Edelhertz et al v. City of Middletown

Filing 32

OPINION AND ORDER granting 14 Motion for Summary Judgment; denying 25 Motion for Partial Summary Judgment. Due to the foregoing, Plaintiffs motion for partial summary judgment is DENIED and Defendant's cross motion for summary judgment is GRANTED. The Clerk of the Court is respectfully directed to terminate the motions (Docs. 14, 25) and to enter judgment in favor of Defendant.(Signed by Judge Edgardo Ramos on 9/14/2012) (fk)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------------x
MELVYN EDELHERTZ and HELAINE
:
EDELHERTZ REVOCABLE LIVING
:
TRUST,
:
:
Plaintiff,
:
:
- against :
:
CITY OF MIDDLETOWN,
:
:
Defendant.
:
---------------------------------------------------------------x

OPINION AND ORDER
11-CV-1943 (ER)

Appearances:
James G. Sweeney
James G. Sweeney, P.C.
Goshen, New York
Attorney for Plaintiffs
Alex Smith
Alex Smith, Esq.
Middletown, New York
Attorney for Defendant
Ramos, D.J.:
The Melvyn Edelhertz and Helaine Edelhertz Revocable Living Trust (“Plaintiff” or
“Edelhertz”) 1 brings this action against the City of Middletown (“Defendant” or the “City”)
pursuant to 42 U.S.C. § 1983, alleging violations of its procedural due process rights guaranteed
by the Fourteenth Amendment to the U.S. Constitution.

Plaintiff now moves for partial

summary judgment on the issue of liability only and Defendant cross-moves for summary

1

Melvyn and Helaine Edelhertz are the trustees of the Melvyn Edelhertz and Helaine Edelhertz Revocable Living
Trust (the “Trust”). (Compl. ¶ 4.) The caption of this case, however, appears to incorrectly indicate that there are
two separate Plaintiffs: (1) Melvyn Edelhertz; and (2) The Helaine Edelhertz Revocable Living Trust. As the Trust
is the record owner of the property at issue in this matter, the Court treats it as the sole Plaintiff. (Affidavit of
Melvyn Edelhertz in Supp. of Pl.’s Mot. for Summ. J. (“Edelhertz Aff.”) ¶ 4.)

judgment. For the reasons stated below, Plaintiff’s motion is DENIED and Defendant’s crossmotion is GRANTED.
I. Factual Background
The following facts are undisputed unless otherwise indicated. 2 Plaintiff is the owner of
a multiple-dwelling building located at 57 Beattie Avenue in the City of Middletown, New York
(the “Beattie Avenue property”).

(Edelhertz Aff. ¶¶ 4-5.)

Melvyn and Helaine Edelhertz

acquired the Beattie Avenue property in 1993 and transferred title to it to Plaintiff in 1995. (Id.)
The building has four units, and is a non-owner occupied nonconforming use located in the
City’s R-1 zoning district. (Id. ¶¶ 5-9.) As an owner of a non-owner occupied multiple dwelling
in zone R-1, the City required Plaintiff to apply for and obtain a permit from the Commissioner
of Public Works, which he obtained annually and which contained Plaintiff’s correct name and
address. (Id. ¶ 9.)
On July 13, 2009, the Common Council of the City enacted an amendment to Chapter
475 of the Zoning Code of the City of Middletown to eliminate non-owner occupied multiple
dwellings in various zoning districts, including zone R-1. (Appx. in Supp. of Pl.’s Mot. for
Summ. J. (“Pl.’s Appx.”) at 25-30.) The amendment (the “Amortization Law”) provided the
following:
Any multiple dwelling in existence in any R-1, R-2, or OR-2 zoning district as of
the date of enactment of this Subsection . . . shall, at the expiration of five years
2

