Hu v. The City of New York

• Decision Date: 20 January 2022
• Docket Number: 17-CV-2348 (ARR) (JRC)
• Parties: ERIC HU, NY DRILLING, INC., AND 888 CONSULTING CORP., Plaintiffs, v. THE CITY OF NEW YORK, RICK D. CHANDLER, DENNIS BURKART, JOSE L. ESPAILLAT, MUHAMMAD IMRAN, MICHAEL CAMERA, RAFAEL COLLIS, SALVATOR CONCIALDI, SALVATORE CONCIALDI, ROBERT TURNER, CESAR ROMERO, D ERIC HOYT, AND JOHN AND JANE DOES NOS. 1-10, Defendants.
• Court: U.S. District Court — Eastern District of New York

ERIC HU, NY DRILLING, INC., AND 888 CONSULTING CORP., Plaintiffs,
v.
THE CITY OF NEW YORK, RICK D. CHANDLER, DENNIS BURKART, JOSE L. ESPAILLAT, MUHAMMAD IMRAN, MICHAEL CAMERA, RAFAEL COLLIS, SALVATOR CONCIALDI, SALVATORE CONCIALDI, ROBERT TURNER, CESAR ROMERO, D ERIC HOYT, AND JOHN AND JANE DOES NOS. 1-10, Defendants.

No. 17-CV-2348 (ARR) (JRC)

United States District Court, E.D. New York

January 20, 2022

OPINION & ORDER

Allyne R. Ross United States District Judge

The plaintiffs in this action are Eric Hu, an Asian-American excavator and consultant; 888 Consulting Corporation, a company he formed in 2015; and NY Drilling, Inc. (“NY Drilling”), a contracting company that previously employed Mr. Hu and now contracts with 888 Consulting Corporation. Collectively they allege that various officials working for the New York City Department of Buildings (“DOB”), under the auspices of Assistant Chief Inspector Dennis Burkart and motivated by Mr. Burkart's racial and personal animus, engaged in a campaign of discriminatory enforcement of municipal building codes against plaintiffs. Plaintiffs assert equal protection claims under the theory of selective enforcement articulated in LeClair v. Saunders, 627 F.2d 606 (2d Cir. 1980), statutory claims under 42 U.S.C. § 1981, and a state-law taxpayer action claim. Before me is defendants' Motion for Summary Judgment. For the reasons that follow, I grant their motion in its entirety.

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BACKGROUND

Plaintiffs' record is rife with inconsistencies. Thus, and before providing a factual summary of the case, I set the stage for parties' averments. At the heart of this case is plaintiffs' contention that in 2016 and under the directive of defendant Burkart, officials within the DOB discriminatorily enforced the New York City Building Code against plaintiffs based on Mr. Burkart's racial animus against Asians and personal malice toward Mr. Hu. See Pls.' Mem. in Opp'n Summ. J. (“Pls.' Opp'n”), ECF No. 122. While no other DOB official is alleged to harbor anti-Asian bias and personal malice against Mr. Hu, plaintiffs suggest that the other named defendants carried out Mr. Burkart's orders, acted on his referrals, and/or failed to take action to rein in his discriminatory enforcement. See First Am. Compl. ¶¶ 3-12 (“FAC”), ECF No. 33. Plaintiffs' case rests upon a series of enforcement actions that were levied against them by defendants but, plaintiffs contend, were not enforced against non-Asian workers engaged in materially similar conduct (plaintiffs' comparators). See Id. ¶¶ 98-245. Chief among those enforcement actions-and as relevant to the instant motion, see Discussion II, infra-was a notice of violation issued by defendant Burkart against plaintiff NY Drilling on July 11, 2016 for work being performed at 139-20 34th Avenue (the “34th Avenue worksite”). Id. ¶¶ 190-92.

As regards the 34th Avenue enforcement action and its comparator, there are very few facts on which parties agree. While I recount them here in the light most favorable to plaintiffs, resolution of defendants' motion requires a thorough examination of the full record. Accordingly, I review seriatim the undisputed facts of this case, the facts alleged in plaintiffs' First Amended Complaint, and the disputed facts alleged in defendants' and plaintiffs' briefing on summary judgment.

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Parties' Undisputed Facts

Plaintiff Hu is the sole owner and employee of 888 Consulting Corporation, Pls.' Resp. to Defs.' 56.1 and Pls.' 56.1 ¶¶ 2, 6 (“Pls.' 56.1”), ECF No. 120, and a part-time manager of NY Drilling, see Pls.' 56.1 ¶ 2-3. According to Mr. Hu, 888 Construction Corporation, which he founded in 2015, FAC ¶ 48, performs various services for clients, including “interpreting between Chinese and English, looking around the job sites, and helping out the owners of the job sites, ” Pls.' 56.1 ¶ 7. While Mr. Hu has participated in approximately seventy-five percent of New York Drilling's construction jobs, Id. ¶ 5; Defs.' 56.1 ¶ 5, ECF No. 117, the construction company is jointly owned by Mr. Hu's brother, Wei Ching Hu, and Wayne Fried, a Caucasian man. See Pls.' 56.1 ¶ 4; Defs.' 56.1 ¶ 4.

Between approximately January 2008 and July 2018, defendant Burkart was employed by the DOB as Assistant Chief of its Concrete Unit. Pls.' 56.1 ¶ 8. As a supervisor, Mr. Burkart was responsible for generating route sheets for concrete inspectors in the unit. Id. at ¶ 9. In addition to his administrative work, and at his discretion, Mr. Burkart also performed some worksite inspections. Pls.' 56.1 ¶ 9; Defs.' 56.1 ¶ 10.

