84-40 Avon Street, Queens. Image Credit: Google Maps
Owner of private elevator failed to perform annual safety inspections. Lisa Neuman is the owner of a single-family home located at 84-40 Avon St., Jamaica Estates, New York. A private elevator has been present in Neuman’s home since the 1990s. Beginning in 2011, Neuman began receiving yearly notices from the Department of Buildings for failing to perform annual elevator safety inspections in violation of §28-304.6.1 of the Administrative Code, which became effective in 2008. Under Building’s rules, an owner who fails to file a test report for their elevator is subject to a civil penalty of $1,000 per year per elevator. Buildings filed seven violations for the years 2009 through 2015, and fined Neuman $7,000.
In 2017, Neuman sued the City and Buildings seeking a declaratory judgment that Building’s rules and §28-304.6.1 of the Administrative Code were unconstitutional. The City moved to dismiss the lawsuit for failure to state a claim. On February 5, 2019, Supreme Court Justice Ernest F. Hart granted the City’s motion to dismiss and Neuman subsequently appealed.
On September 23, 2020, the Appellate Division, Second Department, affirmed. The court ruled that Building’s rules and §28-304.6.1 were constitutional because they (1) did not interfere with any of Neuman’s fundamental rights and were reasonably related to the legitimate state interest of furthering public safety; (2) did not violate Neuman’s right to equal protection as a homeowner because she was not being selectively treated; (3) were not unconstitutionally vague because a person of ordinary intelligence would have fair notice; and (4) were not unconstitutionally retroactive because the testing requirement was imposed as of the enactment date in 2008—in other words, the regulation was not retroactive merely because it applied to elevators already in existence.
The court remanded the case to the Supreme Court, Queens County, to declare that Building’s rules and §28-304.6.1 were constitutional.
Neuman v. City of New York, 130 N.Y.S.3d 504 (2nd Dep’t 2020).
By: Scott Y. Matsuda (Scott is a New York Law School student, Class of 2022.)