Hughes Vil. Rest., Inc. v Village of Castleton-on-Hudson, N.Y.

[*1] Hughes Vil. Rest., Inc. v Village of Castleton-on-Hudson, N.Y. 2006 NY Slip Op 50319(U) [11 Misc 3d 1060(A)] Decided on March 2, 2006 Supreme Court, Rensselaer County Ceresia, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 2, 2006
Supreme Court, Rensselaer County

Hughes Village Restaurant, Inc., Plaintiff,

against

The Village of Castleton-on-Hudson, New York, THE VILLAGE OF CASTLETON- ON-HUDSON CODE ENFORCEMENT DEPART- MENT and THE VILLAGE OF CASTLETON-ON- HUDSON CODE ENFORCEMENT OFFICER, Defendants.



207677



The LaFave Law Firm, PLLC

Attorney For Plaintiff

822 Delaware Avenue

Delmar, NY 12054

Friedman, Hirschen, Miller & Campito, P.C.

Attorney For Defendants

131 State Street

P.O. Box 1041

Schenectady, NY 12301-1041

George B. Ceresia, J.

Plaintiff, in January 2002, owned a three story apartment building located at 28-30 South Main Street in the Village of Castleton-On-Hudson, New York (hereinafter "Village"). There were eight apartments in the building. On January 13, 2002 a Rensselaer County dispatcher received an emergency call indicating that there was a fire at the apartment building. The dispatcher, in addition to notifying fire department personnel, also notified Village officials of [*2]the reported fire. By the time the Village Building Inspector and Village Code Enforcement Officer arrived, several emergency response teams or personnel were already present, including Sergeant Secor of the Town of Schodack Police Department; the Village's Fire Department; and members of the Village's Police Department. The cause of the fire, which had been reported by a tenant, was found to be a leak from an overhead pipe which caused water to fall onto the exposed electrical wires of an electric hot water heater. Following an investigation of conditions at the apartment building, The Village Code Enforcement Officer and/or the Building Inspector determined to immediately close the apartment building until necessary repairs were performed by the plaintiff. Incident to the foregoing, they allegedly caused water and electrical power to the building to be shut off. They also advised tenants of the building that they would have to vacate the premises immediately; and made arrangements for alternate temporary housing accommodations through the American Red Cross.

On January 15, 2002 the Village Building, Zoning, and Code Enforcement Department issued an order directed to Joseph Hughes, to remedy certain Village code violations with respect to the subject premises. Joseph Hughes is the husband of Joanne Hughes, the President and sole shareholder of the plaintiff. The Order To Remedy Violations listed a number of alleged Village zoning code violations. The order directed that the code violations would have to be remedied on or before January 21, 2002. There is no evidence that the Village Code Enforcement Department took any follow-up action with respect to the Order.

At approximately the same time Joseph Hughes was cited for the following violations of the Village Code: failure to obtain rental permits for his four rental properties (which included the subject premises); having uninspected rental properties; and failure to allow Village officials to conduct a fire safety inspection of his properties. Appearance tickets were issued to Mr. Hughes. A trial was conducted on February 14, 2002, and Mr. Hughes was found guilty of the charges.

In December 2003 plaintiff commenced action against the defendants on a complaint setting forth two causes of action. The first alleges an infringement of plaintiff's constitutional rights involving a seizure of plaintiff's property without notice and without an opportunity to be heard in violation of Civil Rights Law § 1983 (see 42 USC § 1983). The second cause of action is for trespass, alleging that defendants unlawfully entered plaintiff's premises without permission. Defendants maintain, inter alia, that the exigent circumstances of responding to an emergency 911 call on January 13, 2002, rendered their entry into plaintiff's building permissible; and that their actions fell within the doctrine of qualified privilege. Defendants have made a motion for summary judgment to dismiss the complaint. Plaintiff has cross-moved for summary judgment.

"[I]n any § 1983 action the initial inquiry must focus on whether the two essential elements to a § 1983 action are present: (1) whether the conduct complained of was committed by a person acting under color of state law; and (2) whether this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States" (Parratt v Taylor, 451 US 527, 535 [1981], overruled on other grounds, Daniels v. Williams, 474 [*3]US 327 [1986]). Moreover, "in procedural due process claims, the deprivation by state action of a constitutionally protected interest in life, liberty, or property' is not in itself unconstitutional; what is unconstitutional is the deprivation of such an interest without due process of law" (Zinermon v Burch, 494 US 113, 125 [1990]). To determine whether a constitutional violation has occurred, the Court must determine what process the State provided and whether it was constitutionally adequate (id.).

In this instance, there is no dispute with regard to whether the actions taken by Village officials were under color of state law. Nor does it appear that there is any serious question concerning whether plaintiff possesses a property interest in the subject real property which is subject to constitutional protection.