On July 11, 2016, defendant Burkart visited plaintiffs' 34th Avenue worksite, Pls.' 56.1 ¶ 13, where Eric Hu and men of different races were working, see Pls.' 56.1 ¶¶ 14-15; Defs.' 56.1 ¶¶ 14-15 (“In the words of [p]laintiff Hu, ‘[a]ll the workers worked together at the same project, whether you were white or [B]lack or [Hispanic] or [Asian].'” (quoting Defs.' Aff in Supp. Mot. Summ. J. (“Defs.' Aff.”), Ex. C 110:1-4 (“Hu Dep.”), ECF No. 118-3)). While parties dispute the nature of Mr. Burkart's visit-defendants describe it as an inspection, Defs.' 56.1 ¶ 16, whereas plaintiffs allege Mr. Burkart “opened the gate, took pictures, and left, ” Pls.' 56.1 ¶ 16-they agree that as a result of this visit, Mr. Burkart issued NY Drilling a notice of violation for standing water

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at the worksite and for welding without a license. Pls.' 56.1 ¶ 17.

Sometime after August 3, 2016, Wei Ching Hu, Mr. Hu's brother and the owner of NY Drilling, submitted a sworn statement to the DOB that the violation for standing water had been cured. Pls.' 56.1 ¶ 24; Defs.' 56.1 ¶ 24; see also Defs.' Aff., Ex. F, ECF No. 118-6. NY Drilling's Certificate of Correction was approved by the DOB thereafter. See Defs.' Aff., Ex. G, ECF No. 118-7. On August 30, 2016, the New York City Office of Administrative Trials and Hearings (“OATH”) held a hearing on the notice of violation for standing water. During the hearing, NY Drilling denied the allegation of standing water at the 34th Avenue worksite but did not rebut the DOB's evidence. Pls.' 56.1 ¶¶ 21; Defs.' 56.1 ¶¶ 21. The notice of violation was sustained, and NY Drilling was issued a four-hundred-dollar civil penalty. Id. Plaintiffs were subsequently fired from their work at 34th Avenue. Pls.' 56.1 ¶ 27; Defs.' 56.1 ¶ 27.

Both parties seem to agree that on a separate occasion, when a different group of workers were onsite, defendant Burkart inspected the 34th Avenue worksite and did not issue a notice of violation for standing water. See Pls. 56.1 ¶¶ 13, 15; Defs.' 56.1 ¶¶ 22, 25. However, as detailed below, parties' respective renditions of this incident otherwise diverge.

Plaintiffs' First Amended Complaint

Plaintiffs' First Amended Complaint is light on details about the 34th Avenue enforcement action and its comparator. Plaintiffs allege that on July 11, 2016, defendants issued them a notice of violation for having a pool of water^[1] at their worksite. FAC ¶ 190. The pool of water was being used to flush a drilling hole, which, according to plaintiffs, is standard practice when drilling. Id. ¶ 191. Due to heavy rains on and around July 11th, the pool of water was full during defendant

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Burkart's visit. Id. ¶ 190. At an unspecified later date, defendant Burkart returned to the 34th Avenue worksite when “similarly situated Caucasian workers were working on the pool.” Id. ¶ 201. The pool was still filled with water; however, Mr. Burkart did not serve the workers onsite a notice of violation. Id.

While ultimately immaterial to the instant motion for reasons discussed herein, see Discussion II, infra, plaintiffs' amended complaint describes three additional instances of discriminatory enforcement at worksites in Flushing, Queens: at 45-37 162nd Street, 35-20 146th Street, and 42-47 157th Street. See FAC ¶¶ 98-199. Plaintiffs compare their treatment at these worksites to defendants' treatment of two construction companies to whom, plaintiffs allege, they are similarly situated: Vera Construction and Westerman Construction Company, Inc. Id. ¶¶ 209-45.

Defendants' Disputed Facts in Support of Summary Judgment

In their Motion for Summary Judgment, defendants focus on plaintiffs' proffered comparison at the 34th Avenue worksite; their chronology accords with plaintiffs' First Amended Complaint. Defendants allege that Mr. Burkart first inspected the 34th Avenue worksite on July 11, 2016, wherein he saw a pool of standing water “that had not been drained properly at the cellar level.” Defs.' 56.1 ¶ 16. According to defendants, it is “problematic” for a worksite to have a large amount of standing water because the large pools can be breeding grounds for mosquitos and lead to the spread of disease. Id. ¶ 18-19. During his inspection, Mr. Burkart also observed that welding was being performed at the worksite without a licensed welder. Id. ¶ 20. Mr. Burkart issued plaintiff NY Drilling a notice of violation for the pool, which was sustained by OATH on August 30, 2016. Id. ¶¶ 17, 21.

According to defendants, Mr. Burkart next returned to the 34th Avenue worksite on August 15, 2016,

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by which point NY Drilling had cured the violation. See Id. ¶¶ 22-24. Mr. Burkart understood his visit to be a reinspection and did not issue a standing water violation to workers onsite. Id. ¶¶ 22, 25.

Plaintiffs' Disputed Facts in Opposition to Summary Judgment

It is here that the plaintiffs' averments become irreconcilable. At summary judgment, plaintiffs proffer facts that materially contradict defendants' proffered facts and, more concerningly, undercut plaintiffs' own pleadings. For the first time, plaintiffs allege 1) that there was never standing water at the 34th Avenue worksite on July 11, 2016, 2) that the comparative incident at 34th Avenue-during which defendant Burkart observed standing water but did not issue its non-Asian workers a notice of violation-occurred p...