Kittay v. Giuliani

• Decision Date: 01 August 2000
• Docket Number: DEFENDANTS-APPELLEES,PLAINTIFF-APPELLANT,Docket No. 00-9248
• Citation: 252 F.3d 645
• Court: U.S. Court of Appeals — Second Circuit
• Parties: (2nd Cir. 2001) DAVID R. KITTAY, AS TRUSTEE OF DUKE & BENEDICT, INC.,, v. RUDOLPH W. GIULIANI, AS MAYOR OF THE CITY OF NEW YORK, THE CITY OF NEW YORK, GEORGE E. PATAKI, AS GOVERNOR OF NEW YORK STATE, THE STATE OF NEW YORK, JOHN P. CAHILL, AS COMMISSIONER OF THE NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, THE NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, ANTONIA C. NOVELLO, M.D., M.P.H., AS COMMISSIONER OF THE NEW YORK STATE DEPARTMENT OF HEALTH, NEW YORK STATE DEPARTMENT OF HEALTH, JAMES TIERNEY, AS INSPECTOR GENERAL OF THE NEW YORK CITY WATERSHED, JOSEPH A. MIELE, SR., AS COMMISSIONER OF THE NEW YORK CITY OF DEPARTMENT OF ENVIRONMENTAL PROTECTION, CITY OF NEW YORK DEPT. OF ENVIRONMENTAL PROTECTION BUREAU OF SEWERS, ROBERT J. BONDI, AS PUTNAM COUNTY EXECUTIVE, THE COUNTY OF PUTNAM, FRANK J. DEL CAMON, AS SUPERVISOR OF THE TOWN OF CARMEL, THE TOWN OF CARMEL, LOIS C. ZUTELL, AS SUPERVISOR OF THE TOWN OF SOUTHEAST, THE TOWN OF SOUTHEAST, ANN MARIE BAISLEY, AS SUPERVISOR OF THE TOWN OF KENT AND THE TOWN OF KENT,

Page 645

252 F.3d 645 (2nd Cir. 2001)

DAVID R. KITTAY, AS TRUSTEE OF DUKE & BENEDICT, INC., PLAINTIFF-APPELLANT, v. RUDOLPH W. GIULIANI, AS MAYOR OF THE CITY OF NEW YORK, THE CITY OF NEW YORK, GEORGE E. PATAKI, AS GOVERNOR OF NEW YORK STATE, THE STATE OF NEW YORK, JOHN P. CAHILL, AS COMMISSIONER OF THE NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, THE NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, ANTONIA C. NOVELLO, M.D., M.P.H., AS COMMISSIONER OF THE NEW YORK STATE DEPARTMENT OF HEALTH, NEW YORK STATE DEPARTMENT OF HEALTH, JAMES TIERNEY, AS INSPECTOR GENERAL OF THE NEW YORK CITY WATERSHED, JOSEPH A. MIELE, SR., AS COMMISSIONER OF THE NEW YORK CITY OF DEPARTMENT OF ENVIRONMENTAL PROTECTION, CITY OF NEW YORK DEPT. OF ENVIRONMENTAL PROTECTION BUREAU OF SEWERS, ROBERT J. BONDI, AS PUTNAM COUNTY EXECUTIVE, THE COUNTY OF PUTNAM, FRANK J. DEL CAMON, AS SUPERVISOR OF THE TOWN OF CARMEL, THE TOWN OF CARMEL, LOIS C. ZUTELL, AS SUPERVISOR OF THE TOWN OF SOUTHEAST, THE TOWN OF SOUTHEAST, ANN MARIE BAISLEY, AS SUPERVISOR OF THE TOWN OF KENT AND THE TOWN OF KENT, DEFENDANTS-APPELLEES.

Docket No. 00-9248

August Term, 2000

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Argued: June 4, 2001

Decided June 8, 2001

Appeal from a judgment of the United States District Court for the Southern District of New York (Parker, Judge) dismissing plaintiff's federal claims and declining to exercise supplemental jurisdiction over plaintiff's State claims.

AFFIRMED.

David R. Kittay, Esq., Kittay, Gold & Gersshfeld, P.C., White Plains, N.Y., for plaintiff-appellant.

Susan Choi-hausman for Michael D. Hess, Corporation Counsel of the City of New York (Barry P. Schwartz, Christopher G. King, and Gabriela Cacuci, on the brief), New York, N.Y., for the City defendants.

Rachel Zaffrann, Assistant Attorney General, for Eliot Spitzer, Attornery General of the State of New York (Michael Belohlavek and Norman Spiegel, on the brief), New York, N.Y., for the State defendants

Before: Winter, Calabresi, and Pooler, Circuit Judges.

Per Curiam

I. BACKGROUND

David Kittay ("Kittay"), as trustee in bankruptcy of Duke & Benedict, Inc. ("D&B"), brought this action against various New York City and State governmental entities and officials (collectively "defendants") alleging that the defendants had violated D&B's rights under the United States Constitution, 42 U.S.C. § 1983, the New York State Constitution, the New York Public Health Law, and New York common law. D&B=s assets consist almost entirely of undeveloped real property within the Putnam County, New York watershed. The gravamen of Kittay's complaint is that water regulations promulgated by the defendants as part of an agreement between the City of New York and towns and counties in the City's watershed unlawfully render D&B=s property economically worthless and unuseable.

Kittay raised both as-applied and facial challenges to the water regulations. In each case, Kittay asserted that (1) the regulations constitute a taking under the Fifth and Fourteenth Amendments, (2) improprieties in the process by which the regulations were adopted and the unreasonable terms of the regulations themselves deprive him of Fourteenth Amendment substantive due process rights, (3) the defendants violated his Fourteenth Amendment procedural due process rights by denying him a reasonable opportunity to be heard in connection with the adoption of the regulations, (4) the regulations violate his Fourteenth Amendment equal protection rights by impermissibly discriminating against landowners in New York City's watershed, and (5) certain agreements by local governments in the watershed not to challenge the regulations in court deprive him of his First Amendment rights to petition the government for redress of grievances. In addition to these federal claims, Kittay also asserted a series of New York state law claims that roughly mirror the federal causes of action listed above.

II. DISCUSSION

The defendants moved, in the district court, to dismiss Kittay's complaint. First, the defendants argued that because Kittay has failed to seek either an administrative ruling concerning the challenged regulations' application to D&B's land or a variance from the regulations, his as-applied challenges to the regulations are not ripe for judicial...