DeGroote v. City of Troy et al

Filing 74

MEMORANDUM-DECISION and ORDER - That defendants' motion for summary judgment (Dkt. No. 63) is GRANTED insofar as the Theater's claims for violations of 42 U.S.C. 1982, substantive due process, equal protection, and the Privileges and Immuni ties Clause are DISMISSED. That the Theater's claims against defendant Henry Tutunjian are DISMISSED and Harry Tutunjian is TERMINATED from this action. That defendants' motion for summary judgment (Dkt. No. 63) is otherwise DENIED. That the Theater's cross-motion for partial summary judgment (Dkt. No. 66) is DENIED. Signed by Judge Gary L. Sharpe on 8/26/2011. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_________________________________
CINEMA ART THEATER, INC.,

Plaintiff,

1:09-cv-413
(GLS\RFT)

v.
CITY OF TROY; MAYOR HENRY
TUTUNJIAN; FIRE CHIEF THOMAS
O. GARRETT; CITY ENGINEER
RUSS REEVES; JOHN DOE; and
RICHARD ROE,
Defendants.
_________________________________
APPEARANCES:

OF COUNSEL:

FOR THE PLAINTIFF:
Kindlon, Shanks Law Firm
74 Chapel Street
Albany, NY 12207

TERENCE L. KINDLON, ESQ.

FOR THE DEFENDANTS:
Pattison, Sampson Law Firm
22 First Street
P.O. Box 208
Troy, NY 12181-0208
Gary L. Sharpe
District Court Judge

DONALD J. SHANLY, ESQ.
JONATHAN G. SCHOPF, ESQ.
MICHAEL E. GINSBERG, ESQ.

MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff Cinema Art Theater, Inc., an adult movie theater,
commenced this action pursuant to 42 U.S.C. §§ 1982, 1983, 1985, and
1988 alleging violations of its constitutional rights in connection with
defendants’ removal of its marquee. (2d Am. Compl., Dkt. No. 36.)
Pending is defendants’ motion for summary judgment, (Dkt. No. 63), and
the Theater’s cross-motion for partial summary judgment, (Dkt. No. 66).
For the reasons that follow, defendants’ motion is granted in part and
denied in part, and the Theater’s cross-motion is denied.
II. Background
Until its closure in 2006 for alleged violations of the Troy City Code,
the Cinema Art Theater, Inc., a New York corporation, was in the business
of showing adult movies and selling adult novelty items at its property at
285-289 River Street, Troy, New York. (Defs. SMF ¶ 1, Dkt. No. 63:2; Pl.
Resp. Mem. of Law at 2, Dkt. No. 66:2.) Jan DeGroote is the sole
shareholder and president of the Theater. (See Defs. SMF ¶ 1, Dkt. No.
63:2.)
On April 13, 2006, defendants Russ Reeves, City Engineer for the
2

City of Troy, and Thomas O. Garrett, Fire Chief for the City of Troy, visited
the Theater to investigate alleged complaints that bricks and masonry were
falling in the rear of the building. (See id. at ¶¶ 2, 4.) During the
investigation, which was comprised of a visual inspection lasting
approximately thirty minutes, Reeves claims to have noticed that the
Theater’s marquee, which overhangs a heavily-traveled pedestrian
sidewalk, was showing signs of deterioration. (See id. at ¶ 6.) In an April
13 letter detailing his observations, Reeves stated as follows:
Using the Fire Department Aerial Tower Truck, we evaluated
the front marquee signage and attachments. There is evidence
of moisture penetration in flashed and caulked joints.... There
are two deteriorated and rusted wire cables that are supporting
the marquee and the signage.... The cables are attached to the
building with a single bolt into the masonry joint as shown. The
additional chain attachment ... is not in tension and is offering
no supplemental support to the wider portion of the marquee
and sign. This methodology of attachment is inadequate and in
addition to the structural components that are supporting this
marquee are deteriorated. For public safety, we have closed off
the westerly sidewalk with in [sic] this marquee area along River
St. and are requiring you to remove this marquee within a
twenty-four hour period; otherwise, the City will remove it and
invoice you accordingly with a fine and an issue to appear in
court.
(Kindlon Aff., Ex. F, April 13 Letter at 4-5, Dkt. No. 66:10.) According to
defendants, this letter was delivered to the building manager at the Theater

