Mair v. City of Albany, New York
| Decision Date | 22 January 2004 |
| Docket Number | No. 02-CV-1016.,02-CV-1016. |
| Parties | Aaron MAIR, as President of Arbor Hill Concerned Citizens Neighborhood Association, Plaintiff, v. CITY OF ALBANY, NEW YORK; Gerald Jennings, in his official capacity as Mayor of Albany; Department of Development and Planning; George Leveille, in his official capacity as Commissioner of the Department of Development and Planning; Albany Community Development Agency; and Joseph Montana, in his official capacity as Director of the Albany Community Development Agency, Defendants. |
| Court | U.S. District Court — Northern District of New York |
Natural Resources Defense Council, Inc. (Michelle B. Alvarez, Esq., Nancy S. Marks, Esq., Lawrence M. Levine, Esq., of Counsel), New York City, Marc S. Gerstman, Esq., Albany, NY, for Plaintiff.
Nixon Peabody LLP (Sheri L. Moreno, Esq., Frank L. Amoroso, Esq., Robert S. McEwan, Esq., of Counsel), Albany, NY, for Defendants.
Plaintiff Aaron Mair ("plaintiff'), as President of the Arbor Hill Concerned Citizens Neighborhood Association ("Arbor Hill"), filed this second amended complaint against defendants, alleging various causes of action under the Toxic Substances Control Act ("TSCA"), 15 U.S.C. § 2601 et seq., under 42 U.S.C. § 1983, to enforce alleged federal rights under the Residential Lead-Based Paint Hazard Reduction Act ("RLPHRA"), 42 U.S.C. § 4851 and the Community Development Act ("CDA"), 42 U.S.C. § 5301 et seq., and under state common law, all arising out of lead-based paint abatement activities conducted by defendants on homes in certain neighborhoods of the City of Albany.
Defendants filed a motion to dismiss the second amended complaint pursuant to Fed.R.Civ.P. 12. Plaintiff opposed. Oral argument was heard on September 26, 2003, in Albany, New York. Decision was reserved.
On August 6, 2002, Arbor Hill filed a complaint against defendants, seeking relief for the alleged failure to use properly certified workers in the inspection, risk assessment, abatement, and post-abatement activities and analysis of homes identified as posing lead-based paint hazards, and alleging that the work performed was in violation of the TSCA and governing federal regulations. (Docket No. 1.)1 In support of the allegations, however, Arbor Hill identified none of its members by name and/or address that had abatement work performed on his or her home.
For relief, Arbor Hill principally sought to permanently enjoin defendants from conducting lead-based paint activities except in accordance with the TSCA and federal regulations. Arbor Hill also sought, however, to have defendants ordered to take other appropriate actions to remedy, mitigate, or offset the harm to the public caused by the alleged violations, including but not limited to: (1) ensuring that all residential dwellings that were improperly abated are safe for human habitation; and (2) conducting medical monitoring of those residents who may be exposed to the grave health risks of lead poisoning.
By Memorandum-Decision and Order filed March 18, 2003, certain relief, including these two measures of relief, were stricken from the complaint as being beyond the scope of the TSCA, which only authorizes citizen suits "to restrain" ongoing and future violations of its substantive provisions. See Arbor Hill, 250 F.Supp.2d at 59-60. The remainder of the complaint was dismissed without prejudice for lack of standing because of Arbor Hill's failure to particularly identify any of its members as among those who allegedly had abatement work performed.2 Id. at 54-59. Specifically, while it was recognized that "general factual allegations of injury will suffice" to survive a motion to dismiss in a case brought under the citizen suit provision of an environmental statute, such allegations must nonetheless allege "injury to someone, not just in general, and not just in the purely hypothetical or speculative sense." Id. at 57.
After filing an amended complaint, plaintiff was granted permission to file a second amended complaint, which he did on May 27, 2003. In the second amended complaint, plaintiff attempts to cure the standing defects that plagued the original complaint and to modify the relief requested that was stricken, and also adds three new causes of action.
