Opinion
No. 00 Civ. 7481 (HB).
January 4, 2005
OPINION ORDER
Plaintiff William Brody ("Brody") moves, and Defendant Village of Port Chester ("Port Chester") cross moves, pursuant to Fed.R.Civ.P. 56, for summary judgment on Brody's constitutional challenge to New York's Eminent Domain Procedure Law. See N.Y. Em. Dom. Proc. Law. § 201, et seq. (herein "EDPL"). For the following reasons, Defendant's motion for summary judgment is GRANTED and Plaintiff's motion for summary judgment is DENIED.
Plaintiffs William V. Minnich, William J. Minnich and Minnich Custom Woodwork have been dismissed, Charles Gargano, Chairman of the Empire State Development Corporation, previously represented by the New York State Attorney General's Office, is no longer a party. Brody is the only remaining plaintiff and Village the only remaining defendant. The Attorney General appears, pursuant to Fed.R.Civ.Pro. 24(a), as a statutory intervenor in support of the constitutionality of the New York State Statute at issue. See Caprio v. Bell Atl. Sickness and Accident Plan, 374 F.3d 217, 220 (3d Cir. 2004).
I. BACKGROUND
The court assumes familiarity with the discussion of the background facts as set forth in Brody v. Vill. of Port Chester, 345 F.3d 103 (2d Cir. Sept. 24, 2003) (" Brody IV"); Minnich v. Gargano, No. 00 Civ. 7481, 2001 WL 1111513 (S.D.N.Y. Sept. 20, 2001) (" Brody III"); Brody v. Vill. of Port Chester, 261 F.3d 288 (2d Cir. Aug. 08, 2001) (" Brody II"); Minnich v. Gargano, No. 00 Civ. 7481, 2001 WL 46989 (S.D.N.Y. Jan. 18, 2001) (" Brody I").
Defendant is an incorporated Village within the Town of Rye, Westchester County, New York. As part of Port Chester's plan to redevelop its blighted waterfront and downtown area, and pursuant to the EDPL, a public hearing was held on June 7, 1999 to evaluate the "public use" of the proposed redevelopment. (Pl. Decl. Ex. C). The notice stated the time, place, and subject matter of the public hearings, and cited applicable portions of the EDPL. It noted in ¶ 4 that the hearing was part of the proceedings conducted pursuant to Article 2 of the EDPL and would review the question of public use. (Pl. Decl. Ex. C). Brody, owner of a parcel of commercial property within the proposed redevelopment zone, attended and opposed the condemnation of at the June 7, 1999 hearing.
Following the June 7, 1999 hearing, Port Chester discovered that its notice failed to satisfy all the requirements of the EDPL and, to ensure proper notice, issued a second notice for a public use hearing for July 6, 1999. At this second public hearing, comments from the prior hearing were expressly incorporated into the record. (Tr. Jul. 6, 1999 Hr'g, 6:22-7:6). Brody did not attend the July 6, 1999 hearing. (Pl. Decl. ¶ 24).
Later, in July 1999, Port Chester published its determination and findings which, in pertinent part, stated that the redevelopment project would rehabilitate "certain blighted, substandard and unsanitary areas of the Village," and:
[E]nhance public access to the waterfront, protect and encourage water-dependent uses, promote the development of mixed use and retail commercial uses on the waterfront, remediate environmental problems, and have a positive impact on the existing and continued development of Village waterfront and downtown business areas.
(Pl. Decl. Ex. F).
Brody claims that Port Chester failed to provide adequate notice of its determination and findings in violation of the Due Process Clause of the Fourteenth Amendment. According to Brody, the notice made by publication deprived Brody of meaningful notice and failed to personally inform him that his land may be subject to condemnation or that such publication triggered the start of the [30] thirty-day period in which an appeal may be taken. Moreover, Brody asserts that Port Chester was required and failed to personally serve him with the determination and findings from the hearing, which would have included a tentative plan regarding the "public use" determination, the specific property to be condemned, and the specific appellate procedures. In addition, the absence of any adversarial proceeding regarding the condemnation also denied Brody an opportunity to be heard.
