Kowalczyk v. Barbarite, 08-CV-6992 (ER)

• Decision Date: 25 September 2012
• Docket Number: 08-CV-6992 (ER)
• Parties: JOSEPH KOWALCZYK and ALIL PERICIC, Plaintiffs, v. JOHN BARBARITE, SUE FLORA, GORDON JENKINS, and THE VILLAGE OF MONTICELLO, a municipality of the State of New York, Defendants.
• Court: U.S. District Court — Southern District of New York

JOSEPH KOWALCZYK and ALIL PERICIC, Plaintiffs,
v.
JOHN BARBARITE, SUE FLORA, GORDON JENKINS, and
THE VILLAGE OF MONTICELLO, a municipality of the State
of New York, Defendants.

08-CV-6992 (ER)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

Dated: September 25, 2012

OPINION AND ORDER

Appearances:

Gerald Orseck
Orseck Law Offices, P.C.
Liberty, New York
Attorney for Plaintiffs

Richard S. Sklarin
Miranda, Sambursky, Slone, Sklarin, Verveniotis, LLP
Elsmford, New York
Attorney for Defendants

Ramos, D.J.:

Plaintiffs Joseph Kowalczyk ("Kowalczyk") and Alil Pericic ("Pericic," and collectively "Plaintiffs") bring this action against Defendants John Barbarite ("Barbarite"), Gordon Jenkins ("Jenkins"), and the Village of Monticello (the "Village," and collectively "Defendants"),¹ alleging violations of their substantive due process and equal protection rights pursuant to 42 U.S.C. §§ 1981 and 1983, and alleging that Defendants engaged in a conspiracy to interfere with their civil rights pursuant to 42 U.S.C. §§ 1985 and 1986. Plaintiffs also state a cause of action

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for declaratory relief pursuant to 42 U.S.C. § 1983 and pursuant to New York law. Plaintiffs' final cause of action arises pursuant to 42 U.S.C. § 1988(b) for attorneys' fees. Kowalczyk now moves for partial summary judgment on his substantive due process claim and a purported procedural due process claim on the issue of liability only, and Defendants cross-move for summary judgment in full. For the reasons stated below, Plaintiff Kowalczyk's motion is DENIED and Defendant's cross-motion is GRANTED.

I. Factual Background

The following facts are undisputed unless otherwise indicated below.

A. Plaintiff Kowalczyk's Property at 37-39 High Street

Joseph Kowalczyk, a Polish-born naturalized U.S. citizen, and a resident of Stamford, Connecticut, purchased real property located at 37-39 High Street² in the Village on November 7, 2001, for $48,500. Compl. ¶ 1(b); Kowalczyk's Stmt. Undisputed Facts in Supp. of Mot. for Summ. J. Pursuant to Local Rule 56.1 ("Kowalczyk's 56.1 Stmt.") ¶¶ 1-2; Defs.' Stmt. Undisputed Facts in Supp. of Mot. for Summ. J. Pursuant to Local Rule 56.1 (Defs.' 56.1 Stmt.") ¶ 4. The property consisted of two buildings (the "front building" and the "back building"). Kowalczyk's 56.1 Stmt. ¶ 3. The front building originally consisted of two residential units and the back building originally consisted of six residential units and two commercial units. Doc 68, Ex. PP at 7; see Doc. 78, Ex. V. 37-39 High Street was, for a certain period of time before Kowalczyk bought it, a lawful multiple dwelling nonconforming use. See Doc. 68, Ex. S; Doc. 56-2, Ex. P. The controversy surrounding his development of the property is rooted in whether it was still a lawful nonconforming use at the time he purchased it pursuant to Village Code § 280-43, which provides that "[t]he vacation of a nonconforming building or use for a consecutive

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period of one year shall be deemed a permanent vacation, and thereafter the building shall not be reoccupied except in conformity with the regulations of the district in which it is located, and the use shall not be resumed." Doc. 68; Ex. T.

On December 9, 2001, Kowalczyk applied for a building permit to build stores and renovate eight apartments. Doc. 80, ¶ 9. On January 16, 2002, James Artale ("Artale"), the then Village Code Enforcement Officer, issued a permit to Kowalczyk for purposes of renovating two apartments in the back building. Defs.' 56.1 Stmt. ¶ 5; Doc. 56-1, Ex. D. Artale further sent Kowalczyk a letter on the same date, stating that the building permit was issued for the renovation of only two apartments in the back building and that no other work on the property was permitted. Doc. 68, Ex. L.

On March 15, 2002, the remainder of Kowalczyk's December 9, 2001 application—to renovate the remaining residential and commercial units at 37-39 High Street—was officially denied by Richard Sush ("Sush"), the then Village Manager. Doc. 68, Ex. N. The denial was issued because Village Code required twelve parking spaces for the apartments and three parking spaces for the proposed store, but Kowalczyk's plan provided for only a total of five parking spaces. Id. Sush advised Kowalczyk that he could appeal the denial to the Zoning Board of Appeals and gave instructions on how to do so. Id. Indeed, on March 31, 2002, Kowalczyk filed an application for a zoning variance, requesting permission to have fewer parking spaces than required by Village Code for his proposed improvements to 37-39 High Street. Doc. 68, Ex. O. A public hearing was scheduled in connection with Kowalczyk's request for May 9, 2002. Id. Ex. O, Ex. P.

