Ferran et al v. City of Albany et al
MEMORANDUM-DECISION and ORDER - That the City defendants' motion (Dkt. No. 21) is GRANTED to the extent that plaintiffs may not recover punitive damages from the City or City officials sued in their official capacity and otherwise DENIED. That Chazen defendants' motion (Dkt. No. 26) is DENIED. That HAF's motion (Dkt. No. 33) is DENIED with respect to attorney's fees and is otherwise GRANTED. That Cristo defendants' motion (Dkt. No. 54) is GRANTED. That the state defe ndants' motion (Dkt. No. 62) is GRANTED. That all claims by plaintiff M. Ferran arising from the demolition of the subject property are DISMISSED. That the Clerk is directed to terminate HAF, Michael P. Cristo Jr., Michael P. Cristo, M. Cristo, Inc., Eugene Devine, Elizabeth A. Garry, John A. Lahtinen, Richard M. Platkin, Robert S. Rose, and Leslie E. Stein, and Vacant Building Initiative Project Team from this action. That the parties contact Magistrate Judge Andrew T. Baxter to schedule further proceedings consistent with this Memorandum-Decision and Order.. Signed by Senior Judge Gary L. Sharpe on 12/20/2016. (Copy served via regular mail)(jel, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
MARK R. FERRAN et al.,
CITY OF ALBANY et al.,
FOR THE PLAINTIFFS:
Mark R. Ferran
36 Winnie Street
Albany, NY 12208
114 Morton Avenue
Albany, NY 12202
FOR THE DEFENDANTS:
City of Albany, Hon. Gerald D. Jennings,
Robert C. Forezzi, Sr., Joseph J. Toomey,
Loren LaJoy, Vincent Dibiase, Valerie Y.
Scott, John J. Reilly, and Bradford Burns
Rehfuss, Liguori Law Firm
40 British American Blvd.
Latham, NY 12110
Joseph M. Lanaro, Felicia Russell,
and Chazen Companies
Hanlon, Veloce Law Firm
STEPHEN J. REHFUSS,
CHRISTINE D. HANLON,
1187 Troy-Schenectady Rd.
Latham, NY 12210
Michael P. Cristo,1 M. Cristo, Inc.,
and Michael P. Cristo, Jr.
D’Amao & Lynch, LLC
Two World Financial Center — 29th Floor
225 Liberty Street
New York, NY 10282
Eugene Devine, Richard M. Platkin,
John A. Lahtinen, Elizabeth A.Garry,
Robert S. Rose, and Leslie E. Stein
HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
Albany, NY 12224
ARTURO M. BOUTIN,
BARRY A. SEMELWEINSTEIN, ESQ.
Assistant Attorney General
The Historic Albany Foundation, Inc.
Whiteman, Osterman Law Firm
One Commerce Plaza
Albany, NY 12260
WILLIAM S. NOLAN, ESQ.
Vacant Building Initiative Project Team
John Does 1-25
Gary L. Sharpe
Plaintiffs incorrectly name Michael P. Cristo, Sr. as a defendant. (Am. Compl., Dkt.
No. 12.) The court directs the Clerk to amend the caption to identify Michael P. Cristo as the
proper defendant. (Dkt. No. 54, Attach. 7.)
Senior District Judge
MEMORANDUM-DECISION AND ORDER
Plaintiffs, mother and son, Nadia Ferran (“N. Ferran”) and Mark
Ferran (“M. Ferran”) commenced this action pro se against forty-eight
defendants2 alleging constitutional and state law claims in connection with
the demolition of a property at 54 Clinton Avenue, Albany, New York. (Am.
Compl., Dkt. No. 12.) Pending are motions to dismiss by City defendants,
(Dkt. No. 21), Chazen defendants, (Dkt. No. 26), the Historic Albany
Foundation, Inc., (Dkt. No. 33), Cristo defendants, (Dkt. No. 54), and state
defendants, (Dkt. No. 62). Historic Albany Foundation, Inc. also seeks
attorney’s fees. (Dkt. No. 33.) For the reasons that follow, the motions are
granted in part and denied in part.
Plaintiffs sued the following defendants: City of Albany, Hon. Gerald D. Jennings,
Robert C. Forezzi, Sr., Joseph J. Toomey, Loren LaJoy, Vincent Dibiase, Valerie Y. Scott,
John J. Reilly, and Bradford D. Burns, (collectively “City defendants”); The Chazen
Companies, Joseph Lanaro, and Felicia Russell, (collectively “Chazen defendants”); The
Historic Albany Foundation, Inc.; Michael P. Cristo Jr., Michael P. Cristo, and M. Cristo Inc.,
(collectively “Cristo defendants”); Eugene Devine, Elizabeth A. Garry, John A. Lahtinen,
Richard M. Platkin, Robert S. Rose, and Leslie E. Stein (collectively “state defendants”); as
well as Vacant Building Initiative Project Team and John Does 1-25.
