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Burtnieks v. City of New York

decided: August 26, 1983.

ELVIRA BURTNIEKS, PLAINTIFF-APPELLANT,
v.
THE CITY OF NEW YORK, A MUNICIPAL CORPORATION, GEORGE C. SAKONA, ERNEST COCOLICCHIO, IRVING MINKIN, CORNELIUS F. DENNIS, FRANK JULIANO, MICHAEL WEINER, ALEXANDER PERCIBALLI, RONALD SILVERS AND BC ENTERPRISES, INC., A CORPORATION, "JOHN DOE," "RICHARD ROE," AND "JANE DOE," NAMES BEING FICTITIOUS, PARTIES INTENDED BEING PERSONS OR CORPORATIONS WHO COLLABORATED WITH OR ACTED IN CONCERT WITH THE AFORENAMED DEFENDANTS OR ANY ONE OR MORE OF THEM WITH RESPECT TO THE SUBJECT MATTER OF THIS ACTION, DEFENDANTS-APPELLEES



Appeal from a decision of the United States District Court for the Southern District of New York, Werker, Judge, entered August 30, 1982, granting summary judgment in favor of appellees and dismissing appellant's complaint, which asserted constitutional violations under 42 U.S.C. § 1983, and also dismissing pendent state claims without prejudice. Affirmed in part; reversed and remanded in part.

Van Graafeiland, Pierce and Winter, Circuit Judges.

Author: Pierce

PIERCE, Circuit Judge:

Elvira Burtnieks appeals from a decision of the United States District Court for the Southern District of New York, Henry F. Werker, Judge, entered August 30, 1982, granting appellees' motion for summary judgment and dismissing appellant's claim that appellees had deprived her of her property without due process of law in violation of 42 U.S.C. § 1983 (Supp. III 1979)*fn1 "on the merits as against all defendants without prejudice to [her] right . . . . to assert any other claims [against appellees] in any appropriate forum." Appellant's pendent state claims were also dismissed. Specifically, appellant alleges that the City of New York and certain municipal employees wrongfully ordered the demolition of a five-story building, located at 221 East 95th Street, New York, New York, which she owned, and that BC Enterprises, Inc., a corporation organized under the laws of the State of New Jersey, wrongfully performed the demolition of the building. It is alleged in the complaint that these actions were taken without complying with the notice provisions of the Administrative Code of the City of New York, and thus "deprived [appellant] of the use and value of the subject premises, and of the business opportunity to develop and promote the same to her financial advantage." The issue addressed on this appeal is whether the district court erred in granting summary judgment in favor of appellees, thereby dismissing appellant's complaint in which she alleged a deprivation, under color of state law, of personal and property rights secured to the appellant by the 14th Amendment to the United States Constitution. For the reasons set forth below, we reverse the grant of summary judgment and remand for further proceedings.

I. Facts Asserted

As a preliminary matter, we note that under Fed. R. Civ. P. 56, factual allegations in the pleadings of the party opposing the motion for summary judgment, if supported by affidavits or other evidentiary material, should be regarded as true by the district court. First National Bank of Cincinnati v. Pepper, 454 F.2d 626, 629 (2d Cir. 1972). The following account sets forth the facts as asserted by appellant Burtnieks in her complaint and supporting materials.

Defendant-appellee The City of New York (the City) is a municipal corporation existing under the laws of the State of New York. Defendant-appellee BC Enterprises, Inc. (BC) is a corporation organized under the laws of the State of New Jersey and apparently performs demolition work. All of the remaining defendants-appellees are employees of the City (City Employees) and specifically of the Housing and Development Administration, Department of Buildings, Borough of Manhattan, New York City.

