4, 40-43, 170-174; New York Sanitary Code, 10 NYCRR part 21 [excludes New York City]; Administrative Code of City of New York, tit 27, chs 1, 2; Real Property Law § 235-b [1]).

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work orders from mortgagees but also a representation that they will be cured. Nothing in the statute authorizes the Attorney-General to require repair of a building, correction of statutory violations, or elimination of undefined conditions he finds "dangerous or hazardous”. The present regulation, by imposing such requirements, would, in effect, enable the Attorney-General to exercise extensive powers not only to enjoin sale of the real property (a power code enforcement officers do not generally possess) and prosecute code violations under the securities fraud provisions of the Martin Act for failure to state or misstating the intention to cure or eliminate building and code violations but also to preempt or interfere with the responsibilities of other regulatory agencies. There is nothing in the statutory scheme that authorizes the exercise of such powers, however, and we agree with Justice Kane, writing for the Appellate Division, that reading section 352-e to permit the Attorney-General to do so would extend the statutory language to situations not intended to be embraced by the Legislature (see, Matter of Trump-Equitable Fifth Ave. Co. v Gliedman, 57 NY2d 588 , 595; Matter of Jones v Berman, 37 NY2d 42 ).

The Attorney-General contends that the Martin Act should be construed broadly to protect fraudulent exploitation of the public generally and that the Legislature has directed him to "oversee” the conversion of buildings to cooperative status with much the same regulatory powers as a licensing authority. He cites provisions found in other sections of the Martin Act designed to secure tenants from harassment (see, e.g., General Business Law § 352-eeee [3], [4]) or to avoid "warehousing” of vacancies (General Business Law § 352-eeee [2] [e]) and contends that these provisions indicate section 352-e also delegates substantive powers. Section 352-e does not authorize regulatory power, however, nor does it grant the Attorney-General the power to license sponsors of real estate conversions. On the contrary, the absence of substantive provisions in section 352-e indicates that the Legislature did not intend to confer such powers on the Attorney-General and, as an executive official, he may not extend the delegated power or exercise lawmaking power vested solely in the Legislature by adopting remedial measures that exceed the authority granted by the enabling statute (see, Clark v Cuomo, 66 NY2d 185 , 189; Subcontractors Trade Assn. v Koch, 62 NY2d 422 , 429).

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Accordingly, the order of the Appellate Division should be affirmed, with costs.

Chief Judge Wachtler and Judges Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

Order affirmed, with costs.