The facts are drawn from plaintiffs’ amended complaint and presented in the light
most favorable to them.
Initially, the court notes that plaintiffs filed a 173-page complaint with
627 numbered paragraphs of which the first 352 paragraphs allege errors
by three state court decisions regarding plaintiffs’ challenge to the
demolition of 54 Clinton Street (hereinafter “the subject property”). (See
generally Am. Compl.) Plaintiffs’ complaint is also rife with legal
conclusions and long factual recitations. Plaintiffs allege over forty causes
of action, however, a majority of the complained of conduct arises from the
demolition of the subject property. Nonetheless, the court has endeavored
to decipher plaintiffs’ claims and organize a chronology of the factual
background, although, much remains disjointed. To assist the court, it has
taken judicial notice of certain decisions and filings in the underlying state
proceeding.4 See Rates Tech. Inc. v. Speakeasy, Inc., 685 F.3d 163, 166
n.3 (2d Cir. 2012). The factual background is divided between the events
surrounding the demolition of the subject property, the procedural history of
Accordingly, the court takes judicial notice of the following: (1) the July 25, 2012 New
York State Supreme Court Decision and Order, (Dkt. No. 21, Attach. 3 at 50-54); (2) the April
10, 2014 Appellate Division Memorandum and Order, (Dkt. No. 21, Attach. 3 at 56-58); and (3)
the March 13, 2015 Supreme Court Decision and Order, (Dkt. No. 21, Attach. 5 at 3-15); (4)
the March 9, 2012 summons and verified complaint-petition filed in New York State Supreme
Court, (Dkt. No. 21, Attach. 3 at 1-41); (5) the May 22, 2014 first amended verified complaintpetition, (Dkt. No. 62, Attach. 5); and (6) the April 20, 2015 notice of appeal of the March 13,
2015 Decision and Order, (Dkt. No. 62, Attach. 7). The court also notes that affidavits
submitted by the City, Chazen, and Cristo defendants, (Dkt. No. 21, Attach. 3 at 42-47; Dkt.
No. 26, Attach. 2; Dkt. No. 54, Attachs. 7-8), are excluded from consideration as outside the
pleadings, see Fed. R. Civ. P. 12(d), and those documents were not considered.
the state court action, and, to the extent they are decipherable, the factual
allegations against particular defendants.
The Demolition of the Subject Property
N. Ferran is the owner of the subject property. (Am. Compl. ¶ 468.)
On the morning of November 9, 2011, the subject property caught fire. (Id.
¶¶ 395, 464.) After the fire was extinguished, the subject property was
inspected by Albany Fire Department’s Deputy Fire Chief Joseph Toomey
and the Chazen Companies’ Joseph Lanaro, an independent civil engineer
hired by the City. (Id. ¶¶ 409, 421-22; Dkt. No. 21, Attach. 5 at 5.) Lanaro
opined that the subject property had severe structural damage because of
a bow in the front wall and needed to be immediately demolished. (Am.
Compl. ¶¶ 426, 452.) Based on Lanaro’s opinion, Toomey filed an
emergency order to demolish the subject property, which was issued on
November 9, 2011. (Id. ¶¶ 429, 476; Dkt. No. 21, Attach. 5 at 5-6.)
Thereafter, the City hired M. Cristo Inc. to perform the demolition, which
occurred on November 11, 2011. (Am. Compl. ¶ 476.) The City billed
plaintiffs for the demolition of the subject property. (Id.)
Plaintiffs contest whether the subject property needed to be
demolished. Plaintiffs allege that the subject property was structurally
sound and the City hired Lanaro to manufacture a false reason to justify its
demolition. (Id. ¶ 451.) Plaintiffs allege that City sought to demolish the
subject property because it wanted to terminate N. Ferran’s ownership by a
tax foreclosure and then convey the lot to a new owner. (Id. ¶¶ 468, 476.)
Plaintiffs also allege that they both had personal property in the subject
property, which was also demolished. (Id. ¶¶ 533-50.)
State Court Action
Following the demolition, plaintiffs filed a notice of claim with the City
and commenced a CPLR Article 78 proceeding and plenary action
challenging the demolition of the subject property on numerous state law
and constitutional grounds. (Id. ¶ 381; Dkt. No. 21, Attach. 3 at 1-41.) The
City defendants filed a motion to dismiss, which Judge Eugene Devine
granted.5 (Dkt. No. 21, Attach. 3 at 50-54.) Judge Devine found that M.