3

that day and was also “sent to [DeGroote] via facsimile.” (Defs. SMF ¶ 6,
Dkt. No. 63:2.) A copy of the letter was also “cc’ed” to, among others, Troy
Mayor Henry Tutunjian. (See Kindlon Aff., Ex. F, April 13 Letter at 6, Dkt.
No. 66:10.) In addition to delivering the letter, defendants further claim that
Reeves personally spoke with DeGroote that day, informing him of the
condition of the marquee. (See Defs. SMF ¶¶ 6-7, Dkt. No. 63:2.)
According to DeGroote, however, he never received a copy of the April 13
letter or had any conversation with Reeves or with any other City of Troy
employee as to the condition or removal of the marquee. (See Pl. Resp.
SMF ¶ 7, Dkt. No. 66:1; Pl. Resp. Mem. of Law at 3, Dkt. No. 66:2.)
Instead, DeGroote claims he received notice of the situation on the evening
of April 13, when he “received a telephone call from his then-attorney
Michael Deal, who explained that the City of Troy was going to demolish
the marquee the next day.” (Pl. Resp. Mem. of Law at 4, Dkt. No. 66:2.)
The next day, April 14, defendants claim that a contractor hired by
DeGroote came to City Hall and met with Reeves and his staff. (See Defs.
SMF ¶ 8, Dkt. No. 63:2). According to defendants, “the contractor refused
to identify himself, sign for the necessary permit to begin work on the
marquee or to cooperate with city officials in giving them the necessary
4

information to fill out the permit form.” (See id. at ¶ 8.) Reeves testified
that based on these actions he “determined that the repair work would not
begin on the marquee within the specified 24 hour period.” (Id. at ¶ 9.)
Thus, he explained, “in order to assure the safety of the public, and given
the nature of the situation, [he] gave the order to remove the marquee from
the building.” (Id.) DeGroote denies ever “retain[ing] or send[ing] a
contractor to pick up a permit from City Hall.” (Pl. Resp. SMF ¶ 8, Dkt. No.
66:1.)
In line with his decision, Reeves directed Fire Chief Garrett to arrange
for a demolition company to remove the marquee on April 14, which Garrett
did. (See Defs. SMF ¶ 11, Dkt. No. 63:2.) That day, however, prior to the
marquee’s removal, DeGroote hired two engineers—Micheal J. Kenneally
of Shamrock Engineering P.C. and Neil Weisel of Ryan-Biggs Associates,
P.C.—to inspect the structural integrity of the marquee. (Kindlon Aff., Exs.
H & I, Dkt. Nos. 66:12 & 66:13.) Upon arrival at the Theater that morning,
the engineers initially observed that there were no barricades in place to
prevent the public from walking below the marquee. (See id.) With respect
to their inspection of the marquee itself, the engineers were able to observe
through a hole in the Theater’s ceiling that the marquee appeared to be
5

supported by at least one steel beam. (See id.) Based on this and other
observations, the engineers concluded that the chains and wires noted by
the City of Troy in its report as indicating structural instability were likely not
required for the structural integrity of the marquee. (See id.) As to the
cables, for example, Mr. Kenneally stated that while “the cables were
assumed to support the signage and the marquee, upon actually inspecting
the structure, it would have been apparent that the sign was independent
structure and therefore, the cables only supported a portion of the load.”
(Kindlon Aff., Ex. I at 2, Dkt. No. 66:13.) And with respect to the chains, Mr.
Kenneally stated that his “observation indicate[d] that chains were not
intended to be or at the very least, not acting as structural elements, but
rather decorations,” explaining that “[i]f the chains were required for the
continued structural integrity of the Marquee, they would have been taught
[sic] [, which they were not,] and the Marquee would have been significantly
out of level[, which it was not].” (Id. at 2-3.) Ultimately, Mr Kenneally
opined that “the Marquee was structurally sound and in absolutely no
danger of failure or collapse, partial or otherwise.” (Id.)
Mr. Wiesel concluded similarly, stating that “the sag in the ornamental
chains indicated they were under minimal tension load and therefore the
6

