Weigner v. City of New York, CV-86-3602.

• Decision Date: 31 July 1987
• Docket Number: No. CV-86-3602.,CV-86-3602.
• Citation: 668 F. Supp. 135
• Parties: Josephine WEIGNER, Plaintiff, v. The CITY OF NEW YORK, Defendant.
• Court: U.S. District Court — Eastern District of New York

668 F. Supp. 135

Josephine WEIGNER, Plaintiff, v. The CITY OF NEW YORK, Defendant.

No. CV-86-3602.

United States District Court, E.D. New York.

July 31, 1987.

Edward J. Ledogar, West Islip, N.Y., for plaintiff.

Peter L. Zimroth, Corp. Counsel of City of New York, New York City (Susan M. Shapiro, Asst. Corp. Counsel, and Angelo Aiosa, of counsel), for defendant.

TRANSCRIPT OF MOTION FOR SUMMARY JUDGMENT

BRAMWELL, District Judge.

Plaintiff commenced this action against the City of New York alleging violation of her constitutional rights and other improprieties in connection with the City's tax foreclosure action against plaintiff's property in Jamaica, Queens, and the City's subsequent denial of plaintiff's application for release of the City's interest in the property. This morning, defendants move pursuant to Rule 56 of the Federal Rules of Civil Procedure for summary judgment in their favor. For the reasons that follow, the motion is granted.

The undisputed material facts may be summarized as follows:

On October 1, 1981, the City commenced an in rem tax foreclosure action against all real property in Queens that was tax delinquent for one year or more. Among the 5229 tax delinquent parcels in that foreclosure action were 14 vacant parcels owned by plaintiff, 13 of which had been tax delinquent since 1977, and the remaining one since 1980. Plaintiff, a resident of Florida, had owned the lots since at least 1962. At the time, the total tax delinquency for all 14 parcels was approximately $31,000.

Notices of commencement of the tax foreclosure action were mailed by ordinary mail and received by plaintiff with respect to 13 of the parcels, but not with respect to the fourteenth. On March 6, 1984, a judgment of foreclosure was signed by Justice Cooperman of Queens County Supreme Court and the City took title to all parcels therein, including plaintiff's 14 parcels, pursuant to a deed duly recorded on March 15, 1984. In the 2½ years during which the foreclosure proceeding was pending, plaintiff took no steps to avoid foreclosure or redeem the parcels by paying her delinquent taxes.

On March 13, 1986, just short of two years after the City recorded its deed, plaintiff filed an application pursuant to the Administrative Code of the City of New York for release of the City's interest in each of her 14 parcels. Because the parcels were vacant and deemed suitable for a housing program, the Division of Real Property of the New York City Department of General Services (DRP) concluded that the Board of Estimate should deny plaintiff's release applications.

On or about June 19, 1986, officials of DRP informed plaintiff's attorney that DRP intended to recommend that the Board of Estimate deny plaintiff's applications for release because plaintiff was "not making a strong enough case for redemption." The DRP officials advised plaintiff's counsel to submit additional arguments and documentation in support of plaintiff's application.

On September 25, 1986, after hearing a brief presentation from plaintiff's attorney and a brief presentation from a representative of DRP, the Board of Estimate, through its member's respective representatives, and in accordance with DRP's recommendation, unanimously adopted a resolution denying plaintiff's application for release, finding that release of the City's interest in the parcels would not be in the City's best interests. Plaintiff thereafter commenced this case on October 23, 1986.

The fair market value of the property at issue is estimated by the parties to be anywhere between $151,000 and $325,000.

Under section 11-424 of the Administrative Code of the City of New York, any party who had an interest in property acquired by the City through a tax foreclosure may file an application for release of the City's interest at any time within two years following the recording of the deed in the City's name. If such an application is made within the first four months of the two-year period, the application must be granted once the Corporation Counsel approves the application as to form, timeliness, and eligibility. Any application filed during the balance of the two-year period may be approved by the New York City Board of Estimate in the exercise of its discretion. See generally In re Tax Foreclosure # 35, 127 A.D.2d 220, 514 N.Y.S.2d 390 (App.Div. 2d Dept.1987); Solomon v. NYC Dept. of General Services, 94 A.D.2d 283, 464 N.Y.S.2d 160 (1st Dept.1983). Thus, New York courts have held that the discretion of the Board of Estimate, when reviewing applications filed after the first four months of the two-year period, is virtually absolute, or at least limited only by the Board's own judgment and conscience.

In the present case, plaintiff filed her application for release only two days before the two-year period was to expire. Hence, her application was left solely to the discretion of the Board of Estimate. Given that plaintiff had a substantial tax delinquency and that the DRP recommended denial of the application on the basis that the vacant property could be used for a housing program, the Board acted rationally and well within its discretion in denying the application as not being in the best interests of the City. Moreover, plaintiff has produced insufficient evidence as a matter of law to support her contention that the application was denied due to her attorney's refusal to pay illegal consideration, or bribes, to DRP personnel. Plaintiff's sole evidence that bribes were solicited is that the DRP officials told her attorney that DRP would recommend denial of the application unless plaintiff could present "a stronger case." Standing alone, these words could not permit a reasonable jury to find that plaintiff's application was denied for failure to pay a bribe.

Because the City acted in accordance with the law and within its discretion, plaintiff's claims are meritless to the extent they allege a failure to conform to its own statutory procedures and general...