Dibbs v. Roldan
| Decision Date | 14 February 2005 |
| Docket Number | No. 03 Civ. 0913(JES).,03 Civ. 0913(JES). |
| Citation | 356 F.Supp.2d 340 |
| Parties | Stephen DIBBS, Plaintiff pro se, v. Paul ROLDAN, Deputy Commissioner, New York State Division of Housing and Community Renewal John Mulholland, administrator, New York State Division of Housing and Community Renewal New York State Division of Housing and Community Renewal Dennis Ryan, Commissioner, New York State Division of Housing and Community Renewal Various unspecified Building Inspectors of New York City Department of Housing Preservation and Development Jerilyn Perine, Commissioner, New York City Department of Housing Preservation and Development Patricia Lancaster, Commissioner, New York City Department of Buildings Kenneth Podziba, Commissioner, New York City Board of Standards and Appeals Ten Be or Not Ten Be, Inc., (landlord), Tim Greenfield-Sanders (landlord), Lawrence Pinner (landlord's architect), Joan Lobis, New York Supreme Court Judge, Carol Huff, New York Supreme Court Judge, Eileen Bransten, New York Supreme Court Judge, Defendants. |
| Court | U.S. District Court — Southern District of New York |
Stephen Dibbs, New York City, pro se.
Eliot Spitzer, Attorney General of the State of New York, New York City, Constantine A. Speres, for Defendants Paul Roldan, John Mulholland, Dennis Ryan, Joan Lobis, Carol Huff, Eileen Bransten, and the New York State Division of Housing and Community Renewal, of counsel.
Michael A. Cardozo, Corporation Counsel of the City of New York, New York City, Louise Lippin, for Defendants Jerilyn Perine, Patricia Lancaster, Kenneth Podziba, and Various Unspecified Building Inspectors employed by the New York City Department of Housing Preservation and Development, of counsel.
Benjamin R. Kaplan, New York City, for Defendants Ten Be or Not Ten Be, Inc. and Tim Greenfield-Sanders.
Zetlin & De Chiara LLP, Westbury, NY, Scott K. Winikow, for Defendant Lawrence Pinner, of counsel.
Plaintiff pro se Stephen Dibbs ("plaintiff" or "Dibbs") brings the above-captioned action against employees of various New York City and New York State administrative agencies, the agencies themselves, three justices of the New York State Supreme Court, New York County, his landlord, and an architect in the employ of his landlord, pursuant to the Civil Rights Act, 42 U.S.C. § 1983, and the Racketeer Influenced and Corrupt Organization Act ("RICO"), 18 U.S.C. §§ 1961-68, seeking declaratory and injunctive relief in addition to damages and a mandamus. Defendants move to dismiss plaintiff's Complaint pursuant to Fed. R. Civ. Pro. 12(b)(1) and (6), and plaintiff cross-moves for an order staying the federal court proceedings. For the reasons set forth below, the Court dismisses the Complaint against all moving defendants.1
The following facts are taken from plaintiff's Complaint or documents referenced therein. Liberally interpreted, plaintiff's Complaint describes a tortured landlord-tenant dispute, which has resulted in multiple prior litigations. The property at issue is located at 155 Avenue B in Manhattan. Complaint ("Compl.") ¶ 27. Dibbs is the rent stabilized tenant of "an unlegalized residential apartment" on the ground floor of the building ("the apartment"). Compl. ¶ 1, 26-27. He first rented the apartment in 1978. Id. ¶¶ 26. Defendants Ten Be or Not Ten Be, Inc. and Tim Greenfield-Sanders, president of Ten Be or Not Ten Be, Inc., (collectively "the landlord" or "landlord defendants") became the landlord of the building in 1984. See id. ¶¶ 2, 29. Plaintiff alleges that, shortly thereafter, the landlord "engaged [in] a protracted course of harassment against me by withholding the legally required heat, water, ventilation, etc, and producing dangerous and illegal conditions that evicted me from portions of the apartment...." Id. ¶ 2; see id. ¶¶ 29-41.
In response, plaintiff began withholding his rent. Id. ¶ 38. Then, in March 1993, the New York City Department of Housing Preservation and Development ("HPD") issued a Notice of Violation ("notice") alerting the landlord that a security gate outside plaintiff's apartment violated governing building codes and had to be removed. See id. ¶¶ 3, 50, 58, 75, 153; Dibbs v. Tornicasa, No. 98 Civ. 2102, 1999 WL 156359, at *1 (S.D.N.Y. Mar. 23, 1999). This security gate completed the enclosure of an area measuring approximately sixty square feet in size, bordered on either side by the neighboring buildings, at the back by the front wall of Dibbs' apartment, and toward the sidewalk by a section of iron fence and by the gate. See Compl. ¶ 46. While plaintiff was away in Florida, the landlord removed the security gate without plaintiff's permission, enabling free access to the enclosure where Dibbs had stored some of his belongings. See id. ¶¶ 45-50; Dibbs, 1999 WL 156359, at *1.