canopy was likely being supported by structural framing hidden within the
architectural finishes.” (Kindlon Aff., Ex. H at 4, Dkt. No. 66:12.) Mr.
Wiesel further stated that “[a]lthough the upper wire support cables
appeared to be in tension, they appeared to be too light to carry the weight
of the marquee,” concluding that “[s]ince the chains were sagged and the
wire support cables were inadequate to support the canopy weight, the
marquee was likely being supported by structural framing hidden within the
architectural finishes of the marquee.” (Id.)
As planned, the marquee was removed on the evening of April 14
and was stored at the City of Troy Fire Station where it was eventually
picked up by a representative of DeGroote. (See Defs. SMF ¶¶ 12, 14,
Dkt. No. 63:2.) To date, the marquee has not been replaced or restored,
and the Theater has not reopened since its closing in March 2006. (See
id.)
On April 8, 2009, DeGroote commenced this action against Reeves,
Fire Chief Garrett, the City of Troy, City of Troy Mayor Henry Tutunjian,
John Doe, and Richard Roe, alleging violations of his federal constitutional
and statutory rights. (Dkt. Nos. 1, 7.) On June 25, 2010, this court granted
DeGroote’s motion to substitute the Cinema Art Theater, Inc. as plaintiff,

7

and, on June 29, the complaint was amended accordingly. (Dkt. Nos. 35,
36.) On October 14, 2010, defendants moved for summary judgment, (Dkt.
No. 63), and the Theater’s cross-moved for partial summary judgment
shortly thereafter, (Dkt. No. 66).
III. Standard of Review
The standard for the grant of summary judgment is well established
and will not be repeated here. For a full discussion of the standard, the
court refers the parties to its previous opinion in Bain v. Town of Argyle,
499 F. Supp. 2d 192, 194-95 (N.D.N.Y. 2007).
IV. Discussion
A.

Section 1982 Claim
In its complaint, the Theater states, without explanation, that

defendants violated its rights under 42 U.S.C. § 1982. Section 1982
provides that “[a]ll citizens ... shall have the same right, in every State and
Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease,
sell, hold, and convey real and personal property.” 42 U.S.C. §1982. To
establish a claim under § 1982, a plaintiff must show: “(1) [he] is a member
of a racial minority; (2) defendant intended to discriminate on the basis of
race; and (3) the discrimination involved one or more of the activities
8

enumerated in the statute[].” Grajales v. Mendez, No. 11 CV 3069, 2011
WL 3163032, at *1 (E.D.N.Y. July 25, 2011) (citations omitted). The
plaintiff must further show that the “defendants’ actions were purposefully
discriminatory and racially motivated.” Id. (citation omitted).
Here, even assuming the Theater has standing to assert a § 1982
claim, which defendants dispute, the claim would nonetheless fail.
Specifically, while the Theater claims broadly that defendants have violated
its rights under § 1982, it has alleged no facts or offered any evidence even
remotely suggesting that race played any role in the decision to remove the
marquee, or in any other respect. Accordingly, the Theater’s complaint is
dismissed insofar as it asserts a claim under § 1982.
B.

Section 1983 Claims

1.

Standing
Defendants next argue that the Theater, by virtue of its corporate

status, lacks standing to assert its claims under § 1983 for violations of the
Due Process, Equal Protection, and Privileges and Immunities Clauses.
(See Defs. Mem. of Law at 2, Dkt. No. 63:17.) As to the Theater’s due
process and equal protection claims, the court disagrees. As the Theater
correctly observes, a corporation, which is a “‘person’ within the meaning of
9

the [E]qual [P]rotection and [D]ue [P]rocess ... clauses,” Grosjean v. Am.
Press Co., 297 U.S. 233, 244 (1936) (citation omitted), may bring suit
under § 1983 for due process and equal protection violations, see, e.g.,
Discovery House, Inc. v. Consol. City of Indianapolis, 319 F.3d 277 (7th
Cir. 2003) (equal protection); Fulton Mkt. Cold Storage Co. v. Cullerton,
582 F.2d 1071 (7th Cir. 1978) (due process). Thus, contrary to defendants’
assertions, the Theater’s corporate status does not itself preclude the
Theater from bringing a § 1983 action for violations of due process or equal
protection. However, to the extent the Theater is attempting to vindicate
rights afforded by the Privileges and Immunities Clause of the Fourteenth
Amendment through § 1983, such a claim would necessarily fail. See
Grosjean, 297 U.S. at 244 (explaining that the Privileges and Immunity
Clause does not apply to corporations because “a corporation ... is not a
citizen within the meaning of [that] clause”). Accordingly, defendants’
motion seeking dismissal of the Theater’s equal protection and due process
claims on standing grounds is denied, but is granted as to any claims being
asserted under the Privileges and Immunities Clause.
2.