Ferran lacked standing because he was not the property owner and N.
Ferran failed to state a claim because the City’s decision to demolish was
rational. (Id. at 50-54.) Plaintiffs appealed. (Id. at 56-58.)
An Appellate Division, Third Department, panel of Justices John
At the time, Judge Devine was a trial level Supreme Court Justice and now sits on
the Appellate Division, Third Department. (Dkt. No. 21, Attach. 3 at 50-54.)
Lahtinen, Elizabeth Garry, Robert Rose, and Leslie Stein6 reviewed the
appeal. (Id.) The court affirmed so much of the decision determining that
M. Ferran lacked standing and otherwise reversed, finding that N. Ferran
stated several causes of action. (Id.) Specifically, the court found that she
sufficiently alleged that the City defendants’ decision to demolish was
arbitrary and made with animus, and she had no meaningful postdeprivation remedy. (Id.) Additionally, the court determined that she
alleged that the cost of the demolition was a lien on the subject property
and could be challenged in a CPLR Article 78 proceeding. (Id.)
Plaintiffs then filed a first amended verified complaint-petition, (Dkt.
No. 62, Attach. 5), and the City defendants and defendant Michael Cristo,
also a defendant in this action, filed motions to dismiss, (Dkt. No. 21,
Attach. 5 at 3-15). Judge Richard Platkin, to whom the case had been
reassigned after Judge Devine was appointed to the Appellate Division,
granted in part and denied in part the motions. (Id.) Judge Platkin found,
among other things, that the court lacked personal jurisdiction over Cristo
and certain City defendants, but not others, and that the law of the case
At the time, Judge Stein was a member of the Appellate Division, Third Department
and now sits as an Associate Judge on the New York State Court of Appeals. (Dkt. No. 21,
Attach. 3 at 56-58.)
dictated that M. Ferran lacked standing. (Id. at 7-8.) Plaintiffs appealed,
which was pending at the time these motions were filed. (Dkt. No. 62,
Attach. 7; Dkt. No. 62, Attach. 1 ¶ 15.)
In this action, plaintiffs generally allege that all of the named
defendant judges legally erred in their opinions. (See generally Am.
Compl. ¶¶ 1-352.)
Plaintiffs also allege that Judge Devine submitted a perjured affidavit
accusing M. Ferran of harassment which caused M. Ferran to be falsely
arrested. (Id. ¶¶ 353-75.) M. Ferran was apparently arrested for
aggravated harassment in the second degree after he served a motion at
the Appellate Division, Third Department related to the underlying
proceeding before Judge Devine. (Id. ¶¶ 353-55, 366, 371.) Judge Devine
supplied an affidavit falsely identifying himself as a witness to M. Ferran’s
harassment. (Id. ¶¶ 358-60, 373.)
The Historic Albany Foundation, Inc.
Plaintiffs generally allege that the Historic Albany Foundation, Inc.
(“HAF”) influenced the City to demolish the subject property. (Id. ¶¶ 564,
572-81.) According to plaintiffs, HAF agreed with the decision by the City
and Lanaro that the subject property needed to be demolished even
though it knew that the building was structurally sound. (Id. ¶¶ 564, 578.)
HAF also had an agreement with the City to sell the historically significant
parts of demolished buildings at its retail location or to keep them for itself.
(Id. ¶ 570.) Plaintiffs allege that HAF improperly obtained historically
significant parts from the subject property for its retail sales. (Id. ¶ 577.)
Felicia Russell was an assistant with the Chazen Companies and
worked with Lanaro. (Id. ¶ 461.) Plaintiffs generally allege that she
assisted Lanaro to produce his false report regarding the condition of the
subject property. (Id. ¶¶ 486-87.)
M. Cristo, Inc., Michael P. Cristo, and Michael P. Cristo, Jr.
Michael P. Cristo is the sole owner of M. Cristo Inc. (Id. ¶ 287.)
Plaintiffs allege that Michael P. Cristo, Jr. is somehow associated with the
business. (Id. ¶ 76 n. 25.) M. Cristo Inc. obtained a permit from the City to
enter the subject property and perform demolition and related postdemolition services for one year. (Id. ¶ 292, 392.) Plaintiffs allege that M.
Cristo Inc. demolished the garage and a tree on the subject property
without authorization. (Id. ¶¶ 514-32, 610.) Plaintiffs also allege that M.
Cristo Inc. demolished their personal property. (Id. ¶ 544.)
Hon. Gerald D. Jennings, Robert C. Forezzi, Sr., Loren LaJoy,
Vincent Dibiase, Valerie Scott, John Reilly, and Bradford Burns
At the time the subject property was demolished, Hon. Gerald D.
