Tarantino v. City of Hornell

Decision Date18 May 2009
Docket NumberNo. 05-CV-6587L.,05-CV-6587L.
Citation615 F.Supp.2d 102
PartiesFrederick TARANTINO, Plaintiff, v. CITY OF HORNELL, Timothy Aiken, Shawn Hogan, Joe Pelych, Defendants.
CourtU.S. District Court — Western District of New York

Michael S. Cerrone, Thomas S. Lane, Webster Szanyi, LLP, Buffalo, NY, for Plaintiff.

Holly C. Hecker, Thomas W. Bender, Bender, Crawford & Bender, LLP, Buffalo, NY, for Defendants.

DECISION AND ORDER

DAVID G. LARIMER, District Judge.

Plaintiff, Frederick Tarantino, commenced this action under 42 U.S.C. § 1983, against the City of Hornell, New York (sometimes "City") and three City officials, asserting claims arising out of defendants' enforcement of a City ordinance imposing certain requirements on the owners of rental properties within Hornell. Defendants have moved for summary judgment.

BACKGROUND

At the time of the events giving rise to this lawsuit, plaintiff owned two rental properties in Hornell: a two-family unit at 175-177 River Street, and another two-family unit at 16-16½ Davenport Street. Plaintiff also owned a residence in Amherst, New York. According to plaintiff, he typically stayed at the Amherst property on weekends, and at 177 River Street on weekdays. Plaintiff's Depo. (Def.Ex.I) at 6-9.

At the time of the relevant events, § 120-1(B) ("the ordinance") of the Code of the City of Hornell ("Code") provided that an owner of rental property within Hornell could not rent the property to tenants unless the owner had a certificate of occupancy ("C.O.") for the property issued by the City's code enforcement officer. Section 120-1(B) further provided that a property owner could not obtain a C.O. unless he first gave the City proof that the property was insured, and that the City was listed as a party to be notified in the event that the insurance policy lapsed or was cancelled. Any owner of rental property was also required to designate a Hornell resident as an agent to accept legal service on the property owner's behalf. Def. Ex. C.

In June 2003, defendant Timothy Aiken, who was the City's code enforcement officer, sent plaintiff a letter reminding him of the requirements of § 120-1(B). The letter stated, in part, that "[t]o date, many landlords are not in compliance with this law; therefore, this letter is to serve as notice that the city will be strictly enforcing this law." Def. Ex. K. Aiken stated that to avoid being in violation of the ordinance, plaintiff should submit the documents required by § 120-1(B). Id. Plaintiff does not dispute that he was one of several Hornell landlords who received such letters. See Defendants' Statement of Undisputed Material Facts ("DSMF") (Dkt.# 28) ¶ 42; Plaintiff's Response to Defendants' Statement of Undisputed Material Facts ("PSMF") (Dkt.# 33) ¶ 42. Plaintiff did not respond to, or take any action as a result of, this letter. DSMF ¶ 48; PSMF ¶ 48.

According to plaintiff, he was told by the downstairs tenant at the Davenport Street property in September 2004 that a code enforcement officer had been at the building and had gone into the upstairs apartment. Plaintiff alleges that he had recently given the upstairs tenants an eviction notice, after they had been there for only a week, because they were "extraordinarily difficult tenants," Dkt. # 33-4 ¶ 20. Plaintiff infers from those circumstances that the tenants probably called the officer because they were angry at plaintiff for evicting them. Id. ¶ 21.

Defendants contend that there is no evidence that anyone from the Code Enforcement Office entered the upstairs apartment at Davenport Street at around that time period, but they do agree that they did have contact with one of the upstairs tenants. Defendants state that on September 24, 2004, Aiken received a telephone call from one of those tenants, Renee Bayea. The exact reason for her call is unclear, but it appears that she had some sort of complaint about the property. See Aiken Aff. (Dkt.# 27-5) ¶ 17; DSMF Ex. M. Bayea also allegedly informed Aiken that she had just recently begun renting the apartment at 16½ Davenport Street from plaintiff. DSMF ¶¶ 43, 44; PSMF ¶¶ 43, 44.

Aiken states that because it appeared from Bayea's information that plaintiff had rented the property to her without first obtaining a C.O., Aiken sent plaintiff another letter, dated September 24, 2004, stating that the City's records showed that the Davenport Street property had not been inspected since 1998, and that "prior to the renting of the above-mentioned property, the Code Enforcement Officer must inspect the property and determine if a Certificate of Occupancy can be issued." Aiken Aff. ¶ 17; Def. Ex. N. The letter asked plaintiff to respond within three business days. Id. Plaintiff admits that he received this letters, which, like the June 2003 letter, was mailed to him at 177 River Street. Dkt. # 33 ¶ 46. Plaintiff did not respond to this letter either, however. Id. ¶¶ 48, 49.

Defendants contend that on September 28, 2004, Hornell Police Officer Mike Sexsmith called the Code Enforcement Office and stated that both apartments at Davenport Street were currently occupied, but that there was no C.O. for the property. Def. Ex. O; Dkt. #33 ¶ 47. Nine days later, on October 7, 2004, Aiken prepared an information charging plaintiff with "commit[ing] the offense of Renting [the Davenport Street property] without a Certificate of Occupancy," as well as an appearance ticket directing plaintiff to answer that charge. Def. Ex. P.

The appearance ticket was sent by certified mail addressed to plaintiff at 177 River Street on October 8, 2004. The envelope was eventually returned by the Postal Service stamped, "UNCLAIMED." Def. Ex. R. The envelope also bears markings indicating that delivery was unsuccessfully attempted on October 8, 14, and 24, 2004. Id.

