Opinion
No. 99-CV-6341P.
March 31, 2004
DECISION ORDER
PRELIMINARY STATEMENT
This case stems from the demolition by the City of Rochester (the "City") of a three-family residence and garage owned by the plaintiffs, Linford and Deloris Hamilton. The demolition occurred in June 1998, following a fire five years earlier that had caused extensive damage to the residence ("the Property"). As a result of the fire, the plaintiffs were notified in writing by the City that a hearing would be held to determine whether the Property should be demolished. Such hearing was held on May 12, 1994, and resulted in a finding that the Property "represents a hazard to Public Health and Safety due to its unoccupied and neglected condition." (Docket # 35, Ex. C). The plaintiffs were directed to repair or demolish the Property and were advised that if they failed to do so, the City would demolish the Property. ( Id.). The Property was demolished five and one-half years later.
Currently pending before this Court for decision, pursuant to 28 U.S.C. § 636(c), are motions by both parties for summary judgment. Simply put, the crux of the case is whether the demolition of the Property five years after the hearing, and after plaintiffs had started but had not completed the necessary repairs, constituted an unconstitutional deprivation of property without procedural due process of law, in violation of 42 U.S.C. § 1983 (Count One of the Complaint) and/or a common law act of negligence (Count Two). At this stage of the proceedings, in which both parties have moved for summary judgment, this Court must also decide whether there exist any factual disputes that materially affect the legal issues raised in this action. For the reasons set forth below, this Court concludes that summary judgment is not warranted for either party with respect to the claims concerning the dwelling, while plaintiffs are entitled to summary judgment against the City with respect to its due process claim concerning the garage.
FACTUAL BACKGROUND
Plaintiffs, who are married to one another, purchased the Property located at 64 York Street in the City of Rochester in 1981 and maintained it as a rental property. (Docket # 39, Defendants' Local Rule 56 Statement, ¶¶ 2, 4; Docket # 39, Ex. O at 32, 43). On January 1, 1993, the Property was seriously damaged by fire. (Docket # 36, ¶ 2; Docket # 39, Ex. O at 33-34). The damage included substantial damage to certain interior and exterior walls, ceilings, floors, windows and the roof. (Docket # 39, Exs. D, E, H, J, K and O at 44-65; Docket # 44, Ex. S, ¶ 1). As a result of the damage, no tenants resided in the Property following the fire. (Docket # 39, Ex. O at 43). The detached garage was not damaged during the fire. (Docket # 36, ¶¶ 10-11; Docket # 35, Ex. N, ¶ 26).
It is undisputed that Deloris Hamilton was not involved in the maintenance, management or repair of the Property. (Docket # 39, Ex. P).
Photographs depicting the damage have been appended to defendants' moving papers. ( See Docket # 39, Exs. D, E, H, J and K).
Some months after the fire, in the summer of 1993, the City sponsored a redevelopment plan for the geographic area encompassing 64 York Street. (Docket # 36, ¶¶ 3, 4; Docket # 35, Ex. N, ¶ 9). Pursuant to the plan, the City sent potentially affected property owners, including plaintiffs, a letter dated July 14, 1993 advising them that the City was considering purchasing their property under the plan. (Docket # 39, Ex. K). The plan was ultimately abandoned by the City less than one year later in May 1994. (Docket # 37 at 1). The record is undisputed that plaintiffs undertook no repairs to the Property between the time of the fire and the City's abandonment of its redevelopment plan. (Docket # 39, Ex. O at 75-76). Plaintiffs maintain that their inaction reflected their expectation that the Property would be taken by the City as part of the revitalization plan (Docket # 39, Ex. O at 84); defendants dispute plaintiffs' motivation. (Docket # 36, ¶ 3).
Shortly before the City abandoned the plans, plaintiffs received a letter dated April 19, 1994 from the City advising them that a hearing had been scheduled for May 12, 1994 to determine whether the "structure(s) at 64 York Street . . . is/are unsafe or dangerous" and should be demolished. (Docket # 39, Ex. M). No specific reference to the garage was contained in the letter. ( Id.). Plaintiffs attended the hearing, which was held as scheduled, and testimony was taken regarding the condition of the Property. (Docket # 39, Ex. O at 77-78). Neither party asserts that any testimony pertained to the garage, which, as the City concedes, was neither damaged by the fire, nor otherwise in violation of any City code. (Docket # 36, ¶¶ 10-11; Docket # 35, Ex. N, ¶ 26).
Subsequent to the hearing, plaintiffs received a written notice of "Hearing Findings," dated May 24, 1994, which was signed by defendant Thomas Argust, Commissioner of the City's Department of Community Development (the "Findings"). While the Findings included a reference line that reads, "Re: 64 York Street, 2½ story frame dwelling and detached garage," the body of the Findings do not specifically mention the garage, but rather refer only to the "structure" — a term which is not defined in the Findings. (Docket # 35, Ex. C). The Findings determined that the "structure represents a hazard to Public Health and Safety due to its unoccupied and neglected condition." ( Id.). Specifically, the hearing officer made the following factual findings:
1. The structure has been vacant and is in close proximity to an occupied structure.
2. The interior/exterior of the premises are in a neglected condition and have suffered substantial fire damage.
3. All electrical, plumbing, and heating systems are inoperable and in need of repair.
4. There is no present evidence of repair, permits or maintenance.
( Id.). The Findings ordered the plaintiffs to submit within fifteen days a schedule of plans for rehabilitation, which "must provide for work to commence at once and proceed uninterrupted until the building is in compliance with all appropriate codes and ordinances." ( Id.). The Findings further required plaintiffs to submit a list of materials to be used and the costs of such materials. ( Id.). Should they fail either to repair or to demolish the "structure," the Findings warned, the City would demolish the "structure" and bill the plaintiffs for the costs of the demolition. ( Id.). Plaintiffs did not appeal the decision. (Docket # 39, Ex. O at 79).
If they chose to demolish, rather than repair, such demolition was to occur within thirty days of the issuance of the Findings. ( Id.).
The record is undisputed that plaintiffs failed to submit any plans within the requisite fifteen-day period. Indeed, plaintiffs did not submit their plans until over one year later, in approximately November 1995. (Docket # 39, Ex. O at 82). At that time, the City had entered into a demolition contract pertaining to the Property. (Docket # 39, Affidavit of Joseph Strocko, sworn to on February 26, 2003 ("Strocko Aff."), ¶ 11). The parties apparently dispute whether Linford Hamilton ("Hamilton") learned of the demolition contract and in response thereto secured schematic plans for the repairs. Hamilton testified that he did not know of the demolition contract at the time that he commissioned the plans (Docket # 39, Ex. O at 81, 85, 87-89); the City counters that he did know of the planned demolition and that his knowledge was the impetus for him to take action. (Docket # 39, Affidavit of Paul MacAulay, sworn to on February 28, 2003 ("MacAulay Aff."), ¶ 13).
