Catanzaro v. Weiden

• Decision Date: 17 March 1998
• Docket Number: D,No. 256,256
• Parties: Stephen M. CATANZARO; Warren Kautz; Rashon Lal, Plaintiffs-Appellants, v. Sara WEIDEN, Defendant, City of Middletown, New York; Hyman Weiden; Joseph Destephano, Esq., Mayor, sued in his Official and Individual capacities; Alfred A. Fusco, sued in his Official and Individual capacities, Defendants-Appellees. ocket 97-7140.
• Court: U.S. Court of Appeals — Second Circuit

Page 91

140 F.3d 91

Stephen M. CATANZARO; Warren Kautz; Rashon Lal Plaintiffs-Appellants, v. Sara WEIDEN, Defendant City of Middletown, New York; Hyman Weiden; Joseph Destephano, Esq., Mayor, sued in his Official and Individual capacities; Alfred A. Fusco, sued in his Official and Individual capacities, Defendants-Appellees.

No. 256, Docket 97-7140.

United States Court of Appeals Second Circuit.

Argued Sept. 25, 1997.

Decided March 17, 1998.

Michael H. Sussman, Goshen, NY (Sussman, Bergstein, Wotorson and Whateley, Goshen, NY, Helen Ullrich, Stephen Bergstein, of counsel), for Plaintiffs-Appellants.

Monte J. Rosenstein, Middletown, NY (Rosenstein, McKenna and Bonney, Middletown, NY; Robert N. Isseks; Alex Smith, Assistant Corporation Counsel for the City of Middletown, of counsel), for Defendants-Appellees.

Before: ALTIMARI, PARKER and KEITH ^*, Circuit Judges.

KEITH, Circuit Judge:

This is a civil rights action by which the plaintiffs assert that defendants, City of Middletown, Mayor Joseph DeStefano, and Alfred Fusco, the Middletown Commissioner of Public Works (collectively the "City"), violated their due process property rights under 42 U.S.C. § 1983, the Fourteenth Amendment's Equal Protection Clause and the Fair Housing Act, 42 U.S.C. § 3601, et seq. ("FHA"). The district court granted the City's motion for summary judgment, holding that a municipality's emergency decision to demolish perceived dangerous buildings could not be "repackaged" as a civil rights action, "when New York provides an adequate post-deprivation remedy." Plaintiffs now appeal that ruling, contending that material issues of genuine fact exist to permit a rational jury to conclude the City violated their civil rights.

I. BACKGROUND

Plaintiff, Stephen Catanzaro, was the owner of two adjacent three-story buildings, which shared a common wall--82 and 84 East Main Street (hereinafter "building No. 82" and "building No. 84") in the City of Middletown, New York. The buildings were late 19th and early 20th century mixed-use, commercial and residential structures. In total, the buildings contained a deli and a bar on the buildings' street level, and eight apartments above. The structures were obsolete in design and lacked many amenities, but nonetheless were useable and common in the urban Middletown community. Middletown is a small Mid-Hudson city with a deteriorating industrial base and a growing minority population.

On September 1, 1994, Hyman Wieden drove his automobile from the street, across the sidewalk, into building No. 84. ¹ Immediately after the accident, defendant Fusco, in his capacity as Public Works Commissioner, arrived at the scene to inspect building No. 84 for structural damage. Mayor DeStephano arrived shortly thereafter. Fusco concluded that the building was structurally unsound and in imminent danger of collapsing into the street. Despite Catanzaro's objections, Fusco immediately ordered demolition. Thus, the Department of Public Works, using a private contractor, razed building No. 84 the same day. The next day Mayor DeStephano, Fusco and other city officials, including a private consulting engineer, examined the adjoining building No. 82 and determined that the demolition of building No. 84 caused extensive damage to the common wall the buildings shared. Accordingly, the City concluded that the wall required either immediate reconstruction at considerable cost, or immediate demolition of the entire building to avoid its collapse into the street. Fusco discussed these options with Catanzaro, who then signed a consent agreement allowing the City to demolish building No. 82, and the City did so. ² Mayor DeStefano allegedly laughed and joked during the entire process, calling the demolition "instant urban renewal."

On August 31, 1995, the plaintiffs subsequently brought an action against Mayor DeStephano, Commissioner Fusco, and the City of Middletown, claiming that the decision to demolish both buildings was arbitrary and negligent, and that the city's necessity for emergency demolition was a pretextual attempt to rid the City of housing opportunities for the poor and racial minorities. ³ The district court rejected these claims and granted the City's motion for summary judgment on all grounds. This appeal followed.