The EDPL requires the Village to make a "determination and findings." Specifically, the Village must,
[W]ithin ninety days after the conclusion of the public hearings . . . make its determination and findings concerning the proposed public project and shall publish a brief synopsis of such determination and findings in at least two successive issues of an official newspaper if there is one designated in the locality where the project will be situated and in at least two successive issues of a newspaper of general circulation in such locality. If the official newspaper is one of general circulation in such locality, publication therein as specified shall be deemed sufficient compliance.
NY Em. Dom. Proc. Law § 204(a) (Eff. Jan. 15, 2005).
In contrast, Port Chester contends that Brody's constitutional rights were not violated, that Brody had actual notice that the determination and findings were forthcoming and since the determination and findings are considered a legislative act, Brody was not entitled to notice or an opportunity to be heard. Further, Port Chester claims that Brody had constructive knowledge of the [30] thirty-day appeal period and, therefore, personal service was unnecessary.
B. Procedural Background
On September 24, 2003, the Second Circuit directed this court to resolve the constitutional notice issue surrounding the publication of the determination and findings pursuant to EDPL § 204. Brody IV, 345 F.3d 103 (2d Cir. 2003). The Second Circuit held that while EDPL § 207 and § 208 grant New York state court's exclusive jurisdiction over claims regarding the propriety of the taking, res judicata will not bar this action because Brody could not have asserted his constitutional challenges to the lack of notice earlier. Id. at 111. In addition, the Second Circuit explicitly rejected Brody's due process claim with respect to the July 6, 1999 public hearing held pursuant to EDPL § 203. Id. ("Accordingly, we once again conclude that Brody lacks standing to challenge the lack of individual notice of the second hearing.").
In the months following the Second Circuit's remand of the case, and likely in response to this and similar litigations, the New York State Legislature altered both the content and notice provided to owners and possible future condemnees regarding the public hearings and the determination and findings under the EDPL. EDPL § 202 (Eff. Jan. 12, 2005) ("Amended EDPL").
It is uncontested that, as a result of the New York State Legislature's amendments to the EDPL, see 2003 N.Y. Assembly Bill No. 11167 (Sept. 14, 2004), Plaintiff's constitutional challenge to the EDPL has been addressed by the Amended EDPL. See Harrison Burrowes Bridge Constr., Inc. v. Cuomo, 981 F.2d 50, 61 (2d Cir. 1992). The relevant changes to the EDPL are:
NYEDPL § 202. Notice:
(C)(1) The condemnor shall serve, either by personal service or certified mail, return receipt requested, a notice of the purpose, time, date, and location of a public hearing required by this article to each assessment record billing owner or his or her attorney of record.
(C))(2) Such notice shall be served at least ten but no more than thirty days prior to such public hearing. Such notice shall clearly state that those property owners who may subsequently wish to challenge condemnation of their property via judicial review may do so only on the basis of issues, facts, and objections raised at such hearing.
(D) Inadvertent failure to notify a person or persons entitled to notice under this section shall not be jurisdictional nor construed to affect the validity of any title acquired by a condemnor under this law.
NYEDPL § 204. Determination and findings:
(C) Upon making the determination and findings, the condemnor shall serve, by personal service or certified mail, return receipt requested, a notice of the brief synopsis thereof upon each assessment record billing owner or his or her attorney of record whose property may be acquired. Such notice shall: (1) include the information required by paragraph two of subdivision (B) of this section; (2) state that copies of the determination and findings will be forwarded to such individuals upon written request and without cost; (3) inform such individual that, under section two hundred seven of this article, there are thirty days from the completion of the condemnor's newspaper publication requirement to seek judicial review of the condemnor's determination and findings; and (4) inform such individual that, under sections two hundred seven and two hundred eight of this article, the exclusive venue for judicial review of the condemnor's determination and findings is the appellate division of the supreme court in the judicial department where any part of the property to be condemned is located.
In response to the Amended EDPL, on October 4, 2004, this Court received a letter from Brody's attorneys. The letter acknowledged that Brody's constitutional challenge to the statue was moot as a result of the amendments to the EDPL. However, Brody reaffirmed his challenge to the constitutionality of the notice and hearing provisions "as applied" to him and requests $1 in nominal damages, return of his property and/or damages and a declaration that, among other things, EDPL §§ 201, 202, 203, 204 and 207 were unconstitutional "as applied." (Compl. at ¶ 1-5). Brody also contends that while he does not challenge the Amended EDPL, the statutory change may constitute some evidence of the Government's failure to provide Brody with individual notice. Port Chester responded on October 12, 2004, and acknowledged that Brody's facial challenge to the constitutionality of the former statute was moot and that the New EDPL failed to impact Brody's "as applied" challenge.
