Royal Housing, LLC v. City of Jamestown, New York et al
Filing
32
DECISION AND ORDER: For the reasons set forth herein, Plaintiff's 17 motion for partial summary judgment is granted on the issue of liability. Defendants' 19 cross motion for summary judgment is denied. The parties shall appear in person for a status conference on 10/8/2021 at 9:30 a.m. SO ORDERED. Signed by Hon. Richard J. Arcara on 10/1/2021. (LAS)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
ROYAL HOUSING, LLC,
DECISION AND ORDER
14-CV-880
v.
Plaintiff,
CITY OF JAMESTOWN, NEW YORK,
et al.,
Defendants.
I. INTRODUCTION
Plaintiff, the owner and landlord of an apartment house in Jamestown, New
York, alleges that Defendants, municipal officials, condemned its building in a
manner that violated Plaintiff’s rights under the Fourth and Fourteenth
Amendments. Docket No. 1. Currently before the Court are the parties’ crossmotions for summary judgment. Docket Nos. 17, 19.
In support of Plaintiff’s Motion for Summary Judgment on the issue of
liability, Plaintiff submits a Statement of Undisputed Facts (Docket No. 17-1),
Attorney Affidavit (Docket No. 17-2), Declaration of Harold W. Whitford, Jr. (Docket
1
No. 17-3), Declaration of Brenda L. Strasser (Docket No. 17-4), and Memorandum
of Law (Docket No. 17-5).
Defendants submit, in support of their opposition and cross-motion, a
Statement of Undisputed Facts (Docket No. 19-2), an Attorney Declaration (Docket
No. 19-3), Supporting Declarations (Docket No. 19-4), and Memorandum of Law
(Docket No. 19-5). They also submit an Opposing Statement of Undisputed
Material Facts. Docket No. 20. Plaintiff has filed a Reply. Docket No. 21.
Oral argument on the pending motions was held before Magistrate Judge
Kenneth Schroeder on January 26, 2016. The parties held a mediation session on
October 31, 2017, after which the parties agreed to a potential settlement,
contingent upon the approval of the Jamestown City Council. Docket No. 26.
On November 20, 2017, the Jamestown City Council rejected the proposed
settlement, and Defendants thereafter moved, unopposed, to reopen the matter
and restore it to the Court’s calendar. Docket No. 29. The Court granted
Defendants’ motion on May 15, 2018 (Docket No. 30), and now addresses the
pending Motions for Summary Judgment.
II. FACTUAL BACKGROUND
The following facts are undisputed unless otherwise noted.
Parties
Plaintiff Royal Housing LLC (“Plaintiff”) is a limited liability company
organized under the laws of the State of New York.
2
Defendant City of Jamestown (“Jamestown”) is a municipal corporation with
offices located at 200 E. Third Street, Jamestown, County of Chautauqua, State of
New York. Defendant Samuel Teresi (“Teresi”) is the Mayor of the City of
Jamestown.
Defendant Vince DeJoy III (“DeJoy”) is the Director of Development for the
City of Jamestown. In that capacity, he directs and supervises various code
enforcement personnel, including Defendant Greg Moran (“Moran”). Moran was
an employee of the City of Jamestown until his retirement on November 15, 2014,
performing the jobs of “Rehab and Code Enforcement Officer” and “Housing
Inspector.” The City of Jamestown, Teresi, DeJoy, and Moran are collectively
referred to herein as “Defendants.”
The Subject Property
Plaintiff is the owner of the premises commonly known as 1091 E. Second
Street in the City of Jamestown (“the subject property”). The subject property is a
two-story home that contains five apartments, numbered 1 through 5.
Plaintiff is the property’s owner and acting landlord in renting the five
apartment units. Until September 5, 2014, four of the five apartments were rented
pursuant to month-to-month tenancies. Whitford Decl. ¶¶ 6-7; Strasser Decl. ¶¶ 67.
According to Plaintiff, the tenants of Apartments 1 and 2 had continuously
rented their respective apartments for over one year. Plaintiff’s LLC members deny
knowledge of any arrest of those tenants for narcotic sales or any other criminal
3
activity throughout their tenancy. They further deny knowledge that any tenants at
the subject property were participating in or supporting the use or sale of narcotics
at 1091 E. Second Street. Whitford Decl. ¶¶ 9-10; Strasser Decl. ¶¶ 9-10.