On or before November 3, 1958, appellant acquired fee ownership of the premises known as 221 East 95th Street, New York, New York, including a 25 x 100 foot lot with a five-story building thereon containing 10 apartments. Appellant's real estate taxes assessed against this property went unpaid for a period of time. On May 25, 1978, the City acquired title to the subject premises as the result of a tax lien foreclosure in rem. However, under Sections D17-12.0 and D17-25.0 of the Administrative Code of the City of New York (Administrative Code), the property interest so acquired by the City was expressly subject to appellant Burtnieks' right to redeem title to the property by complying with applicable Code provisions. Burtnieks applied to have the interest released; the application was processed; and on December 27, 1978, Burtnieks and the Department of General Services, Division of Real Property of the City of New York entered into an agreement whereby Burtnieks was to make certain payments to the City to obtain the release. Upon completion of the payments, the judgment of foreclosure in the in rem proceeding and the deed vesting title to the premises in the City would be vacated. Thus, under the agreement, Burtnieks had a reversionary interest in the premises. This agreement was in effect at all material times, and appellant asserts in her affidavit that she consistently met all of her obligations thereunder. Appellant asserts that title in fact reverted to her on or about August 21, 1981.

On January 8, 1981, Alexander Perciballi and Ronald Silvers, two of the City Employees named as appellees, inspected the subject premises and noticed that a bulge had developed in the upper eastern portion of the front wall of the building, and that there was a crack which they believed to be approximately three inches wide at its widest point between the front wall and the eastern wall of the building. The crack was said to extend from the roof above the fifth floor to a point somewhat above the level of the second floor. On January 13, 1981, the City instituted a proceeding pursuant to Section C26-80.0 or C26-84.0 of the Administrative Code to obtain a declaration that the building was unsafe and was to be demolished. It is undisputed that appellant did not receive formal notice of this proceeding, despite the existence of a notice requirement in Section C26-80.5 of the Administrative Code. In February, 1981 -- again without formal notice to appellant -- the City entered into a contract with appellee BC Enterprises, Inc. under which BC was to demolish and remove the building.

On or about March 4, 1981, appellant learned from a plumber, who at the time was doing work for her and who lived in the vicinity of the building, about the City's plans to demolish the building. The following day, she visited the building, which was not occupied by tenants at the time, and found that the apartment doors had been removed and that men were removing the fireplace mantelpieces from the building. Immediately thereafter, appellant inquired of various City officials, including appellees Sakona, Cocolicchio, Dennis, Weiner, Juliano, and Minkin, as to their intentions and stated her objections to the proposed demolition. She was told by these City officials that the building would be demolished despite her objections.

Appellant thereafter engaged one Robert E. Lawless, a Registered Architect of the State of New York, and one Luke Licalzi, a Professional Engineer licensed by the States of New York, New Jersey and Connecticut, to inspect the building. The inspections were conducted on March 5, 1981 and March 8, 1981. Both the architect and the engineer reported to appellant that the crack was only 2 inches at its widest point and that the wall was easily repairable. She reported these findings to appellee Minkin soon thereafter, who refused to halt the demolition proceedings and allegedly told her that her engineer could lose his license for saying the building was not dangerous.

Despite appellant's attempts to halt the demolition, the building was demolished by BC during the period from March 23, 1981 through March 27, 1981, which was approximately 3 months after appellees Perciballi and Silvers originally noticed the crack and bulge in the building.

Appellant commenced this Section 1983 action along with asserted pendent state claims on November 20, 1981. Appellees moved to dismiss the complaint pursuant to Rule 12(b)(6), Fed. R. Civ. P., for failure to state a claim upon which relief could be granted. Appellant cross-moved for partial summary judgment pursuant to Fed. R. Civ. P. 56(a), on the issue of appellees' liability under Section 1983. In an opinion filed on August 30, 1982, the district court treated the motions as cross-motions for summary judgment, and granted summary judgment in favor of appellees. The court found that the City did not give notice to Burtnieks of its intent to demolish the building, as required by Section C26-84.0 of the Administrative Code. Nonetheless, the court held that appellant had failed to state a claim under Section 1983 because: (1) under Parratt v. Taylor, 451 U.S. 527, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981), the City's failure to give notice of the demolition was not a deprivation of due process, since "the deprivation did not occur as a result of some established state procedure," id. at 543; (2) appellant may pursue a tort remedy pursuant to N.Y. Gen. Mun. Law, Section 50i (McKinney 1981-1982) for wrongful damage to property in state court, under which she would be entitled to a full hearing and may obtain full redress for her alleged property loss, citing Archbishopric of New York v. City of New York, 82 A.D.2d 777, 440 N.Y.S.2d 650 (1st Dept. 1981), modified on other grounds sub ...


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