Graham-Johnson v. City of Albany

• Decision Date: 09 July 2020
• Docket Number: 1:19-cv-01274 (BKS/CFH)
• Citation: 471 F.Supp.3d 506
• Parties: Shirley GRAHAM-JOHNSON, Jerome Johnson, Lenora Graham, and Shirley Graham-Johnson as legal guardian of K.G.J., R.D., A.J., M.J., Ra.J.F., and R.J.F., Plaintiffs, v. The CITY OF ALBANY, Richard LaJoy, in his individual capacity, Daniel Sherman, in his individual capacity, Valerie Scott, in her individual capacity, R. Russell Reeves, in his individual capacity, M. Cristo, Inc., Defendants. M. Cristo, Inc., Cross-Claimant, v. The City of Albany, Daniel Sherman, Valerie Scott, and R. Russell Reeves, Cross-Defendants.
• Court: U.S. District Court — Northern District of New York

471 F.Supp.3d 506

Shirley GRAHAM-JOHNSON, Jerome Johnson, Lenora Graham, and Shirley Graham-Johnson as legal guardian of K.G.J., R.D., A.J., M.J., Ra.J.F., and R.J.F., Plaintiffs,

v.The CITY OF ALBANY, Richard LaJoy, in his individual capacity, Daniel Sherman, in his individual capacity, Valerie Scott, in her individual capacity, R. Russell Reeves, in his individual capacity, M. Cristo, Inc., Defendants.

M. Cristo, Inc., Cross-Claimant,

v.The City of Albany, Daniel Sherman, Valerie Scott, and R. Russell Reeves, Cross-Defendants.

1:19-cv-01274 (BKS/CFH)

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

Signed July 9, 2020

For Plaintiffs: Brian D. Deinhart, Cooper Erving & Savage LLP, 39 North Pearl Street, 4th Floor, Albany, NY 12207.

For Defendants City of Albany, Richard LaJoy, Daniel Sherman, and Valerie Scott : William G. Kelly, Corporation Counsel, City of Albany, Robert G. Magee, Deputy Corporation Counsel, City Hall, 24 Eagle Street, Room 106, Albany, NY 12207.

For Defendant R. Russell Reeves: David H. Walsh, Kenney Shelton Liptak Nowak LLP, 4615 North Street, Jamesville, NY 13078.

For Defendant M. Cristo, Inc.: Bryan T. Schwartz, Gallo Vitucci Klar, LLP, 90 Broad Street, 12th Floor, New York, NY 10004.

MEMORANDUM-DECISION AND ORDER

Brenda K. Sannes, United States District Judge:

I. INTRODUCTION

This action stems from the City of Albany's demolition of the house located at 170 Orange Street, Albany, New York ("170 Orange Street") on October 20, 2018. (Dkt. No. 1). Plaintiffs Shirley Graham-Johnson, Jerome Johnson, Lenora Graham, and Shirley Graham-Johnson as legal guardian of minors K.G.J., R.D., A.J., M.J., Ra.J.F., and R.J.F., bring this action against Defendants City of Albany (the "City"), Richard LaJoy, the City's Director of the Department of Buildings and Regulatory Compliance ("Buildings Department"), Daniel Sherman, a Senior Building Inspector for the City, and Valerie Scott, the Buildings Department Supervisor (collectively, the "City Defendants). (Id. ). Plaintiffs also name as defendants R. Russell Reeves, an engineer the City engaged to evaluate Plaintiffs’ property, and M. Cristo, Inc. ("M. Cristo"), the company that performed the demolition. (Id. ). Plaintiffs bring five¹ causes of action: (1) deprivation of property without due process of law, in violation of the Fourteenth Amendment, under 42 U.S.C. § 1983 (First Cause of Action); (2) the taking of property for public use, without just compensation, in violation of the Fifth Amendment, under 42 U.S.C. § 1983 (Second Cause of Action); and (3) tortious conduct in violation of New York common law (Third, Fifth, and Sixth Causes of Action).² (Dkt. No. 1). Defendant M. Cristo brings a cross-claim for common law indemnification and contribution against the City Defendants and Reeves. (Dkt. No. 10, ¶¶ 63–66).

There are four motions before the Court: the City Defendants’ motion to dismiss the Complaint under Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6), (Dkt. No. 6); Reeves’ motion to dismiss Plaintiffs’ § 1983 claims against him, (Dkt. No. 21); the City Defendants’ motion to dismiss M. Cristo's cross-claim, (Dkt. No. 19); and M. Cristo's cross-motion to amend, (Dkt. No. 26). The Court has considered Defendants’ motions and all responses and grants in part and denies in part the motions as follows.

II. FACTS³

The house at 170 Orange Street was Plaintiffs' "family home."⁴ (Dkt. No. 1). It was "immediately adjacent to" the neighboring house at 172 Orange Street, with which it had a "shared wall, sometimes known as a ‘party wall.’ " (Id. ¶¶ 2, 34). From the outside, it was "readily apparent that the buildings were connected" as "[t]here was no physical space between the two structures." (Id. ¶¶ 2, 35).

On October 19, 2018, City Buildings Department Director LaJoy and Senior Building Inspector Sherman contracted with Reeves, an engineer, on the City's behalf, "to perform an emergency structural assessment of 172 Orange Street." (Id. ¶ 32). Reeves "performed the assessment" that day and "around 6:00 p.m., and issued a report" stating that "a collapse of several of the buildings [sic] floors as well as a partial collapse of its foundation was considered imminent" and recommending "that the building should be demolished." (Id. ¶ 36).