Apartment 5 was last rented for the month of June 2014, and was vacant
during the months of July and August 2014. Approximately two weeks before
September 4, 2014, Harold Whitford and Brenda Strasser, the LLC’s members,
inspected Apartment 5, observed it to be vacant, unfurnished, and showing no
signs of occupancy. The door and windows to the apartment were locked and
secure at that time, and the utilities to the unit were turned off. Whitford Decl. ¶¶
7-8; Strasser Decl. ¶¶ 7-8.
Jamestown City Code and Condemnation Process
Defendant DeJoy has the power to condemn properties in the City of
Jamestown and may delegate that power to subordinate code enforcement
officers. In order to effectuate a condemnation, a sign is posted on the premises
to communicate that the premises are not to be occupied for any reason.
The Jamestown Department of Development has the power to issue
“Notices of Violation,” which are notices that inform of code violations present at a
property and state that such issues need to be addressed by a certain date or
further action will be taken. Said Notices are issued by code enforcement officers,
in writing, and are posted on the premises as well as being mailed to the address
of the titled owner. In the event of noncompliance with a Notice of Violation, a code
4
enforcement officer can take the property owner to court by issuing an appearance
ticket.
During his deposition, DeJoy explained that a “Notice to Vacate” was a
written notice to the occupants and owners of a property requiring that the property
be vacated. The authority for these Notices comes from Chapter 215 of the
Jamestown City Code. DeJoy Dep. 31-33, 38. Code enforcement officers can
issue Notices to Vacate. DeJoy can also direct a Notice to Vacate be issued but
he had never personally issued one himself. DeJoy Dep. 33-34, 37.
A “Property Rehabilitation and Conservation Board of Appeals” is also
described in Chapter 215 of the Jamestown City Code. The parties dispute
whether the Board has ever convened. DeJoy Dep. 38-39; Whitford Decl. ¶ 29;
Strasser Decl. ¶ 19; Def. Opp’n Stmt. ¶ 22. One way to convene a Property
Rehabilitation and Conservation Board of Appeals is by filing an appeal to a Notice
of Violation.
Section 215 of the Jamestown City Code is a building code statute which
reads, in pertinent part:
Whenever the Director of Development at any time finds
that a violation of this chapter exists which requires
immediate action to abate a direct hazard or immediate
danger to the health, safety or welfare of the occupants
of a building or of the public, he may, without prior notice
of hearing, issue an order citing the violation and
directing that such action be taken as is necessary to
remove or abate the hazard or danger. Such order may
include an order to vacate. Notwithstanding any other
provisions of this chapter, such an order shall be effective
immediately upon service.
5
Jamestown City Code § 215-62.
Likewise, “unfit premises” are defined as:
(1) Structures lacking ventilation, sanitation, heat or
other facilities adequate to protect the health and safety
of the occupants or the public.
(2) Structures or premises which are damaged,
decayed, dilapidated, unsanitary, unsafe or infested in
such a manner as to create a hazard to the health and
safety of the occupants or the public.
(3) Structures or premises which because of the
location, general condition, state of the premises or
number of occupants are unsanitary, unsafe and
overcrowded or are otherwise detrimental to health and
safety that a hazard to the occupant or the public is
created.
Id. § 215-6. In turn, “hazard” is defined as “condition which bears a high potential
for harm to the health or safety of an individual or property,” Id. § 215-6, and
“nuisance” is defined merely as a “violation of [§ 215].” Id. § 215-46.
Drug Raid and Subsequent Condemnation of the Subject Property
On September 4, 2014 at approximately 10:40 a.m., the Jamestown Police
Department Drug Enforcement Unit (“DEU”) executed a search warrant at the
subject property. Tenants of Apartments 3 and 4 were arrested during the raid. No
search of Apartments 1 and 2 was conducted and no tenants from those
Apartments were arrested.
The day following the raid, Defendants DeJoy and Teresi conducted an
“impromptu” meeting with the Jamestown Police Chief Harry Snellings, in the
6
Mayor’s office. DeJoy Dep. 46. Between the date of the search warrant and the
September 5th meeting, DeJoy did not contact Plaintiff, the property’s owner. Id.
at 49-50.
