Albert et al v. Watkins Glen International, Inc. et al

Filing 3

ORDER denying application for preliminary injunctive relief.. Signed by Hon. Charles J. Siragusa on 11/2/10. (KAP)

Albert et al v. Watkins Glen International, Inc. et al

Doc. 3

UNITED STATES DISTRICT COURT W E S TE R N DISTRICT OF NEW YORK

ALBERT and FRANCES, Plaintiffs, v. W A T K IN S GLEN INTERNATIONAL, INC., a n d SCHUYLER COUNTY SHERIFF'S DEPARTMENT, D e f e n d a n ts ORDER 1 0-C V -6 6 13 CJS

INTRODUCTION T h is is an action, apparently brought pursuant to 42 U.S.C. § 1983, in which the
P la in tif f s , proceeding pro se, allege that Defendants violated their due process rights under the F ifth Amendment to the United States Constitution, by evicting them from their residence without d u e process. Now before the Court is an application for preliminary injunctive relief. For the re a s o n s that follow, the application is denied. BACKGROUND P la in tif f s Albert and Frances, who indicate that they have no last name, but who were f o rm e rly known as Albert Valent and Frances Valent,1 contend that Defendants wrongfully evicted th e m from their home, which Plaintiffs identify as "2031 Baker Hill Road," in the Town of Dix, S c h u yle r County, New York. Plaintiffs indicate that their residence consists of a house, along w ith "about 350 acres" of land, on which they maintain a variety of farm animals. On October 27, 2010, the Schuyler County Sheriff evicted Plaintiffs, based on an eviction w a rra n t signed on September 20, 2010, by the Honorable Judith F. O'Shea, Justice of the New Y o rk State Supreme Court, Schuyler County, in the action W a tk in s Glen International ("W G I"),

1 Plaintiff's papers indicate that they changed their names, and also renounced their United States citizenship.

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Dockets.Justia.com

Petitioner, against Albert Valent and Frances E. Valent, a/k/a Albert and Frances, Index No. 2 0 1 0 -0 0 5 3 . The action by W G I was a proceeding to recover possession of real property, p u rs u a n t to New York Real Property Actions and Procedure Law ("RPAPL") § 741. The eviction w a rra n t directed the sheriff to remove all persons from "2001 Baker Hill Road," "further described a s Tax Map # 84-1-41.2, Tax Map # 94.00-1-6.1, Tax Map # 84.00-1-41.2 and a portion of the p ro p e rty identified as Tax Map # 84.00-1-41.11 as set forth in the Decision and Order of Justice J u d ith F. O'Shea, dated August 13, 2010, and to put said petitioner in full possession thereof." A tta c h e d to Plaintiffs' Complaint in this action is a copy of Justice O'Shea's Decision and O rd e r dated August 13, 2010. In it, Justice O'Shea described the property at issue, which she re f e rre d to as "2001 Baker Hill Road," as being accurately described in W G I's Schedule A. Schedule A described the property as consisting of, in pertinent part, a white house and a blue h o u s e , along with approximately 400 acres of land.2 (O 'S h e a Decision and Order at 3).3 Justice O 'S h e a stated that although this property had once belonged to Plaintiffs Albert and Frances, th e y had lost ownership of the property in 2001, as a result of the foreclosure of a tax lien. Subsequently, W G I purchased the property. Nevertheless, Albert and Frances continued to live o n the land and to conduct farming activities. In the action pending before Justice O'Shea, Albert and Frances argued that W G I did not

Justice O'Shea based this finding on the testimony of land surveyor William E. Beardsley ("Beardsley"), w ho stated that "both the white house and the blue house are contained in the description of the property in `S chedule A,' which consists of approximately 400 acres and is titled to petitioner [WGI]." Id. at 3. Beardsley testified on behalf of WGI. Albert and Frances had their own surveyor, Thomas Merrill, testify at the hearing before Justice O'Shea. Merrill acknowledged that Albert and Frances do not own the property on which they are residing, because their title was extinguished in the tax lien foreclosure. Id. at 4. Attached to Plaintiff's Complaint is a quitclaim deed, from EOG Resources, Inc. to WGI, dated Decem ber 15, 2006, which has an attached Schedule A. Plaintiffs refer to this Schedule A, and argue that it does not refer to the property on which they were living, since it describes property having a total acreage of approxim ately only seventeen acres. However, there is no indication that this Schedule A is the same Schedule A referred to in Justice O'Shea's decision. In fact, it appears clear that it is not the same Schedule A, for at least tw o reasons. First, Justice O'Shea referred to the fact that after the initial eviction proceeding was dismissed in 2009, WGI had a corrected property description prepared by Beardsley, and it was this corrected property description which was referred to as Schedule A in Justice O'Shea's Decision and Order. And second, the Schedule A referred to by Justice O'Shea described a parcel containing several hundred acres of land.
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own the property on which they resided, for several reasons. First, they stated that they had n e v e r received the property tax bills, which went unpaid and which resulted in the 2001 tax lien f o re c lo s u re . Additionally, they maintained that there were defects in the property descriptions in th e deeds conveying title to W G I. And further, they argued that W G I's petition, seeking to evict th e m from the property, did not accurately describe the property on which they were residing. On th is last point, Justice O'Shea stated: "The gist of [Albert and Frances' argument] is that 2001 B a k e r Hill Road is a blue house on 5 acres of land, while they live in a white house with 400 acres o f land, thereby making the petition defective." (O'Shea Decision and Order at 2). Significantly, th o u g h , Albert and Frances indicated that, although the property on which they resided had been k n o w n as "2031 Baker Hill Road" prior to the tax lien foreclosure, "Schuyler County [later] re m o v e d the address from their home and placed it on a cell phone tower." Id. at 4. Albert and F ra n c e s further stated that following the tax foreclosure, at their request, the County referred to th e ir address as being "Highland Drive, Lot 5, Clarkson Tract, John W . W a tk in s Patent, Land of V a le n t." Justice O'Shea rejected Albert and Frances' arguments concerning the alleged d e f ic ie n c ie s of W G I's petition, and ruled that W G I was the owner of the subject property, in c lu d in g the property described in the aforementioned Schedule A. And specifically, Justice O 'S h e a ruled that the property, which, again, she referred to as "2001 Baker Hill Road," included th e white house and several hundred acres of land, upon which Albert and Frances had been liv in g unlawfully since the tax lien foreclosure. (O'Shea Decision and Order at 5) ("The record as a whole clearly establishes that petitioner [W G I] has title to the property, that respondents [Albert a n d Frances] unlawfully remain in possession of the premises, and that eviction is warranted.") It is noteworthy that the aforementioned action before Justice O'Shea was not the first la w s u it in which W G I had sought to evict Albert and Frances. Plaintiffs' Complaint refers to a n o th e r such action, which was commenced by W G I against Albert and Frances in Schuyler C o u n ty Court in 2008. (W a tk in s Glen International, Petitioner, against Albert Valent and Frances