The parties agree that during this time period, Hamilton contacted defendant Joseph Strocko, who worked as Manager of the Technical Services Division for the City's Bureau of Housing and Project Development, which was within the Department of Community Development. (Docket # 39, Strocko Aff., ¶ 1; Docket # 39, Ex. O at 79-81). Strocko's duties included responsibility for and oversight of all of the City's demolition activity, as well as its property rehabilitation programs. (Docket # 39, Strocko Aff., ¶ 2). During the meeting between Strocko and Hamilton, Hamilton explained that he had undertaken no repairs because he had believed the Property was to have been taken as part of the redevelopment plan. (Docket # 39, Strocko Aff., ¶ 12; Docket # 39, Ex. O at 87-90). Strocko agreed to cancel the demolition on the condition that the plaintiffs submit plans detailing the intended repairs. (Docket # 39, Ex. O at 90; Docket # 39, Strocko Aff., ¶ 12; Docket # 39, Defendants' Local Rule 56 Statement, ¶ 25). Plaintiffs did so, and the demolition was cancelled. ( Id.).
For a period of nearly two years thereafter, plaintiffs did no repair work to the Property. (Docket # 39, Ex. O at 86). In August of 1997, plaintiffs contend, they began an "extensive clean out" of the Property. (Docket # 36, ¶ 6; see Docket # 35, Ex. E; Docket # 39, Ex. O at 69). In the meantime, the City awarded a demolition contract for the Property in early December 1997. (Docket # 39, Strocko Aff., ¶ 16). For reasons that are unclear, the company to which the contract had been awarded failed to perform the demolition, and, in April 1998, defendants entered into a new contract for the Property's demolition. ( Id.).
Hamilton's deposition testimony suggests that the clean out work in fact may not have commenced until 1998. (Docket # 39, Ex. O at 96).
According to Strocko, he advised Hamilton "sometime in April of 1998" that because Hamilton had failed to make any repairs, the Property would be demolished. (Docket # 39, Strocko Aff., ¶ 17). Plaintiff disputes that Strocko contacted him to notify him of the planned demolition, and in any event, maintains that he did not know that demolition had been scheduled at the time he hired a contractor in late April 1998 to make the necessary repairs. (Docket # 47, ¶ 1; Docket # 39, Ex. O at 95-100, 125).
On April 25, 1998, Hamilton hired a contractor, Joseph Lewis, with whom he entered into an agreement to conduct the repair work provided in the schematic plans at a cost of $14,000. (Docket # 36, ¶ 7; Docket # 35, Ex. F). As with the 1995 events leading to the submission of the schematic plans, the parties again dispute whether Hamilton's action — this time, the hiring of a contractor — was in response to the City's demolition contract. (Docket # 39, MacAulay Aff., ¶ 18; Docket # 39, Ex. O at 95-100, 124-131).
Three days later, Hamilton applied for and received a building permit to make repairs to the Property. (Docket # 36, ¶ 7; Docket # 35, Ex. G; Docket # 39, Ex. O at 83). While the permit itself refers to work to be done to repair "fire damage," Hamilton's application for the permit is restricted to work to repair fire damage to the second floor apartment bedroom (the most heavily, but not only, damaged area of the building) and lists the costs of repairs at $5,000. (Docket # 35, Ex. G; Docket # 39, Ex. A, Ex. O at 58; Docket # 39, Defendants' Local Rule 56 Statement, ¶ 13). The record is undisputed that the City employees who issued the permit were unaware that a demolition contract had been awarded for the Property; nor did Hamilton advise them of that fact when applying for the permit. (Docket # 44, Defendant's Objections to Plaintiffs' Statement, ¶ 7; Docket # 39, Ex. O at 100). Hamilton testified that he did not know of the scheduled demolition at the time he applied for the permit. (Docket # 39, Ex. O at 95-100).
Following the issuance of the permit, plaintiffs began the repair work. The work undertaken at the time related principally to the framing of walls and the replacement of floor joists. (Docket # 36, ¶ 8; Docket # 35, Ex. H; Docket # 39, Ex. O at 106). Hamilton thereafter called Strocko, who had learned that Hamilton had been issued a repair permit, to advise him that substantial repairs had been made and to seek cancellation of the planned demolition. (Docket # 39, Strocko Aff., ¶ 19; Docket # 44, Ex. S, ¶ 8B; Docket # 39, Ex. O at 99). In response to Hamilton's request, Strocko dispatched two inspectors from his bureau, Franklin Vander Ven and David Hershkowitz, to inspect the Property to determine whether, in fact, substantial repairs had been completed. (Docket # 39, Strocko Aff., ¶ 20). Vander Ven understood that the purpose of his inspection was to conclude whether "sufficient work had been done to make the building safe and to warrant cancelling the demolition." (Docket # 39, Affidavit of Franklin Vander Ven, sworn to on February 28, 2003 ("Vander Ven Aff."), ¶ 6).
On June 12, 1998, Vander Ven and Hershkowitz inspected the Property in the presence of Hamilton. Vander Ven concluded that the Property was still unsafe due to the inadequacy of certain repairs that had been made, some of which were not compliant with the City's building code, and due to the fact that certain necessary repairs had not been made. (Docket # 39, Vander Ven Aff., ¶¶ 8-14). Specifically, he noted that some of the floor joist repairs did not adequately support weight bearing walls; that the chimney was not tied to structural supports so as to assure its structural integrity; that certain charred timber that should have been replaced as required by code had not been replaced (rather, new wood had simply been affixed to the charred wood); and that no work at all had been started on the second floor. ( Id.). At the time of the inspection, Vander Ven advised Hamilton that he had "a lot of concerns . . . about the work that had been done and the structural integrity of the building." ( Id. at ¶ 9). Hamilton admits that Vander Ven advised him that the repairs were insufficient to warrant cancelling the demolition. (Docket # 39, Ex. Q at 14; see Docket # 35, Ex. K).
Vander Ven informed Strocko of his observations and conclusions, including that the Property had significant structural integrity issues, and showed Strocko photographs of the condition of the Property. (Docket # 39, Strocko Aff., ¶ 21). Vander Ven recommended that the demolition proceed. (Docket # 39, Vander Ven Aff., ¶ 14). Based on this report, Strocko decided to continue with the planned demolition. (Docket # 39, Strocko Aff., ¶ 22). According to Strocko, in a telephone conversation that took place between June 12, 1998 and June 18, 1998, he notified Hamilton that the demolition would not be delayed. ( Id. at ¶ 23). Hamilton disputes that Strocko contacted him to notify him that the demolition would proceed. (Docket # 47, ¶ 2).
Three days later, on June 15, 1998, Russell Schell, a City building and construction inspector also inspected the property. Schell worked as a inspector in the Building and Zoning Division of the Community Development Department and conducted his inspection to evaluate the progress of repairs as authorized by the permit. (Docket # 39, Affidavit of Russell Schell, sworn to on February 21, 2003 ("Schell Aff."), ¶¶ 1-3, 6). He was unaware that the property had been scheduled for demolition. ( Id. at ¶ 3). Following the inspection, Schell issued an inspection report, which called for Hamilton to apply for electric and plumbing permits, and read, in part:
— call for framing [and] insulation inspection — extensive fire damage in south side of attic, bring plans — call for inspection prior to reconstructing of attic — install fire blocking above bearing walls — install 2 — 2 × 4 header @ windows — install trimmer [and] jack studs @ windows — install 2 × 6 blocking @ ends of floor joists @ exterior wall of 1st [and] 2nd [floors] (south wall)
(Docket # 35, Ex. I). The report also scheduled a reinspection by the City on June 29, 1998. (Docket # 36, ¶ 8; Docket # 35, Ex. I).
