Levy v. City of New York

• Decision Date: 26 December 1989
• Docket Number: No. 87 Civ. 8670 (PKL).,87 Civ. 8670 (PKL).
• Citation: 726 F. Supp. 1446
• Parties: David LEVY and Miriam Levy, Plaintiffs, v. The CITY OF NEW YORK, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

726 F. Supp. 1446

David LEVY and Miriam Levy, Plaintiffs, v. The CITY OF NEW YORK, et al., Defendants.

No. 87 Civ. 8670 (PKL).

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

December 26, 1989.

COPYRIGHT MATERIAL OMITTED

Michael L. Previto, New York City, for plaintiffs.

Law Department, the City of New York, New York City (Gabriel Taussig, Virginia Waters, Lisa Yee, Robin R. Rossenfeld, of counsel), for all City defendants.

ORDER & OPINION

LEISURE, District Judge.

Plaintiffs have brought an action pursuant to 42 U.S.C. §§ 1983, 1985 and 1986 for injunctive and monetary relief against the City of New York, various City officials and employees, and two of their former law firms. Plaintiffs allege their rights were violated by the actions of the City and the other defendants in relation to property owned by plaintiffs in the Borough of Manhattan. The City of New York and all other defendants affiliated with the City have moved pursuant to Fed.R.Civ.P. 12 for dismissal of this action on the pleadings.¹ The City defendants have further moved for sanctions against plaintiffs and their attorney pursuant to Fed.R.Civ.P. 11.

BACKGROUND

This is a case arising out of a complex series of regulatory actions taken with regard to plaintiffs' property. On August 7, 1984, plaintiffs purchased, for $14,000, a small apartment building located at 1657 Madison Avenue, between 110th and 111th Streets, in Manhattan.² Amended Complaint ¶ 10. The building contains eight residential units and two commercial units. Amended Complaint ¶ 36. Apparently at the time of purchase, the building at 1657 Madison Avenue, like many in that neighborhood at the time, was in a state of deterioration. There were some tenants in the building at the time of purchase, though their number is uncertain.

It appears that shortly after plaintiffs purchased the property, the City began a series of inspectorial and enforcement actions through at least five separate agencies.³ It is the nature and purpose of these actions which is now in dispute. Plaintiffs claim that the actions undertaken by the City in relation to 1657 Madison Avenue, described below, were done in furtherance of a conspiracy by various City employees to take the property from plaintiffs and transfer it to City ownership. The City responds that these various actions were proper enforcement actions, all accomplished in accordance with the New York City Charter and the New York City Administrative Code.

The actions taken by City agencies in regard to 1657 Madison Avenue are as follows. On February 5, 1985, the Department of Housing Preservation and Development ("HPD") issued a Vacate Order against 1657 Madison Avenue, finding that the building had inadequate heat, no hot or cold running water, no gas supply, and no electric supply to the public hallways. Affidavit of Robin R. Rossenfeld, Esq., sworn to on February 3, 1989 ("Rossenfeld Aff.") ¶ 13; Plaintiffs' Exhibit F. Plaintiffs were given 48 hours to remedy these conditions and were ordered to vacate their tenants pending repairs. Id. Defendants allege that the tenants were vacated and relocated at a hotel by the City. Rossenfeld Aff. ¶ 13.

On March 5, 1985, in an unrelated action, the Department of Buildings issued an Unsafe Building Notice. That Notice resulted from an inspection which found 1657 Madison Avenue to be vacant, open, unguarded, and unsafe, and accordingly ordered plaintiffs to seal, repair or demolish the building. Rossenfeld Aff. ¶ 14, Amended Complaint ¶ 21, Plaintiffs' Exhibit G. Plaintiffs allege that they subsequently sealed the building. Amended Complaint ¶ 22. On May 7, 1985, the Unsafe Building Notice was dismissed after a second inspection by the Department of Buildings on May 2, 1985, found that there was at least one occupant on the fourth floor of the building. Plaintiffs' Exhibit L. Further, on May 15, 1985, HPD lifted its February 5, 1985 vacate order based on the affidavit of Eduardo Martinez who claimed to be resident in apartment 4-S at 1657 Madison Avenue. Plaintiffs' Exhibit M.

During the pendency of these administrative actions, Eduardo Martinez, with HPD as statutory impleader, brought an action against plaintiffs for unlawful eviction. On June 5, 1985, the City's request for a preliminary injunction in that matter was denied by the New York State Supreme Court. The court found that there was sufficient factual questions about whether Mr. Martinez actually lived at 1657 Madison Avenue and about the City's conduct toward that property to deny the request for injunctive relief. Plaintiff's Exhibit E. In addition, the City filed an action in Civil Court seeking an order requiring plaintiffs to make repairs on 1657 Madison Avenue. This action and the unlawful eviction action were consolidated by motion of plaintiffs on March 30, 1986. Plaintiffs' Exhibit T.