In his 56.1 Statement, Plaintiff cites to paragraphs in the Complaint “as admitted by the Defendant (‘the City’) in
its Answer.” (Pl.’s Stmt. Undisputed Facts Pursuant to Local Rule 56.1 (“Pl.’s 56.1 Stmt.”) ¶ 1.) The allegations
made in the Complaint—a document that is evidence of nothing more than the existence of an accusation—are
inadmissible hearsay, pursuant to Rules 801, 802, and 803 of the Federal Rules of Evidence. In re Blech Sec. Litig.,
94 Civ. 7696 (RWS), 2003 WL 1610775, at *11 (S.D.N.Y. Mar. 26, 2003). As the Second Circuit has held, a
complaint is not admissible to prove the truth of its contents. Id. (citing Stevenson v. Hearst Consol. Publ'ns, Inc.,
214 F.2d 902, 907 (2d Cir.1954)). However, Plaintiff has provided two affidavits, made upon personal knowledge,
and an appendix that support assertions in his 56.1 Statement. Therefore, although Plaintiff has failed to follow
Local Rule 56.1 where he cites to the Complaint for support, the Court will accept any 56.1 statement of fact that is
supported by an admissible document Plaintiff has submitted, even if Plaintiff has not cited to it.

2

from such date, become a prohibited and unlawful use and shall be discontinued,
excepting, however, that this Subsection . . . shall not apply to any multiple
dwelling which is owner-occupied, and further excepting that this Subsection . . .
shall not apply to any multiple dwelling for which it is structurally unreasonable
to convert into a lawful use in the subject zoning district. The determination as to
whether it is structurally unreasonable to convert a particular multiple dwelling
into a lawful use shall be made by the Commissioner of Public Works.
(Id. at 60.)
The zoning districts affected by the Amortization Law contained a total of 142 multiple
dwellings. (Id. at 31.) Since 1995, 128 of them were cited for code violations, and between
2005 and 2010, there were police calls to 140 of those 142 dwellings—accounting for a total of
3,790 police calls. (Id. at 31-32.) The Common Council determined that the prevalence of
boardinghouses and apartments in multiple dwellings in those areas was the cause of increased
code violations and criminal activity.

(Id. at 31, 43.) Consequently, the Council enacted the

Amortization Law to eliminate multiple dwellings, finding that they were undesirable, out of
character, and impaired the orderly development and general welfare of the affected zoning
districts. (Id. at 25.)
The Common Council gave notice of the proposed enactment of the Amortization Law to
any interested person through a “Public Hearing Notice” published in the legal classified
advertisements of the Times Herald Record, the primary newspaper of Middletown and Orange
Counties, on May 29 and 30, 2009. (Pl.’s Appx. at 23; Aff. of Alex Smith in Supp. of Def’s
Cross Mot. for Summ. J. (“Smith Aff.”) ¶ 11, Ex. B.) 3 The public hearing was held on June 8,
2009. (Pl.’s Appx. at 24.) 4 Only one person appeared at the hearing and spoke in favor of the
3

Although neither Plaintiff nor Defendant have provided the Court with a true and correct copy of Section
475.51(D) of the City’s Zoning Code, they do not dispute that it does not require individualized mailed notice before
the Common Council holds a public hearing. Rather, the Code requires notice to be given by publication on two
successive days in the “official City newspaper.” (Smith Aff. ¶ 11.)

4

Plaintiff does not purport that page 24 of its Appendix is a certified copy of a public record pursuant to Federal
Rule of Evidence 902(4), and it is questionable whether this document would be admissible at trial under this rule.