Municipal Liability
Defendants next contend that the Theater’s claims against the City of
10

Troy should be dismissed under Monell v. Dep’t of Soc. Servs., 436 U.S.
658 (1978), arguing that no basis for municipal liability exists. (See Defs.
Mem. of Law at 3-4, Dkt. No. 63:17.) The court disagrees.
It is well settled that municipal liability may be established based on
the single acts of a municipal official with “final policymaking authority.”
See City of St. Louis v. Praprotnik, 485 U.S. 112, 123 (1988); Pembaur v.
City of Cincinnati, 475 U.S. 469, 480 (1986); Jeffes v. Barnes, 208 F.3d 49,
57 (2d Cir. 2000). “A court can identify individuals who have policymaking
authority by their receipt of such authority through express legislative grant,
or through their delegation of policymaking authority from those to whom
the power has been expressly granted.” Lathrop v. Onondaga Cnty., 220
F. Supp. 2d 129, 136 (N.D.N.Y. 2002) (citation and internal quotation marks
omitted). Further, “the official in question need not be a municipal
policymaker for all purposes. Rather, with respect to the conduct
challenged, he must be responsible under state law for making policy in
that area of the municipality’s business.” Jeffes, 208 F.3d at 57 (citations,
emphasis, and internal quotation marks omitted).
Here, it appears undisputed that Reeves, as City Engineer,
possessed final decisionmaking authority under the Troy City Code with

11

respect to whether a building or structure should be demolished. (See City
of Troy Resp. to Interrogs., at 2, 5, Dkt. No. 66:16.) Thus, because it was
Reeves’s decision to remove the marquee, and because that decision
appears ultimately to have led to the alleged constitutional violations, the
court is satisfied at this juncture that a basis for liability against the City of
Troy exists. Accordingly, defendants’ motion as to this issue is denied.
3.

Procedural Due Process
The Theater claims that defendants violated its procedural due

process rights by “not afford[ing it] a hearing or an opportunity to be heard
prior to the demolition of the marquee.” (Pls. Resp. Mem. of Law at 7, Dkt.
No. 66:2.) In seeking summary judgment on this claim, defendants argue
that a predeprivation hearing was not required because the condition of the
marquee presented a genuine emergency that required urgent action and
an adequate postdeprivation remedy was available. (See Defs. Mem. of
Law at 9-12, Dkt. No. 63:17.)
“[T]o satisfy the requirements of due process, notice and a
predeprivation hearing are ordinarily necessary.” DiPietro v. City of New
York, No. 09-CV-932, 2010 WL 449096, at *6 (E.D.N.Y. Feb. 2, 2010). A
predeprivation procedure is not required, however, “when there is a
12

genuine emergency that requires urgent action and an adequate
postdeprivation remedy is available.” Id. (citing Catanzaro v. Weiden, 188
F.3d 56, 61-62 (2d Cir. 1999)); see also WWBITV, Inc. v. Vill. of Rouses
Point, 589 F.3d 46, 51 (2d Cir. 2009). As relevant here, a public official’s
decision to invoke an emergency demolition procedure without a
postdeprivation hearing is afforded “some deference.” Catanzaro, 188 F.3d
at 62. Still, the official’s discretion in making that decision is not limitless.
See id. Indeed, “the due process guarantee is offended” and liability
attaches “when an emergency procedure is invoked in an abusive and
arbitrary manner.” Id. In determining whether a public official has abused
his constitutionally afforded discretion to invoke the emergency doctrine,
the central inquiry is whether “competent evidence allowing the official to
reasonably believe that an emergency [did] in fact exist, or that affording
predeprivation process would be otherwise impractical.” Id. at 63. Of
course, this inquiry is factual in nature and is therefore “subject to the usual
considerations for a district court addressing a summary judgment motion.”
WWBITV, 589 F.3d at 51. Thus, “[s]ummary judgment may not be awarded
where there is a genuine issue of fact as to whether officials acted
arbitrarily in declaring an emergency.” Id.
13