Jennings was the mayor of Albany and Robert C. Forezzi, Sr. was the
City’s Chief of Fire and Emergency Services. (See generally id. at 1.)
Plaintiffs allege that Jennings and Forezzi were present at the scene of the
fire on November 9, 2011, knew that the subject property was structurally
sound, and commented that money and repairs would have prevented
demolition. (Id. ¶¶ 555-59.)
Valerie Scott is the Division Supervisor for the City Division of
Buildings and Codes and also present on the morning of the fire. (Id. ¶¶
555, 566.) Plaintiffs allege Scott assisted Lanaro in creating his false
report about the structural integrity of the subject property. (Id. ¶ 565.)
John Reilly and Bradford Burns are attorneys for the City. (Id. ¶ 209.)
Plaintiffs allege that Reilly and Burns encouraged or assisted Lanaro in
creating a false report to justify the demolition of the subject property and
directed M. Cristo to perform unlawful demolition services on the subject
property. (Id. ¶¶ 486-87, 492, 510, 544, 607.) They also allege that Burns
was present on the morning of the fire and observed that the subject
property was not structurally deformed. (Id. ¶ 555.)
Loren LaJoy is the Fire Captain for the City and was present on the
morning of the fire. (Id. ¶ 555.) At some point after the fire, plaintiffs allege
that he ordered them to exit the subject property and continuously
prevented them from reentering. (Id. ¶ 553.)
Vincent Dibiase is the City building inspector and issued a permit to
M. Cristo Inc. to perform demolition and post-demolition services on the
subject property. (Id. ¶¶ 288-92, 522, 568, 607.) Plaintiffs allege that the
permit was issued illegally because it allowed M. Cristo Inc. to perform
non-emergency work without N. Ferran’s consent. (Id. ¶¶ 292, 392.)
III. Standard of Review
Motion to Dismiss for Insufficient Service of Process
When a defendant moves to dismiss for insufficient service of
process under Rule 12(b)(5) of the Federal Rules of Civil Procedure, “[t]he
burden is on the plaintiff to establish that his service was not insufficient.”
DiFillippo v. Special Metal Corp., 299 F.R.D. 348, 353 (N.D.N.Y. 2014)
(internal quotation marks and citation omitted). “Conclusory statements
that a defendant was properly served are insufficient to meet that burden.”
Flemming v. Moulton, No. 9:13-CV-1324, 2015 WL 5147035, at *4
(N.D.N.Y. Sept. 1, 2015) (internal quotation marks and citation omitted).
“In resolving the motion, the court must look to matters outside the
complaint to determine what steps, if any, the plaintiff took to effect
service.” Id. (internal quotation marks and citation omitted). If service is
deficient, “the court may, but is not required to, dismiss the action[, or] the
court may grant leave to allow the plaintiff to cure the insufficiency.”
DiFillippo, 299 F.R.D. at 353 (internal quotation marks and citation
Motion to Dismiss for Failure to State a Claim
The standard of review under Fed. R. Civ. P. 12(b)(6) is well
established and will not be repeated here. For a full discussion of the
standard, the court refers the parties to its prior opinion in Ellis v. Cohen &
Slamowitz, LLP, 701 F. Supp. 2d 215, 218 (N.D.N.Y. 2010), abrogated on
other grounds by Altman v. J.C. Christensen & Assocs., Inc., 786 F.3d 191
(2d Cir. 2015).
City defendants move to dismiss the action against defendants
Jennings, Toomey, LaJoy, Dibiase, and Scott for insufficient service of
process. (Dkt. No. 21, Attach. 1 at 6-7.) City defendants contend that
plaintiffs’ request for an extension of time to serve only applied to the
defendants expressly mentioned in their request. (Id.)
Defendants must be properly served in order for the court to exercise
personal jurisdiction over them. See DiFillippo, 299 F.R.D. at 353 (citing
Omni Capital Int’l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987)).
When service is challenged, “[t]he burden is on the plaintiff to establish that
his service was not insufficient.” Id. (internal quotation marks and citation
omitted). If service is insufficient, the court may dismiss the action or grant
leave for plaintiff to remedy the defect. Id.
Since City defendants filed their motion, Jennings, Toomey, LaJoy,
Dibiase, and Scott have been served after plaintiffs were granted an
extension of time. (Dkt. Nos. 19, 46, 51, 53.) The court disagrees that the
extension to serve did not apply to the City defendants because plaintiffs
requested an extension “to complete service upon ALL named
defendants,” which was granted. (Dkt. No. 17 at 4; Dkt. No. 19.)
Accordingly, the motion is denied on this ground. The court notes,
however, that plaintiffs have not filed proof of service to defendant Vacant
Building Initiative Project Team after being granted several extensions.