At the meeting, DeJoy raised the possibility of condemning the subject
property due to complaints made by neighbors regarding the poor condition of the
property, unauthorized motor vehicle repairs being performed on the property, and
the fact that one of the individuals arrested during the raid was also arrested at a
different property of Plaintiff’s on a prior occasion. DeJoy Dep. 51. DeJoy
communicated to Teresi and the Police Chief that he believed the property, which
was located “on the footprint of the Jamestown Community College campus,” rose
to the level of a “nuisance of public safety.” DeJoy Dep. 52. The Police Chief
agreed that the house should be condemned, while Teresi indicated that he
wanted to consult corporation counsel. Id.
DeJoy’s recommendation of condemnation was based upon suspected
narcotics-related activity by the tenants at the subject property. He sought to
exclude those tenants, as well as other individuals suspected of purchasing
narcotics, from returning to the property. DeJoy Dep. 55-56. He testified that
“neglect and mismanagement [was occurring] on the part of the landlord” because
another individual had been arrested for a drug offense at another one of Plaintiff’s
properties in Jamestown. DeJoy Dep. 100. 1
According to Defendants, Plaintiff either owns or manages over 350 properties in the City of
Jamestown. Atty. Decl. (Docket No. 19-3) ¶ 5.
1
7
On September 5, 2014 (the date of the meeting), Teresi directed DeJoy to
condemn the subject property, which DeJoy understood to mean invoking Chapter
215 of the Jamestown City Code. DeJoy Dep. 59, 61-62. DeJoy then verbally
delegated the condemnation responsibility to Defendant Moran. Id. at 62-64.
Moran went to the subject property and nailed a notice on the exterior stating
the following:
City of Jamestown, New York
TAKE NOTICE – THIS BUILDING/APARTMENT IS
CONDEMNED by order of the Department of
Development and is not to be occupied until a Certificate
of Occupancy has been issued.
Property Address: Name, address & phone of owner:
1091 E. 2nd St. Royal Housing LLC
132 ½ Prospect St.
Jamestown
The owner of this property has failed to bring it into
compliance with Chapter 215 of the Code of the City of
Jamestown. This building/apartment shall remain posted
and unoccupied until cited code violations have been
remedied and an inspection is conducted by the
inspector listed below. Additional legal action is being
pursued against the owner by the Department of
Development in Jamestown City Court.
Note: The owner or other occupants of this building may
have been authorized by the Department of Development
to be on the property during designated hours to remove
personal items and/or furnishings.
For additional information please contact the Department
of Development at 483-7541.
Greg Moran 483-7660
HOUSING INSPECTOR
9/5/14
DATE OF POSTING
8
THE UNAUTHORIZED REMOVAL, MUTILATION OR
COVERING UP OF THIS NOTICE IS PUNISHABLE BY
FINE OR IMPRISONMENT OR BOTH
BUILDING TO BE DEMOLISHED YES ___ NO X
Compl. ¶ 49; Answer ¶ 49; DeJoy Dep. at 64, ln. 18-22; Whitford Decl. ¶ 15.
On the same date, Defendant Moran mailed Plaintiff a letter with an
enclosure titled “Notice to Vacate,” which reads, in pertinent part:
PLEASE TAKE NOTICE there exists [sic] violations of the
Jamestown City Code for the premises known as 1091 E
2nd St.
The specific violation(s) is/are designated as follows:
Declared nuisance
in violation of Section 2015-46
YOU ARE HEREBY ORDERED to vacate the premises at
1091 E 2nd St on or before the 5th day of September,
2014.
Compl. ¶ 56; Ex. A.
Defendant DeJoy testified that it was his decision to use the above
language, and he communicated this decision verbally to Moran. DeJoy Dep. 6667. DeJoy also authorized the wording of the Notice posted on the exterior of the
subject property. Id. at 68. DeJoy directly approved all of Moran’s actions, which
were in the scope of Moran’s duties. Id. at 70.