Here, in response to defendants’ motion, the Theater contends that
“the emergency demolition procedure was not properly invoked because
Defendants did not have a sufficient evidentiary basis to support their
emergency finding.” (Pl. Resp. Mem. of Law at 7-12, Dkt. No. 66:2.) More
specifically, the Theater claims that the decision to remove the marquee
was “abusive and arbitrary” since it “was the result of an improper an illmotivated inspection, because had Defendants conducted a proper and
impartial inspection they would have concluded that the marquee was
structurally sound and did not require immediate demolition.” (Id. at 8.)
In support of these contentions, the Theater highlights that
defendants “inspection lasted ... thirty minutes and consisted of visual
observations only”; that although the wire cables and chains attached to the
marquee were ornamental and offered no structural support, defendants
nonetheless “concluded that the entire marquee had to be demolished
because ... the ... cables and chains ... showed rust and were inadequate
to support the marquee”; that the marquee was, in fact, supported by
structurally sound, steel beams, which defendants failed to inspect prior to
demolition despite the Theater’s engineers discovery of those beams; and
that “there were alternative methods of supporting the marquee until the
14

structural integrity of the steel beams could be determined.” (Id. at 9.)
Plaintiffs further highlight that “[t]here were no complaints of falling debris
from the marquee”; that “[t]he marquee was not tilted, off-centered or
lopsided”; that “[t]here was no indication that the marquee was falling, had
unnecessary holes or suffered some extenuating damage that would
prompt an inspection by Defendants”; and that Reeves testified that he did
not feel that the danger of the marquee collapsing onto the sidewalk was
imminent. (Id. at 10; Reeves Dep. at 10, Dkt. No. 66:9.)
Given these facts, and the record as a whole, the court is not
persuaded that defendants are entitled to summary judgment on the
Theater’s procedural due process claim. Specifically, in light of conflicting
evidence relating to the condition of the marquee, the apparentness of that
condition, and the seemingly limited nature and extent of the City’s
inspection—all of which arguably call into question the competency of the
evidence underlying the defendants’ decision to remove the marquee and
the reasonableness of the decision based on that evidence—the court is
presently unwilling to conclude, as a matter of law, that defendants did not
abuse their discretion in concluding that the marquee created a genuine
emergency. Accordingly, based on the record now before it, the court
15

denies defendants’ motion as to the Theater’s procedural due process
claim.
4.

Substantive Due Process
Defendants also seek summary judgment on the Theater’s

substantive due process claim. In support of that claim, the Theater
alleges that the removal of the marquee “deprived [it] of [its] right to
substantive due process” because the decision to remove it was “arbitrary,
capricious and negligent,” and that the City’s justification for the removal
was an “arbitrary, conscience-shocking and/or oppressive pretextual
attempt to shut down [the Theater’s] business or to drive it out of the City of
Troy.” (2d Am. Compl. ¶ 11, Dkt. No. 36.) The court agrees with
defendants that the Theater’s substantive due process claim must fail.
As the Supreme Court has made clear, “[w]here a particular
Amendment provides an explicit textual source of constitutional protection
against a particular sort of government behavior, that Amendment, not the
more generalized notion of ‘substantive due process’ must be the guide for
analyzing [that behavior].” Albright v. Oliver, 510 U.S. 266, 273 (1994)
(citations and internal quotation marks omitted); see also Kaluczky v. City
of White Plains, 57 F.3d 202, 211 (2d Cir. 1995).
16

In this case, the Theater grounds its substantive due process claim in
the “remov[al], demoli[tion], and destr[uction]” of the marquee. (2d Am.
Compl. ¶ 11, Dkt. No. 36.) However, because there exists an “explicit
textual source of constitutional protection” against such activity—namely,
the Fourth Amendment—the Theater’s substantive due process claim must
fail. The Fourth Amendment protects against “unreasonable searches and
seizures” by the government. U.S. CONST. amend. IV. A “seizure of
property ... occurs when there is some meaningful interference with an
individual’s possessory interests in that property.” Soldal v. Cook Cty., 506
U.S. 56, 61 (1992) (citation and internal quotation marks omitted). Where,
as here, the government demolishes a building or part of a building, “a
seizure results within the meaning of the Fourth Amendment.” DeBari v.
Town of Middleton, 9 F. Supp. 2d 156, 161 (N.D.N.Y. 1998) (citing, inter
alia, Suss v. ASPCA, 823 F. Supp. 181, 186 (S.D.N.Y. 1993).) Thus, in
seeking relief for the “remov[al], demoli[tion], and destr[uction]” of the
marquee, (see 2d Am. Compl. ¶ 11, Dkt. No. 36), the Theater’s claim
sounds in Fourth Amendment unreasonable seizure, not substantive due
process. Accordingly, the Theater’s substantive due process claim is

17

dismissed.1
5.