Both parties now cross move for summary judgment.
II. STANDARD OF REVIEW
A court will not grant a motion for summary judgment unless it determines that there is no genuine issue of material fact and the undisputed facts are sufficient to warrant judgment as a matter of law. Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty Lobby Inc., 477 U.S. 242, 250 (1986). The party opposing summary judgment "may not rest upon the mere allegations or denials of the adverse party's pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). In determining whether there is a genuine issue of material fact, the Court must resolve all ambiguities, and draw all inferences, against the moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) ( per curiam). When considering cross-motions for summary judgment, the same legal standards apply and a court "must evaluate each party's motion on its own merits, taking care in each instance to draw all reasonable inferences against the party whose motion is under consideration." Make The Road by Walking, Inc. v. Turner, 378 F.3d 133, 142 (2d Cir. 2004) (citations omitted); see also Morales v. Quintel Entm't, Inc., 249 F.3d 115, 121 (2d Cir. 2001) (holding that "each party's motion must be examined on its own merits, and in each case all reasonable inferences must be drawn against the party whose motion is under consideration.")
III. DISCUSSION
The only issue which remains is Brody's claim that Port Chester violated his constitutional right to due process when it failed to provide him sufficient notice of (i) the Village's decision to adopt the determination and findings from the hearing; (ii) the appellate procedures to challenge Port Chester's determination and findings; and (iii) the legal consequences of Port Chester's publication of the determination and findings. See Brody IV, 345 F.3d at 111. To determine whether Port Chester violated Brody's constitutional rights the Court must determine whether Brody maintained a cognizable property interest, Port Chester deprived Brody of that interest, and Port Chester's deprivation of Brody's interest violated Brody's due process. See Harlen Assoc. v. Inc. Vill. of Mineola, 273 F.3d 494, 504 (2d Cir. 2001); Zahra v. Town of Southold, 48 F.3d 674, 679-680 (2d Cir. 1995); Sweeney v. City of New York, No. 03 Civ. 4410, 2004 WL 744198, at *4 (S.D.N.Y. Apr. 2, 2004).
1. Cognizable Property Interest
The threshold issue is whether Brody has a property or liberty interest protected by the Constitution. See McDonald v. Bd. of Educ. of City of N.Y., No. 01 Civ. 1991, 2001 WL 840254, at *3 (S.D.N.Y. Jul. 25, 2001). Here, the property interest that has been affected by Port Chester's actions is the ownership, possession, and operation of an ongoing business. While commercial property "has not occupied the same privileged place as the home," United States v. 141st Street Corp., 911 F.2d 870, 875 (2d Cir. 1990), it nevertheless garners due process protection. United States v. All Assets of Statewide Auto Parts, Inc., 971 F.2d 896, 902 (2d Cir. 1992); accord United States v. Any and All Radio Station Equip., 93 F. Supp. 2d 414, 423 (S.D.N.Y. 2000) (recognizing commercial property as a property interest protected by the Constitution).
2. Deprivation of Property
The particular deprivation here is Port Chester's condemnation of Brody's commercial property. Krimstock v. Kelly, 306 F.3d 40, 62 (2d Cir. 2002). "It is well established that the threat of a condemnation of real property constitutes irreparable injury as it cannot be compensated for by a monetary award." Brody III, 2001 WL 46989, at *3; see Varsames v. Palazzolo, 96 F. Supp. 2d 361, 367 (S.D.N.Y. 2000) ("Deprivation of an interest in real property constitutes irreparable harm"). Accordingly, Brody articulates a sufficient deprivation of property.
It has been held that any actual and material interference with private property rights whether temporary or permanent, which causes special and substantial injury to the owner, is a "taking" of private property within the meaning of the constitution and, therefore, requires due process of law. Bd. of Regents v. David Roth, 408 U.S. 564 (1972). See also Dolan v. City of Tigard, 512 U.S. 374 (1994) (city requiring store owner to dedicate portion of property for public greenway and bike path as condition of granting permit for proposed development was taking of property without just compensation); Nollan v. Cal. Coastal Comm'n, 483 U.S. 825 (1987) (city requiring grant of public easement across beachfront section of private property as condition of granting building permit is taking of property without just compensation).