II. DISCUSSION

On appeal from a grant of summary judgment, we review the record de novo to determine whether any genuine issues of material fact exist. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986). We reverse a grant of summary judgment if there is any evidence in the record from which a jury could draw a reasonable inference in favor of the non-moving party on a material fact. Brady v. Town of Colchester, 863 F.2d 205, 211 (2d Cir.1988). A fact is "material" only if the fact has some affect on the outcome of the suit. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. Notwithstanding, courts may not make credibility determinations or weigh the evidence when confronted with a motion for summary judgment. All evidence presented by the nonmoving party must be taken as true, and all inferences must be construed in a light most favorable to the nonmoving party. United States v. Diebold, 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962).

A. The Due Process Claims

Catanzaro alleges both procedural and substantive due process violations by the City. Catanzaro's procedural due process argument is that Fusco and Mayor DeStephano, in their official capacities, failed to give him: (1) an opportunity to contest the determination that the building was a threat to public safety; and (2) notice of their intent to destroy his building.

Generally, procedural due process requires an opportunity for a meaningful hearing prior to the deprivation of a significant property interest. Parratt v. Taylor, 451 U.S. 527, 540, 101 S.Ct. 1908, 1915, 68 L.Ed.2d 420 (1981). It has long been recognized, however, that authorized agents may proceed without providing pre-deprivation hearings when an emergency situation necessitates quick action or makes it impracticable to provide a meaningful hearing, so long as the State provides "some meaningful means by which to assess the propriety of the State's action at some time after the initial taking...." Id. at 539, 101 S.Ct. at 1914-15.

The City contends, under Parratt, that it was within its discretion to conclude building No. 84 was an imminent threat to public safety, and in light of the existing emergency, order its immediate demolition. Catanzaro does not challenge the constitutionality of the City's procedure for demolishing dangerous buildings, but rather, asserts that Commissioner Fusco and Mayor DeStephano improperly declared the existence of an emergency to invoke the Parratt exception. ⁴

In Burtnieks v. City of New York, 716 F.2d 982, 988 (2d Cir.1983), this court held that the district court could not inquire into the adequacy of a state remedy under the Parratt rule, prior to determining " 'the necessity of quick action' or 'the impracticability of providing any predeprivation process.' " "[T]he existence vel non of an emergency" is an issue of material fact that must be considered. Id. In the instant case, where the plaintiffs contest the existence of the emergency, we would be remiss to uphold a grant of summary judgment. Thus, the grant of summary judgment was improper on this ground.

In reaching this conclusion, it is necessary to briefly address the holding from my Circuit, Harris v. City of Akron, 20 F.3d 1396 (6th Cir.1994), to which the City cites in support of its argument. In Harris, the Sixth Circuit held that the demolition of the plaintiff's building without prior notice but pursuant to emergency procedures in the city code did not violate the owner's procedural due process rights. Id. at 1405. The facts of Harris are identical to those of the instant case. A city building inspector made an onsite determination that the plaintiff's building needed to be immediately demolished to avoid its imminent collapse. Id. at 1398. As in the instant case, the owner retained an expert who in an affidavit questioned and criticized the need for immediate demolition of the subject building. Id. at 1398-99. On appeal, the owner contended the affidavit raised a genuine issue of fact warranting a trial with respect to his procedural due process claim. Id. at 1399. The Sixth Circuit disagreed and held:

With the authority of the decision makers unchallenged, the question of whether an emergency actually existed constituted nothing more than a question of whether they made the right decision. By attempting to show only that the defendants made the wrong decision, Harris in no sense attacked the constitutionality of the process by which the decision was reached.

Harris, 20 F.3d at 1404. The Harris court noted that the determination of whether an emergency existed was completely within the judgment of the building inspector granted under the relevant city ordinance. Id. at 1404. In its opinion, the non-emergency procedure for the predeprivation hearing "would not have removed the threat to public safety and health perceived by the responsible officials." Id. at 1405.

To the extent that Harris interprets Parratt to eliminate a plaintiff's opportunity to challenge the arbitrariness of a determination of an emergency at trial, I must find that it was in error. While we recognize that Parratt was based on the conclusion that a risk of harm to the public outweighs the risk of negligent state action, Parratt, 451 U.S. at 538-39, 101 S.Ct. at 1914-15, for summary judgment purposes, precluding such a challenge would deprive the plaintiffs the opportunity to contest a state's decision to abuse their fundamental rights. ⁵

Catanzaro also contends that the emergency circumstances did not exist during the demolition of building No. 82, and that his subsequent consent was coerced. The record clearly evidenced that...