Cases cited

Ottinger v. State Civil Service Commission 240 NY 435 N.Y. 1925-07-15 p. 554
People v. Federated Radio Corp. 244 NY 33 N.Y. 1926-12-04 p. 554
People v. Lexington Sixty-First Associates 38 NY2d 588 N.Y. 1976-02-17 p. 554, p. 555
Madden v. Queens County Jockey Club, Inc. 296 NY 249 N.Y. 1947-04-17 p. 554
Small v. Moss 279 NY 288 N.Y. 1938-12-06 p. 554, p. 555
Barton Trucking Corp. v. O'Connell 7 NY2d 299 N.Y. 1959-12-30 p. 554, p. 556
Wnek Vending & Amusements, Inc. v. City of Buffalo 96 Misc 2d 983 N.Y. Sup. Ct. 1978-11-03 p. 554
People ex rel. Schwab v. Grant 126 NY 473 N.Y. 1891-06-02 p. 554
Guardian Life Insurance Co. of America v. Bohlinger 308 NY 174 N.Y. 1954-12-31 p. 554
Dairylea Cooperative, Inc. v. Walkley 38 NY2d 6 N.Y. 1975-10-28 p. 554
Boreali v. Axelrod 71 NY2d 1 N.Y. 1987-11-25 p. 554
Nicholas v. Kahn 47 NY2d 24 N.Y. 1979-04-26 p. 554
Whalen v. Lefkowitz 36 NY2d 75 N.Y. 1975-02-17 at 78 p. 554, p. 557
Council for Owner Occupied Housing, Inc. v. Koch 119 Misc 2d 241 N.Y. Sup. Ct. 1983-04-25 at 244-245 p. 554, p. 557
Council for Owner Occupied Housing, Inc. v. Koch 61 NY2d 942 N.Y. 1984-03-20 p. 554, p. 557
State v. Rachmani Corp. 71 NY2d 718 N.Y. 1988-06-02 p. 554
All Seasons Resorts, Inc. v. Abrams 68 NY2d 81 N.Y. 1986-07-03 at 86-87 p. 554, p. 557
Badem Buildings v. Abrams 70 NY2d 45 N.Y. 1987-06-09 p. 554, p. 557
Charles H. Greenthal & Co. v. Lefkowitz 32 NY2d 457 N.Y. 1973-06-08 at 462 p. 554, p. 557
Trump-Equitable Fifth Avenue Co. v. Gliedman 57 NY2d 588 N.Y. 1982-12-14 at 595 p. 554, p. 558
Freitas v. Geddes Savings & Loan Ass'n 63 NY2d 254 N.Y. 1984-10-25 p. 554
Jones v. Berman 37 NY2d 42 N.Y. 1975-06-09 p. 554, p. 558
Barry v. O'Connell 303 NY 46 N.Y. 1951-07-11 p. 554
Picone v. Commissioner of Licenses 241 NY 157 N.Y. 1925-10-20 p. 554
Subcontractors Trade Ass'n v. Koch 62 NY2d 422 N.Y. 1984-06-14 at 429 p. 554, p. 556, p. 558
Bologno v. O'Connell 7 NY2d 155 N.Y. 1959-12-30 p. 555, p. 556
Park West Management Corp. v. Mitchell 47 NY2d 316 N.Y. 1979-06-07 p. 555
Industrial Commissioner v. Five Corners Tavern, Inc. 47 NY2d 639 N.Y. 1979-07-09 p. 555
Rankin v. Shanker 23 NY2d 111 N.Y. 1968-10-30 p. 555
Anderson v. Board of Education 46 AD2d 360 N.Y. App. Div. 1974-12-30 p. 555
Anderson v. Board of Education 38 NY2d 897 N.Y. 1976-02-17 p. 555
Schacht v. Allen 20 AD2d 507 N.Y. App. Div. 1964-03-27 p. 555
Claim of Martinez v. Ficano 28 AD2d 215 N.Y. App. Div. 1967-11-06 p. 555
In re the Claim of Adesso 89 AD2d 662 N.Y. App. Div. 1982-07-08 p. 555
Lizby Associates v. Baron 130 Misc 2d 834 N.Y. Sup. Ct. 1985-08-06 p. 555
Johnson v. Joy 48 NY2d 689 N.Y. 1979-10-11 p. 555
Nisnewitz v. Board of Regents of University of New York 95 AD2d 950 N.Y. App. Div. 1983-06-16 p. 555
Reader's Digest Ass'n v. State Tax Commission 103 AD2d 926 N.Y. App. Div. 1984-07-12 p. 555
58 West 58th Street Tenant Ass'n v. 58 West 58th Street Associates 126 Misc 2d 500 N.Y. Sup. Ct. 1984-06-12 p. 555
Bates v. Toia 45 NY2d 460 N.Y. 1978-10-26 p. 555
City of New York v. Tully 88 AD2d 701 N.Y. App. Div. 1982-05-13 p. 555
Fein v. Rent Stabilization Ass'n of New York City, Inc. 101 Misc 2d 216 N.Y. Sup. Ct. 1979-04-26 p. 555
Wiener v. Abrams 119 Misc 2d 970 N.Y. Sup. Ct. 1983-01-25 p. 555
State v. Solil Management Corp. 128 Misc 2d 767 N.Y. Sup. Ct. 1985-06-07 p. 555
Council for Owner Occupied Housing, Inc. v. Abrams 125 AD2d 10 N.Y. App. Div. 1987-02-12 p. 555
Dr. Bloom Dentist, Inc. v. Cruise 259 NY 358 N.Y. 1932-07-19 p. 556
Dr. Bloom Dentist, Inc. v. Cruise 260 NY 571 N.Y. 1932-10-12 p. 556
City of Rochester v. County of Monroe 81 Misc 2d 462 N.Y. Sup. Ct. 1974-12-19 p. 556
Smith v. University of the State 81 Misc 2d 956 N.Y. Sup. Ct. 1975-03-05 p. 556
Smith v. University of State of New York 49 AD2d 969 N.Y. App. Div. 1975-10-23 p. 556
Clark v. Cuomo 66 NY2d 185 N.Y. 1985-10-22 at 189 p. 558

Statutes and regulations cited

General Business Law p. 556, p. 557, p. 558