Schell maintains that the report constituted only a partial list of necessary repairs and that he noted "a number of deficiencies," including Code violations and the fact the chimney was not adequately supported. (Docket # 39, Schell Aff., ¶¶ 6-7). Schell does not, however, maintain that he told Hamilton that the list was incomplete. While Hamilton concedes that Schell advised him that some of the work that had been done was defective, he emphasizes that Schell did not instruct him to stop work and prepare for demolition. (Docket # 36, ¶ 8). According to Schell, his job was not to determine whether demolition should proceed — indeed, he did not even know of the planned demolition — but was to work with property owners to correct deficiencies and to ensure that repairs were code compliant. (Docket # 39, Schell Aff., ¶ 9).
At oral argument, plaintiffs' counsel conceded that Schell had identified for Hamilton certain deficiencies in the repairs.
Following Schell's inspection, Hamilton applied for and was granted an electrical permit the next day. (Docket # 36, ¶ 8; Docket # 35, Ex. J). Having secured the permit, plaintiffs succeeded in repairing the electrical system so that it was ready to be connected by the utility service. (Docket # 39, Ex. O at 51). Indeed, according to Hamilton, approximately one day later, during the course of this electrical work, he learned from an electrical contractor that the Property was scheduled for demolition. (Docket # 36, ¶ 9; Docket # 35, Ex. K; Docket # 39, Ex. O at 126-31). At that point, Hamilton attempted to contact various City officials and retained an attorney who faxed a letter to defendant Argust seeking to stop the planned demolition. (Docket # 36, ¶ 9; Docket # 35, Ex. K). Plaintiff's efforts were unavailing. (Docket # 36, ¶ 9).
The following day, June 18, 1998, at approximately 7:00 p.m., a demolition crew arrived at 64 York Street and advised Hamilton that his property would be demolished the next day. (Docket # 36, ¶ 10; Docket # 39, Ex. O at 97, 133; Docket # 44, Ex. S, ¶ 11). When the crew arrived, Hamilton was on scaffolding preparing to begin repairing the roof. By this time, according to Hamilton, all of the framing and structural work had been completed on all three floors. (Docket # 39, Ex. O at 97, 103-104). The City has offered no evidence as to the condition of the Property or the status of repairs at the time of demolition.
The following morning, at approximately 9:00 a.m., the Property was razed, as was the garage and its contents. (Docket # 36, ¶ 10). Hamilton testified that several City employees were present, including an inspector who had an appointment to reinspect the Property before Hamilton began the insulation work. (Docket # 39, Ex. O at 118). While the demolition was ongoing, Russell Schell arrived on the scene, having been directed by John Accorso, the City's Deputy Commissioner of Community Development, to request that demolition be suspended. (Docket # 36, ¶ 16; Docket # 35, Ex. M; Docket # 44, Affidavit of John Accorso, sworn to on March 21, 2003 ("Accorso Aff."), ¶¶ 1, 4-5). According to Accorso, he issued the direction because he wanted to learn why a demolition order had issued for a property for which a repair permit previously had issued, believing that "there might have been some mistake." (Docket # 44, Accorso Aff., ¶ 4). Schell arrived too late, however; the demolition had already begun, and Strocko (who was present at the Property) determined that it would unsafe to stop it. (Docket # 35, Ex. D at 25, Ex. L at 20). The demolition thus proceeded to conclusion at a cost to the City of $8,900. (Docket # 39, Strocko Aff., ¶ 29).
Defendant's counterclaim is for $9,345, which includes an unexplained five percent service charge on the $8,900 that the City paid to the contractor. (Docket # 3, ¶ 14; Docket # 39, Strocko Aff., ¶ 29).
In addition to razing the Property, the demolition crew also razed the garage. The City admits that at no time prior to demolition had it determined that the garage violated any City code or ordinance. (Docket # 35, Ex. O). It further admits that "[a]t no time prior to [demolition] did the City of Rochester notify plaintiff of its intention to demolish the garage." (Docket # 35, Ex. N, ¶¶ 26, 28).
According to Hamilton, at the time the demolition occurred, he had incurred contractor expenses of $8,000, of which $3,000 was paid on the date of demolition. (Docket # 39, Ex. O at 142-43; Docket # 35, Ex. F). He had also spent approximately $12,000 to $14,000 on materials to be used for the repairs. (Docket # 44, Ex. S, ¶ 10).
Hamilton paid Lewis an additional $950 on June 25, 1998 (Docket # 39, Ex. O at 143; Docket # 35, Ex. F), and apparently paid the electrician $1,000 in June 1998. (Docket # 44, Ex. S, ¶ 10).
PLAINTIFFS' LAWSUIT
On August 6, 1999, plaintiffs filed a Complaint in this action against the City of Rochester, Thomas Argust, who served as Commissioner of the City's Department of Community Development, and Joseph Strocko, who served as Manager of the Technical Services Division for the City's Bureau of Housing and Project Development. The Complaint alleges four causes of action against all these defendants. At oral argument, counsel for plaintiffs confirmed that the individual defendants are sued only in their official capacities and not in their individual capacities.
In the first cause of action, plaintiffs contend that defendants violated 42 U.S.C. § 1983 and New York common law by depriving them of their property without procedural or substantive due process and by depriving them of equal protection under law. Plaintiffs' second cause of action alleges that the City's demolition of their property constituted negligence. Plaintiff's third cause of action alleges that defendants trespassed on their property. In their final cause of action, plaintiffs allege that defendants violated the Federal Housing Act by attempting to reduce the vacancy rate by targeting for demolition areas of the city with a disproportionate number of racial minorities. (Docket # 1).
The record is clear that the only causes of action that plaintiffs now press are their procedural due process and negligence claims. They have abandoned the remaining causes of action and theories of liability either by stipulation (Docket # 39, Ex. O at 4-8) or by failing to contest the City's motion for summary judgment on those counts. See Frink America, Inc. v. Champion Road Machinery Ltd., 48 F. Supp.2d 198, 209 (N.D.N.Y. 1999) (claim raised in complaint but not addressed in brief opposing defendant's motion for summary judgment deemed abandoned); Anti-Monopoly, Inc. v. Hasbro, Inc., 958 F. Supp. 895, 907 n. 11 (S.D.N.Y.) ("failure to provide argument on a point at issue constitutes abandonment of the issue."), aff'd, 130 F.3d 1101 (2d Cir. 1997), cert. denied, 525 U.S. 813 (1998). Indeed, in both their reply brief and at oral argument, plaintiffs' counsel conceded that the procedural due process and negligent demolition claims are the only ones on which they are proceeding in this litigation and that they have abandoned the remainder. (Docket # 50 at 4). On this record, the Court will consider only those two claims and will direct that judgment be entered for defendants on the third cause of action (trespass claim) and the fourth cause of action (Fair Housing Act claim).
DISCUSSION
I. Standard for Summary Judgment
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). In reaching this determination, the court must assess whether there exist any disputed material facts and, in so doing, must resolve all ambiguities and draw all reasonable inferences against the moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986); Coach Leatherware Co. v. AnnTaylor, Inc., 933 F.2d 162, 166-67 (2d Cir. 1991).