3

Amortization Law; no one appeared to speak against it. (Id. at 24.) The Council did not mail or
deliver the notice to the Plaintiff or to any owner of the affected multiple dwellings, despite
having knowledge of Plaintiff’s correct name and mailing address. (Edelhertz Aff. ¶¶ 9, 17, 21.)
On August 12, 2010, more than one year after the enactment of the Amortization Law,
Plaintiff entered into a contract to sell the Beattie Avenue property to Composite LLC for
$215,000. (Id. ¶ 10.) In the contract, Plaintiff represented to Composite that the Beattie Avenue
property was a lawful multiple dwelling, but through a title report, Composite’s attorney became
aware of the existence of the Amortization Law. (Id. ¶¶ 12-13.) 5 Both Edelhertz’s attorney and
Composite’s attorney attempted to secure verification from the City that the Beattie Avenue
property was a lawful nonconforming use and would be allowed to continue as such
notwithstanding the Amortization Law, but never received a response. (Id. ¶ 14.) In early
October 2010, Edelhertz’s attorney further sought a specific determination from the City that the
Beattie Avenue property could not be structurally altered to a conforming use, to which the
Commissioner of Public Works did not respond.

(Id ¶ 15.)

On October 6, 2010, the

Commissioner sent Plaintiff a form-letter notifying him of the enactment of the Amortization
Law. (Id. ¶ 16.) On October 26, 2010, Composite withdrew its offer to purchase the Beattie
Avenue property. (Pl.’s Appx. at 36.) Plaintiff never filed an Article 78 proceeding in state
court. (Smith Aff. ¶ 20.)
Defendant does not dispute any material fact set forth in Plaintiff’s 56.1 Statement, nor
does Plaintiff dispute any material fact submitted by Defendant. Rather, the parties dispute in
However, as Defendant does not dispute the accuracy of the information therein, and there is no dispute that a
hearing was held, the Court accepts as true that the Common Council held a public hearing on June 8, 2009.
5

Defendant disputes that Plaintiff did not have knowledge of the Amortization Law until after the signing of the
contract. (Smith Aff. ¶ 18, Ex. C.) Rather, Defendant contends that the first paragraph in the rider to the contract
references the Amortization Law and makes the contract contingent upon exemption of the property from the
ordinance. (Id.) This disputed fact, however, is immaterial to the inquiry of whether the City provided Plaintiff with
adequate notice of the hearing at which the Amortization Law was enacted.

4

their cross motions what form of notice Defendant was constitutionally required to provide to
Plaintiff in satisfaction of the Due Process Clause before depriving him of a protected property
right. Plaintiff argues that the City was required to provide him with notice by mail, while
Defendant contends that notice by publication was sufficient.
II. Summary Judgment Standard
Summary judgment is only appropriate where “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). “An issue of fact is ‘genuine’ if the evidence is such that a
reasonable jury could return a verdict for the non-moving party.” Senno v. Elmsford Union Free
Sch. Dist., 812 F. Supp. 2d 454, 467 (S.D.N.Y. 2011) (citing SCR Joint Venture L.P. v.
Warshawsky, 559 F.3d 133, 137 (2d Cir.2009)). A fact is “material” if it might affect the
outcome of the litigation under the relevant law. Id. The party moving for summary judgment is
first responsible for demonstrating the absence of any genuine issue of material fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986).
The burden then shifts to the party opposing summary judgment to present evidence that
is sufficient to satisfy every element of the claim and “designate specific facts showing that there
is a genuine issue for trial.” Celotex Corp., 477 U.S. 317 at 324 (quotation marks omitted).
“Summary judgment is properly granted when the non-moving party ‘fails to make a showing
sufficient to establish the existence of an element essential to that party’s case, and on which that
party will bear the burden of proof at trial .’” Abramson v. Pataki, 278 F.3d 93, 101 (2d Cir.
2002) (quoting Celotex Corp., 477 U.S. at 322).

5

In deciding a motion for summary judgment, the Court must “‘construe the facts in the
light most favorable to the non-moving party and must resolve all ambiguities and draw all
reasonable inferences against the movant.” Brod v. Omya, Inc., No. 09 Civ. 4551, 2011 WL
2750916, at *7 (2d Cir. July 18, 2011) (quoting Williams v. R.H. Donnelley, Corp., 368 F.3d
123, 126 (2d Cir. 2004)).

