Pomeroy v. Whalen , 395 N.Y.S.2d 722 ( 1977 )

Herlihy, J. (concurring in part and dissenting in part).

We agree with the majority opinion insofar as it concludes that the portion of the determination finding a violation by virtue of a failure to submit final water supply plans and imposing certain affirmative action requirements must be annulled. Further, we agree with the finding that the determination should be sustained as to the unauthorized extension of a water supply and that the penalty imposed for that violation should be confirmed.

The majority find that the declaration that section 1115 of the Public Health Law is unconstitutional for vagueness in the case of State of New York v Rutkowski (57 AD2d 14) requires their vote for a dismissal in this case. However, for the reasons set forth in my separate opinion in Rutkowski, we find the said section 1115 to be constitutional and, accordingly, the determination that the petitioner violated section 1116 of the Public Health Law may not be annulled upon the theory that it is without valid statutory authority.

The majority claim some doubt as to whether or not the record contains substantial evidence of a violation; however, it is undisputed that all of the sales are out of a large parcel purchased in 1956 and 16 lots were developed for residential subdivision purposes prior to the six sales at issue in this proceeding. The six lots sold without approval were by deeds containing covenants restricting them to residential uses and the activity clearly meets the definition of a subdivision pursuant to section 1115 of the Public Health Law (cf. State of New York v Rutkowski, supra [Herlihy, J., dissenting]; Matter of Slavin v Ingraham, 44 AD2d 874, 876, affd 37 NY2d 653). The sale of the six lots at issue was known by the petitioner to require approval and she created an issue of credibility by insisting at the hearing that she had received oral approval of those lots. The sale of the six lots is not isolated from the prior development of 16 lots and contrary to the implication of the majority, the sales of the first four lots of these six were not presubdivision sales.

We do not find the assessment or the maximum penalty for each of the six sales to be an excessive punishment in the context of this case where the violations were certainly not simple error on the part of petitioner.

The determination should be modified by annulling so much thereof as found a violation for failure to submit final water supply plans, assessed a $1,000 penalty therefor and directed certain affirmative action to be taken, and, as so modified, confirmed.

Mahoney and Main, JJ., concur with Kane, J.; Greenblott, J. P., and Herlihy, J., concur in part and dissent in part in an opinion by Herlihy, J.

Determination modified by annulling so much thereof as found violations of section 1116 of the Public Health Law and a violation for failure to submit final water supply plans; assessed penalties totaling $7,000 therefor and directed certain affirmative action be taken, and, as so modified, confirmed, without costs.