A fact is "material" only if it has some effect on the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. at 248; Catanzaro v. Weiden, 140 F.3d 91, 93 (2d Cir. 1998). A dispute regarding a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248; see also Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.), cert. denied, 502 U.S. 849 (1991).
The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact, after which the nonmoving party must come forward with sufficient evidence to support a jury verdict in its favor; the motion will not be defeated based upon conjecture, surmise or the existence of "metaphysical doubt" concerning the facts. Bryant v. Maffucci, 923 F.2d at 982 (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). The party seeking to avoid summary judgment "must do more than make broad factual allegations and invoke the appropriate statute. The [party] must also show, by affidavits or as otherwise provided in Rule 56 . . ., that there are specific factual issues that can only be resolved at trial." Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995); see also Driscoll v. Townsend, 60 F. Supp.2d 78, 80 (W.D.N.Y. 1999).
As the Second Circuit has explained:
[T]he trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution. . . . It must be kept in mind that only by reference to the substantive law can it be determined whether a disputed fact is material to the resolution of the dispute.Gallo v. Prudential Residential Serv. P'ship, 22 F.3d 1219 (2d Cir. 1994).
II. Claims Relating To Dwelling At 64 York Street
Plaintiffs challenge the City's demolition of the dwelling at 64 York Street on two separate grounds. First, plaintiffs assert that defendants violated 42 U.S.C. § 1983 by depriving them of their property without procedural due process of law. Second, plaintiffs claim that defendants were negligent in demolishing the building. A. Plaintiff's Section 1983 Claim : Section 1983 provides:
At oral argument, counsel for plaintiffs clarified that their motion seeks judgment as a matter of law only against the City and not against Argust and Strocko.
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory . . ., subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law.42 U.S.C. § 1983.
In order to demonstrate a violation of Section 1983, plaintiffs must prove two essential elements: "(1) the conduct complained of must have been committed by a person acting under color of state law; and (2) the conduct complained of must have deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States." Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir. 1994). Accord Dwares v. City of New York, 985 F.2d 94, 98 (2d Cir. 1993) (citations omitted).
Defendants have conceded that their actions were taken under color of law. (Docket # 35, Ex. N, ¶ 31).
1. Municipal Liability : While a municipality may be viewed as a "person" under Section 1983, municipal liability attaches only to violations caused by an official policy or custom. Monell v. Department of Social Services of City of New York, 436 U.S. 658, 691, 694 (1978). In order to establish an official policy or custom, however, a plaintiff need not demonstrate that a municipality repeatedly followed a particular course of action. Rather, "a single action taken by a municipality is sufficient to expose it to liability." Amnesty America v. Town of West Hartford, 2004 WL 491647 *9 (2d Cir. March 15, 2004) (citing Pembaur v. City of Cincinnati, 475 U.S. 469, 480-81 (1986)). As the Supreme Court has stated:
[I]t is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under [Section] 1983.Monell v. Department of Social Services of City of New York, 436 U.S. at 694.
The relevant inquiry is whether the conduct complained of was committed by someone with final policymaking authority. City of St. Louis v. Praprotnik, 485 U.S. 112, 123 (1988) (only those municipal officials who have "final policymaking authority" may by their actions subject the government to § 1983 liability) (quoting Pembaur v. Cincinnati, 484 U.S. at 483). According to the Supreme Court, an employee may obtain policymaking authority in one of three ways: first, through express legislative intent; second, through delegation by those to whom such authority had been expressly granted; and third, by "widespread practice that, although not authorized by written law or express municipal policy, is so permanent and well settled as to constitute a custom or usage with the force of law." City of St. Louis v. Praprotnik, 485 U.S. at 126-27; Philippeaux v. North Central Bronx Hosp., 871 F. Supp. 640, 653 (S.D.N.Y. 1994) (citing City of St. Louis v. Praprotnik, 485 U.S. at 126[-27])).
Here, the critical question is whether Strocko, the manager of the Division of Technical Services, Bureau of Housing and Project Development, had final policymaking authority with regard to demolition activities within the City of Rochester. On this question, Strocko has affirmed that he was "responsible for all demolition activity within the City, both public and private." (Docket # 39, Strocko Aff., ¶ 2 (emphasis added)). Strocko also affirms that "[i]n making the determination to proceed with the demolition [of plaintiff's building], I used my professional judgment and experience in determining whether the progress indicated at 64 York Street and the quality of the repairs warranted yet another reprieve from the scheduled demolition." ( Id. at ¶ 24). Particularly relevant here, Strocko alleges that "[d]uring the entire time that I . . . was involved with the property at 64 York Street, . . . Thomas Argust [Commissioner of the Department of Community Development and Strocko's supervisor] had no involvement and was not consulted and did not participate in any decisions involving the determination to demolish 64 York Street." ( Id. at ¶ 25).
Although the record before this Court is not absolutely clear, it appears that final policymaking authority regarding demolition activity rests with Strocko. At the very least, Strocko's actions plainly have established a custom or usage. See St. Louis v. Praprotnik, 485 U.S. at 126. Indeed, the record does not suggest that Strocko's decision to demolish plaintiff's building was subject to the approval of a superior, nor has the City suggested that Strocko's actions exceeded the authority vested in him or did not represent the City's final determination on the issue.
Indeed, in their motion papers, defendants have stated that plaintiffs could have sought judicial intervention to attempt to stop the demolition (Docket # 45, 11-12); notably, they have not argued that plaintiffs could have sought review by another City official or department.
On this record, I find that Strocko is a final policymaking authority and that his actions constituted an official policy of the City. Accordingly, the first element of a Section 1983 violation has been satisfied. This Court must therefore determine whether plaintiffs have proved, or as a matter of law would fail to prove, the second element — namely, whether plaintiffs have been deprived of rights, privileges, or immunities secured by the Constitution or laws of the United States.
2. Right To Due Process : Plaintiffs claim that the City violated their rights under Section 1983 because it did not provide them with procedural due process of law before demolishing the dwelling on 64 York Street. While plaintiffs admit that they were provided a hearing as to the dwelling in 1994, they contend that such hearing did not afford due process for the demolition in 1998. Instead, they claim that before the City razed the Property in 1998, they should have been given notice and a new opportunity to be heard. The City contends, to the contrary, that because the condition of the Property in 1998 remained in the same unsafe condition as it was in 1994, no additional due process protections were triggered in 1998.
a. Legal Framework : Under the Due Process Clause, aggrieved parties are guaranteed the opportunity to present their case and have its merits fairly judged. Logan v. Zimmerman Brush Co., 455 U.S. 422, 434 (1982). Simply stated, a property owner may not be deprived of his or her property interest by the state without first being afforded an opportunity to present a claim of entitlement. Id. at 434 (citing Bell v. Burson, 402 U.S. 535, 542 (1971)).
Of course, a fundamental requirement of due process is the opportunity to be heard. Armstrong v. Manzo, 380 U.S. 545, 552 (1965) (citing Grannis v. Ordean, 234 U.S. 385, 394 (1914)). Such opportunity to be heard must be "at a meaningful time and in a meaningful manner." Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (quoting Armstrong v. Manzo, 380 U.S. at 552). The hearing must also be "appropriate to the nature of the case." Mullane v. Central Hanover Bank Trust Co., 339 U.S. 306, 313 (1950). In the context of municipal demolition, due process requires "timely and adequate notice and 'effective opportunity to defend by confronting any adverse witnesses and by presenting [plaintiffs'] own arguments and evidence orally.'" Burtnieks v. City of New York, 716 F.2d 982, 986 (2d Cir. 1983) (quoting Goldberg v. Kelly, 397 U.S. at 268). These rights are of particular importance in cases where factual disputes exist regarding the physical condition of the premises and the necessity for demolition. Id.