Moran also hand-delivered copies of the “Notice to Vacate” to tenants who
were present in the building at the time. The “Notice to Vacate” contained no
language informing the tenants or Plaintiff that any of them had the right to a
9
hearing or the right to appeal the “Notice to Vacate,” or of any other methods and
appurtenant deadlines for challenging the Notice. Whitford Decl., Ex. A. Moran
spoke to the tenant of Apartment 1 and Harold Whitford and informed them that
they had to gather their belongings and vacate the premises. Compl. ¶ 52; Answer
¶ 52; Whitford Decl ¶¶ 16-17. Harold Whitford telephoned DeJoy later that day to
inquire why the property had been condemned. Whitford Decl. ¶ 20.
The parties do not dispute that prior to the execution of the search warrant,
there was no discussion of condemnation of any portion of the subject premises.
DeJoy Dep. at 45; Whitford Decl. ¶ 27; Strasser Decl. ¶ 17.
Plaintiff states that it was not notified in writing either before or after the
posting of the condemnation sign of any procedure to contest the condemnation.
Furthermore, Plaintiff asserts it was not provided with an opportunity to contest the
condemnation prior to the posting of the condemnation sign and “Notice to Vacate.”
Whitford Decl. ¶¶ 27-28; Strasser Decl. ¶¶ 17-18. A letter from Moran dated
September 5, 2014, notified Whitford of the condemnation, declaring it a “nuisance
and/or immediate danger.” It did not state procedures to contest the condemnation.
Whitford Decl., Ex. B.
Defendants do not dispute the foregoing facts regarding notice and the
letter. They assert, however, that Plaintiff was “familiar” with the procedures and
processes of the Department of Development and simply did not avail itself of the
procedures available to contest the temporary condemnation by failing to request
10
a hearing. Def. Opp’n Stmt. ¶¶ 38-40. It is undisputed that no hearing was held
concerning the condemnation of the subject property.
Plaintiff maintains that it was not presented with any form of notice
instructing Plaintiff to commence an eviction against any of its tenants at the
subject property prior to the condemnation.
Defendants respond that the
temporary condemnation and resulting “Notice to Vacate” was done under
emergency conditions. Whitford Decl. ¶ 31 & Ex. A; Strasser Decl. ¶ 21; Def. Opp’n
Stmt. ¶ 41.
Plaintiff asserts that as of September 4, 2014, monthly rents for Apartments
1 through 4 totaled $1150. Apartment 5 was vacant and last rented in June 2014,
and would normally rent for $375 per month. Whitford Decl. ¶ 7.
By letter dated November 6, 2014, addressed to Plaintiff, DeJoy lifted the
condemnation of the subject property because he believed “the premises wasn’t
occupied by those who were perpetrating the narcotics activity.” DeJoy Dep. 89.
He testified that although other violations were still outstanding at the property,
they did not warrant condemnation. Id. at 89-90. It was DeJoy’s determination to
lift the condemnation, and he informed Teresi of his intention to do so. Id. at 9798.
On an unspecified date, a man by the name of Jose Diaz-Solis, who was not
a tenant at the subject property, was found in the vacant unit, Apartment 5.
Following the September 4th raid, Jose Diaz-Solis was charged with, inter alia,
11
burglary in the second degree in violation of New York Penal Law § 140.25, a Class
C violent felony.
III. DISCUSSION
Summary Judgment Standard
A party is entitled to summary judgment if the party shows “that there is no
genuine dispute as to any material fact and the [party] is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). A fact is “material” if it “might affect the
outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). A dispute over a material fact is “genuine” if “the evidence
is such that a reasonable jury could return a verdict for the nonmoving party.” Id.
Thus, a court’s role in deciding a summary judgment motion is “not . . . to weigh
the evidence and determine the truth of the matter but to determine whether there
is a genuine issue for trial.” Id. at 249. When considering a summary judgment
motion, “[t]he evidence of the non-movant is to be believed, and all justifiable
inferences are to be drawn in his favor.” Id. at 255.
When resolving cross-motions for summary judgment, the same standards
apply. “[E]ach party’s motion must be examined on its own merits, and in each
case all reasonable inferences must be drawn against the party whose motion is
under consideration.” Morales v. Quintel Entm’t, Inc., 249 F.3d 115, 121 (2d Cir.
2001) (citing Schwabenbauer v. Board. of Educ., 667 F.2d 305, 314 (2d Cir.
1981)). “[W]hen both parties move for summary judgment, asserting the absence
12
of any genuine issues of material fact, a court need not enter judgment for either
party. Rather, each party’s motion must be examined on its own merits, and in
each case all reasonable inferences must be drawn against the party whose
motion is under consideration.” Id. at 121 (citations omitted).
