Friedman v. NYC DEPT. OF HOUSING & DEV. ADMIN.

• Decision Date: 08 June 1988
• Docket Number: No. 85 Civ. 5128 (RLC).,85 Civ. 5128 (RLC).
• Parties: Abraham FRIEDMAN, Y & J Enterprises Inc., Frieba Company Inc., Petite Home Products Inc., Yechiel Friedman, Joseph Friedman and Otto Park Jr., Plaintiffs, v. NEW YORK CITY DEPARTMENT OF HOUSING AND DEVELOPMENT ADMINISTRATION and the City of New York, Defendants.
• Court: U.S. District Court — Southern District of New York

688 F. Supp. 896

Abraham FRIEDMAN, Y & J Enterprises Inc., Frieba Company Inc., Petite Home Products Inc., Yechiel Friedman, Joseph Friedman and Otto Park Jr., Plaintiffs, v. NEW YORK CITY DEPARTMENT OF HOUSING AND DEVELOPMENT ADMINISTRATION and the City of New York, Defendants.

No. 85 Civ. 5128 (RLC).

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

June 8, 1988.

COPYRIGHT MATERIAL OMITTED

Abraham Friedman, et al., pro se.

Peter L. Zimroth, Corp. Counsel, New York City (Gabriel Taussig, Barry I. Berger, Isaac Salem, of counsel), for defendants.

OPINION

ROBERT L. CARTER, District Judge:

This action is being prosecuted pro se¹ to redress alleged deprivations of civil rights in connection with the demolition on July 6, 1982, of two unsafe buildings in which plaintiffs claim an interest. Before the court are plaintiffs' motion to amend the complaint and defendants' motion for summary judgment.

BACKGROUND

In February, 1981, the City of New York commenced unsafe building proceedings against 1261 and 1263 38th Street, Brooklyn, pursuant to Title 26, Article 8, of the Administrative Code of the City of New York ("Admin. Code"). Before such proceedings may be commenced, a notice containing specified information must be served upon each² person "who may have a vested or contingent interest in the structure or premises." Admin. Code, § 26-236(a). The notice is to be served personally, if the party to be served "can be found within the city after diligent search." Id., § 26-236(b). If personal service cannot be made, the notice may be served by "posting it in a conspicuous place upon the premises ..., and also mailing a copy to such person at his or her last known place of residence." Id., § 26-244(d).

The notice contains an order requiring the person served to make the subject premises "safe and secure," and further states that in the event of noncompliance, an engineers' survey will be made. If the survey shows that the building is indeed unsafe, the surveyors' report is placed before the State Supreme Court for trial of its allegations. The time and place of the trial are also set forth in the notice. If it is determined at trial that the building is unsafe, the court may issue a "Precept" ordering its demolition. Id., § 26-239(d).

The buildings at 1261 and 1263 38th Street were ordered razed by Precepts rendered by default on February 19, 1981. The Precepts recite that notice was "duly served upon" plaintiff Y & J Enterprises, Inc., the record owner, and a number of other parties as mortgagees.³ Salem Aff't, Ex. A. The remaining parties plaintiff to this action do not appear to have been served in their own names, although plaintiff Joseph Friedman was an officer of Y & J Enterprises, and plaintiffs Abraham and Yechiel Friedman are Joseph's father and brother, respectively.

On September 9, 1981, plaintiff Abraham Friedman brought on an Order to Show Cause in Supreme Court, Kings County, seeking an order vacating the Precepts on the grounds that he was a "user" of the buildings who had not been notified of the unsafe building proceedings, and that he had a meritorious defense. Justice Frank J. Pino of that court heard testimony on the motion on September 11 and 14, 1981, and denied relief from the bench. Matter of Application of City of New York v. Unsafe Building and Structure No. 1261 and 1263 38th St., Index Nos. 3414/81 & 3415/81 (Sup.Ct. Kings Cty.). Justice Pino ruled that both Abraham Friedman and Y & J Enterprises had been "notified by certified mail," Hearing Transcript ("HT") at 150, and that the subject premises continued to be "dangerous." HT at 151. Judgment was entered on September 30, 1981, and reconsideration was denied.⁴ The buildings were demolished between June 28 and July 6, 1982. Salem Aff't, ¶ 25. This action was commenced on July 3, 1985.

DISCUSSION

I. Motion to Amend the Complaint.

While defendants' motion for summary judgment was pending, plaintiffs sought to amend their complaint⁵ to join six additional parties defendant and one party plaintiff, add a claim for punitive damages, and increase their ad damnum clause from $250,000 to $35 million. The joinder of Agnes Friedman, the new party plaintiff, will not be permitted. The proposed amended complaint does not assert that she had any interest in the subject premises, and thus states no claim with respect to her. Leave to amend under Rule 15(a), F.R.Civ.P., is properly denied where the amendment would be futile. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962); Tri-State Judicial Services, Inc. v. Markowitz, 624 F.Supp. 925, 929 (E.D.N.Y.1985); Valdan Sportswear v. Montgomery Ward & Co., 591 F.Supp. 1188, 1190 (S.D.N.Y.1984) (Weinfeld, J.).

