Bush v. City of N.Y.
| Decision Date | 31 May 2016 |
| Docket Number | 6:12-CV-1444 |
| Parties | NICOLE BUSH, as Administrator of the Estate of Bruce A. Bush, MICHELE L. CRANE, as Administrator of the Estate of Douglas K. Crane, and CONNIE DRAKE, Individually as Surviving Spouse and as Administrator of the Goods, Chattels and Credits of Glenard W. Drake, Jr., Plaintiffs, v. CITY OF UTICA, NEW YORK, and RUSSELL BROOKS, Chief of City of Utica Fire Department, in his Official and Individual Capacity, Defendants. |
| Court | U.S. District Court — Northern District of New York |
APPEARANCES:
DREYER, BOYAJIAN LAW FIRM
Attorneys for Plaintiffs
DONALD W. BOYAJIAN, ESQ.
JOHN J. DOWD, ESQ.
BENJAMIN W. HILL, ESQ.
ZACHARY C. OREN, ESQ.
MEMORANDUM-DECISION and ORDER
In the early morning hours of September 20, 2009, a fire broke out inside an apartment complex on James Street in Utica, New York. Although the City's Fire Department responded to emergency calls for help, four of the building's tenants—Bruce Bush, Douglas Crane, Glenard Drake, Jr., and Terry Singh—ultimately perished in the smoke and flames.
Thereafter, Nicole Bush, Michele Crane, Connie Drake, and Sharon Marie Hamilton, purportedly acting in their respective capacities as administrators of the decedent's estates, filed this lawsuit against the City of Utica (the "City"), the City's Fire Department ("UFD"), and UFD Chief Russell Brooks ("Chief Brooks"). The complaint, brought pursuant to 42 U.S.C. § 1983 and related state law, alleged principally that UFD personnel violated the Fourteenth Amendment's Equal Protection Clause by purposely and maliciously withholding protective services from decedents because they lived in a low-income neighborhood. In lieu of filing an answer, defendants moved pursuant to Federal Rule of Civil Procedure ("Rule") 12(b) seeking the complete dismissal of plaintiffs' various claims.
On June 4, 2013, a Memorandum-Decision & Order (the "June 4 MDO") issued granting the bulk of defendants' motion, leaving the Equal Protection claims asserted by Bush, Crane, and Drake (collectively "plaintiffs") as the only substantive claims remaining against the City and Chief Brooks (collectively "defendants"). Bush v. City of Utica, 948 F. Supp. 2d 246, 260 (N.D.N.Y. 2013). Defendants immediately appealed, arguing Chief Brooks was entitled to qualified immunity from plaintiffs' remaining causes of action.
On March 17, 2014, the Court of Appeals issued a summary order rejecting defendants' argument, affirming the June 4 MDO's finding that qualified immunity did not,and would not, attach to the particular allegations underlying plaintiffs' Equal Protection claims. Bush v. City of Utica, N.Y., 558 F. App'x 131, 135 (2d Cir. 2014) (summary order). And although the panel declined to conclude that the differential treatment of "persons of low socio-economic status" gave rise to an elevated form of scrutiny, it nevertheless observed that a policy "of withholding protective services from the decedents because they lived in a low-income neighborhood," if such a policy did in fact exist, would lack the requisite rational relation to a legitimate governmental purpose. Id. at 134.
The remaining parties have since completed discovery and defendants have now moved pursuant to Rule 56 seeking summary judgment on plaintiffs' remaining claims. The motion was fully briefed and oral argument was heard on April 29, 2016 in Utica, New York. Decision was reserved.
The events at issue in this case occurred at 102 James Street in Utica, New York, the site of a three-story, twelve-unit apartment complex situated in an area recognized by the community as a troubled neighborhood. Klotz Dep. at 16;2 Dowd Decl. Ex. E at 9 (). A number of the building's tenants, including at least one of the decedents, received public assistance with their monthly rent payments. See, e.g., CraneDep. at 23 ().
The apartment building itself was well-known to both the fire marshal and the City's codes department, since it suffered from repeated, and sometimes ongoing, safety violations. See, e.g., Klotz Dep. at 44-83 (); Brooks Dep. at 96 (); Beck Dep. at 138 ().
