Wantanabe Realty Corp. v. City of New York
| Decision Date | 10 July 2003 |
| Docket Number | No. 01 CIV.10137 LAK.,01 CIV.10137 LAK. |
| Citation | 315 F.Supp.2d 375 |
| Parties | WANTANABE REALTY CORPORATION, et al., Plaintiffs, v. THE CITY OF NEW YORK, et al., Defendants. |
| Court | U.S. District Court — Southern District of New York |
Barry S. Gedan, for Plaintiffs.
Gabriel Taussig, Robin Binder, Kerri A. Devine, Rachel Goldman, Michael A. Cardozo, Corporation Counsel of the City of New York, New York City, for Municipal Defendants.
Michael S. Seltzer, The Law Office of Vincent D. McNamara, for Defendants N.B.I. Equipment Corp. and Anthony Noto.
Plaintiffs, one of which owned the long idle Thunderbolt roller coaster1 at Coney Island, here contend that former Mayor Rudolph Giuliani caused the City of New York to tear down the Thunderbolt without affording plaintiffs notice or an opportunity to be heard. He allegedly did so out of racial animus, to retaliate for a prior lawsuit against the City, and to accommodate the owners of the New York Mets. Discovery having been completed, the matter is before the Court on the defendants' motions for summary judgment dismissing the complaint.
Plaintiffs are Wantanabe Realty Corp. ("Wantanabe"), Coney Island Resorts, Inc. ("CIR"), and Horace Bullard. Bullard allegedly is the principal owner of CIR and, through a nominee, the owner of Wantanabe.2 He is half black and half Puerto Rican.3
The defendants are the City of New York, former Mayor Giuliani, ten officials of the City Departments of Buildings ("DOB") and of Housing, Preservation and Development ("HPD"), N.B.I. Equipment Corp. ("NBI"), and NBI's president, Anthony Noto. NBI was the contractor that demolished the Thunderbolt pursuant to a contract with the City.
Bullard at some point in the past planned to develop an amusement/entertainment/commercial project in Coney Island. CIR was the intended developer, and Bullard, CIR and Wantanabe worked together to create a real estate assemblage for the project.4 In the course of doing so, Wantanabe acquired ownership of property that included Block 7074, Lot 105, on the Kings County tax map, which contained the Thunderbolt and a building beneath it.5
Bullard's project required the use not only of the property owned by Wantanabe, but of certain adjacent property owned by the City.6 The complaint alleges that CIR entered into a binding contract with the City pursuant to which title to the entire area would have been vested in the City, subject to a ninety-nine year lease back to CIR. Plaintiffs assert that the City repudiated the deal during the Giuliani administration and decided to build a minor league stadium, Keyspan Park, for the New York Mets on the City-owned portion of the property.7 Litigation ensued and was unresolved when this action was filed. Subsequently, however, the Second Circuit affirmed Judge Glasser's decision, which granted summary judgment dismissing the case, holding among other things that the City's obligation to enter into the lease had been contingent upon CIR obtaining financing for the project and that CIR had failed to do so.8
In any case, while the litigation was pending, the City built the stadium, now Keyspan Park. The complaint alleges that Fred Wilpon, the owner of the Mets, and his son complained to then Mayor Giuliani that the Thunderbolt was an "eyesore" that would command the view of patrons attending games at the stadium. The Mayor was disturbed and wanted to satisfy the Wilpons.9 Based on this desire, as well as an allegedly "strong personal animus" toward Bullard based both on his race and his having named the mayor as a defendant in the litigation concerning the development project, Giuliani is said to have "put in motion a plan ... to destroy and remove" the Thunderbolt.10
In order to carry out the plan, the Mayor is alleged to have "conveyed ... his desire that the Thunderbolt ... be declared unsafe and removed in such a manner as to prevent the owner ... from exercising its legal remedies to forestall such removal."11 This is said to have been the impetus for the City's demolition of the roller coaster in November 2000 without any prior notice to plaintiffs.12
Before turning to the evidence, it is helpful to set out the legal context with respect to demolition of unsafe buildings in New York City.
In general, "[a] municipality may demolish a building without providing notice and an opportunity to be heard if there are exigent circumstances which require immediate demolition of the building to protect the public from imminent danger."13 In other circumstances, however, such summary action is inappropriate.
Article 8 of the New York City Administrative Code14 sets out procedures for removing or repairing hazardous structures (the "Unsafe Building Procedure" or "UBP"). In brief summary, the Unsafe Building Procedure contemplates the following steps:
1. Upon receipt of a report from a DOB employee that a structure is unsafe or dangerous, the borough superintendent shall cause the report to be docketed in the department's records. Notice shall be served on the owner with a description of the dangerous condition and an order that the structure be made safe or removed.15
2. Should the superintendent determine that there is "actual and imminent danger" that a structure may fall, he or she "shall ... cause the necessary work to be done to render such structure ... temporarily safe until the proper proceedings provided for unsafe structures by this subchapter are instituted."16
3. If the owner indicates that it will comply with the superintendent's order, it must begin work within twenty-four hours.17 If the owner fails to comply with the order, the premises are surveyed and the report placed before the state supreme court for a determination whether the structure is unsafe or dangerous and "whether the unsafe or dangerous structure or premises shall be vacated and repaired and secured, or repaired and secured, or taken down and removed ...."18
4. If the court determines that the building is unsafe or dangerous, it shall issue a "precept" reciting the verdict and commanding the borough superintendent to repair or take down the structure.19
While the UBP does not specifically authorize the City to demolish a building without obtaining a precept from the supreme court, even in the event of an imminent threat to life or safety,20 the City's position is that it may do so. DOB Operations Policy and Procedure Notice # 16/93 (the "OPPN") creates a two-tiered procedure for demolition of dangerous structures:
• Where a building has suffered "life threatening structural damage" or is "in imminent danger of collapse," the DOB may issue a so-called Immediate Emergency Declaration pursuant to which it expects work to "begin by the day after the declaration."21
• Where a building has "serious structural damage" or is in "a deteriorating condition when a collapse or failure is expected in the very near future," the DOB may issue an Emergency Declaration pursuant to which it expects work to begin within thirty to sixty days. In such cases, however, an unsafe building violation is written.22
When the DOB proceeds under the OPPN, it does not commence a UBP proceeding or seek a precept.23 It does, however, send a notice to the owner.
The complaint asserts nine claims for relief:
• The first asserts that the demolition without following the Unsafe Building Procedure deprived Wantanabe of its right to procedural due process in violation of the Fourteenth Amendment.
• The second maintains that the demolition in the manner alleged in the complaint was "so arbitrary, conscience-shocking and oppressive" as to deprive Wantanabe of its right to substantive due process under the Fourteenth Amendment.
• The third contends that the defendants, by failing to resort to the Unsafe Building Procedure, intentionally treated Wantanabe "differently from all others similarly situated" without any rational basis. It further alleges that former Mayor Giuliani was motivated by animus against Bullard based on his race and the other circumstances alleged. Accordingly, it maintains that the defendants deprived Wantanabe of the equal protection of the laws in violation of the Fourteenth Amendment.
• The fourth asserts that defendants conspired to enter upon Wantanabe's property for the purpose of depriving it of the equal protection of the laws out of racial animus and thereby violated 42 U.S.C. § 1985(3).
• The fifth alleges that all of the defendants were aware of the Unsafe Building Procedure and of the conspiracy to deprive Wantanabe of its rights, yet failed to prevent one another from so acting, allegedly in violation of 42 U.S.C. § 1986.
• The sixth claim asserts that the defendants acted in part out of a desire to retaliate against plaintiffs for the prior federal lawsuit and thereby violated 42 U.S.C. § 1985(2).
• The seventh contends that the demolition was an uncompensated taking of property of Wantanabe in violation of the Fourteenth Amendment.
• The eighth asserts that defendants violated Wantanabe's rights under Article I, §§ 6, 7(a), and 11 of the New York Constitution, which parallel the Due Process, Equal Protection, and "Takings" Clauses of the U.S. Constitution.
• The ninth seeks relief on behalf of Wantanabe on the theory of common law trespass.24
The first seven claims all rest on 42 U.S.C. § 1983.
Former Mayor Giuliani had at least one conversation with either Fred Wilpon, the owner of the New York Mets, or his son in which either the elder or younger Wilpon said that the roller coaster was an eyesore, that it looked dangerous, and that children would be in the area once the stadium was built.25
Mayor Giuliani held daily morning meetings during his administration at which up to twenty...
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