The procedural adequacy of the hearing must be determined in light of the surrounding circumstances. When the potential exists that an individual may be deprived of a significant property interest, except in extraordinary situations, that individual must be afforded an opportunity for a hearing before the deprivation occurs. Id. (citing Boddie v. Connecticut, 401 U.S. 371, 379 (1971)). While the timing of such hearing demands accommodation of competing interests, "the state may not finally destroy a property interest without first giving the putative owner an opportunity to present his claim of entitlement." Id. at 987 (quoting Logan v. Zimmerman Brush Co., 455 U.S. at 434).
The exception to this rule arises where property is demolished because it poses an immediate or imminent threat to public health and safety. See, e.g., Parratt v. Taylor, 451 U.S. 527, 538 (1981); Catanzaro v. Weiden, 188 F.3d 56, 61 (2d Cir. 1999) This case does not implicate this exception, and defendants do not contend to the contrary.
b. Analysis : Plaintiffs do not contest that had the demolition occurred in 1994, the hearing that was conducted in 1994 was procedurally adequate. Rather, the parties dispute whether at the time the demolition occurred — four years later — plaintiffs were entitled to any further due process protections.
Neither party has presented the Court with any relevant caselaw or authority. Rather, both parties have cited only general law regarding procedural due process. Indeed, this Court's exhaustive research has revealed a dearth of controlling authority, but has discovered non-binding authority that is helpful in analyzing the issues presented in these motions. Of particular relevance are two cases falling at opposite ends of the spectrum.
Relevant Second Circuit authority appears limited to cases in which the municipality, without a hearing, demolished property under its authority to demolish property constituting an immediate or imminent risk to public safety or health. See, e.g., Catanzaro v. Weiden, 188 F.3d at 61; Burtnieks v. City of New York, 716 F.2d at 986-89.
In Miles v. District of Columbia, the plaintiff owned two four-story buildings in the District of Columbia, 354 F. Supp. 577 (D.C. Cir. 1973), aff'd, 510 F.2d 188 (D.C. Cir. 1975). In the summer of 1963, the District of Columbia Board for the Condemnation of Insanitary Buildings issued a notice to the plaintiff to show cause why her buildings should not be condemned. The plaintiff requested and received a hearing regarding the proposed condemnation. Following the hearing, in September 1963, the City issued a condemnation order requiring the plaintiff to make such changes and repairs as would remedy the insanitary conditions or to cause the buildings to be demolished and removed within six months. Id. at 580.
Although the plaintiff could have appealed the order, she instead secured a $30,000 loan in a "good faith effort to bring her buildings into compliance with the law." Id. The plaintiff obtained from the City numerous extensions of time in an effort to complete the repairs. Due to multiple causes, however, the repair process continued for six years, during which time "plaintiff demonstrated a constant desire to improve her buildings." Id. at 581. Also during that time period the City represented both to her and to her counsel that sufficient repairs had been made that the building would not be demolished. Miles v. District of Columbia, 510 F.2d at 191.
On June 5, 1969, apparently dissatisfied with the progress of the repair efforts, the City held an ex parte meeting, in which it was determined that the plaintiff's buildings should be razed. At no time was the plaintiff provided notice of the demolition; nor was she given an opportunity to explain her position. The buildings were then demolished six years after the original hearing. Miles, 354 F. Supp. at 579.
The plaintiff filed suit, claiming, inter alia, that the City had violated her right to procedural due process by not providing her with notice or a timely hearing. The district court granted summary judgment to the plaintiff, finding that:
After six long years and the investment of at least $25,000.00, the substantial change in the character of the property certainly warranted the allocation of a short period of the Board's time whereby the plaintiff could have had the opportunity to present evidence to support her proposition that the repairs be completed. Under these circumstances, the failure of the Board to provide for a hearing at a meaningful time and in a meaningful manner constituted a deprivation of the plaintiff's property and denial of her right to repair in violation of due process of law.Id. at 581-82.
The district court's grant of summary judgment was affirmed on appeal, but on the limited alternative holding that she had not been provided adequate notice. Miles v. District of Columbia, 510 F.2d 188, 192-94 (D.C. Cir. 1975). The court stated, "In light of this conclusion, we do not reach, nor express approval or disapproval of the district court's alternative ground that a additional hearing was required." 510 F.2d at 192 n. 1.
At the opposite end of the analytical spectrum is the case of Keystone Commercial Properties, Inc. v. City of Pittsburgh, 347 A.2d 707 (Pa. 1975). In that case, on June 4, 1970, the City of Pittsburgh notified the owners of a building that the building was in a dangerous condition and was therefore condemned. Id. at 708. The notice informed the owners that they had thirty days to remedy the condition or appeal the condemnation order. If the owners failed to take action, they were advised, the building would be demolished. Id.
On December 16, 1970, Keystone Commercial Properties, Inc. (hereinafter "Keystone") became the equitable owner of the property. Keystone was fully aware that the property had been condemned and was subject to demolition; however, it did nothing to remedy the condition of the building. On March 12, 1971, Keystone received a letter indicating that the City was preparing to demolish the building. Approximately two weeks later, Keystone applied for, and received, a permit to seal the building, which stayed the City's right to demolish the building for six months to allow Keystone time to make the necessary repairs. The sealing was approved by the City on August 24, 1971. During the following six months, however, Keystone did nothing to repair the building. Id.
On October 16, 1972, the City sent Keystone another notice, identical to that sent to the original owners sixteen months earlier. The building was demolished by the City on November 2, 1972, approximately seventeen months after sending the original notice. Keystone filed suit claiming, inter alia, that the notice sent in June 1970 no longer satisfied due process by the time of the demolition in November 1972. The court rejected Keystone's claim, finding that Keystone knew of its obligation to remedy the condition of the building for almost two years and yet failed to make any repairs at all, despite a six month grace-period from the City. In reaching its decision, the court distinguished Miles on the grounds that the plaintiff in Keystone, unlike the plaintiff in Miles, had undertaken no repairs at all to the property. Keystone, 347 A.2d at 711-712. On these facts, the court concluded, "Where, in fact, nothing is done to remedy the condition, the City is entitled to rely on and act in accordance with a condemnation order which has been finalized by a fair procedure which afforded ample protection to the property's owners." Id. at 711. See also Samuels v. Meriwether, 94 F.3d 1163, 1167 (8th Cir. 1996) ("The City destroyed the [plaintiffs'] building after a hearing at which the [plaintiffs] presented their position to the Board, and after the [plaintiffs] were given a 30 day period in which to abate the nuisances or face demolition. Without more, no due process violation occurred.").
The record is unclear whether Keystone received the second notice prior to or after the demolition. The court nonetheless found that question irrelevant because "Keystone had no reason to expect notice prior to demolition because the facts serving as the basis for the adjudications had not changed. Id. at 711.