However, in opposing a motion for summary judgment, the

nonmoving part may not rely on unsupported assertions, conjecture or surmise. Goenaga v.
March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995). A motion for summary
judgment cannot be defeated on the basis of mere denials or unsupported alternative explanations
of facts. Senno, 812 F.Supp.2d at 467 (citing Scotto v. Almenas, 143 F.3d 105, 114 (2d
Cir.1998)). The non-moving party must do more than show that there is “‘some metaphysical
doubt as to the material facts,” McClellan v. Smith, 439 F.3d 137, 144 (2d Cir.2006) (quoting
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)), “[she] must set
forth significant, probative evidence on which a reasonable fact-finder could decide in [her]
favor.” Senno, 812 F.Supp.2d at 467–68 (citing Anderson v. Liberty Lobby, 477 U.S. 242, 256–
57 (1986)).
When cross motions for summary judgment are made, each party’s motion must be
assessed on its own merits. Morales v. Quintel Entm’t, Inc., 249 F.3d 115, 121 (2d Cir. 2001)
(citing Schwabenbauer v. Bd. of Educ., 667 F.2d 305, 314 (2d Cir.1981)). The court must view
the evidence in the light most favorable to the party opposing the motion, Wachovia Bank, Nat.
Ass’n v. VCG Special Opportunities Master Fund, Ltd., 661 F.3d 164, 171 (2d Cir. 2011) cert.
denied, 132 S. Ct. 2439, 182 L. Ed. 2d 1063 (U.S. 2012), and “in each case all reasonable
inferences must be drawn against the party whose motion is under consideration.” Lyons v.
Lancer Ins. Co., 681 F.3d 50, 57 (2d Cir. 2012) (quoting Morales, 249 F.3d at 121).

6

III. Discussion
Section 1983 protects against state action that violates a property owner’s right to due
process under the Fourteenth Amendment to the U.S. Constitution. G.I. Home Developing Corp.
v. Weis, No. 07-CV-4115 (DRH), 2009 WL 962696, at *5 (E.D.N.Y. Mar. 31, 2009) (quoting
Bower Assocs. v. Town of Pleasant Valley, 2 N.Y.3d 617, 627, N.Y.S.2d 240, 814 N.E.2d 410
(2004)). To determine whether a procedural due process violation has occurred, courts must
engage in a two-step analysis: first, a court must determine whether there exists a property
interest of which a person has been deprived; and if so, a court must next determine if the
procedures followed by the state were constitutionally sufficient. Swarthout v. Cooke, --- U.S. ---, 131 S. Ct. 859, 861 (2011); Oneida Indian Nation of New York v. Madison Cty., 665 F.3d 408
(2d Cir. 2011).
A. Constitutionally Protected Property Right
To possess a federally protected property interest, a person must have a legitimate claim
of entitlement to it. Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972). Such a
claim does not arise from the Constitution, but rather from an independent source such as state or
local law. Id.; Donato v. Plainview-Old Bethpage Cent. Sch. Dist., 96 F.3d 623, 629 (2d Cir.
1996); G.I. Home Developing Corp, 2009 WL 962696, at *5. “An abstract need, desire or
unilateral expectation is not enough.” Abramson v. Pataki, 278 F.3d 93, 99 (2d Cir. 2002) (citing
Roth, 408 U.S. at 577). Under New York law, a nonconforming use that predates the enactment
of a restrictive zoning ordinance is a vested right and is entitled to constitutional protection.
Norton v. Town of Islip, 239 F. Supp. 2d 264, 270 (E.D.N.Y. 2003) aff'd, 77 F. App'x 56 (2d Cir.
2003) (citing Town of Somers v. Camarco, 308 N.Y. 537, 541 127 N.E.2d 327 (N.Y.1955);
Keller v. Haller, 226 A.D.2d 639, 641 N.Y.S.2d 380 (2d Dept.1996)). A vested nonconforming