(Dkt. Nos. 55, 61.) Therefore, the court dismisses the action against
Vacant Building Initiative Project Team. See Fed. R. Civ. P. 4(m) (stating
that a court may sua sponte dismiss the action upon notice to the plaintiff if
a defendant is not timely served).
State defendants argue that plaintiffs’ claims against them should be
dismissed on immunity grounds. (Dkt. No. 62, Attach. 8 at 5-9.)
Specifically, state defendants assert that claims against them in their
official capacity are barred by the Eleventh Amendment and claims against
them in their individual capacity are barred by absolute judicial immunity.
The Eleventh Amendment bars all federal court actions “against a
state or its agencies absent a waiver of immunity or congressional
legislation specifically overriding immunity.” Mamot v. Bd. of Regents, 367
F. App’x 191, 192 (2d Cir. 2010). “[A] suit against a state official in his or
her official capacity is not a suit against the official but rather is a suit
against the official’s office [and] is no different from a suit against the State
itself.” Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989).
Because New York has not waived its immunity to any of the plausible
claims alleged and these judicial defendants are arms of the state, the
claims against them in their official capacity are dismissed. See Gollomp
v. Spitzer, 568 F.3d 355, 365-67 (2d Cir. 2009).
Judges have absolute immunity from liability for their judicial actions,
see Bliven v. Hunt, 579 F.3d 204, 209 (2d Cir. 2009), and are subject to
liability only for non-judicial actions or judicial actions “taken in the
complete absence of all jurisdiction,” Mireles v. Waco, 502 U.S. 9, 11-12
(1991). Accordingly, “even allegations of bad faith or malice cannot
overcome judicial immunity” for a judge’s official actions. Bliven, 579 F.3d
at 209. Regarding the allegations against the state defendants in their
individual capacities arising from their judicial opinions and orders, (Am.
Compl. ¶¶ 1-352), they undoubtedly receive absolute immunity. See
Bliven, 579 F.3d at 209 (“[T]he Supreme Court has generally concluded
that acts . . . related to individual cases before [a] judge are considered
judicial in nature.”).
Plaintiffs also make individual allegations against Judge Devine
related to M. Ferran’s arrest. (Am. Compl. ¶¶ 353-75.) These allegations
can be fairly read to accuse Judge Devine of falsely reporting M. Ferran’s
harassment towards him to authorities. (See id.) The Second Circuit has
previously found immunity applied in a factually similar case. See
Huminski v. Corsones, 386 F.3d 116 (2d Cir. 2004). In Huminski, after a
judge disposed of a criminal defendant’s case, the former defendant began
to follow her to parking lots of courthouses in which she sat and attached
signs to his van criticizing her and the judicial system. See id. at 122, 124.
The judge was concerned about her safety and, as a result, directed court
personnel to contact law enforcement to have him removed. See id. at
125-27. She also requested that law enforcement serve the former
defendant with notices of trespass on the private property of her and her
family. See id. The former defendant then sued the judge for violation of
his First Amendment rights. See id. at 129. The court held that the judge
was entitled to absolute judicial immunity because, among other things,
there was a “nexus between [the judge’s] actions [and the former
defendant’s] criminal case before her.” Id. at 141. Specifically, the court
reasoned that the former defendant’s “protests regarding [the judge]
stemmed directly and proximately from . . . his criminal case over which
she presided” and her response “regarding the decision to issue the
trespass notices to [him] stemmed directly from [his] protests.” Id.
The reasoning in Huminski compels the same result here. Judge
Devine presided over M. Ferran’s civil case and decided motions adversely
to him. (Dkt. No. 21, Attach. 3 at 50-54.) M. Ferran then filed papers at
the Appellate Division related to Judge Devine’s decision, which apparently
contained harassing language towards Judge Devine. (Am. Compl. ¶¶
354-55.) Such language was based on the disposition of M. Ferran’s civil
suit before Judge Devine. (Id.) Based on this language, Judge Devine
submitted an affidavit which supported the warrant to arrest M. Ferran. (Id.
¶¶ 353-54.) As in Huminski, there was a “nexus” between Judge Devine’s
affidavit supporting M. Ferran’s arrest and the civil suit. Accordingly, Judge
Devine is also entitled to absolute judicial immunity for his affidavit. For all
of these reasons, the state defendants are entitled to judicial immunity and
all claims against them are dismissed.
City and Cristo defendants argue that collateral estoppel or res
judicata prevent M. Ferran from relitigating the issue of standing. (Dkt. No.
21, Attach. 1 at 9-11; Dkt. No. 54, Attach. 9 at 5-10.) However, these
doctrines do not apply because the state action has not yet reached a final
judgment. See Channer v. Dep’t of Homeland Sec., 527 F.3d 275, 279 (2d
Cir. 2008); Ali v. Mukasey, 529 F.3d 478, 489 (2d Cir. 2008).
