Opinion
99 Civ. 8615 (LAK)
July 12, 2000
ORDER
Defendants move for summary judgment dismissing what remains of plaintiff's amended complaint. Plaintiff has not responded to the motion. Accordingly, the facts set forth in defendants' Rule 56.1 Statement are accepted as true.
The general nature of the case and the claims asserted herein are described in the orders dated March 7 and April 24, 2000, familiarity with which is assumed.
1. The second and third claims for relief, insofar as they remain pending, contend that the City deprived plaintiff of his right to procedural due process and, perhaps, equal protection because they did not afford him a right to an immediate hearing with respect to the order to vacate his premises, whereas such hearings allegedly are available in other circumstances. These claims are entirely without merit, even assuming that plaintiff had a property right at stake.
Plaintiff had the right to challenge the vacate order in an Article 78 proceeding, as in fact he did. There was no requirement of a pre-deprivation hearing, particularly given the emergency nature of the situation. See Mitchell v. W.T. Grant Co., 416 U.S. 600, 611 (1974) (pre-deprivation hearing not required where property rights involved and there is adequate post-deprivation remedy); Mendez v. Dinkins, 226 A.D.2d 219, 223, 640 N.Y.S.2d 889, 892 (1st Dept. 1996). Hence, there was no deprivation of procedural due process.
Nor was there any equal protection violation. Plaintiff points to no statute or regulation affording anyone a right to a pre-deprivation hearing in any relevant circumstances. Hence, there is no disparity of treatment.
2. The remaining part of the fourth claim for relief is that Detective Pellachia deprived plaintiff of his rights under 42 U.S.C. § 1981 et seq. by bringing to the attention of the Buildings Department, "as part of a vendetta" to harm plaintiff, circumstances at plaintiff's premises that resulted in the issuance of notices of violation and the vacate order. Plaintiff has failed to establish, however, that Pallachia's alleged actions violated any of the cited statutes, much less that his alleged action in doing so violated clearly established rights of which a reasonable person in his position would have known. Accordingly, the fourth claim is dismissed as against Detective Pellachia on the merits and on the ground of qualified immunity.
3. The seventh claim for relief charges Detective Pellachia with violation of 42 U.S.C. § 1983 in that he allegedly falsely arrested plaintiff and appears to be brought against the City, but not Detective Pellachia. Defendants' Rule 56.1 Statement establishes that Detective Pellachia had probable cause for the arrest. Def. Rule 56.1 St. ¶¶ 3- 4. In any case, plaintiff has failed to raise a genuine issue of material fact as to Monell liability on the part of the City. Accordingly, the seventh claim for relief is dismissed.
For the foregoing reasons, defendants' motion for summary judgment dismissing the amended complaint is granted in all respects. The Clerk shall close the case.
SO ORDERED.