Importantly, the building's layout was divided into distinct "front" and "rear" areas, which rendered the apartments located in the "rear" of the building inaccessible from the common areas that could be reached through the building's front entrance. See, e.g., Klotz Dep. at 30. Because of this layout, an entryway and stairwell located near the back of the building was the primary means of accessing the six apartments located in the "rear" area. See id. All four of the decedents occupied apartments accessible from this rear entryway and stairwell—Crane lived on the first floor; Singh on the second floor; and Drake and Bush on the third floor. Oren Aff. Ex. 2 at 18.
On September 20, 2009, at about 1:37 a.m., City dispatch received a telephone call reporting a fire at the building, which would later be determined to have started in the kitchen of Crane's first-floor rear apartment. Pls.' Resp. to Defs.' Statement of Material Facts ¶ 6 ( ); Beck Dep. at 92. Patrolman Berger and Officer Petrie, two members of the City's Police Department, were the first to arrive at the scene, where they observed smoke and fire emanating from the rear of the structure. Pls.' Resp. ¶¶ 8-10.
Because dispatch had advised them that a number of occupants were still inside, the officers entered through the front door, "began knocking on apartment doors, including apartment doors on the third floor," and managed to assist several individuals in exiting via the front of the building. Berger Aff. ¶¶ 9-10, 12-13. The officers then worked to secure the scene as UFD personnel began to arrive. Id. ¶ 17.
"Approximately two to three minutes" after the initial dispatch call went out, Deputy Chief John Kelly ("Deputy Kelly") arrived on scene and assumed command. Kelly Dep. at 25, 29. According to Deputy Kelly, dispatch had notified him while en route that there was at least one occupant trapped on the second floor. Id. at 27. Upon arrival, Deputy Kelly directed UFD personnel to deploy equipment toward the front of the structure. Pls.' Resp. ¶¶ 19-23.
The parties' respective narratives diverge sharply from here. According to defendants, it took UFD personnel about eight to ten minutes after Deputy Kelly's arrival to determine that the rear of the structure was inaccessible from the front entrance and to locate the rear entrance to the building. Pls.' Resp. ¶¶ 27-32. Even then, they made "very little progress due to the fire" in the approximately twelve to fifteen minutes that had elapsed.3 Id. ¶ 31. Defendants claim that all four decedents had already been overcome by the inferno at this point. Pls.' Resp. ¶ 32.4
Nevertheless, defendants assert that UFD personnel repositioned fire fighting equipment and again searched the entire front area of the building before making a number of additional attempts to enter the rear of the building. Pls.' Resp. ¶¶ 33-51, 55-59, 70, 75. These renewed attempts were foiled by, among other things, the fact that the sprinkler system in the rear hallway was not operating at that time. Id. ¶ 76. Eventually, UFD personnel managed to briefly enter the rear of the structure before being almost immediately ordered to withdraw. Id. ¶¶ 82-84; Wojnas Dep. at 46-49. That order came from UFD Chief Andrew Esposito, who had assumed command of the scene and chosen to evacuate UFD personnel from the building in favor of a "defensive fire suppression operation." Pl.'s Resp. ¶ 31.
According to plaintiffs, however, the situation in the rear of the building was far from hopeless, especially when Deputy Kelly and other UFD fire fighters first arrived on scene. For instance, Scott Margarum ("Margarum"), one of the building's tenants who had already escaped safely, re-entered the rear stairwell of the building and made it "all the way up to the second floor" before being stopped and forcibly removed by Fire Fighter Gerald Foster ("Foster").5 Margarum Dep. at 19-24, 95.
Margarum claims that he experienced "no smoke [and] no fire" while climbing the rear stairwell and that he had no trouble breathing during this time. Margarum Dep. at 20, 23, 55. Further, Margarum claims to have remained on the scene after his removal from the building, where he observed that no more UFD personnel even attempted to enter the building's rear entrance; rather, the fire fighters appeared to be in "slow motion" and "seemedlike they didn't care." Id. at 24-25, 34.
In fact, shortly after being removed from the building's rear stairwell and making these observations, Margarum spotted a supervisor, believed to be Chief Brooks, and rushed over to inquire whether the UFD "were going to go up and try to see if anybody - - they could save anybody upstairs." Margarum Dep. at 31. According to Margarum, Chief Brooks replied that "[w]e're not going to risk the lives or equipment of any fire fighters for anybody on James Street." Id.
Timothy Klotz ("Klotz"), the building's owner, recounts a similar series of events. According to Klotz, he "pushed" his way through some UFD personnel who were "just standing around" and managed to enter the rear stairwell of the building...
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