On May 9, 2002, Sharon Jankiewicz ("Jankiewicz"), the Village Attorney, sent a letter to Artale, stating that she had reviewed the denial of Kowalczyk's application for a building permit

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and his subsequent application for a zoning variance. Doc. 56-2, Ex. P. In her opinion, Kowalczyk's applications were to "renovate an existing nonconforming use structure," and that it would be "improper to deny [either] application for renovations . . . based on insufficient parking." Id. She believed such a use was permissible under Village Code § 280-42, which states that a "nonconforming building or use may be continued but may not be changed to another nonconforming use." Id. Jankiewicz's letter suggests her belief that 37-39 High Street had not been left vacant for a period of time in excess of one year and that Plaintiff was merely rehabilitating—not expanding—the lawful nonconforming use, and therefore that Village Code § 280-43 was inapplicable. Thus, believing that Jankiewicz's letter meant it was unnecessary to obtain a zoning variance for 37-39 High Street, Kowalczyk withdrew his application to the Zoning Board of Appeals. Doc. 78 ¶ 18.

On May 14, 2002, Plaintiff received an additional building and zoning permit, which renewed the permit issued on January 16, 2002 as to two apartments in the back building, and granted Kowalczyk permission to rehabilitate four apartments in the front building, which originally consisted of only two apartments. Kowalczyk's 56.1 Stmt. ¶ 5; Doc. 56-1, Ex. E; Doc. 68, Ex. PP at 7. On July 14, 2002, Defendant Barbarite, before he became Deputy Village Manager, in his capacity as a private citizen, told Sush that he believed an illegal conversion, pursuant to Village Code §280-43, had occurred at 37-39 High Street. Doc. 69, Ex. E; Doc. 68, Ex. T. Sush replied to Barbarite that 37-39 High Street had been continuously occupied and was being maintained as a lawful nonconforming use. Doc. 68, Ex. S.

Throughout 2005 and 2006, Sue Flora ("Flora"), the then Village Code Enforcement Officer, made several inspections of the construction at 37-39 High Street. Defs.' 56.1 Stmt. ¶¶ 13-14. On December 21, 2006, Flora inspected the premises and issued a conditional certificate

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of occupancy to Kowalczyk for the four apartments in the front building, which was to expire on March 22, 2007. Doc. 56-1, Ex. F.³ Additionally, on December 21, 2006, Kowalczyk received a building permit to renovate "four existing apartments [in the] rear portion of [the] building." Doc. 56-1, Ex. G.

Barbarite has been a resident of the Village since 1979, and resides within close proximity to 37-39 High Street. Doc. 69 ¶¶ 1, 12. He was appointed Deputy Village Manager in February 2007, and soon thereafter he visited 37-39 High Street while Kowalczyk was renovating apartments in the back building. Kowalczyk's 56.1 Stmt. ¶ 11. Barbarite told Kowalczyk that despite the fact that he had been issued a building permit, the work being performed was nonetheless in violation of various provisions of the Village Code and Multiple Residence Laws. Id.; Doc. 69 ¶ 19.

On February 27, 2007, Barbarite sent a letter to Kowalczyk advising him that the conversion of the property into a multiple residence was in violation of law. Doc. 56-1, Ex. H. Barbarite informed Kowalczyk that he would be required to submit plans by a licensed engineer if he wished to use the buildings as multiple dwellings, which would be subject to Planning Board approval. Id. On April 24, 2007, Barbarite sent another letter to Kowalczyk, stating that he had notified Kowalczyk on numerous occasions that all work at 37-39 High Street must cease until the necessary approvals were obtained, and threatened criminal charges if he did not stop construction. Id., Ex. I. Barbarite claims to have personally observed evidence of continued construction work at 37-39 High Street after the issuance of both such letters. Doc. 69 ¶ 24.

Defendant Barbarite was terminated as Deputy Village Manager in February 2008. Id. ¶ 25. In April 2008, one month after Defendant Jenkins was elected Mayor of the Village,

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Barbarite was appointed as Village Manager. Id.; Defs.' 56.1 Stmt. ¶ 28.⁴ On May 7, 2008, Flora sent a letter to Kowalczyk stating that 37-39 High Street was in violation of the Multiple Residence Law, The Village Zoning Ordinances, and the New York State Building Code, and that the building would be vacated within thirty days due to unsafe conditions. Doc. 68, Ex. HH. The letter stated that the violations included an

illegal conversion of vacant property to multiple residences and a warehouse into a residence without an approved building and zoning permit. The propert[y]

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