As stated in Hellenic American Neighborhood Action Comm. v. City of New York, (101 F3d 877 [2nd Cir., 1996]): "When reviewing alleged procedural due process violations, the Supreme Court has distinguished between (a) claims based on established state procedures and (b) claims based on random, unauthorized acts by state employees. See Hudson v. Palmer, 468 U.S. 517, 532, 82 L. Ed. 2d 393, 104 S. Ct. 3194 (1984); Parratt v. Taylor, 451 U.S. 527, 541, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981), overruled on other grounds by Daniels v. Williams, 474 U.S. 327, 88 L. Ed. 2d 662, 106 S. Ct. 662 (1986). In the latter case, the Due Process Clause of the Fourteenth Amendment is not violated when a state employee intentionally deprives an individual of property or liberty, so long as the State provides a meaningful postdeprivation remedy. Hudson v. Palmer, 468 US at 531, 533. When the deprivation occurs in the more structured environment of established state procedures, rather than random acts, the availability of postdeprivation procedures will not, ipso facto, satisfy due process. Id. at 532; Logan v. Zimmerman Brush Co., 455 U.S. 422, 435-36, 71 L. Ed. 2d 265, 102 S. Ct. 1148 (1982)" (Hellenic American Neighborhood Action Comm. v. City of New York, 101 F.3d 877, at 880 [2nd Cir., 1996])"(Hellenic American Neighborhood Action Comm. v. City of New York, 101 F3d 877, supra, at 880).

The Court notes that Chapter 106 of the Village Code recites in pertinent part as follows: § 106-4. Dangerous buildings prohibited.Any owner, occupant or person in custody of real property located within the village who allows or permits a building to continue after due notice as provided in § 106-5 below shall be guilty of a violation of this chapter and shall be punished as provided in § [*4]106-7 below.§ 106-5. Determination; notice.Whenever the Board of Trustees shall have reasonable cause to believe that any building in the village is a dangerous building, a statement setting forth such facts shall be filed by the Mayor with the Village Clerk. The Clerk shall thereupon cause written notice to be served upon the owner thereof and upon the occupant thereof, if any, by registered mail or by personal service. Such notice shall state that the building has been declared a dangerous building and that necessary repairs or improvements must be begun within 15 days after service of such notice or such person or persons will be charged with a violation of this chapter. Such notice shall be in substantially the following form:To: ______________________________________From: The Board of Trustees, Castleton-on-HudsonYou are hereby notified that the Board of Trustees of the Village of Castleton-on-Hudson has determined that the building owned by you and located at ______________________ has been declared a dangerous building as provide for and defined in Chapter 106 of the Village Code in that (herein insert particulars) afer inspection by _________________. In accordance with the provisions of such chapter you are hereby directed to begin all necessary repairs or improvements within 15 days after service of this notice. Failure to so comply will result in a violation of Chapter 106 of the Village Code which provides for a penalty, upon conviction for a fine not to exceed $250, imprisonment for not more than 15 days, or both, for each week of such violation.

Thus, the established procedure of the Village, as embodied in Chapter 106 of the Village Code, requires the Board of Trustees to formally make a finding that a building is dangerous. The determination of the Board of Trustees, in such an instance, is implemented by the Mayor of the Village, who files a statement to that effect with the Village Clerk. The Village Clerk, in turn, causes written notice to be served upon the owner of the building. Notably, however, in this instance, none of the foregoing steps were ever executed. The Court accordingly finds that the closing of plaintiff's building was not accomplished pursuant to an established Village procedure, but rather, was the product of the random, unauthorized act of Village employees.

The Court, accordingly, turns to the issue of whether plaintiff was afforded a meaningful [*5]postdeprivation remedy [FN1]. Defendants argue this requirement was satisfied through the hearing conducted by the Village Justice on February 14, 2002. As noted however, this was a criminal trial based upon charges of failure to obtain Village permits for the rental units, and failure to allow Village officials to conduct inspections of plaintiff's buildings. The charges were levied against Joseph Hughes, not the plaintiff. Inasmuch as the trial did not address the Village's closing of plaintiff's building it did not, and could not, provide plaintiff a meaningful forum to review its closing.

This, however, does not end the matter. In a number of instances, it has been held that a state action or proceeding may suffice to provide a meaningful postdeprivation remedy (see Hudson v Palmer, 468 US 517 [1984] [Held: Inmate alleging intentional destruction of property had an meaningful postdeprivation remedy under state law for any loss suffered]; City of W. Covina v Perkins, 525 US 234 [1999] [Which affirms the general principle that postdeprivation remedies under state law may be sufficient to satisfy due process]; Beechwood Restorative Care Ctr. v. Leeds, 436 F3d 147 [2nd Cir., January 31, 2006] [Where the New York State Department of Health failed to grant plaintiff, a nursing facility, a statutory hearing, Held: plaintiff possessed a meaningful postdeprivation remedy through a CPLR Article 78 proceeding]; Hellenic American Neighborhood Action Comm. v City of New York, 101 F3d 877, supra [Where plaintiff was debarred from bidding on certain New York City contracts, Held: plaintiff had a meaningful postdeprivation remedy under CPLR Article 78]; Alexander v. Hodell, 124 Fed. Appx. 665 [2nd Cir., 2005] [Where plaintiff sought return of personal property, Held: State law causes of action of replevin and trespass provide a meaningful postdeprivation remedy]; Brady v Town of Colchester, 863 F.2d 205 [2nd Cir., 1988] [Where defendant Town was alleged to have improperly revoked plaintiff's building permit and improperly required plaintiff to obtain a zoning permit and certificate of occupancy, Held: plaintiff had a meaningful postdeprivation remedy under CPLR Article 78]).The Court finds that plaintiff had meaningful postdeprivation remedies available under state law here, including a CPLR Article 78 proceeding, an action for injunctive relief, and/or an action for damages. The Court therefore concludes that there has been no due process violation. There being no due process violation, the Court finds that plaintiff does not have a cause of action under Civil Rights Act § 1983.