In my view, the facts presented by ths case fall somewhere on the spectrum between those in Miles and those in Keystone and compel the conclusion that unlike Miles and Keystone summary judgment is unwarranted here for either party. While the parties agree that plaintiffs undertook some repairs to the Property, thus distinguishing them from the plaintiffs in Keystone, they disagree over the extent and significance of the repairs and even whether those repairs represented a good faith effort, as they plainly did in Miles. Because I conclude that those factual disputes are material, and resolution of those disputes likely will inform the jury's determination whether the 1994 hearing was "meaningful" to the demolition in 1998, I conclude that summary judgment is inappropriate on the claims relating to the dwelling. See, e.g., Kornblum v. St. Louis County, Missouri, 72 F.3d 661, 664 (8th Cir. 1995) ( en banc) (reversing district court's grant of summary judgment to defendant on procedural due process claim; "the [six-month] delay in demolishing the property contributed significantly to the unreasonableness of the notice in this case"), cert. denied, 517 U.S. 1189 (1996); Cannon v. City of New Orleans, 1997 WL 104981 (E.D. La. 1997) (denying city's motion for summary judgment on the grounds that a two-year delay between condemnation and demolition, and the intervening issuance of a building permit, may have led plaintiff reasonably to believe that building would not be demolished and may have necessitated new notice and opportunity to be heard); Miller v. District of Columbia, 587 A.2d 213 (D.C. 1991) (reversing summary judgment in favor of defendant because factual disputes existed concerning the District's eighteen-month course of negotiations with plaintiff following the initial notice of condemnation).
In this case, demolition of the Property occurred four years after the hearing and five years after the fire. The central question in this litigation is whether over that period of time the circumstances giving rising to the original demolition order had changed significantly to warrant new notice and a new opportunity to be heard. While plaintiffs contend that summary judgment is warranted based solely on the passage of four years, I reject that argument as a matter of law. Plaintiffs had ample time to complete the repairs and had they done nothing during those four years, the case would be in a far different procedural posture than it is. See Keystone, 347 A.2d at 711. I similarly reject any contention by defendants that plaintiffs' failure to complete the repairs during that time period entitles defendants to judgment as a matter of law. Certainly, any suggestion that demolition was required without another notice or hearing because the Property posed a substantial danger of collapse is undercut by the fact that the City allowed the building to stand for over five years following the fire. See Miles, 354 F. Supp. at 580-81 ("the Board apparently felt there was no urgent need for immediate destruction to protect the public interest, since they allowed several years to elapse between ordering demolition").
In this Court's view, the period of greatest activity and consequent relevance to the issues at hand — the April through June 1998 period — is marked by two principal areas of factual dispute that preclude summary judgment at this time. The first area relates to whether, and to what extent, the condition of the Building changed during that period. The second area of dispute relates to whether, and to what extent, the dealings between the parties may have been understood by plaintiffs to amount to the City's encouragement of or acquiescence in their repair efforts.
(1). Change In The Condition Of The Building : After the hearing in 1994, the City issued to plaintiffs its "Hearing Findings," which listed four grounds as the bases for its demolition order. Specifically, the Findings stated that: (1) the structure was vacant and in close proximity to an occupied structure; (2) the interior and exterior were in a neglected condition and had suffered substantial fire damage; (3) all electrical, plumbing, and heating systems were inoperable and in need of repair; and (4) there was no evidence of repair, permits, or maintenance. (Docket # 35, Ex. C).
Conditions and circumstances concerning at least three of these four factors had changed by the time of demolition in 1998. For example, it is undisputed that the condition of the interior of the building had changed by the date of demolition (Factor Two). Although the exact condition of the structure at demolition is unclear, plaintiffs claim to have made substantial repairs to the walls and floor joists. In addition, prior to demolition, plaintiffs claim to have repaired the electrical system, but had not yet connected it (Factor Three). Finally, while the Findings stated that in 1994 there was no evidence of repairs, permits, or maintenance, this clearly had changed by June of 1998 (Factor Four).
While the parties agree that plaintiffs had commenced repairs to the Property, they disagree both as to the extent and legal significance of those repairs. The City characterizes plaintiffs' repairs as not "substantial." (Docket # 39, Strocko Aff., ¶¶ 20-21; Docket # 45 at 7-10). By contrast, plaintiffs assert that their efforts, which included completion of a "significant portion of the wall framing and floor joist replacement," were extensive enough to trigger the right to new notice and an opportunity to be heard before the Property was demolished. (Docket # 35, ¶ 12).
I find also that issues of fact remain concerning the condition of the Property on the date of demolition. While both parties devote much attention to the Property's condition at the time of the inspection, the record demonstrates that Hamilton continued to repair the Property after those inspections. According to plaintiffs, when the demolition crew arrived, Hamilton was on scaffolding preparing to repair the roof. By that date, according to Hamilton, all the framing work had been completed and the electrical system had been repaired. Unlike the condition of the building when Vander Ven conducted his inspection, structural work had been completed on the second and attic floors by the time of demolition, Hamilton testified. Indeed, Hamilton allegedly paid his contractor $3,000 on the day of demolition, in addition to the $5,000 he had already paid, to compensate him for work that had been completed to date. Defendants simply have not addressed the condition of the Property on the date of demolition; indeed, it is not clear from the record whether the City made any inspection or inquiry at the time of demolition to determine whether the defects noted by Vander Ven had been corrected.
In sum, I find that questions of material fact exist regarding the condition of the Property on the date of demolition. Before leaving this issue, I pause to address the City's argument that summary judgment is warranted because the repairs were insufficient to render the Property safe. ( See Docket # 45 at 8). The dispositive question, of course, is not whether the City ultimately would have been justified in demolishing the Property, but rather whether the circumstances giving rise to the demolition order in 1994 had changed to such a degree by 1998 that plaintiffs were entitled to new notice and an opportunity to present their case for why demolition should not proceed. On this record, the fact questions concerning the changed circumstances — and how, if at all, those changes affected the "meaningful[ness]" of the 1994 hearing as it applied to the demolition in 1998 — are appropriately reserved for a jury.
(2). Actions By The City : The second area of material factual dispute concerns actions and statements made by the City's representatives which plaintiffs contend encouraged them to proceed with repairs. Specifically, factual issues exist concerning the City's issuance to plaintiffs of two permits and its inspection of the Property following Vander Ven's inspection. Plaintiffs contend that these actions led them to believe that they were authorized to proceed with repairs and that demolition was not scheduled; defendants counter that Hamilton knew, or should have known from his prior experience as a contractor with the City ( see Docket # 39, Ex. O at 17-21, 126), that reliance on such actions was unjustified. Again, this Court concludes that such disputes must properly be resolved by a jury. See Cannon v. City of New Orleans, 1997 WL 104981 at *3 ("A reasonable trier of fact could find that the City had a custom, policy, or practice of issuing building permits and demolition permits willy-nilly; that that custom, policy or practice entitled plaintiff to a new notice and hearing to comport with due process; and that the City failed to provide such notice").
