Royal Housing, LLC v. City of Jamestown, New York

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

ROYAL HOUSING, LLC,

DECISION AND ORDER

14-CV-880

Plaintiff,

v.

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’ cross-

motions 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

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.

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. ¶¶ 6-

7.

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

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

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.

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

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

1 According to Defendants, Plaintiff either owns or manages over 350 properties in the City of

Jamestown. Atty. Decl. (Docket No. 19-3) ¶ 5.

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 9/5/14

HOUSING INSPECTOR DATE OF POSTING

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. 66-

67. 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

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

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 97-

98.

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,

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

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

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

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

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

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

2 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.

3 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).

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).

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.”).

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.

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

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