Apart from the foregoing, "where liability is sought against a municipality based upon the actions of one of its officers or employees, the plaintiff must demonstrate that [*6]his or her injury arose from the acts of the officer or employee in the course of executing a municipal policy or custom" (Weimer v City of Johnstown, 249 AD2d 608, 609 [3rd Dept., 1998], mot for lv to app denied, 92 NY2d 806, citing Oklahoma City v Tuttle, 471 US 808, 810; Town of Orangetown v Magee, 88 NY2d 41, 49). Such custom or policy, however, "need not be contained in an explicitly adopted rule or regulation" or have received formal approval by official decision makers (id., citing Sorlucco v New York City Police Dept., 971 F2d 864, 870-871 and Illiano v Clay Township, 892 F Supp 117, 121). The Second Circuit Court of Appeals, in 2004, summarized the rule as follows: "A [municipality's] liability under Monell [Monell v Department of Social Services, 436 US 658, 691 (1978)] may be premised on any of three theories: (1) that [an] employee was acting pursuant to an expressly adopted official policy; (2) that [an] employee was acting pursuant to a longstanding practice or custom; or (3) that [an] employee was acting as a 'final policymaker.'" (Hurdle v Board of Education of the City of New York, 113 Fed Appx 423, 424-425 [2nd Cir., 2004], citing Lytle v. Carl, 382 F3d 978, 982 (9th Cir., 2004) and Pembaur v. City of Cincinnati, 475 US 469, 497 [1986]).

In this instance, the only official policy is that contained in Village Code, Chapter 106, which requires formal action to be taken on the part of the Board of Trustees. As noted, it does not appear that any such action was taken. Therefore the official policy was never carried out. With respect to the existence of a custom or practice Bret Crandall, the Village Building Inspector, testified that this incident was the first time he had ever closed a building. This, in the Court's view, is sufficient to create an inference that no custom or practice existed. Lastly, from a review of Chapter 106 of the Village Code, it is clear that neither the Village Building Inspector, nor the Village Code Enforcement Officer were the final policy makers in determining whether a building was dangerous. The Court additionally observes that the Code Enforcement Officer was only sued in his official capacity, as an agent of the Village, and not in his individual capacity. Under all of the circumstances, the Court finds that the Village may not be held liable under 42 USC § 1983.

Turning to the issue of trespass, the Court is of the view that defendants demonstrated, by reason of the report of a fire on the premises on January 13, 2002, that exigent circumstances existed to permit Village officers from entering the premises to determine the threat to the safety of tenants in the building, and that it was objectively reasonable for them to do so (see Baez v City of Amsterdam, 245 AD2d 705 [3rd Dept., 1997]). In the absence of a triable issue of fact, the Court finds that this cause of action must be dismissed.

Accordingly, it is [*7]

ORDERED, that defendants' motion for summary judgment dismissing plaintiff's complaint is granted; and it is

ORDERED, that plaintiff's cross-motion is denied; and it is further

ORDERED, that plaintiff's complaint be and hereby is dismissed.

This shall constitute the decision and order of the Court. All papers are returned to the attorney for the defendants, who is directed to enter this Decision/Order without notice and to serve all attorneys of record with a copy of this Decision/Order with notice of entry.

Dated:March 2, 2006

Troy, New York S/ ______________________________________

George B. Ceresia, Jr.

Supreme Court Justice

Papers Considered: Notice of Motion dated September 29, 2005, Supporting Papers and ExhibitsNotice of Cross-Motion dated November 4, 2005, Supporting Papers and Exhibits

Affidavit in Opposition of Doug Hull, sworn to November 14, 2005

Affirmation of Andrew R. Lind, Esq., dated December 9, 2005

Affirmation of Lawrence J. Zyra, Esq., dated December 12, 2005

Footnotes

Footnote 1:The Court observes that the absence of a predeprivation hearing does not violate due process in situations where the state employee's conduct is random and unauthorized (see Hudson v. Palmer (468 U.S. 517, 533 [1984]) and Parratt v. Taylor (451 US 527 [1981], overruled in part, Daniels v. Williams, 474 US 327 [1986]). The reason for this is that such a hearing would be impracticable, since the state cannot know when such a deprivation will occur.