Nevertheless, the court finds that M. Ferran still lacks standing to assert
claims arising from the demolition of his mother’s property.
To have Article III standing, “‘a plaintiff must have suffered an injury
in fact,’” which has “‘a causal connection [to] the conduct complained of’”
and is likely “‘redress[able] by a favorable decision.’” Chevron Corp. v.
Donziger, 833 F.3d 74, 120 (2d Cir. 2016) (quoting Lujan v. Defenders of
Wildlife, 504 U.S. 555, 559-60 (1992)).
Here, plaintiffs allege state tort and procedural due process causes
of action largely premised on the demolition of the subject property. (See
generally Am. Compl. ¶¶ 382-627.) M. Ferran, however, did not suffer
from any injury arising from the demolition of the subject property because
he did not have a possessory interest in the property. See Wild v. Hayes,
68 A.D.3d 1412, 1414 (3d Dep’t 2009) (holding that plaintiff lacked
standing to bring state tort claims when he did not have possessory rights
to the property when the claims accrued); Pangburn v. Culbertson, 200
F.2d 65, 70 (2d Cir. 1999) (explaining that due process protection only
extends to significant property interests). N. Ferran was the sole owner of
the subject property at the time of the fire and demolition. (Am. Compl.
¶ 468.) Plaintiffs attempt to manufacture standing years after the
demolition through N. Ferran’s “Assignment of Causes of Action Related to
54 Clinton Avenue” to M. Ferran, (Dkt. No. 12, Attach. 1 at 50), but this
does not grant him a possessory interest to confer standing. See Wild, 68
A.D.3d at 1414. Accordingly, the court dismisses all claims by M. Ferran
arising from the demolition of the subject property.
However, to the extent that M. Ferran advances claims arising from
the destruction of his personal property, (see, e.g., Am. Compl. ¶¶ 534-35),
he has standing because he has sufficiently alleged an injury attributable to
defendants’ conduct. See Hispanic Leadership Fund, Inc. v. Walsh, No.
1:12-cv-1337, 2013 5423855, at *6 (N.D.N.Y. Sept. 26, 2013) (explaining
that, for purposes of standing, “[a]t the pleading stage, general factual
allegations of injury resulting from the defendant’s conduct may suffice, for
on a motion to dismiss [the court may] presum[e] general allegations
embrace those specific facts that are necessary to support the claim”
(quoting Lujan, 504 U.S. at 561)).
Plaintiffs seek punitive damages for their injuries. (Am. Compl. at
153.) This relief is unavailable to the extent that such damages are sought
to remedy section 1983 violations against the City or City defendants
acting in their official capacity. See New Windsor Volunteer Ambulance
Corps., Inc. v. Meyers, 442 F.3d 101, 122 (2d Cir. 2006); South Lyme
Prop. Owners Ass’n, Inc. v. Town of Old Lyme, 539 F. Supp. 2d 524, 534
(D. Conn. 2008).
After reviewing plaintiffs’ hefty complaint, the court has deciphered
four claims: a Fourteenth Amendment procedural due process claim, a
section 1983 conspiracy claim, and state law claims of trespass and
Fourteenth Amendment Procedural Due Process
Reading the complaint in the light most favorable to plaintiffs, they
appear to allege that they were unlawfully deprived of the subject property
without notice and an opportunity to be heard. (Am. Compl. ¶¶ 467-68.)
Specifically, plaintiffs allege that defendants did not have a reasonable
belief that the subject property suffered from an imminent collapse
warranting its demolition and that fire damage was pretext to support the
subject property’s demolition. (Id. ¶ 468.)
Analysis of a procedural due process claim is composed of two
prongs. See Narumanchi v. Bd. of Trs. of Conn. State Univ., 850 F.2d 70,
72 (2d Cir. 1988). First, the court must discern “whether the plaintiff has a
property or liberty interest protected by the Constitution.” Id. If such an
interest exists, “[the] court must then consider whether the government
deprived the plaintiff of that interest without due process.” Id. Thus, under
the second step of the analysis, the court must ask “what process was due
to the plaintiff, and . . . whether that constitutional minimum was provided
in the case under review.” Id. (citation omitted). This involves a weighing
of the private interest to be affected, the risk of erroneous deprivation, the
value of additional safeguards, and the governmental burden such
additional safeguards would impose. See Mathews v. Eldridge, 424 U.S.
319, 334-35 (1976); Interboro Inst., Inc. v. Foley, 985 F.2d 90, 93 (2d Cir.
1993) (“Due process requires notice and the opportunity to be heard.”