3. Due Process Analysis
"An essential principle of due process [is] that deprivation of life, liberty, or property be preceded by [A] notice and [B] opportunity for hearing appropriate to the nature of the case." Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985). The notice requirement was spelled out in Mullane v. Central Hanover Bank Trust Co. 339 U.S. 306 (1950). In Mullane, the Supreme Court held:
The Supreme Court rejected the application of the Mathews v. Eldridge, 424 U.S. 319 (1976), analysis in favor of the Mullane analysis in Dusenbery v. United States. 534 U.S. 161, 167-168 (2002). In Dusenbery, 534 U.S. 161 (2002), the Supreme Court held that Mullane supplies the appropriate analytical framework for evaluating notice claims:
[T]he Mathews balancing test was first conceived in the context of a due process challenge to the adequacy of administrative procedures used to terminate Social Security disability benefits. Although we have since invoked Mathews to evaluate due process claims in other contexts, we have never viewed Mathews as announcing an all-embracing test for deciding due process claims. Since Mullane was decided, we have regularly turned to it when confronted with questions regarding the adequacy of the method used to give notice.Id. at 167.
An elementary and fundamental requirement of due process in any proceeding, which is to be accorded finality, is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. . . . The means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it.Id. at 315, 319; accord Akey v. Clinton County, N.Y., 375 F.3d 231 (2d Cir. 2004). While, the amount and nature of the process due depends upon the nature of the deprivation and its context, the analysis focuses on the two Mullane factors of notice and opportunity to be heard. Dusenbery v. United States, 534 U.S. 161, 167-68 (2002) ( citing to Mullane, 339 U.S. at 313). A. Notice
For notice to be sufficient, it must (i) be "reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections"; (ii) "convey the required information"; and, (iii) "afford a reasonable time for those interested to make their appearance." Mullane, 339 U.S. at 314. The determination of whether these conditions have been met is made on a case-by-case basis. "But if with due regard for the practicalities and peculiarities of the case these conditions are reasonably met the constitutional requirements are satisfied." Id.; Lujan v. G G Fire Sprinklers, Inc., 532 U.S. 189 (2001) (citation omitted) ("Due process, unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances.")
i. Notice was Reasonably Calculated
The first prong of the Mullane test requires the Court to determine whether the notice was "reasonably calculated to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Mullane, 339 U.S. at 314. Pursuant to Mullane and its progeny, due process does not require actual notice, only an "attempt to provide actual notice." Dusenbery, 534 U.S. at 170. The adequacy of notice depends on a determination of reasonableness "and, as Mullane itself made clear, whether a particular method of notice is reasonable depends on the particular circumstances." Tulsa Prof'l Collection Serv. v. Pope, 485 U.S. 478, 484 (1988). The Supreme Court, for instance, has concluded that notice is sufficient when a creditor may learn of his debtor's demise by notice published by a probate court in the area of the debtor's residence, see Tulsa Professional Collection Services, 485 U.S. at 484, or when it is used to serve an absent domiciliary who cannot be served in any other way. Butler v. McKey, 138 F.2d 373 (9th Cir. 1943), cert. denied, 321 U.S. 780. Notwithstanding the factual differences between these cases and the case at bar, the decisions remain instructive as they provide an example of the imprudence of gleaning a per se rule that direct mail or personal service is necessarily required for adequate notice.
In State of Georgia v. City of Chattanooga, 264 U.S. 472 (1924) ( cited in Brody I, 2001 WL 46989, at *6), the Supreme Court reviewed a challenge by the State of Georgia to a condemnation proceeding with respect to land it owned in Chattanooga, Tennessee. Chattanooga had determined that, to prevent urban blight, the land owned by the State of Georgia was to be condemned. The City chose publication as its method of notification and the Supreme Court upheld its choice:
The lack of opportunity to be heard before the passage of the ordinance opening the street furnishes no ground for complaint. The taking is legislative and not a judicial function, and an opportunity to be heard in advance need not be given. Personal service upon the owner is not essential; publication of notice is sufficient.Id. at 483 (cited by Brody I, 2001 WL 46989, at *6). The Supreme Court elucidated a necessary caveat to the statement and granted the property owner a limited right to challenge a taking under the state's eminent domain power:
No complaint is made that the laws of Tennessee do not afford the state of Georgia and other owners reasonable notice and opportunity to be heard before the final determination of judicial proceedings, e.g., whether the state has delegated to the city the power to condemn; whether the taking is for a public purpose; and the amount of the compensation.Id. at 483 (cited by Brody I, 2001 WL 46989, at *6).