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E. Valent, Index No. 08-029). As part of that proceeding, Albert and Frances raised some of the s a m e arguments that they subsequently raised before Justice O'Shea, including the argument th a t W G I's petition did not accurately describe the property on which they lived. Regarding this e a rlie r action, Justice O'Shea stated, in her Decision and Order: "Petitioner previously c o m m e n c e d a similar ejectment proceeding against respondents in 2008, however, in a Decision a n d Order issued by the Hon. Molly Reynolds Fitzgerald on July 9, 2009, the petition was d is m is s e d due to a defective property description." (O'Shea Decision and Order at 2). Following th e dismissal of the earlier action, W G I hired a surveyor to correct the defective property d e s c rip tio n , and then commenced the second eviction proceeding. O n October 28, 2010, the day following the eviction, Plaintiffs commenced this action. Along with their Complaint, Plaintiffs submitted the subject application for preliminary injunctive re lie f . In that regard, Plaintiffs have submitted a proposed "Temporary Restraining Order and O rd e r to Show Cause," which would restrain Defendants, "from taking any further or other actions o f any kind" with regard to Justice O'Shea's warrant, and from preventing Plaintiffs from returning to the property. Essentially, Plaintiffs contend that the eviction denied them due process, because the e v ic tio n warrant referred to "2001 Baker Hill Road," while they purportedly resided at "2031 Baker H ill Road." See, Complaint ¶ 35 ("Defendants knowingly evicted Plaintiffs without a court order, v io la tin g all property and constitutional rights and interfering with Plaintiffs' choice of citizenship."). However, as discussed above, Plaintiffs' complaint indicates that the County stopped referring to th e property on which they resided as 2031 Baker Hill Road following the tax lien foreclosure. Moreover, Justice O'Shea's Decision and Order clearly included, as part of "2001 Baker Hill R o a d ," the property on which Albert and Frances resided, including the white house and several h u n d re d acres of farm land. In any event, Plaintiffs further allege, in support of their application f o r injunctive relief, that the eviction may result in "cruelty and/or death to plaintiffs' hundreds of

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animals." (Complaint at 1). Specifically, Plaintiffs state that there is a large number of animals on th e property, including deer, beef cattle, dairy cows, geese, turkeys, guinea hens, chickens, and c a ts . Plaintiffs express concern that the animals will not be cared for. Their papers, though, in d ic a te that W G I has made arrangements with a local farmer to care for the animals until they a re removed from the property, and that Plaintiffs are providing the farmer with instructions c o n c e rn in g the normal care and feeding of the animals. Complaint ¶ ¶ 24-25. Plaintiffs further a lle g e that they were required to leave behind their personal property, with the exception of some c lo th e s . However, attached to Plaintiff's Complaint is a notice from W G I, informing Plaintiffs that th e ir personal property was placed in storage, and that Plaintiffs may claim the property on or b e f o re November 30, 2010. Plaintiffs' papers further indicate that their daughter was told, by a re p re s e n ta tiv e of W G I, that Plaintiffs could have access to the house by making an appointment w ith W G I. DISCUSSION Plaintiff's application is an ex parte 4 request for injunctive relief under Federal Rule of Civil P ro c e d u re 65. That rule states in pertinent part, "[t]he court may issue a preliminary injunction o n ly on notice to the adverse party." Fed.R.Civ.P. 65(a)(1). A court may issue a temporary re s tra in in g order without notice to an opposing party, only if the following conditions are met: [S ]p e c if ic facts in an affidavit or a verified complaint clearly show that immediate a n d irreparable injury, loss, or damage will result to the movant before the adverse p a rty can be heard in opposition; and ... the movant's attorney certifies in writing a n y efforts made to give the notice and the reasons why it should not be required.5 F e d .R .C iv .P . 65(b)(1)(A) & (B). To obtain either a temporary restraining order or a preliminary in ju n c tio n , the movant must make a showing of "(a) irreparable harm; and (b) either (1) likelihood

Plaintiffs' application is being made without notice to the Defendants, who have not yet been served w ith a summons or complaint.
5 Even assuming that Plaintiffs were otherwise entitled to preliminary injunctive relief, they have not attem pted to explain why such relief should be granted without notice to Defendants.