(citing Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314
(1950))). Under certain circumstances, however, the “lack of such
predeprivation process will not offend the constitutional guarantee of due
process.” Catanzaro v. Weiden, 188 F.3d 56, 61 (2d Cir. 1999).
Specifically, “‘the necessity of quick action by the [municipality] . . . when
coupled with the availability of some meaningful means by which to assess
the propriety of the [municipality]’s action at some time after the initial
taking, can satisfy the requirements of procedural due process.’” Id.
(quoting Parratt v. Taylor, 451 U.S. 527, 539 (1981)). Thus, “where there
is competent evidence allowing [a municipal] official to reasonably believe
that an emergency does in fact exist, . . . the discretionary invocation of an
emergency procedure results in a constitutional violation only where such
invocation is arbitrary or amounts to an abuse of discretion.” Id. at 63.
At this stage of the litigation, plaintiffs have sufficiently alleged a
procedural due process violation. Plaintiffs challenge whether an imminent
danger actually existed on the subject property after the fire and whether
any damage from the fire could have been ameliorated through
renovations rather than demolition. (Am. Compl. ¶¶ 451, 459.) Plaintiffs
allege that the “competent evidence” upon which the City relied was in fact
manufactured by Lanaro at the request of the City defendants. (Id. ¶¶ 451,
468, 476.) Accepting the plaintiffs’ allegations as true, as the court must at
this juncture, the City defendants cannot resort to an emergency defense
where plaintiffs vigorously dispute the presence of such an emergency or
where plaintiffs allege the actions were abusive. See Breon v. Perales,
No. 6:15-cv-6335, 2015 WL 7289399, at *4 (W.D.N.Y. Nov. 16, 2015).
Because it is beyond the scope of a Rule 12 motion to determine whether
an emergency situation existed, it is also premature to assess whether
plaintiffs had an adequate post-deprivation remedy.7 See id. at *4 n.3.
Accordingly, this claim may proceed.8
Section 1983 Conspiracy
Chazen, Cristo, and HAF defendants argue that they cannot be held
liable under 42 U.S.C. § 1983 as private actors. (Dkt. No. 26, Attach. 3 at
2; Dkt. No. 33, Attach. 1 at 6-7; Dkt. No. 54, Attach. 9 at 14-15.)
To find a private actor liable under section 1983, a plaintiff must
allege that he conspired with a state actor. See Ciambriello v. Cty of
Nassau, 292 F.3d 307, 325-26 (2d Cir. 2002). Specifically, a plaintiff must
allege “(1) an agreement between a state actor and a private party; (2) to
act in concert to inflict an unconstitutional injury; and (3) an overt act done
in furtherance of that goal causing damages.” Id.
With respect to the Chazen defendants, plaintiffs allege that these
For similar reasons, it is premature to assess whether the City defendants are
entitled to qualified immunity. See Taylor v. Vermont Dep’t of Educ., 313 F.3d 768, 793 (2d
Cir. 2002) (reserving on qualified immunity where “[a] case turns on factual questions that
cannot be resolved” on a motion to dismiss).
Notably, the City defendants make no argument that plaintiffs fail to state a claim for
liability against the City under Monell v. Dep’t of Soc. Servs. of City of N.Y., (436 U.S. 658
(1978)), and the court declines to reach it sua sponte.
defendants worked with City defendants to manufacture a false reason to
warrant the demolition of the subject property. (Am. Compl. ¶¶ 461, 476.)
These allegations suffice to state a claim for conspiracy and contain the
requisite particularity to withstand a motion to dismiss. See Dwares v. City
of New York, 985 F.2d 94, 100 (2d Cir. 1993) (noting “[d]iffuse and
expansive allegations are insufficient, unless amplified by specific
instances of misconduct” (internal quotation marks and citation omitted)),
overruled on other grounds, Leatherman v. Tarrant Cty. Narcotics
Intelligence & Coordination Unit, 507 U.S. 163, 163 (1993). By contrast,
plaintiffs fail to allege an agreement between the City defendants and
either HAF or the Cristo defendants to engage in unconstitutional conduct.
See Jae Soog Lee v. Law Office of Kim & Bae, PC, 530 F. App’x 9, 10 (2d
Cir. 2013) (finding no conspiracy claim where plaintiff did not allege an
agreement). Plaintiffs have not shown a “‘meeting of the minds’” or an
“‘understanding’” between the City defendants and either HAF or Cristo
defendants sufficient to support a claim of conspiracy. McGee v. Dunn, 09
Civ. 6098, 2015 WL 9077386, at *5 (S.D.N.Y. Dec. 16, 2015) (quoting
Adickes v. S.H. Kress & Co., 398 U.S. 144, 158 (1970)). As such, the
claims against HAF and the Cristo defendants are dismissed.