Here, pursuant to EDPL § 202(A), on March 25, 1999, Port Chester sent Brody via certified mail a specific notice of the public use hearing. (AG Ex. 5; Pl. Ex. C). In addition, "on May 22, 1999, the Village published a notice in the Journal News of an upcoming hearing regarding the potential condemnation project which encompassed Brody's property." See Brody III, 2001 WL 1111513, at *2; (Pl. Ex. C D at 4). The success of the notice can be evidenced by Brody's appearance and participation at the hearing. (Pl. Ex. E). On July 18 and 19, 1999, pursuant to EDPL § 204, Port Chester published a summary of its determination and findings in the local newspaper. The published findings stated that the redevelopment was:
[In] furtherance of the goals and objectives of the Urban Renewal Plans, as Port Chester is in the process of undertaking programs for the clearance and reconstruction of certain blighted, substandard[,] and unsanitary areas of Port Chester.
(Village Ex. Tab 9). Pursuant to EDPL §§ 207 — 208, the publication of the determination and findings initiated the (30) thirty-day period in which to appeal Port Chester's determination to the Appellate Division.
While due process requires that Port Chester provide Brody with notice reasonably calculated to inform him of the pendency of the action and, undeniably, personal service is the preferred form of notice, in light of the eminent domain function, publication was sufficient notice to Brody. While there is limited authority to the contrary, the great weight of authority supports the proposition that notice by publication is sufficient. Accordingly, pursuant to Mullane and its progeny, personal service was not essential and notice by publication met the minimum requirements for due process and has been held sufficiently "calculated, under all the circumstances, to apprise [Brody] of the pendency of the action and afford [him] an opportunity to present [his] objections." Mullane, 339 U.S. at 314.
See United States v. 194.08 Acres of Land, More or Less, Situated in St. Martin Parish, State of La., 135 F.3d 1025 (5th Cir. 1998); Crompton Corp. v. City of Dubuque, No. 01 Civ. 1015, 2001 WL 34008507, at *5 (N.D. Iowa Dec. 10, 2001) (holding notice of an eminent domain condemnation by publication sufficient).
Mullane, 339 U.S. 306; see also City of Chattanooga, 264 U.S. 472; United States v. 194.08 Acres of Land, 135 F.3d 1025 (5th Cir. 1998).
ii. Notice Conveyed the Required Information to Brody
Brody argues that the publication of Port Chester's determination and findings were constitutionally deficient because the publication failed to delineate, or for that matter mention, appellate procedures and the 30 day statute of limitations.
Due process, however, has its limitations. The landowner is obligated to keep abreast of statutes and proceedings regarding his property. The Supreme Court established this burden in North Laramie v. Hoffman, 268 U.S. 276, 284-85 (1925). There, the defendant, board of county commissions, published in the local newspaper, pursuant to a state statute, the draft proposal to build a road across plaintiff's land. See Id. at 277. Plaintiff claimed that the defendant board of county commissions had taken his property without due process. See Id. at 278. Plaintiff claimed that the defendant's actions, pursuant to state law, denied plaintiff an opportunity to be heard. The Supreme Court described the public use and notice implications when the government takes such action:
See GAC Enterprises, Inc. v. Medaglia, 52 F.3d 451, 455 (2d Cir. 1995); see also Atkins v. Parker, 472 U.S. 115, 130-131 (1985); United States v. Locke, 471 U.S. 84, 108 (1985).
The taking of property provided for by the statute is a taking of land under the direction of public officers. . . . [T]he necessity and expediency of the taking of property for public use are legislative questions, no matter who may be charged with their decision, and a hearing thereon is not essential to due process in the sense of the Fourteenth Amendment.Id. at 284. The North Laramie Court continued:
[I]t has been uniformly held that statutes providing for . . . condemnation of land may adopt a procedure, summary in character, and that notice of such proceedings may be indirect, provided only that the period of notice of the initiation of proceedings and the method of giving it are reasonably adapted to the nature of the proceedings and their subject matter and afford to the property owner reasonable opportunity at some stage of the proceedings to protect his property from an arbitrary or unjust appropriation.Id. at 283.