Plaintiffs, with the owner's permission, had stored "personal property" inside 172 Orange Street. (Id. ¶ 37). "Despite knowledge of R. Russell Reeves’ opinion that 172 Orange Street was in danger of imminent collapse ... Daniel Sherman and or Richard LaJoy allowed Plaintiffs and family members to repeatedly enter 172 Orange Street to enter the building to gather their personal property." (Id. ¶ 38).

On October 20, 2018, Scott, a Buildings Department Supervisor, signed and issued a notice of emergency demolition of 172 Orange Street. (Id. ¶ 40). That morning, "M. Cristo, Inc., and its employees," with whom the City, "at the direction" of LaJoy and Sherman," had contracted for demolition services, "arrived at 172 Orange Street ... to begin demolition." (Id. ¶¶ 39, 43). Sherman, LaJoy, and Reeves "were present on behalf of the City to oversee demolition." (Id. ¶ 44).

Plaintiffs became concerned as "crews arrived outside 172 Orange Street," along with "demolition equipment," including a "hydraulic excavator," "which Plaintiffs believed posed a threat to [their] home if used in the demolition." (Id. ¶ 47). Plaintiffs "approached ... agents and employees of both M. Cristo, Inc., and the City," and told them "that 172 Orange Street shared a wall with Plaintiffs’ home at 170 Orange Street." (Id. ¶ 45). The "agents and employees of the city of Albany and M. Cristo, Inc.," assured Plaintiffs "that the demolition crew were aware of the risks and knew how to perform demolition safely."⁵ (Id. ¶ 48). Defendants did not give Plaintiffs "any notice that they should vacate 170 Orange Street during the demolition of 172 Orange Street" but "affirmatively instructed" them "to close their windows during demolition." (Id. ¶ 50).

"Shortly after the demolition commenced, the demolition machine, believed to be a hydraulic excavator ... tore into the roof of 170 Orange Street, removing portions of the roof ... near the northwest corner of the house while the family was still inside" and filling "the air inside the house with debris and particulate matter that Plaintiffs inhaled." (Id. ¶¶ 51, 53). Plaintiffs "rapidly gather[ed] a few personal items," "briefly inspect[ed] the damage," and "fled the house in terror." (Id. ¶ 54). "[A]t the direction of" LaJoy, Reeves, and Sherman, the City "began shoring 170 Orange Street shortly after the structure was damaged." (Id. ¶ 57).

The same day, following the demolition of 172 Orange Street and damage to 170 Orange Street, and "even though Mr. Reeves was present," "Plaintiffs were allowed to enter and exit 170 Orange Street repeatedly for hours, extending into the early morning of October 21, 2019, [sic] to retrieve belongings." (Id. ¶ 63).

On October 23, 2018, Reeves "completed a structural condition assessment of 170 Orange Street" and recommended demolition. (Id. ¶ 58). In the report, Reeves wrote that 170 Orange Street had "numerous structural deficiencies" and that "a collapse of a large portion of the roof section is considered imminent." (Id. ¶ 59). Reeves observed that "[t]he existing perimeter concrete foundation of the rear addition is deficient and highly unstable" and a "collapse of any portion of this foundation wall" was "considered imminent." (Id. ). Reeves noted that the "lower rear exterior wall" was "not attached to the foundation" and was "not supporting the rear upper wall section" and that "localized and partial collapse of the rear wall" was "imminent." (Id. ). Reeves "further noted the entire Easterly foundation wall and easterly exterior stud wall" were "highly unstable." (Id. ). Reeves stated that he considered the "present condition of the building at 170-Orange Street" to be "a high hazard to public safety" and that it "shall be removed as soon as practicable under the City of Albany's Emergency Condemnation Procedures." (Id. ).

"[O]n the morning of October 24, 2018, less than a day after Mr. Reeves issued his report," the City "commenced an ‘emergency’ demolition of the property." (Id. ¶ 65). At no time between Reeves’ recommendation and the time of demolition did the City notify Plaintiffs "that their house was to be demolished." (Id. ¶ 75). Plaintiffs assert that although the notice of emergency demolition for 170 Orange Street was dated October 24, 2019, Scott did not issue it until after the demolition occurred. (Id. ¶ 76). Plaintiffs "had no opportunity to make their case for the preservation of their longtime family home." (Id. ¶ 77).

Plaintiffs allege "[u]pon information and belief" that the City, under LaJoy and Reeves’ direction, "routinely undertakes emergency stabilization of historic homes." (Id. ¶ 67). Plaintiffs refer to a newspaper article in support of their assertion that in December 2018, the City "spent roughly $160,000 to stabilize a house at 19 Second Street, where several floors had collapsed and the back wall was ‘compromised.’ " ( Id. ¶ 68). Plaintiffs further allege that Reeves was the engineer who recommended stabilization of 19 Second Street, and that LaJoy directed the stabilization and that the City knew of 19 Second Street's condition, "but did not act on the stabilization" for more than six months. (Id. ¶¶ 69–70).

Plaintiffs assert that "there were no surrounding structures to which 170 Orange Street could have posed any danger," "the portion of Orange Street" on which Plaintiff's home was located was lightly trafficked" and the sidewalk "could have been temporarily blocked" to the extent the property posed a hazard. (Id. ¶¶ 73–74).

Following the demolition of 170 Orange Street, the City, at LaJoy and Scott's direction, issued Plaintiff a bill "for the costs of demolition totaling roughly $36,000." (Id. ¶ 83).

III. Legal Standard

To survive a motion to dismiss...