In the second amended complaint, which is a stunning 183 paragraphs, not including 10 paragraphs in the "Prayer for Relief' section, plaintiff alleges that six named members of Arbor Hill had lead-based paint abatement work performed on their homes. Generally, it is alleged that, after the work was performed, each member discovered, on his or her own or through an independent inspector, that lead hazards still remained, and that each feared allowing family members to play in or around the allegedly hazardous areas.
In the second amended complaint, plaintiff also modifies the portion of the requested relief that had been stricken from the original complaint. Specifically, rather than seeking to have defendants remedy allegedly deficient abatement work and medically monitor affected members of Arbor Hill, plaintiff now seeks an order to "[r]estrain [d]efendants' ongoing violations of TSCA at homes where lead-based paint activities have begun but have not been completed pursuant to the requirements of the TSCA ... by ordering [d]efendants to take all actions necessary to complete those lead-based paint activities in the manner required by TSCA and EPA regulations." (Docket No. 33, Prayer For Relief, ¶ 2.)
In the Memorandum-Decision and Order dismissing the original complaint, the parties were warned that the disposition therein was Arbor Hill, 250 F.Supp.2d at 60. Plaintiff has apparently read this language as a prompt to assert three new causes of action in the second amended complaint.
First, in the fifth cause of action, plaintiff claims defendant Albany Community Development Agency, which allegedly performed abatement activities, was not an EPA-certified firm, which is a further violation of the TSCA.
Second, in the sixth cause of action, plaintiff claims that, pursuant to 42 U.S.C. § 1983, defendants had a policy and custom of depriving Arbor Hill members of the federal rights guaranteed to them under the RLPHRA and CDA. It was under those two statutes that defendants received funding for the abatement activities, and under which plaintiff claims the certification and substantive requirements of the TSCA are incorporated.
Third, in the seventh cause of action, plaintiff claims that defendants breached contractual duties to Arbor Hill members, as third-party beneficiaries of the RLPHRA and CDA grants used to fund the abatements, by failing to comply with the certification and substantive mandates of TSCA and implementing federal regulations.
Defendants have moved to dismiss the second amended complaint pursuant to Fed.R.Civ.P. 12(b)(1) and (6). In deciding a Rule 12(b) motion, a court "must accept the allegations contained in the complaint as true, and draw all reasonable inferences in favor of the non-movant; it should not dismiss the complaint `unless it appears beyond a reasonable doubt that the plaintiff can prove no set of facts in support of [her] claim which would entitle [her] to relief.'" Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir.1994) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)); see also Kaluczky v. City of White Plains, 57 F.3d 202, 206 (2d Cir.1995). However, condusory allegations that merely state the general legal conclusions necessary to prevail on the merits and are unsupported by factual averments will not be accepted as true. See, e.g., Clapp v. Greene, 743 F.Supp. 273, 276 (S.D.N.Y.1990); Albert v. Carovano, 851 F.2d 561, 572 (2d Cir.1988).
In the Memorandum-Decision and Order dismissing the original complaint, plaintiff was instructed that an amended complaint "must include ... sufficient allegations that particular members of [Arbor Hill] had lead-based paint abatement work performed and are suffering concrete and particular, and actual or imminent, injury therefrom." Arbor Hill, 250 F.Supp.2d at 62. As noted, this holding emanated primarily from the failure to allege, in the original complaint, that particular members of Arbor Hill had abatement work performed on their homes. Under the liberal pleading stage in which the litigation finds its home, it appears as though plaintiff has now cured this standing defect.
In the second amended complaint, plaintiff details the abatement work performed for six Arbor Hill members. Accepting as true the allegations made, abatement work was performed at the homes of all of the named members, and inspection subsequent to the work found that all hazards had not been abated. Thus, plaintiff has complied with the first part of the instruction in the Memorandum-Decision and Order, to wit, identify specific members of Arbor Hill who have had abatement work performed.
Defendants argue, however, that "[t]he injuries alleged in the [s]econd [a]mended [c]omplaint are, at best, speculative or hypothetical and do not confer standing to plaintiff." (Docket No. 40, p. 4.) Defendants then proceed to dissect the allegations made with respect to each of the six members of Arbor Hill, concluding ultimately that plaintiff has not satisfied the standing requirements because: (1) the regulations...
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