7

use is defined as one that came into existence before enactment of the zoning ordinance that
prohibits its use, and that is continuously maintained after the zoning changes take effect.
Greene v. Town of Blooming Grove, 879 F.2d 1061, 1065 (2d Cir. 1989) (citing City of New York
v. Bilynn Realty Corp., 118 A.D.2d 511, 499 N.Y.S.2d 1011, 1014 (1st Dep't 1986)).
In the instant matter, it is undisputed that Plaintiff had a vested property right in the
nonconforming use of his property as a non-owner occupied multiple dwelling. Though it is
unclear from the record when exactly the Beattie Avenue property became a nonconforming use,
it is clear that a non-owner occupied multiple dwelling is a nonconforming use in zone R-1, and
that Plaintiff has maintained the property as such since obtaining title to it in 1993. (Pl.’s Appx.
at 57-60; Edelhertz Aff. ¶¶ 4-8.)

Plaintiff’s nonconforming use remained in effect upon

enactment of the Amortization Law, which mandated its discontinuance within five years.
(Edelhertz Aff. ¶¶ 4-6; Pl.’s Appx. at 25-30, 60.) Thus, Plaintiff had a vested property right in the
maintenance of the Beattie Avenue property as a nonconforming use.
B. The Amortization Law Was Legislative Action
Before a deprivation of a property interest occurs, the Due Process Clause requires, at a
minimum, that the government provide “notice reasonably calculated, under all the
circumstances, to apprise interested parties of the pendency of the action and afford them an
opportunity to present their objections.” Mullane v. Central Hanover Bank & Trust Co., 339
U.S. 306, 314 (1950). However, due process protections are not required when the government
takes action that is legislative rather than adjudicative. RR Vill. Ass’n., Inc. v. Denver Sewer
Corp., 826 F.2d 1197, 1204 (2d Cir. 1987).

The Supreme Court has not recognized a

constitutional right to participate directly in legislative action because of the “massive intrusion
into state and federal policymaking” that would result. Minnesota State Bd. for Cmty. Colls. v.

8

Knight, 465 U.S. 271, 284-85 (1984). “Government makes so many policy decisions affecting
so many people that it would likely grind to a halt were policymaking constrained by
constitutional requirements on whose voices must be heard.” Id. at 285. “Instead, the public
may influence the legislative process by effectuating its power over those elected officials
through, inter alia, the electoral process.”

Kittay v. Giuliani, 112 F. Supp. 2d 342, 353

(S.D.N.Y. 2000) aff'd, 252 F.3d 645 (2d Cir. 2001). Thus, due process “does not require any
hearing or participation in legislative decisionmaking other than that afforded by judicial review
after rule promulgation.” Interport Pilots Agency, Inc. v. Sammis, 14 F.3d 133, 142 (2d Cir.
1994) (internal citation and quotation marks omitted).
In the Second Circuit, “the test for determining whether official action is adjudicative or
legislative focuses on the function performed by the decisionmaker, not on the method of
selecting the decisionmaker, or on the form in which the decision is announced.” RR Vill. Ass’n.,
826 F.2d at 1204 (internal citations omitted). Action is adjudicative when it is based on “facts
about the parties and their activities, businesses, and properties,” Langevin v. Chenango Court,
Inc., 447 F.2d 296, 300 (2d Cir. 1970), and “designed to adjudicate disputed facts in particular
cases.” United States v. Florida E. Coast Ry. Co., 410 U.S. 224, 245 (1973). On the other hand,
government action is legislative when it considers “general facts which help the tribunal decide
questions of law and policy and discretion,” Langevin, 447 F.2d at 300, and when it has “general
application and look[s] to the future.” Sammis, 14 F.3d at 143. Adjudicative decisions apply a
statute or legal standard “to a given fact situation involving particular individuals,” whereas
legislative action entails “the formulation of a general rule to be applied . . . at a subsequent
time.” Air Line Pilots Assn., Intern. v. Quesada, 276 F.2d 892, 896 (2d Cir. 1960). Procedural
due process claims “must be dismissed when they challenge purely legislative action.”