Equal Protection
The Theater’s equal protection claim fares no better. As the basis of

its claim—and in an effort to avoid summary judgment—the Theater
contends that “a reasonable trier of fact could easily infer that because
Defendants violated Article IV of the Code of the City of Troy, which
guarantees protections for those owners whose buildings may constitute a
threat to public welfare, ... [the Theater] was treated differently than other
similarly situated business owners.” (Pl. Resp. Mem. of Law at 14, Dkt. No.
66:2.) The court disagrees.
“The right to equal protection ensures that all similarly situated people
are treated alike.” DiPietro, 2010 WL 449096, at *8 (citing City of Cleburne
v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985)). “[T]he prototypical
equal protection claim involves discrimination against people based on their
membership in a vulnerable class....” Harlen Assocs. v. Inc. Vill. of
Mineola, 273 F.3d 494, 499 (2d Cir. 2001). However, “[the Second Circuit
has] long recognized that the equal protection guarantee also extends to
1

Even assuming the Theater’s threadbare complaint could be construed to sufficiently
allege a Fourth Amendment claim, (see 2d Am. Compl. ¶ 12(a), Dkt. No. 36), neither party
addresses or even mentions it in their submissions, and the court therefore declines to address
it at this juncture.

18

individuals who allege no specific class membership but are nonetheless
subjected to invidious discrimination at the hands of government officials.”
Id. (citation omitted) To establish such a claim, a plaintiff must demonstrate
“that [he] has been intentionally treated differently from others similarly
situated and that there is no rational basis for the difference in treatment.”
Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000).
Here, even assuming defendants violated the Troy City Code in
removing the marquee as the Theater contends, the Theater points to no
evidence substantiating its conclusory claim that it was intentionally treated
differently than any other similarly-situated business owners. Accordingly,
absent a non-speculative basis to even infer that the Theater’s equal
protection rights were violated, the Theater’s equal protection claim is
dismissed.
C.

Individual Defendants

1.

Mayor Tutunjian
The Theater’s claim against Mayor Tutunjian must also fail. As

Mayor Tutunjian correctly points out, the Theater has failed to offer any
proof or allege any facts establishing his involvement in the removal of the
marquee or any constitutional violations allegedly flowing therefrom. In
19

urging a contrary conclusion, the Theater relies solely on the fact that the
Mayor received a copy of Reeves’s April 13 letter report advising DeGroote
of the marquee’s structural issues, and on the Mayor’s supposed initiation
of and involvement in “consistent harassment by the City and a thinly veiled
hidden agenda of making sure the Cinema Art Theater was shut down
permanently.” (Pl. Resp. Mem. of Law at 16. Dkt. No. 62.) This reliance is
misplaced.
Initially, as to the letter, the mere fact that the Mayor received it, as
did six other city officials, does not establish or provide a reasonable, nonspeculative basis from which a jury could infer the Mayor’s involvement in
the decision to remove the marquee. Moreover, even if the Mayor’s receipt
of the letter could indicate some involvement in the decision to remove the
marquee, the Theater’s complaint and the record as a whole is devoid of
any indication that the Mayor acted to intentionally deprive the Theater of
its clearly-established constitutional rights, or would have reasonably
known that the removal of the marquee under the circumstances could
have violated those rights. Thus, even if the letter could support an
inference of the Mayor’s involvement in the removal, the Mayor would
nonetheless be entitled to qualified immunity. See African Trade & Info.
20