Pre-Deprivation Due Process
Plaintiff moves for summary judgment as to liability on all claims in its
Complaint, which asserts procedural and substantive due process violations and
seeks declaratory relief. Pl. Mem. (Dkt. No. 17-5) at 1-21. The crux of this action,
however, is Plaintiff’s claim that the Defendants’ condemnation of the subject
property occurred without adequate pre-deprivation process.
“The Fourteenth Amendment prohibits a state from ‘depriv[ing] any person
of life, liberty, or property, without due process of law . . . . ’ Due process requires
that before state actors deprive a person of her property, they offer [him or] her a
meaningful opportunity to be heard.” WWBITV, Inc. v. Village of Rouses Point, 589
F.3d 46, 50 (2d Cir. 2009) (citing U.S. Const. amend. XIV, § 1; Armstrong v.
Manzo, 380 U.S. 545, 552 (1965)). “The Supreme Court has held, however, that
in emergency situations a state may satisfy the requirements of procedural due
process merely by making available ‘some meaningful means by which to assess
the propriety of the State’s action at some time after the initial taking.’” Id. (quoting
Parratt v. Taylor, 451 U.S. 527, 539 (1981), overruled on other grounds by Daniels
v. Williams, 474 U.S. 327 (1986)). “Where there is an emergency requiring quick
action and where meaningful pre-deprivation process would be impractical, the
13
government is relieved of its usual obligation to provide a hearing, as long as there
is an adequate procedure in place to assess the propriety of the deprivation
afterwards.” WWBITV, 589 F.3d at 50 (internal citation omitted).
The parties do not dispute that Plaintiff had a constitutionally-protected
property interest in the subject property and do not dispute that Plaintiff did not
receive a pre-deprivation hearing or notice thereof. Thus, the sole disputed issue
is whether Defendants properly invoked emergency procedures in condemning the
subject property without a pre-deprivation hearing.
Emergency Exception
In determining whether an official properly invoked emergency procedures,
the court must “accord the decision to invoke the procedure some deference and
not engage in a hindsight analysis of whether [the situation] actually created an
immediate danger to the public.” Catanzaro v. Weiden, 188 F.3d 56, 62 (2d Cir.
1998). “Such hindsight analysis of [an official’s] means of dealing with an
emergency would encourage delay and risk increasing the public’s exposure to
dangerous conditions.” WWBITV, 589 F.3d at 52. “If an official believes that the
public is in immediate danger, he or she should not hesitate to invoke an
emergency procedure for fear of being sued and being liable for damages should
his or her decision turn out to be incorrect in hindsight.” Catanzaro, 188 F.3d at 63.
“[T]he due process guarantee is offended only when an emergency
procedure is invoked in an abusive and arbitrary manner; therefore, there is no
constitutional violation unless the decision to invoke the emergency procedure
14
amounts to an abuse of the constitutionally afforded discretion.” Catanzaro,
188F.3d at 62. “Whether the official abused his discretion or acted arbitrarily in
concluding that a genuine emergency exists is a factual issue, subject to the usual
considerations for a district court addressing a summary judgment motion.”
WWBITV, 589 F.3d at 51.
Defendants appear to rely upon Catanzaro for the proposition that their
decision to condemn the subject property “must be analyzed very deferentially.”
Def. Mem. 9, quoting Catanzaro, 188 F.3d at 63
This somewhat deferential standard finds strong support in
policy considerations. The law should not discourage officials from
taking prompt action to insure the public safety. By subjecting a
decision to invoke an emergency procedure to an exacting hindsight
analysis, where every mistake, even if made in good faith, becomes
a constitutional violation, we encourage delay and thereby
potentially increase the public's exposure to dangerous conditions.
This quandary is exactly what these emergency procedures are
designed to prevent, and is the primary reason they are
constitutionally acceptable.
Catanzaro reiterated the well-established rule that “although notice and a
predeprivation hearing are generally required, in certain circumstances, the lack
of such predeprivation process will not offend the constitutional guarantee of due
process, provided there is sufficient postdeprivation process.” 188 F.3d 56, 61
(citing Parratt, supra). “‘[E]ither the necessity of quick action by the State or the
impracticality of providing any meaningful predeprivation process, when coupled
with the availability of some meaningful means by which to assess the propriety
of the State’s action at some time after the initial taking, can satisfy the
15
requirements of procedural due process.’” Id. (quoting Parratt, 541 U.S. at 539).