The attempt to join six new individuals as parties defendant would be unduly prejudicial to those individuals at this late date, see Feldman v. Lifton, 64 F.R.D. 539, 542 (S.D.N.Y.1974) (Carter, J.) (prejudice to non-parties sought to be joined may defeat right to amend), and indeed Rule 15(c), F.R.Civ.P., does not permit the proposed joinder. Rule 15(c) provides that no amendment changing the party against whom a claim is asserted will relate back to the date of the original pleading unless, within the applicable limitations period, "that party ... has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits...."

Plaintiffs have not offered in support of their proposed amendment any assertion that the parties sought to be added were made aware of "the institution of the action" within the period of limitation, nor could they do so. New York's three-year statute of limitations for general injuries to the person, N.Y.C.P.L.R. § 214(5), governs civil rights actions brought in this state pursuant to 42 U.S.C. § 1983. Okure v. Owens, 816 F.2d 45, 48-49 (2d Cir.1987), cert. granted, ___ U.S. ___, 108 S.Ct. 1218, 99 L.Ed.2d 419 (1988). The defendants were not served with the original summons and complaint until November 1, 1985, nearly four months past the expiration of the statutory period. Thus, not even those individuals now sought to be joined who are employed by the municipal defendants could have learned of the institution of this action by July 6, 1985, three years after the claim accrued.

Because punitive damages in actions under Section 1983 are available against neither municipalities, City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981), nor municipal agencies, e.g., Davis v. West Community Hospital, 755 F.2d 455, 467 (5th Cir.1985) (municipal hospital); see 2 Cook & Sobieski, Civil Rights Actions, ¶ 4.08 n. 29 (1987 & Cumm.Supp.1987), the proposed amendment seeking such damages would be futile. It would be equally futile to amend the amount of damages claimed in the demand for relief from $250,000 to "five million dollars for each of the plaintiffs." Plaintiffs have articulated no basis upon which the amendment might be justified, cf. Sadowy v. Sony Corp. of America, 93 F.R.D. 450, 454 (S.D.N.Y. 1982) (Duffy, J.) (leave to amend granted to correct error in original damage calculation), and the court discerns in the proposed amendment only an unavailing attempt to subject defendants to punitive damages. In any event, since Rule 54(c), F.R.Civ.P., guarantees that final judgment will be entered for "the relief to which a party ... is entitled, even if the party has not demanded such relief in the party's pleadings," plaintiffs have no legitimate ground for concern on this score. See 6 Wright & Miller, Fed.Pract. & Proc.: Civil § 1474 (1971).

II. Motion for Summary Judgment.

Defendants move for summary judgment on the ground that the validity of the Precepts is res judicata, and that the corporate plaintiffs may not proceed pro se. Relief on the latter ground is clearly appropriate. A corporation may not proceed before this court except by counsel. Jones v. Niagara Frontier Transp. Authority, 722 F.2d 20, 22 (2d Cir.1983). Upon granting the motion of plaintiffs' former attorney to be relieved, the court allowed plaintiffs thirty days to secure new counsel. More than two years have passed since the expiration of that period, and no appearance of counsel has been entered on plaintiffs' behalf. Fair warning was given, and the corporate plaintiffs' claims are now dismissed. See Southwest Express Co., Inc. v. ICC, 670 F.2d 53 (5th Cir.1982).

The claims of the individual plaintiffs are essentially two: first, that the Administrative Code is unconstitutional as applied to them, and second, that their property was taken without just compensation. In response to the first claim, defendants urge that the notice provisions in regard to unsafe buildings are constitutional on their face, and that relitigation of the factual issue of notice is precluded by a former adjudication in state court. Defendants do not address plaintiffs' second claim.

A. Notice

The facial constitutionality of the method of service employed by section 26-236(a) of the Administrative Code is settled. Sheiner v. City of New York, 611 F.Supp. 172, 177 (E.D.N.Y.1985) (citing Greene v. Lindsey, 456 U.S. 444, 102 S.Ct. 1874, 72 L.Ed.2d 249 (1982)). Plaintiffs' claim, however, is that that provision was not constitutionally applied to them. It is black-letter law that a method of service must be "reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 315, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950) ("means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it").

It appears from the record of the proceedings in state court that the relationship of the parties who object to the validity of the notice provision to the buildings was not known to defendants. Yechiel...