Ctr., Inc. v. Abromaitis, 294 F.3d 355, 359 (2d Cir. 2002).
The Theater’s allegations surrounding the Mayor’s past statement
and alleged agenda against the Theater also fail to demonstrate a nonspeculative basis to infer the Mayor’s involvement. In support of these
allegations, the Theater points to the circumstances surrounding its
shutdown in March 2006, asserting that the City’s action was based on “a
laundry list of alleged and arbitrary code violations,” which the “City ...
prevented [the Theater] from addressing,” and thus prevented it from
reopening. (Pl. Resp. Mem. of Law at 1-2, Dkt. No. 66:2.) The Theater
also points to a statement issued by the Mayor a few days after its closing
in which he stated, “We hope the business is gone for good.” (See id. at 2
(quoting Kindlon Aff., Ex. A, Tutunjian Statement at 1, Dkt. No. 66:5).) In
the Theater’s view, given this backdrop and the fact that the Mayor may
have been aware of the marquee’s removal, a jury could conclude that the
Mayor took part in the alleged constitutional violations. The court
disagrees.
Initially, as defendants correctly observe, the Theater’s contentions
rely solely on facts not pleaded or even alluded to in their complaint. (See
Defs. Reply at 1, Dkt. No. 67:5.) Moreover, even assuming the Mayor
21

did desire and seek the closure of the Theater, the record lacks any facts or
evidence connecting him to the particular decision to remove the marquee.
Thus, to the extent a jury could find in favor of the Theater on the record as
it currently stands, such a finding would be based on nothing more than
naked speculation and conjecture. Accordingly, the court agrees with the
Mayor that the Theater’s claims against him must be dismissed.
2.

Reeves and Garrett
The court does not agree, however, that the claims against Reeves

and Garrett are also subject to dismissal at this juncture. In support of their
motion, Reeves and Garrett argue that they are entitled to summary
judgment on qualified immunity grounds. (See Defs. Mem. of Law at 6-12,
Dkt. No. 63:17.) As the Second Circuit has explained, “[t]he doctrine of
qualified immunity shields government officials from liability for civil
damages when their conduct does not violate ‘clearly established statutory
or constitutional rights of which a reasonable person would have known.’”
Abromaitis, 294 F.3d at 359 (quoting Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982)). In this case, the court has already determined that the failure
to afford the Theater a predeprivation hearing may have amounted to a
procedural due process violation. Thus, because questions of fact exist in
22

that respect, and given Reeves and Garrett’s involvement in the inspection
and decision to remove the marquee, the court is not currently persuaded
that Reeves and Garrett are necessarily entitled to qualified immunity.2
Accordingly, Reeves and Garrett’s motions are denied insofar as they seek
summary judgment on qualified immunity grounds.
D.

Damages
Defendants next argue that the portion of the Theater’s claim for

damages based on the loss of rental use of the marquee should be
dismissed because it is too speculative. (See Defs. Mem. of Law at 12,
Dkt. No. 63:17.) While sharing the defendants’ skepticism as to the
Theater’s ultimate entitlement to such damages, the court currently
declines to definitively foreclose the Theater from seeking them.
Accordingly, defendants’ motion as to damages is denied.
E.

Cross-Motion
Finally, while the Theater claims to be cross-moving for partial

summary judgment, (see Pl. Mem. of Law at 1, Dkt. No. 66:2), it fails to

2

With specific respect to Garrett, the court is mindful that his involvement in the actions
giving rise to the alleged constitutional deprivations appears to be minimal and undertaken at
the direction of Reeves. Nonetheless, because the record is not entirely clear as to the precise
nature and extent of Garrett’s involvement, the court is presently hesitant to definitively
conclude that Garrett is, as a matter of law, qualifiedly immune.

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explain the basis of that motion or otherwise specify anywhere in its
submissions which issues or claims the motion is seeking judgment on.
Accordingly, in the absence of any meaningful explanation, and in light of
the outstanding questions of fact discussed above, the Theater’s crossmotion for partial summary judgment is denied.
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that defendants’ motion for summary judgment (Dkt. No.
63) is GRANTED insofar as the Theater’s claims for violations of 42 U.S.C.
§ 1982, substantive due process, equal protection, and the Privileges and
Immunities Clause are DISMISSED; and it is further
ORDERED that the Theater’s claims against defendant Henry
Tutunjian are DISMISSED and Harry Tutunjian is TERMINATED from this
action; and it is further
ORDERED that defendants’ motion for summary judgment (Dkt. No.
63) is otherwise DENIED; and it is further
ORDERED that the Theater’s cross-motion for partial summary
judgment (Dkt. No. 66) is DENIED; and it is further
ORDERED that the Clerk provide a copy of this Memorandum24

Decision and Order to the parties.
IT IS SO ORDERED.
August 26, 2011
Albany, New York

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