The Catanzaro Court went on to hold that “where there is competent
evidence allowing the official to reasonably believe that an emergency does in
fact exist, or that affording predeprivation process would be otherwise
impractical, 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.” Catanzaro, 188F.3d at 62. “[T]here is no constitutional
violation unless the decision to invoke the emergency procedure amounts to an
abuse of the constitutionally afforded discretion.” Id. “The inquiry is thus twofold:
whether there was an emergency that required immediate action, and whether
adequate post-deprivation remedies were available.” Canzoneri v. Inc. Vill. of
Rockville Ctr., 986 F. Supp. 2d 194, 203 (E.D.N.Y. 2013) (citation omitted).
First, it is undisputed that the relevant portions of the Jamestown City
Code at issue here do not encompass criminal activity or violations otherwise
reserved to the Penal Law. To that end, Defendants submit no competent
evidence that existed for them to reasonably believe that an emergency existed
under the Jamestown City Code. Second, they make no attempt to argue, nor
can they, as to why or how pre-deprivation process was impractical after the
arrests were made. See Catanzaro, 188 F.3d at 63. Even if Defendants had
submitted evidence that the drug dealing activities of Plaintiff’s tenants
constituted an “emergency,” any emergency would have been abated upon the
arrest and removal of those tenants suspected of illegal drug activity, which
16
occurred the day before the condemnation was ordered. The fact that the subject
property was burglarized (presumably after the raid and the issuance of the
“Notice to Vacate”) is of little value to defeat Plaintiff’s motion, as Defendants
submit no admissible evidence that the burglary was a result of the previous drug
activity at the subject property. Moreover, it does not appear that Defendants
were aware that Apartment 5 had been burglarized at the time the municipality
decided to condemn the subject property. Stated somewhat differently, this is not
evidence that Defendants possessed at the time of invoking the emergency
procedure.
Defendants have also failed to proffer competent evidence to create a
genuine dispute as to whether they abused their discretion in determining that an
emergency existed. To the contrary, Defendants circumvented, ignored, or were
unaware of other established measures to address drug-related criminal activity,
such as New York’s so-called “Bawdy House” law. 2 Their invocation of a building
as a substitute for criminal procedure was likewise arbitrary and arguably
pretextual. 3
N.Y. Real Property Actions and Proceedings Law § 715(1) permits various interested
individuals and enforcement entities to maintain a summary proceeding for the recovery of real
property where such property is “used or occupied in whole or in part as a bawdy-house, or
house or place of assignation for lewd persons, or for purposes of prostitution, or for any illegal
trade, business or manufacture . . . . Id.
2
In the civil forfeiture context, one Michigan district court aptly observed, “the purpose of civil
forfeiture proceedings is to seize the property which facilitates drug transactions, and not
primarily to stop the consumption or sale of drugs by people using the property. Criminal
proceedings must be brought in order to restrain people from engaging in drug transactions.”
U.S v. A Leasehold Interest in Prop. Located at 850 S. Maple, Ann Arbor, Washtenaw Cty.,
Mich., 743 F. Supp. 505, 511 (E.D. Mich. 1990).
3
17
Defendants also submit no evidence that there was insufficient time to hold
a pre-deprivation hearing. The undisputed facts and record evidence indicate that
suspected offenders were already removed from the premises prior to the
condemnation order. Rather, Defendants submit a sworn declaration by the
Jamestown Chief of Police, Harry Snellings, stating:
The eviction of only three (3) of the five (5) apartments
would have left the remaining tenants subject to the
likelihood that individuals seeking to purchase illegal
drugs would have returned to the property . . . . If the
entire building was not temporarily condemned, I had
legitimate concerns individuals who had been coming to
the residence in the past would return and would likely
pose a threat to anyone who remained in the building or
to the neighbors.
