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BRODY v. MOAN

November 24, 1982

HARVEY BRODY, ISIDORE BLACHMAN and B & B PARKING, INC., HARVEY BRODY, President, 35 Reade Street, New York, New York a/k/a 280 Broadway, Plaintiffs,
v.
TERRANCE MOAN, individually and as Deputy Commissioner of NEW YORK CITY DEPARTMENT OF GENERAL SERVICES, ROBERT LITKE, individually and as Commissioner of NEW YORK CITY DEPARTMENT OF GENERAL SERVICES, NICHOLAS CORRADO, individually and as Assistant Commissioner of NEW YORK CITY DEPARTMENT OF GENERAL SERVICES, ANTHONY B. GLIEDMAN, individually and as Commissioner of NEW YORK CITY DEPARTMENT OF HOUSING PRESERVATION & DEVELOPMENT, NEW YORK CITY DEPARTMENT OF GENERAL SERVICES, NEW YORK CITY DEPARTMENT OF HOUSING PRESERVATION & DEVELOPMENT and THE CITY OF NEW YORK, Defendants


Haight, District Judge.


The opinion of the court was delivered by: HAIGHT

MEMORANDUM OPINION AND ORDER

HAIGHT, District Judge:

 In this action against the City of New York and four of its Commissioners individually and in their official capacities, plaintiffs, joint stockholders of the plaintiff corporation, seek to enjoin the City from evicting them from commercial property which they lease and operate as a parking garage. Jurisdiction is alleged under 42 U.S.C. §§ 1983, 4601, and 1441, and 28 U.S.C. § 1343. Defendants cross move to dismiss the complaint. For the reasons stated, I deny an injunction and dismiss the complaint.

 FACTS

 Plaintiffs Harvey Brody and Isadore Blachman are joint stockholders of B & B Parking Inc. ("B & B") which operates a parking garage in lower Manhattan. Plaintiffs first obtained a lease for the premises in 1958. In 1965, defendant City of New York (the "City") condemned the premises to construct a new Civic Center. The Civic Center has not been constructed and the City's plans to do so have been abandoned. Since the time it acquired the property, the City has operated the premises in a proprietary manner. Plaintiffs' continued occupancy of the premises has been the subject of substantial litigation in the state courts of New York. While a complete and detailed history of these proceedings is not necessary to this opinion, a brief tour of the highlights is helpful to an understanding of the current relationship between the parties.

 The City first applied for a writ of possession in New York State Supreme Court in 1966. Its application was denied. The writ was granted in 1969, on condition that the City file an affidavit providing proof of capital budget authorization for the Civic Center. The affidavit was never filed, as the Civic Center project was abandoned for fiscal reasons.

 During the intervening years the plaintiffs remained as tenants and continued to pay the City rent. This relationship was punctuated by rent increases, terminations of tenancy, state court litigation and negotiations between the parties. Finally, in 1981, the City again served plaintiffs with notice of eviction and notice of intent to publicly auction the property. The City obtained a judgment of eviction from the Civil Court of New York which plaintiffs unsuccessfully challenged in state court. Plaintiffs also brought an unsuccessful proceeding pursuant to N.Y.C.P.L.R. Article 78 challenging their eviction and the auctioning of their leasehold. The auction was held, plaintiffs were present, and the high bid, submitted by a third party, was a monthly rental of $41,000.00, substantially more than plaintiffs were paying.

 In March, 1982, the City commenced a summary proceeding in Civil Court to recover possession of the premises. After the City's motion for summary judgment was granted, plaintiffs filed another Article 78 proceeding which was dismissed on October 19, 1982. The City has now submitted to the state court a proposed judgment permitting it to take immediate possession of the premises.

 DISCUSSION

 I. Due Process

 1. Service

 Plaintiffs contend that they were denied due process of law as guaranteed by the Fourteenth Amendment because they were not properly served with notice of the summary eviction proceeding in 1981. Service in such proceedings is governed by New York Real Property Actions and Proceedings Law Section 735. Service may be accomplished by personal service, by substituted service upon a person of suitable age and discretion employed on the premises, or, if substituted service cannot be accomplished, by affixing a copy upon a conspicuous part of the property sought to be recovered. If either the substituted or conspicuous methods of service are used, a copy of the notice of petition and the petition must be mailed to the respondent (by certified or registered mail) within one day after the delivery or affixing. Plaintiffs allege that the City failed to comply with the requirements of this statute. *fn1" This claim fails to raise a constitutional question sufficient to invoke the jurisdiction of this Court under section 1983.

 Plaintiffs have confused a defect in the manner of service of process with a failure to provide the notice required by the Due Process Clause of the Constitution. Notice meets the constitutional test of due process if it is "reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Mullane v. Central Hanover Trust Co., 339 U.S. 306, 314, 94 L. Ed. 865, 70 S. Ct. 652 (1950). Plaintiffs do not, and in fact could not, sustain a challenge to the facial constitutionality of Section 735. The Court of Appeals for this Circuit has extensively examined Section 735 and has found it to be "carefully drafted and calculated to apprise tenants of the pendency of the action" and "not vulnerable to constitutional attack." Velazquez v. Thompson, 451 F.2d 202, 206 (2d Cir. 1971) (citing Mullane v. Central Hanover Trust Co., supra). Nor do plaintiffs claim that the notice which they admittedly received failed to apprise them of the pendency of the summary proceeding at which they appeared and defended.

 The cases relied upon by plaintiffs demonstrate the inadequacy of their constitutional claim. Escalera v. New York City Housing Authority, 425 F.2d 853 (2d Cir. 1970), was a direct constitutional challenge to the sufficiency of the procedures pursuant to which the Housing Authority terminated tenancy or assessed additional rent. United States v. Brand Jewelers, Inc., 318 F. Supp. 1293 (S.D.N.Y. 1970), was a suit brought by the United States seeking injunctive and other civil remedies for an allegedly "long-standing and systematic practice" of obtaining default judgments against economically disadvantaged defendants by means of employing process servers who failed to make proper service or filed false affidavits of service. Lindsey v. Greene, 649 F.2d 425 (6th Cir. 1981), which plaintiffs describe as "strikingly similar in fact and law" to the instant case, Brief at 10, was a constitutional challenge to the facial validity of a Kentucky statute permitting constructive service of process by posting in forcible entry and detainer actions. The Court held the statute unconstitutional ...


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