Upon his return Dibbs discovered what had taken place and filed three complaints with the New York State Division of Housing and Community Renewal ("DHCR"), alleging harassment, reduced services, and lack of heat and hot water. See Compl. ¶¶ 51-53; Dibbs v. Tornicasa, No. 98 Civ. 2102, 1999 WL 1201709, at *1 (S.D.N.Y. Dec. 14, 1999). Four months after his complaints were filed an informal conference was held, including defendant Mulholland, DHCR administrator, the landlord and his wife, and a heating mechanic. Compl. ¶¶ 54, 60. At the conference, which allegedly began before plaintiff arrived, the landlord explained that he removed the gate along with plaintiff's household belongings stored in the area because of the building code violation he had received. Id. ¶¶ 55, 58. Plaintiff claims that defendant Mulholland refused to allow him to speak, and that the conference was eventually moved into a back room where it continued without plaintiff. Id. ¶¶ 57, 60.
That same month defendant Mulholland issued an order directing the landlord to submit an architect's report explaining how to rebuild the gate without violating building codes. Dibbs, 1999 WL 1201709, at *2; see Compl. ¶ 64. The landlord hired architect defendant Pinner to furnish such a report. Dibbs, 1999 WL 156359, at *2. Pinner, however, "[i]nstead of ... submitting a report on restoring security iron work ... sent at least two letters to Mulholland, stating that he didn't think that iron work was permissible, and intimidated administrator Mulholland to change his order...." Compl. ¶ 67. Dibbs was not made aware of these "ex parte" communications at the time. Id. ¶ 68. Allegedly in response to Pinner's communications, Mulholland "changed his mind" and, on February 9, 1994, decided that he "was only going to install window bars over the existing windows...." Id. ¶¶ 73, 86.
Plaintiff next filed a Petition for Administrative Review ("PAR"). This PAR was sent back by the DHCR director because it was "an inappropriate means to object to Mr. Mulholland's determination." Id. ¶ 91.
On June 28, 1994, the DHCR dismissed Dibbs' complaints. See id. ¶ 96.
Not to be deterred, on December 20, 1994, Dibbs commenced an Article 78 proceeding seeking a declaration that the DHCR's failure to issue a finding of harassment constituted an abuse of discretion. See id. ¶ 100; State Defs.' Notice of Mot., dated Aug. 22, 2003 ("Notice of Motion"), Exhibit ("Ex.") A, Feb. 14, 1995 Decision and Order of Justice Joan B. Lobis, ("Lobis Decision") at 1. The Court dismissed Dibbs' petition because, in the absence of a final order from the DHCR, there was no basis for it. See Lobis Decision at 2; Compl. ¶ 103. The Appellate Division affirmed, and the Court of Appeals denied Dibbs' further appeal. Compl. ¶¶ 106, 107.2
On March 23, 1998, Dibbs filed suit in this Court against defendants Ernest Tornicasa and R. Berry of the HPD, John Mulholland of the DHCR, landlord Tim Greenfield-Sanders, and architect Pinner. Dibbs, 1999 WL 156359, at *1-2. Dibbs' complaint contained three types of allegations: "Category 1: Defendant Sanders entered Plaintiff's residence without permission, caused damage, and refused to repair that damage; Category 2: Defendants Sanders, Pinner, Mulholland, Tornicasa, and Berry prevented the fair processing of Plaintiff's harassment complaint; Category 3: Defendant Mulholland and the DHCR have failed to take any final action on Plaintiff's harassment complaint." Id. at *3. In its March 23, 1999 decision this Court dismissed plaintiff's category two claims against all defendants, with the exception of defendant Sanders who at that time had failed to file a motion to dismiss, declaring them time-barred. Id. at *5.
Subsequently, in its December 14, 1999 decision, this Court dismissed the remainder of plaintiff's complaint. The Court found that Dibbs' claims that landlord Sanders prevented the fair processing of his harassment complaint, broke into his apartment, took his personal belongings, demolished the security gate and boarded over the windows and inner door, were all time-barred. See Dibbs, 1999 WL 1201709, at *4. The Court additionally determined that Dibbs' claim that the landlord tried to evict him by interfering with all of his essential services including heat, water and electricity failed "for want of a sufficient allegation that Defendant Sanders' conduct constituted state action" as required by § 1983.3 See id. at *5.
As for defendant Mulholland, Dibbs had alleged "that his due process rights ... were violated by the DHCR's decision not to commence a formal hearing on his harassment complaint that would have resulted in a final order subject to judicial review." See id. at *6. The Court granted defendant's motion for summary judgment on this claim finding that the relevant New York law provisions did not confer on harassment complainants the right to a formal hearing on their complaints resulting in a final order subject to judicial review, and therefore "Defendant Mulholland's decision to close the inquiry into Plaintiff's harassment complaint without...
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