No dispute exists, of course, that the City issued a permit to plaintiffs to repair fire damage to the most heavily damaged apartment in the building. While the City maintains that Hamilton "fraudulently" procured the permit, the Court believes that Hamilton's intent and good faith cannot be resolved as a matter of law on this record. Plaintiffs unquestionably did not disclose the existence of the 1994 demolition order at the time they applied for the permit. Hamilton testified that he did not believe at that time — four years later — that demolition was scheduled or still planned, and, in any event, the application did not require disclosure of those facts. Defendants also assail as deceptive plaintiffs' application for a permit to make repairs to only one of the apartments. Hamilton's state of mind at the time he applied for the permit, and the resulting reasonableness or unreasonableness of any purported reliance on the permit's issuance, depend upon credibility determinations which cannot and should not be made by this Court as a matter of law.
See Docket # 44, Affidavit of Paul MacAulay, sworn to on March 22, 2003, ¶ 8.
The City since has changed its procedures to ensure that permits are not issued for properties "marked for demolition." (Docket # 44, Defendants' Objections to Plaintiffs' Statement at 5 n. 3).
Similar questions abound with respect to Schell's inspection of the Property. It is uncontested that such inspection was conducted in connection with the permit and postdated Vander Ven's inspection. While Vander Ven had advised Hamilton that his repairs were insufficient to justify cancellation of the demolition, Hamilton disputes that Strocko advised him, as Strocko maintains he did, that he had determined to proceed with demolition. As the record makes clear, Schell did not indicate to Hamilton during his inspection that he should cease repairs because the City was proceeding with demolition. Instead, Schell outlined further repairs and steps that were necessary, including scheduling additional inspections and obtaining an electrical permit, which Hamilton obtained the next day. Schell also provided an inspection report to Hamilton which outlined repairs and scheduled a reinspection for a date after the scheduled demolition. While Schell characterizes the report as only "partial," nothing in the record shows that Schell advised Hamilton that the report was incomplete. Although Schell did not know of the scheduled demolition when he inspected the Property, the more critical question is whether Hamilton knew or should have known that Schell's actions and statements, and the subsequent issuance of the electrical permit, were entirely immaterial to the City's decision whether to proceed with demolition. Again, that question is not susceptible to resolution on a motion for summary judgment.
In conclusion, the very factors on which the courts relied in awarding summary judgment for the plaintiff in Miles and for the defendant in Keystone preclude summary judgment for either party on the due process claim relating to the dwelling. Quite simply, factual disputes exist relating to the "change in conditions" of the dwelling, see Miles, 354 F. Supp. at 581, the course of dealings between the parties and the reasonableness of plaintiffs' reliance, if any, that may have resulted from those dealings. See Cannon v. City of New Orleans, 1997 WL 104981 at *3 ("the Court finds that genuine issues of material fact exist as to the City's policy of issuing permits [and] the reasonableness of plaintiff's belief that the property would not be demolished after the issuance of a building permit"). Resolution of those disputes falls within the province of the jury and will likely weigh in its determination whether the due process protections afforded in 1994 remained "meaningful" in 1998. Accordingly, summary judgment is denied on this claim. B. Plaintiffs' Negligent Demolition Claim
Because defendants Strocko and Argust are sued in their official capacity — Strocko as the City employee with responsibility for all of the City's demolition activity and Argust as the Commissioner of the department responsible for such demolitions — summary judgment is equally inappropriate for them. See generally Kendrick v. Town of Winchester/City of Winsted, 11 F. Supp.2d 212, 215-16 (D. Conn. 1998).
Plaintiffs have also asserted a claim for negligent demolition on the dwelling. This claim is closely related to plaintiffs' due process claim and many of the factual issues making summary judgment inappropriate on the due process claim will preclude summary judgment on this claim as well. Plaintiffs contend that through their continuous dealings with Strocko and other City officials during the four years following the hearing, they developed a relationship with the City pursuant to which the City assumed a duty towards them. Plaintiffs further contend that by demolishing the Property, the City negligently violated that duty. (Docket # 38).
As an initial matter, defendants move for summary judgment on the grounds that plaintiffs have abandoned their negligence claim. According to defendants, plaintiffs' brief in support of their summary judgment motion (Docket # 38) refers only to a Section 1983 negligence claim. Plaintiffs' Complaint, however, alleges only a common law negligence claim. Therefore, by failing to address the common law claim in their brief, defendants posit, plaintiffs have abandoned that claim. (Docket # 45). I reject the City's contention.
Although plaintiffs' brief refers to negligence under Section 1983 (Docket # 38), the principal case upon which plaintiffs rely — Leland v. Moran, 100 F. Supp.2d 140, 146 (N.D.N.Y. 2000) — actually analyzes the negligence claim under common law principles, consistent with plaintiffs' Complaint. Moreover, plaintiffs have continuously maintained throughout the litigation of this case that the City's demolition of their property constituted a negligent and wrongful taking. This Court further notes that because Section 1983 clearly does not encompass a negligence claim, see Daniels v. Williams, 474 U.S. 327, 332 (1986) (negligent conduct cannot give rise to a § 1983 due process claim); Lunde v. Oldi, 808 F.2d 219, 221 (2d Cir. 1986) (same), it is reasonable to assume that plaintiffs intended only to raise a common law claim. Thus, I deny defendants' assertion that plaintiffs have abandoned their negligence claim, and I will regard plaintiffs' claim as one for negligence under the common law.
Under New York common law, it is well-settled that a municipality generally cannot be held liable for the negligent exercise of governmental functions "unless there is proof of the existence of a special duty owing to the persons injured in contrast to a duty owed to the general public." Leland v. Moran, 100 F. Supp.2d 140, 146 (N.D.N.Y. 2000) (citing New York State cases); see also DeLong v. Erie County, 60 N.Y.2d 296, 304 (1983). Such a "special duty" "can be found when a special relationship exists between the municipality and the individual or class of persons, warranting the imposition of a duty to use reasonable care for those persons' benefit." Leland v. Moran, 100 F. Supp.2d at 146 (citing Garrett v. Holiday Inns, Inc., 58 N.Y.2d 253, 261 (1983)).
Four elements are necessary to establish the existence of a "special relationship." These elements are: "(1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality's agents that inaction could lead to harm; (3) some form of direct contact between the municipality's agents and the injured party; and (4) that party's justifiable reliance on the municipality's affirmative undertaking." Cuffy v. City of New York, 69 N.Y.2d 255, 260 (1987). Simply stated, the relevant inquiry in this case is whether the City assumed a duty to cooperate with plaintiffs in their efforts to repair the Property and whether plaintiffs justifiably relied upon representations and undertakings by the City in the course of their dealings.
Many of the issues of fact already discussed are also relevant to plaintiffs' negligence claim. Of particular importance are the disputes regarding Hamilton's dealings with the permit office. Plaintiffs contend that because the City continued to issue permits to them, they were justified in their belief that the City supported their repair efforts and would not demolish their building. (Docket ## 38, 50). Conversely, defendants contend that the individuals in the permit office were unaware of the scheduled demolition and, therefore, no special relationship could arise on the basis of the issuance of permits. (Docket # 45). While the individuals issuing the permit may have been unaware that the Property was scheduled for demolition, the permit office exists within the same City department as Strocko's office. ( See Docket # 49). Thus, and for the reasons already discussed, questions of fact remain as to whether plaintiffs reasonably relied on the fact that the City continued to issue permits so as to create a special relationship.