9

O’Bradovich v. Village of Tuackhoe, 325 F. Supp. 2d 413, 429 (S.D.N.Y 2004) (quoting Sammis,
14 F.3d at 142).
Plaintiff argues that enacting the Amortization Law was adjudicative—and not
legislative—action as to him because it was “based on a host of targeted facts” and was
“retrospective in nature looking back over several years of examined activity.” (Pl.’s Mem. at
16-17.) Therefore, he asserts that he was entitled to individual notification of the proposed
legislation.

See infra Part III.C.

However, the Common Council’s decision to enact the

Amortization Law “did not attempt to adjudicate particular facts as to any one [landowner] or
group of [landowners],” Sammis, 14 F.3d at 143; see also Quesada, 276 F.2d at 896, nor was it
enacted to single out any individual “for special consideration based on [her] own peculiar
circumstances.” Florida E. Coast Ry. Co., 410 U.S. at 246. Rather, the Common Council,
acting in a policy-making capacity, considered facts relating generally to non-owner occupied
multiple dwellings in the relevant zoning districts.

Compare Sammis, 14 F.3d at 143

(government action that placed restrictions on piloting was found to be legislative, as it
“considered facts relating to pilotage in general, including environmental and safety concerns
[and] economic factors”) (emphasis added); with RR Vill. Ass’n., 826 F.2d at 1205 (government
action retroactively increasing cost of sewage disposal found to be adjudicative where there was
no “consideration of facts relating to the sewage disposal industry in general, much less of
questions of social or economic policy”) (emphasis added). Here, the Council found that nonowner occupied multiple dwellings generally impaired the orderly development and general
welfare of certain zoning districts. (Pl.’s Appx. at 25-30.) These findings were based on data
indicating that the prevalence of non-owner occupied multiple dwellings was the cause of
increased housing and sanitary code violations as well as criminal activity. (Id. at 25, 31, 43).

10

As the Amortization Law applies “across the board to all” non-owner occupied multiple
dwellings in the affected zoning districts, Florida E. Coast Ry. Co., 410 U.S. at 246, and does
“not seek to impose any retroactive penalty,” Sammis, 14 F.3d at 143, but rather is forward
looking, it cannot be considered an adjudicative decision by the Common Council. Accordingly,
because the City’s enactment of the Amortization Law constitutes legislative action, Plaintiff
was not entitled to due process protection before its enactment. Grand River Enters. Six Nations,
Ltd. v. Pryor, 425 F.3d 158, 174 (2d Cir. 2005) (quoting Sammis, 14 F.3d at 142).
C. Notice by Publication Was Sufficient
Plaintiff relies on the Supreme Court’s general rule, first articulated in Mullane v. Central
Hanover Bank & Trust Co., 339 U.S. 306 (1950), that notice by publication is insufficient upon
someone whose name and address are “known or very easily ascertainable and whose legally
protected interests are directly affected by the proceedings in question.” Schroeder v. City of
New York, 371 U.S. 208, 212-13 (1962); Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 800
(1983) (“Notice by mail or other means as certain to ensure actual notice is a minimum
constitutional precondition to a proceeding which will adversely affect the liberty or property
interests of any party, whether unlettered or well versed in commercial practice, if its name and
address are reasonably ascertainable.”). Here, it is undisputed that Defendant had knowledge of
Plaintiff’s identity and address before the June 8, 2009 hearing. (Edelhertz Aff. ¶ 9.) It is further
uncontested that the City did not effect notice upon the Plaintiff through the mails, but did so
solely through publication in a local newspaper. (Edelhertz Aff. ¶¶ 17, 21; Smith Aff., Ex. B.)
Thus, Plaintiff argues, it was not accorded due process because it did not receive actual, personal
notice of the hearing before a deprivation of his property rights occurred. However, the Mullane

11