Plaintiffs appear to allege a state law trespass claim against the City,
Chazen, and Cristo defendants. (Am. Compl. ¶¶ 493-513.) To state a
trespass claim under New York law, a plaintiff must allege that a defendant
intentionally entered the land of another without legal justification or
permission. See Woodhull v. Town of Riverhead, 46 A.D.3d 802, 804 (2d
Dep’t 2007); see also Green v. City of Mount Vernon, 96 F. Supp. 3d 263,
293 (S.D.N.Y. 2015). Although plaintiffs contest the demolition, they
acknowledge that all defendants had legal justification to enter the subject
property by permit or by emergency from the fire. (Am. Compl. ¶¶ 392,
395.) Because defendants had a legal justification to enter the subject
property, plaintiffs fail to allege a trespass cause of action. Accordingly,
this claim is dismissed.
Plaintiffs also appear to allege a cause of action for conversion
based on their personal property from the subject property that was either
demolished or removed. (Am. Compl. ¶¶ 533-50.) “Two key elements of
conversion are (1) plaintiff’s possessory right or interest in the property and
(2) defendant’s dominion over the property or interference with it, in
derogation of plaintiff’s rights.” Pappas v. Tzolis, 20 N.Y.3d 228, 234
(2012) (internal quotation marks and citation omitted). Here, both plaintiffs
allege that their personal property was undamaged from the fire and that
the City defendants either demolished or removed it from the site of the
subject property. (Am. Compl. ¶¶ 533-50.) Accepting plaintiffs’ allegations
as true, at this stage, the court finds that they have sufficiently stated a
cause of action for conversion. Accordingly, plaintiffs’ conversion claim
To the extent that plaintiffs allege additional claims, such claims are
dismissed under Rule 8(a) of the Federal Rules of Civil Procedure. Rule
8(a) requires that plaintiffs provide defendants with adequate notice of the
claims alleged against them. See Wynder v. McMahon, 360 F.3d 73, 79
(2d Cir. 2004). Adequate notice is “that which will enable the adverse party
to answer and prepare for trial.” Id. (internal quotation marks and citation
omitted). Although plaintiffs’ complaint put defendants on notice of certain
claims, see supra Part IV.E.1-4, the remainder of the complaint is
ambiguous, confusing, and vague, and requires dismissal. See
Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988). Accordingly, those
claims are dismissed.
HAF seeks attorney’s fees under 42 U.S.C. § 1988. (Dkt. No. 33,
Attach. 1 at 8.) A court may award a prevailing defendant attorney’s fees
under section 1988 for “fees he expended solely because of [a plaintiff’s]
frivolous allegations.” Fox v. Vice, 563 U.S. 826, 841 (2011). The court
has dismissed all claims against HAF, finding that it had not engaged in
state action and therefore cannot be held liable under section 1983. See
supra Part IV.E.4. Although the claims against HAF were ultimately
dismissed, the court retains the discretion to award fees. See 42 U.S.C.
§ 1988. Assuming without deciding that plaintiffs’ claims were frivolous,
attorney’s fees are nonetheless unwarranted. See Bauer v. Yellen, 375 F.
App’x 154, 156 (2d Cir. 2010) (explaining that “attorney’s fees should only
rarely be awarded against plaintiffs proceeding pro se”).
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that the City defendants’ motion (Dkt. No. 21) is
GRANTED to the extent that plaintiffs may not recover punitive damages
from the City or City officials sued in their official capacity and otherwise
DENIED; and it is further
ORDERED that Chazen defendants’ motion (Dkt. No. 26) is
DENIED; and it is further
ORDERED that HAF’s motion (Dkt No. 33) is DENIED with respect
to attorney’s fees and is otherwise GRANTED; and it is further
ORDERED that Cristo defendants’ motion (Dkt. No. 54) is
GRANTED; and it is further
ORDERED that the state defendants’ motion (Dkt. No. 62) is
GRANTED; and it is further
ORDERED that all claims by plaintiff M. Ferran arising from the
demolition of the subject property are DISMISSED; and it is further
ORDERED that the Clerk is directed to terminate HAF, Michael P.
Cristo Jr., Michael P. Cristo, M. Cristo Inc., Eugene Devine, Elizabeth A.
Garry, John A. Lahtinen, Richard M. Platkin, Robert S. Rose, and Leslie E.
Stein, and Vacant Building Initiative Project Team from this action; and it is
ORDERED that the parties contact Magistrate Judge Andrew T.
Baxter to schedule further proceedings consistent with this Memorandum-
Decision and Order; and it is further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.
IT IS SO ORDERED.
December 20, 2016
Albany, New York
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