Plaintiffs wrote to Mayor Edward I. Koch on May 20, 1985, alleging that a conspiracy existed between Mr. Martinez, Nestor Rosado, an assistant corporation counsel, and Carol Steinberg, a member of HPD's legal staff, aimed at taking 1657 Madison Avenue from plaintiffs. Plaintiffs' Exhibit N. Pursuant to that letter, an inquiry was begun by HPD's Inspector General. That investigation apparently found that Mr. Martinez was, in fact, employed by HPD, but could not substantiate that any conspiracy existed. Plaintiffs were informed on April 6, 1986, of that finding, and were also told that Mr. Rosado had been removed from their case. Plaintiffs' Exhibit O. Plaintiffs then added to the flurry of litigation activity over the property by filing, on August 1, 1985, an action in New York State Supreme Court pursuant to N.Y.Civ.Prac.L. & R. 7801 et seq. (Article 78). Plaintiffs' action sought reinstatement of HPD's vacate order and the Department of Buildings' Unsafe Building Notice. In fact, the vacate order had been reimposed on July 28, 1985, before the Article 78 action was filed, and the Unsafe Building Notice was reissued on August 9, 1985. Rossenfeld Aff. ¶ 18. With the reissuance of the Notice and the vacate order, the Article 78 action became moot and was dismissed on September 19, 1985. Plaintiffs' Exhibit Q.

The conflicts between plaintiffs and the City appear to have been dormant for about a year thereafter, following the conclusion of the Department of Investigation review. However, on April 9, 1987, the City again took action against plaintiffs, imposing a relocation lien on the property for $35,796.78. This lien allegedly was to recover the cost to the City of relocating and housing the tenants of 1657 Madison Avenue after the first vacate order was issued in February 1985. Plaintiffs' Exhibit X.

Three weeks later, on April 30, 1987, the Department of General Services ("DGS") informed plaintiffs by mail that the City of New York had assumed ownership of 1657 Madison Avenue pursuant to an in rem proceeding brought by the Department of Finance for failure to pay overdue taxes. Plaintiffs' Exhibit U. Plaintiffs were informed in the same letter that they could apply for release of their property by paying the amount due. Id. Plaintiffs applied for release of 1657 Madison Avenue from City ownership on June 8, 1987. Plaintiffs' Exhibit Z. Plaintiffs perfected the release of the property on September 4, 1987, by payment of over $9,000 in delinquent taxes and fees. Id.; Plaintiffs' Exhibit 4; Plaintiffs' Exhibit 6. The release went into effect on September 7, 1987. Id.

At the same time plaintiffs were attempting to recover 1657 Madison Avenue from City ownership, they were also addressing the relocation lien placed on their property by HPD. On August 5, 1987, plaintiffs met with Isaac Salem of the Law Department regarding the lien. At that meeting plaintiffs received a letter from Mr. Salem stating that the City would take no steps to enforce the lien until after October 31, 1987. Plaintiffs' Exhibit Y.

On December 8, 1987, plaintiffs filed this action pro se, alleging unconstitutional acts on the part of the City and its employees. By order of this Court dated December 14, 1987, the case was referred to United States Magistrate Sharon Grubin of this Court for general pretrial. After a conference with the parties, the Magistrate issued an order dated February 16, 1988, placing the case on the suspense calendar and ordering plaintiffs to inform the Court by April 29, 1988, whether they wished to pursue the case. On April 28, 1988, plaintiffs informed the Magistrate that they had retained counsel and would proceed. An amended complaint was filed on August 11, 1988. On February 3, 1989, the City defendants, in lieu of an answer, filed this motion to dismiss.

DISCUSSION

A motion to dismiss under Fed.R.Civ.P. 12 must be denied "unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974), citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957); Morales v. New York State Department of Corrections, 842 F.2d 27, 30 (2d Cir.1988). The Court must accept the plaintiffs' allegations of facts as true together with such reasonable inferences as may be drawn in its favor. Murray v. City of Milford, Connecticut, 380 F.2d 468, 470 (2d Cir.1967). See also Scheuer, supra, 416 U.S. at 236, 94 S.Ct. at 1686. Fed.R.Civ.P. 8 requires only "`a short and plain statement of the claim' that will give the defendant fair notice of what the plaintiff's claim is and the ground upon which it rests." Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 103, 2 L.Ed. 2d 80 (1957) (cited in Hishon v. King & Spaulding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984)). For the purposes of a Rule 12 motion, "The pleading is deemed to include any document attached to it as an exhibit, Fed.R.Civ.P. 10(c), or any document included in it by reference." Goldman v. Belden, 754 F.2d 1059,...