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of success on the merits or (2) sufficiently serious questions going to the merits to make them a f a ir ground for litigation and a balance of hardships tipping decidedly toward the party requesting th e preliminary relief." Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc. ., 596 F.2d 70, 72 (2d C ir.1 9 7 9 ); see also, Jackson v. Johnson, 962 F.Supp. 391, 392 (S.D.N.Y.1997) ("In the Second C irc u it, the standard for a temporary restraining order is the same as for a preliminary injunction.") (c ita tio n s omitted). Preliminary injunctive relief "is an extraordinary remedy that will not be g ra n te d lightly." Jackson v. Johnson, 962 F.Supp. at 392 (citations omitted). The violation of a constitutional right will establish irreparable harm. Lynch v. City of New Y o rk , 589 F.3d 94, 99 (2d Cir. 2009). "The Due Process Clause of the Fourteenth Amendment re q u ire s that, generally, a person must be afforded the opportunity for a hearing prior to being d e p riv e d of a constitutionally protected liberty or property interest." Patterson v. City of Utica, 370 F.3d 322, 329 (2d Cir. 2004) (citations omitted). In this case, Plaintiffs have not shown either a likelihood of success on the merits or s u f f ic ie n tly serious questions going to the merits to make them a fair ground for litigation, with a b a la n c e of hardships tipping decidedly in their favor. Much to the contrary, the record indicates th a t Plaintiffs received due process prior to being evicted. The record indicates that Plaintiffs h a v e not owned the subject property since 2001, and that they have no legal right to be on the p ro p e rty. Moreover, Plaintiffs received ample notice of the eviction proceeding, and had an o p p o rtu n ity to be heard and to present evidence at a hearing. At the hearing, Plaintiffs raised the s a m e arguments that they make in this action. Additionally, while Plaintiffs maintain that the e v ic tio n warrant was defective because it described the property as 2001 Baker Hill Road, and n o t 2031 Baker Hill Road, their papers indicate that the property has not been known as 2031 B a k e r Hill road for a number of years, and that, in any event, Justice O'Shea used the term "2001 B a k e r Hill Road" to include the property from which Plaintiffs were evicted. Therefore, the e v ic tio n warrant pertained to the white house and farm land upon which Plaintiffs were residing.

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For these reasons, Plaintiffs have not shown that they are entitled to preliminary injunctive relief.6 C O N C L U S IO N P la in tif f 's application for preliminary injunctive relief is denied.

IT IS SO ORDERED. D a te d : R o c h e s te r, New York N o v e m b e r 2, 2010 ENTER:

/s / Charles J. Siragusa CHARLES J. SIRAGUSA U n ite d States District Judge

O n Friday, October 29, 2010, at approximately 4:30 pm, two individuals who identified themselves a s process servers for Albert and Frances came to the courthouse and asked to speak with the Court's Law C le rk , Michael Kehoe. Mr. Kehoe informed these persons that, because Judge Siragusa had been e x tre m e ly busy with criminal matters, he would likely not be able to issue a written decision on the a p p lic a tio n that day. Mr. Kehoe explained that the ex parte TRO application, would in all likelihood, have to b e denied, if for no other reason, because it failed to explain why Plaintiffs could not have given notice of the a p p lic a tio n to W G I. See, FRCP 65(b)(1). Mr. Kehoe further explained, that in his opinion, the application did n o t state a due process claim, since Justice O'Shea's decision identified the land upon which Plaintiffs re s id e d as 2001 Baker Hill Road, the address contained in the eviction warrant. Mr. Kehoe further o b s e rv e d that, according to Plaintiffs' own papers, their livestock was being cared for by a local farmer, who h a d been hired for that purpose by W G I. Mr. Kehoe emphasized that these were only his opinions, that he d id not speak for the Judge on these points, and that the Judge would set forth his reasoning in the written d e c is io n . On November 1, 2010, at 7:54 am, the Court received a seven-page fax, purportedly written by A lb e rt and Frances. The document purports to recite what occurred at the meeting the previous day, even th o u g h Albert and Frances were not at the meeting. The letter erroneously states that Mr. Kehoe indicated th a t the Schuyler County Sheriff had "a right to IGNORE the W A R R A N T and the address and parcel n u m b e rs explicitly listed on the W A R R A N T ." (emphasis in original). The letter also incorrectly alleges that M r. Kehoe "suggests that we have not shown any immediate or irreparable harm by stating that our dairy c o w s have not been milked since Tuesday October 26, 2010." As noted above, Mr. Kehoe indicated only th a t it did not appear that the animals were in danger, since according to Plaintiffs' own papers, their animals w e re being cared for by a local farmer.

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