Snellings Decl. (Docket No. 19-4) ¶¶14-15. Snellings’ concerns that drug
seekers would somehow threaten the remaining law-abiding tenants are highly
speculative, and it is well-settled that defendants cannot rely on “mere
speculation or conjecture as to the true nature of the facts to overcome a motion
for summary judgment.” Knight v. United States Fire Ins. Co., 804 F.2d 9, 12 (2d
Cir. 1986). As noted by the Northern District of New York, “the mere suspicion of
sporadic criminal activity is certainly not an emergency that would justify
dispensing with plaintiff’s constitutional rights.” Kassim v. City of Schenectady,
255 F. Supp. 2d 32, 39 (N.D.N.Y. 2003), aff’d in part, vacated in part, remanded,
415 F.3d 246 (2d Cir. 2005).
18
In sum, the emergency condemnation procedure was not properly invoked
because Defendants did not have a sufficient evidentiary basis to support their
emergency finding. No reasonable jury could find otherwise. In light of this
determination, the question of whether post-deprivation processes were sufficient
need not be reached. See Reynolds v. Krebs, 336 Fed. Appx. 27, 29 (2d Cir. July
2, 2009) (“Where postdeprivation processes are adequate, due process is
violated ‘only when an emergency procedure is invoked in an abusive and
arbitrary manner’.”) (citing Catanzaro 188 F.3d at 61). (summary order)
Qualified Immunity
Defendants, in their cross-motion for summary judgment, contend that
even if they violated Plaintiff’s constitutional rights, they are nonetheless entitled
to qualified immunity. Def. Mem. 5-6.
The doctrine of qualified immunity protects government officials “from
liability for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would
have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (citing Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)). Even if the rights in question are clearly
established, a government actor may still be shielded by qualified immunity if “it
was objectively reasonable for the public official to believe that his acts did not
violate those rights.” Anderson v. Creighton, 483 U.S. 635, 638 (1987) (holding
that an official is entitled to qualified immunity so long as his “actions could
reasonably have been thought consistent with the rights . . . . violated.”).
19
Plaintiff has established that Defendants arbitrarily and unnecessarily
declared an emergency for the purpose of condemning Plaintiff’s property without
regard for its due process rights. In light of this determination, the Court cannot
conclude that Defendants’ actions were objectively reasonable. In making this
conclusion, the Court reiterates that it was objectively unreasonable for
Defendants to have believed that their actions were appropriate under the
Jamestown City Code, which is a building code statute and does not encompass
criminal activity. Accordingly, Defendants are not entitled to qualified immunity.
See, e.g., Cinema Art Theater, Inc. v. City of Troy, 810 F. Supp. 2d 489, 500
(N.D.N.Y. 2011) (“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 that
respect, and given [the municipal defendants’] involvement in the inspection and
decision to remove the marquee, the court is not currently persuaded that [they]
are necessarily entitled to qualified immunity.”); Vision for Children, Inc. v. City of
Kingston, New York, No. 115CV016, 2017 WL 9249665, at *19 (N.D.N.Y. June 7,
2017) (“assuming that Defendants arbitrarily and unnecessarily declared an
emergency for the purpose of demolishing Plaintiff’s property without regard for
Plaintiff’s due process rights, the Court cannot conclude that Defendants’ actions
were objectively reasonable.”). Defendants’ motion for summary judgment on the
basis of qualified immunity is therefore denied.
20
For all of the preceeding reasons, Plaintiff’s motion for partial summary
judgment (Docket No. 17) is granted on the issue of liability with respect to the
Complaint’s “First Claim for Relief (Lack of Pre-Deprivation Hearing and Notice
Thereof in Violation of the Procedural Due Process Requirement of the
Fourteenth Amendment).” Docket. No. 1.
In light of the Court’s findings above, it need not reach the merits of
Plaintiff’s alternative claims for relief, which are predicated on identical conduct
analyzed herein.
IV. CONCLUSION
For the foregoing reasons, Plaintiff’s motion for partial summary judgment is
GRANTED on the issue of Defendants’ liability for a violation of Plaintiff’s
procedural due process rights. Defendants’ cross-motion for summary judgment
seeking qualified immunity is DENIED.
The Clerk of Court is directed to terminate the motions pending at Docket
Nos. 17 and 19. The parties shall appear in person for a status conference on
October 8, 2021 at 9:30 a.m.
SO ORDERED.
__s/Richard J. Arcara________
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT JUDGE
DATED: October 1, 2021
21
22
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?