Also relevant are disputes relating to the multiple inspections conducted by various City officials. It is undisputed that Vander Ven advised Hamilton that his repair efforts were insufficient to justify cancellation of the demolition. However, after Vander Ven's inspection, the Property was inspected by Schell. Schell outlined for Hamilton further repair steps that should be taken and scheduled an additional inspection for a date after the scheduled demolition. Based upon Schell's recommendation, moreover, Hamilton obtained an additional electrical permit. As previously discussed, questions of fact remain relating to Hamilton's reasonable understanding of the relationship between Schell's inspection and the City's decision whether to proceed with demolition.
On this record, I find that genuine issues of material fact exist as to the establishment of a special relationship between Hamilton and the City. Accordingly, this Court denies both parties' motions for summary judgment on the negligence claim pertaining to the dwelling.
III. Claims Relating To Garage At 64 York Street
The state of the record concerning the garage demolition differs substantially from that pertaining to the dwelling demolition. Specifically, I find — as both parties have maintained — that no material facts are in dispute relating to the garage demolition. I further find that application of fundamental due process jurisprudence to those facts warrants judgment for plaintiffs as a matter of law on their claim that the City deprived them of procedural due process in demolishing the garage. I conclude, however, for the same reasons that I denied summary judgment on the negligence claim as it related to the dwelling, that factual issues exist to preclude summary judgment for either party on that claim as it pertains to the garage.
Because plaintiffs seek summary judgment only against the city and not against defendants Argust and Stocko, judgment will be limited to the City. Considering plaintiffs' counsel's statement at oral argument that plaintiffs are not "concerned" with defendant Argust or "overly-concerned" with defendant Strocko, the parties are encouraged to confer concerning whether plaintiffs intend to proceed on this claim against Argust and Strocko or whether they wish to withdraw their claim. Of course, because the claims against Argust and Strocko are only official capacity claims, those claims are identical to the claims against the City and afford plaintiffs no additional relief. See Kendrick v. Town of Winchester/City of Winsted, 11 F. Supp.2d 212, 215 (D. Conn. 1998) ("[I]n official capacity suits, the real party in interest is the government entity or municipality, and not the officer himself") (citations omitted).
As discussed above, in the context of municipal demolition of allegedly unsafe private property, due process generally requires notice to the property owner that his property may be demolished before such demolition occurs. See, e.g., Burtnieks v. City of New York, 716 F.2d at 986. Here, the notice that the City provided to the plaintiffs advising them of the hearing stated:
Notice is hereby given to all interested persons, corporations, and agents that the Commissioner of Community Development has determined that the structure(s) at 64 York Street owned by Linford Delores Hamilton is/are unsafe or dangerous pursuant to Section 90-27 of the Rochester City Code.
A Hearing to review this determination has been scheduled on Thursday, May 12, 1994 at 11:00 A.M. in Room 124B, City Hall before a Hearing Officer appointed by the Commissioner.
Nowhere in the notice is the garage explicitly mentioned.
The City's position with respect to the adequacy of notice apparently has evolved as the litigation has progressed. On the one hand, during discovery, defendants admitted in their Response to Plaintiffs' Notice to Admit that the City did not notify plaintiffs of its intent to demolish the garage at any time prior to the demolition. (Docket # 35, Ex. N, ¶ 28). By the time these motions were argued, however, defendants maintained that "plaintiffs were put on notice of the City's intent to demolish not only the apartment house but the detached garage as well. See Exhibit B of defendants' papers, the Hearings Findings which, across from the address block at the top of the first page, list both the 2½ story frame building and the detached garage as the subject of the Hearings Findings." (Docket # 35 at 10).
This Court rejects the City's later position as patently untenable. First, no dispute exists that the April 19, 1994 notice is the only notification that plaintiffs received prior to the hearing and that it did not mention the garage. The purpose of notice in providing due process is obvious; it is "to provide an opportunity to prepare to meet the issues to be raised at the hearing." Housler v. Nelson, 453 F. Supp. 874, 878 (D. Conn. 1978). How the City could maintain that the notice adequately apprised plaintiffs that the unmentioned garage — which was not damaged in the fire or otherwise non-compliant with City codes or ordinances — was in danger of demolition completely eludes this Court. To maintain that the Findings — which were premised on testimony relating to the dwelling and not the garage and which were issued after the hearing — somehow constituted after-the-fact, constitutional notice is even more baffling. In other words, the City got it right the first time; as they admitted, "[a]t no time prior to June 19, 1998 did the City of Rochester notify plaintiff of its intention to demolish the garage at 64 York Street." (Docket # 35, Ex. N, ¶ 28). Defendants should not be permitted legally, and cannot be permitted factually, to disavow that admission.
Defendants also seek to justify the demolition on the grounds that Notice was not required because the City Code prohibits accessory structures, such as garages, unless they are used in connection with a principal use, such as a house. (Docket # 45 at 10). Once the dwelling was razed, defendants assert, plaintiffs' legal right to maintain the garage was extinguished and the City was entitled to demolish the garage.
Of course, the question presented here is not whether the plaintiffs were or were not entitled to maintain a garage, but whether the City was entitled to demolish the garage without prior notice to plaintiffs and without affording them an opportunity to be heard. This Court concludes as a matter of law that the City was not.
Defendants admit two facts which materially undermine their position. First, they assert that plaintiffs did not seek a zoning variance to permit them to maintain the garage. (Docket # 44, Affidavit of Arthur Ientilucci, sworn to on March 21, 2003, ¶¶ 3-4). That a property owner could apply for a variance in these circumstances underscores the need for notice. Without notice that the garage would be razed, plaintiffs could not appreciate the need to timely apply for a variance.
Second, defendants virtually admit that demolition of the garage violated the City's code procedures. According to defendants, while there are circumstances under which the City may raze a property without affording the owner pre-deprivation notice and hearing, those circumstances are limited to situations in which the City determines the property to constitute an imminent danger to public health or safety. (Docket # 39, Ex. L). There is simply no evidence in the record to suggest that the garage posed such a danger; any intimation that its vacant condition created such a risk is undercut by the city's own procedures which require pre-deprivation notice and hearing before demolishing a vacant structure, unless it poses an imminent danger. (Docket # 39, Ex. N).
Even in those emergency situations, the City must afford the owner notice and a hearing "where practicable." (Docket # 39, Ex. L).
In sum, for the reasons set forth above, this Court concludes that judgment is warranted as a matter of law for plaintiffs on their due process claim pertaining to the garage. Because the value of the garage and any property that may have been contained in the garage is in dispute, judgment is limited to liability and the case shall proceed in order to determine damages.
Nowhere in their moving papers do plaintiffs even attempt to assign a value to the garage or to any property contained therein or otherwise to calculate damages resulting from the due process violation.
Summary judgment is not appropriate, however, on plaintiffs' claim for negligent demolition of the garage. The same factual disputes that make judgment as a matter of law inappropriate on the negligence claim relating to the dwelling make it inappropriate as to the garage as well. Simply put, factual issues exist as to whether the City owed a special duty to plaintiffs, whether plaintiffs relied on the City's undertakings and whether such reliance, if it existed, was justifiable.
Accordingly, plaintiffs' motion for summary judgment pertaining to the garage demolition is granted on their due process claim and denied on their negligence claim. Defendants' motion for summary judgment on both claims is denied.