Notice and the opportunity to be heard, or the lack thereof, under the holding in City of W. Covina v. Perkins, 525 U.S. 234, 243 (1999), of state-law remedies is not required when, like here, the remedies are "established by published, generally available state statutes and case law." The Court went on to say that due process did not require notice of the specified means by which a person could challenge the government action pursuant to state law. See Id. Notice of appellate rights, and the procedures attendant thereto, is not a constitutional requirement for notice because the primary purpose of the notice requirements is "to ensure that the opportunity for a hearing is meaningful." Id. at 240. The Court concluded that sufficient notice is accomplished if the property owner is informed that his property may be taken and by whom it will be taken, but "[n]o similar rationale justifies requiring individualized notice of state-law remedies which, like those at issue here, are established by published, generally available state statutes and case law." Id. at 241.
Notice by publication of the determination and findings were "reasonably adapted to the nature of the proceedings," and adequately protected Brody's interest. Brody was notified about the hearings, attended the hearings, and was informed that the condemnation procedure would proceed pursuant to the EDPL. (Pl. Decl. Ex. C). Brody knew or learned at the June hearing that Port Chester's "public use" determination and findings, pursuant to EDPL § 207, would be issued within 90 days. (Pl. Ex. E). Once issued, the condemnees, including Brody, were able to challenge Port Chester's determination and findings for thirty-days. (Berliner Decl. Ex. A). Consequently, no due process violation occurred because due process does not require additional opportunities to challenge "public use" determinations or to discuss such determinations with the condemnation authority once notice and a hearing have been provided.
iii. Notice Afforded Brody a Reasonable Time to Appeal
Brody also contends that he was not afforded sufficient time to appeal Port Chester's determination and findings. It is uncontested that Brody attended the March 18, 1999 hearing regarding the environmental issues and the public hearing on June 7, 1999. (Pl. Decl. ¶ 9, 14-16). Brody himself acknowledged that he received prior notification from the Village by certified mail on March 25, 1999 of the June 7, 1999 public use hearing. (Pl. Decl. ¶ 15). Brody's own testimony demonstrates that he had actual notice of the determination and findings before the time to seek judicial review had expired. Accordingly, the notice, with regards to Brody, was sufficient to appear at these two hearings.
Accordingly, the notice afforded Brody reasonably provided Brody time to appear.
B. Opportunity to be Heard
Once again, I review Brody's contention that the EDPL's failure to provide an adversarial proceeding in which he could cross-examine witnesses is a violation of due process. Brody continues to rely on cases outside the eminent domain context, and I can find no eminent domain cases that address this issue. See Brody I, 2001 WL 46989, at *13. Brody's reliance on these cases, most of which apply the Mathews test, is no more persuasive in the "as applied" context than in the "facial" challenge context. See Goldberg v. Kelly, 397 U.S. 254, 269 (1970) (pre- Mathews); United States v. James Daniel Good Real Property, 510 U.S. 43, 58 (1993); Escalera v. New York City Housing Auth., 425 F.2d 853, 862 (2d Cir. 1970). In Brody I, I rejected Plaintiff's facial due process challenge because an adversarial proceeding for every condemnee would impose a substantial burden on the State:
The power of eminent domain is exercised to serve the public interest, and if lengthy hearings in the already overburdened state courts were held for every person subject to condemnation, there would be a risk that the exercise of the power would be thwarted along with useful public projects.Brody I, 2001 WL 46989, at *13. I apply the same reasoning with the same result to Brody's "as applied" challenge.
Because I find no material issue of fact, indeed there are no facts in dispute, and for the reasons I outlined in Brody I, the argument that Port Chester violated Brody's constitutional right to due process must be denied. See Brody I, 2001 WL 46989, at *13.
IV. CONCLUSION
For all of the foregoing reasons, Defendant's motion for summary judgment is GRANTED and the complaint is DISMISSED. Plaintiff's motion for Summary Judgment is DENIED. The Clerk is instructed to close this motion and all other open motions and remove this case from my docket.
IT IS SO ORDERED.