The Hornell Common Council held a regularly scheduled meeting on November 23, 2004. Plaintiff attended the meeting, at which he read into the record a statement that he had prepared concerning what he believed to be the unconstitutionality of the requirements imposed on landlords by § 120-1(B). Plaintiff's Aff. (Dkt.# 33-4) ¶ 26; Def. Ex. X. Plaintiff cited Sokolov v. Village of Freeport, 52 N.Y.2d 341, 343, 438 N.Y.S.2d 257, 420 N.E.2d 55 (1981), in which the New York Court of Appeals held that "the imposition of a penalty upon a landlord for renting his premises without first consenting to a warrantless search violates the property owner's Fourth Amendment rights." Plaintiff's letter also indicated that if "these violations of civil rights [were not] corrected," the City might find itself faced with "a class action law suit...." Def. Ex. X.

The day after the meeting, the Hornell Tribune newspaper ran an article about plaintiff's statements at the meeting. The article also quoted Hornell Mayor Shawn Hogan as stating, inter alia, that plaintiff was "showboating," and that plaintiff "wouldn't do this if he thought he had a leg to stand on." Plaintiff's Ex. M.

Aiken (who was not at the November 23 meeting) states in an affidavit that he missed work for much of November 2004, for personal reasons. When he returned to his office on November 30, Aiken prepared two additional informations charging plaintiff with violating the Code provisions requiring him to designate a local agent to accept service of process on plaintiff's behalf, and to submit proof that plaintiff's properties were covered by fire and liability insurance. Def. Ex. S. Aiken prepared appearance tickets on those charges, which he made returnable on December 17, 2004. Def. Ex. T. Aiken also revised the return date of the as-yet-unserved October 7 appearance ticket to that same date. Def. Ex. Q.

After preparing the informations and appearance tickets, Aiken called plaintiff at work and arranged to meet with him later that day, November 30.1 Plaintiff met Aiken as agreed, at which time Aiken personally served him with the appearance tickets.

Plaintiff appeared in court on November 30 to answer the charges against him, and pleaded not guilty. In July 2005, the City withdrew the charges. Amended Complaint ¶ 27; DSMR ¶ 72. It is not clear whether any reason was given for the City's decision.

Also in July 2005, the City amended § 120 of the Code by adding a provision that the Code Enforcement Office "shall be required to obtain a search warrant whenever an owner, agent or person in charge refuses to permit a warrantless inspection of the premises...." Plaintiff's Ex. F § 120-1(C)(2). The amended Code further provides that all rental units "shall be inspected and certified by the Code Enforcement Office ...," and that "it shall be unlawful and a violation of this chapter to rent ... any ... rental unit without the inspection and certification as required herein." Id. § 120-1(C)(1).

Plaintiff commenced this action in November 2005, against the City, Aiken, Hogan, and Joseph Pelych, who at all relevant times was the Hornell City Attorney. The amended complaint (Dkt.# 21) asserts six causes of action under § 1983 and New York law: (1) a claim for malicious prosecution; (2) a claim captioned, "Invalidation of Unconstitutional Laws," alleging that § 120-1, both in its current form and as it existed prior to the July 2005 amendment, is unconstitutional in several respects; (3) a claim alleging that defendants have violated plaintiff's constitutional rights to free speech, due process, equal protection, and freedom from unlawful searches, as well as plaintiff's rights under the Contracts Clause of article I, § 10 of the United States Constitution; (4) a claim alleging "negligent enactment and enforcment [sic] of law"; (5) a slander claim; and (6) a claim for intentional infliction of emotional distress. Plaintiff seeks over one million dollars in compensatory and punitive damages, and a declaration that the relevant sections of the Code are unconstitutional.

DISCUSSION
I. Fourth Amendment Claim

The amended complaint...

To continue reading

Request your trial
21 cases
  • Jdc Management, LLC v. Reich, Case No. 1:08-cv-760.
    • United States
    • U.S. District Court — Western District of Michigan
    • July 24, 2009
    ...theory to challenge town's revocation of license to operate a moor and launch from a town beach); Tarantino v. City of Hornell, 615 F.Supp.2d 102, 117 and n. 11 (W.D.N.Y.2009) (extending Engquist to bar class-of-one challenge to town code provisions governing rental property, due to the deg......
  • Lindquist v. City of Pasadena, Tex.
    • United States
    • U.S. District Court — Southern District of Texas
    • September 10, 2009
    ...theory to challenge a town's revocation of license to operate a moor and launch from a town beach); Tarantino v. City of Hornell, 615 F.Supp.2d 102, 117 & n. 11 (W.D.N.Y.2009) (extending Engquist to bar a class-of-one challenge to town code provisions governing rental property, due to the d......
  • Vlahadamis v. Kiernan
    • United States
    • U.S. District Court — Eastern District of New York
    • September 28, 2011
    ...also Catcove Corp. v. Heaney, 685 F.Supp.2d 328, 333 (E.D.N.Y.2010) (applying the third “discretion” element); Tarantino v. City of Hornell, 615 F.Supp.2d 102, 117 (W.D.N.Y.2009) (same); Crippen v. Town of Hempstead, No. 07–CV–3478, 2009 WL 803117 at *6, 2009 U.S. Dist. LEXIS 24820 at *12–*......
  • Mangino v. Inc. Vill. of Patchogue
    • United States
    • U.S. District Court — Eastern District of New York
    • September 23, 2010
    ...judgment as to his selective-enforcement claim, his class-of-one claim falters on this ground as well."); Tarantino v. City of Hornell, 615 F.Supp.2d 102, 116 (W.D.N.Y.2009) ("First, to succeed on a class-of-one claim, plaintiff must show an extremely high degree of similarity between [hims......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT