Weissman v. Fruchtman, 83 Civ. 8958(PKL).

• Citation: 700 F. Supp. 746
• Decision Date: 29 November 1988
• Docket Number: No. 83 Civ. 8958(PKL).,83 Civ. 8958(PKL).
• Parties: Alan B. WEISSMAN and Vivien K. Weissman, Plaintiffs, v. Irwin FRUCHTMAN, Robert Esnard, Irving E. Minkin, Herbert Sturz, Cornelius F. Dennis, Ronald Silvers, Maurice Beane, Joseph Aguirre, George C. Sakona, Jerome De Canio, Betsy Haggerty, Judith Spektor, William Valletta, Jeffrey Glen, Leo Weinberger, Louis Munoz, Melvin Sokal and The City of New York, Defendants.
• Court: U.S. District Court — Southern District of New York

700 F. Supp. 746

Alan B. WEISSMAN and Vivien K. Weissman, Plaintiffs,
v.
Irwin FRUCHTMAN, Robert Esnard, Irving E. Minkin, Herbert Sturz, Cornelius F. Dennis, Ronald Silvers, Maurice Beane, Joseph Aguirre, George C. Sakona, Jerome De Canio, Betsy Haggerty, Judith Spektor, William Valletta, Jeffrey Glen, Leo Weinberger, Louis Munoz, Melvin Sokal and The City of New York, Defendants.

No. 83 Civ. 8958(PKL).

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

November 29, 1988.

700 F. Supp. 747

Liebman, Adolf & Charme, New York City, for plaintiffs; Stephen M. Charme, of counsel.

Peter L. Zimroth, Corp. Counsel, New York City, for defendants; Gabriel Taussig, Robin Binder, Jane L. Gordon, of counsel.

OPINION AND ORDER

LEISURE, District Judge:

The present action is the latest sally in a protracted legal battle between plaintiffs and various officials of the City of New York as well as the City itself, arising from the defendants' regulatory actions regarding plaintiffs' former property. Although the convoluted history of this lengthy dispute does not easily lend itself to recapitulation, the essential facts are as follows.

From December 1980 until January 6, 1986, plaintiffs were the owners of the land and buildings located at 400-406 West 57th Street, New York, New York.¹ The buildings on this property contained housing units, and were not separated by open space or zoning lot lines. On August 22, 1980, plaintiffs submitted an application to the New York City Department of Buildings ("DOB") for an alteration permit to perform alterations at 400-404 West 57th Street ("400-404"). On November 4, 1981, plaintiffs submitted an amendment to this application seeking permission to perform alterations at 406 West 57th Street ("406") and to combine 406 with 400-404, creating a single building. The DOB approved the application and issued the alteration permit on December 23, 1981.

Plaintiffs then engaged a contractor, who gutted the interior of all unoccupied units in 406 in preparation to performing the authorized alterations. After the conclusion

700 F. Supp. 748

of this work, plaintiffs were informed by their architect and their engineer that the building suffered from numerous serious structural defects. Acting upon this information, plaintiffs notified defendant Irwin Fruchtman, then Commissioner of the DOB, that the construction personnel hired by plaintiffs believed a life-threatening situation to exist at 406. Plaintiffs expressed the opinion that 406 was unsafe and should be vacated immediately because it was in imminent danger of collapse. They also requested that the DOB conduct its own inspection and order that the building be vacated so that it might be demolished

In response to plaintiffs' request, employees of the DOB conducted an inspection of 406 on April 22, 1982. Substantial structural violations of the Building Code of the City of New York were discovered, and three Notices of Violation were issued to plaintiffs. These Notices required plaintiffs to perform extensive shoring and to make permanent repairs on 406 after obtaining any permits necessary for the remedial work.

Meanwhile, on or about April 30, 1982, plaintiffs were notified by a letter from defendant George Sakona, Manhattan Borough Superintendent of the DOB, that their alteration permit had been revoked for noncompliance with § 96-109 of the Zoning Resolution — specifically, for failure to obtain a certificate from the New York City Department of Housing and Urban Development ("HUD") stating that no harassment of tenants had occurred on the subject premises ("certificate of no harassment").² Plaintiffs had not been provided with notice or an opportunity to be heard prior to the DOB's determination to revoke the permit.

Plaintiffs did not apply for a certificate of no harassment upon discovering that the basis for the revocation of their permit was their failure to obtain such a certificate. Nor did they appeal the DOB's decision. The City Charter allows a permittee to appeal the revocation of an alteration permit to the New York City Board of Standards and Appeals ("BSA"), an administrative agency authorized to hear such appeals. See New York City Charter, §§ 666(7)(a), (formerly § 666(6)(a)), and 669(a). At the time plaintiffs' permit was revoked, the Charter further provided that an appeal to the BSA would "stay all proceedings in furtherance of the action appealed from, unless the officer from whom the appeal was taken" filed a certificate with the BSA stating that a stay would "in his opinion cause imminent peril to life or property." New York City Charter, former § 669(c).

On June 18, 1982, defendants Ronald Silvers and Joseph Aguirre, DOB employees, conducted another inspection of 406. Aguirre issued a report stating that 406 did, in fact, require structural repair, but

700 F. Supp. 749

that the damage was not so severe as to justify plaintiffs' request to vacate and demolish the building. The report did, however, find that some tenants should be temporarily relocated within the building while repairs were being undertaken. A further inspection was conducted by defendants Jerome DeCanio, Deputy Borough Superintendent of Manhattan Borough, and Maurice Beane, a DOB inspector, on June 25, 1982. They similarly concluded that, although the building was in need of immediate repair, a vacate order was not warranted at that time

In June of 1982, plaintiffs commenced the first of numerous legal actions concerning the subject premises in the New York State Supreme Court, entitled Weissman v. City of New York, Index No. 14180/82 (Sup.Ct., N.Y. Co.), rev'd, 96 A.D.2d 454, 464 N.Y.S.2d 764 (1st Dep't 1983), app. dism., 60 N.Y.2d 815, 469 N.Y.S.2d 700, 457 N.E.2d 807 (1983) ("Weissman I"). Plaintiffs petitioned the court: i) to compel the DOB to issue an order vacating 406 and staying enforcement of the Notices of Violation that had been served on plaintiffs and ii) to set aside as improper the DOB's revocation of plaintiffs' alteration permit. The Supreme Court, although finding that the DOB's refusal to issue an order to vacate was not arbitrary and capricious in light of the standards applicable to such orders,³ nonetheless held that a temporary vacate order was required to accomplish the necessary repairs. The court also held that the permit revocation had been improper, and ordered that a new permit be issued.

The Appellate Division, First Department, reversed this determination on appeal, on the grounds that, since plaintiffs had failed to exhaust their administrative remedies by appealing the revocation to the BSA, the state court lacked jurisdiction over plaintiffs' claims. See 96 A.D.2d 454, 456-457, 464 N.Y.S.2d 764, 767. An appeal of this ruling to the New York Court of Appeals was dismissed as untimely under N.Y.Civ.Prac.L. & R. § 5513 (McKinney 1978). See 60 N.Y.2d 815, 469 N.Y.S.2d 700, 457 N.E.2d 807 (1983). Plaintiffs then finally sought to appeal the permit revocation to the BSA, but the BSA denied plaintiffs leave to file an appeal application on the grounds of untimeliness. This denial was subsequently upheld in Weissman v. City of New York, Index No. 92071/83, (Sup.Ct., N.Y.Co.1984).⁴

On March 18 and 23, 1983, defendant DeCanio, accompanied by two other DOB employees, conducted new inspections of all of the subject properties. In a report dated March 25, 1983, DeCanio cited numerous structural defects in each of the subject buildings. DeCanio expressed the opinion that although immediate shoring of the structures was necessary, a vacate order was not justified at that time. The DOB issued an order requiring plaintiffs to perform the necessary shoring on March 25, 1983.

Subsequently, plaintiffs initiated another proceeding in the State Supreme Court, Weissman v. City of New York, Index No. 08019/83 ("Weissman II"). Plaintiffs sought a court order: i) staying enforcement of the DOB's order to shore the subject premises; and ii) directing the DOB to issue an order to vacate the buildings.

Seven days after Weissman II was filed, a team of DOB officials, accompanied by defendant DeCanio, conducted a further inspection of the buildings. In a report dated April 8, 1983, the employees determined that a vacate order should be issued for

700 F. Supp. 750

406. Defendant DeCanio, who only two weeks earlier had reported that an order to vacate was not warranted, expressed no opposition to this determination. Affidavit of Jerome Decanio submitted in Weissman II, sworn to on April 12, 1983, attached as Exhibit 17 to Affidavit of George Sakona, sworn to on June 12, 1988. On April 14, 1983, the order to vacate was issued by the DOB. In a separate report, the DOB maintained that a vacate order was not required for 400-404

Plaintiffs instituted the present action in this Court in December 1983, seeking monetary and injunctive relief pursuant to 42 U.S.C. § 1983, challenging the constitutionality of the foregoing administrative actions by the DOB.

Thereafter, in January 1984, plaintiffs applied for a demolition permit which would authorize them to demolish 406. This application was denied by DOB on the grounds that 406 contained housing units and plaintiffs had failed to comply with applicable rent regulations. The denial of the demolition permit was subsequently upheld by the New York Supreme Court in Weissman v. City of New York, Index No. 16976/84 (Sup.Ct., N.Y.Co.1985) ("Weissman III"). Further inspections of 406 were undertaken on January 25 and February 22, 1984. DOB inspectors reported that a demolition order was not justified. Finally, apparently despairing of ever obtaining the DOB approvals necessary to develop their property as they wished, plaintiffs sold the subject premises for $4.1 million on January 6, 1986.

The complaint currently before the Court, plaintiffs' third amended complaint, essentially presents the following constitutional claims.⁵ With regard to the revocation of the alteration permit, plaintiffs allege three...