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AUGUSTYNIAK v. KOCH

May 17, 1984

MARIAN AUGUSTYNIAK, Plaintiff, against EDWARD I. KOCH, HARRIET P. GEORGE, ANTHONY GLIEDMAN, BRUCE KRAMER, DONALD RODDA, LISA SIANO, THEODORE R. WEST, PATRICK MEDFORD, EDWARD A. PICHLER, THE CITY OF NEW YORK, DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT OF THE CITY OF NEW YORK, and JOHN DOE and RICHARD ROE, Deputy Sheriffs of the City of New York, County of New York, Defendants.


The opinion of the court was delivered by: DUFFY

MEMORANDUM & ORDER

KEVIN THOMAS DUFFY, D.J.:

 Plaintiff, Marian Augustyniak, has brought this action against New York City, New York City Mayor Edward Koch, the New York City Department of Housing Preservation and Development ("HPD"), three HPD attorneys -- Bruce Kramer, Donald Rodda, Lisa Siano -- HPD Commissioner Anthony Gliedman, Housing Part Civil Court Judge Harriet P. George, Sheriff of New York County Edward Pichler, two unnamed Sheriff's deputies, the Warden of the Queens House of Detention Theodore West, and Patrick Medford. Augustyniak's complaint alleges eight federal, and seven pendent state law causes of action. All plaintiff's federal claims are based on 42 U.S.C. § 1983. I dismissed the complaint against defendant Judge Harriet P. George by endorsement dated May 19, 1982. The remaining defendants, save Patrick Medford, move for summary judgment pursuant to Fed. R. Civ. P. 56(a). For the reasons that follow, defendants' motion is granted.

 BACKGROUND

 The facts as set forth principally in plaintiff's complaint are as follows. In September 1977, Augustyniak purchased from the City an apartment house located at 515 West 187th Street, New York, New York, executing an $11,000 mortgage with the City. Plaintiff thereafter attempted to obtain an HPD or bank loan.

 In November 1980, three years after his purchase, plaintiff directed a letter to Commissioner Gliedman advising him of the delay Augustyniak was experiencing in obtaining an HPD loan. He also stated that the building's heating system was too weak to use at full capacity. Plaintiff telephoned Gliedman's office concerning his pending loan application on November 12, 18, 19, and December 2, 1980. On each occasion, Augustyniak spoke to Gliedman's secretary.

 On or about November 18, 1980, HPD, by its attorneys Kramer and Siano, commenced a proceeding by order to show cause (HPD v. Augustyniak, New York City Civil Court, Housing Part 527/80) returnable December 19, 1980, requiring plaintiff to show cause why he should not be required to provide heat and hot water in accordance with the Dwelling Law and Housing Maintenance Code. Under the City's Administrative Code sections D26-53.01 and D26-53.03 and the City's Civil Court Act section 110, HPD could institute proceedings to require a landowner to correct housing violations and to secure continuing compliance.

 At the hearing on December 19, 1980, HPD was represented by Siano, and Augustyniak appeared pro se. A transcript of the hearing reveals that two tenants testified to the lack of heat and hot water. Plaintiff submitted opposition papers, cross-examined both tenants, and testified on his own behalf. Augustyniak's only argument at the hearing for his failure to provide heat and hot water was his lack of funds. At the end of the hearing, Judge George orally granted HPD's motion and ordered Augustyniak to provide heat within forty-eight hours or face contempt sanctions.

 During the next few days, plaintiff asserts, a damaged gas main that Consolidated Edison Company was repairing was shut off preventing operation of plaintiff's gas-ignited boiler. On December 24, 1980, a pipe in plaintiff's building burst and all water to the building was shut off. Earlier that same day Siano had addressed a letter to Judge George noting the continuing lack of heat in plaintiff's building. In the letter, a copy of which was sent to Augustyniak's home address, Siano requested that the case be placed on the active calendar for December 30, 1980, for a contempt proceeding against the plaintiff. No formal motioin or application for an order to show cause, however, was made as required by N.Y. Jud. Law § 756 (McKinney 1983). On December 30, 1980, after two witnesses testified to the continuing lack of heat and hot water, Judge George directed Siano to submit an order fining plaintiff $10,000 and ordering the issuance of a warrant of commitment against the plaintiff for thirty days imprisonment. This order, signed by Judge George on January 6, 1981, permitted the release of Augustyniak before service of the full thirty days imprisonment upon plaintiff's provision of heat and hot water.

 On January 9, 1981, at 8:00 a.m. in front of the 515 West 187th Street building, two deputy sheriffs arrested plaintiff. Siano, who accompanied the deputies, allegedly made defamatory statements at that time. Augustyniak was then transported to the Queens House of Detention where he was processed and subjected to a body-cavity search. Plaintiff was incarcerated for sixteen days until January 26, 1980, when the Appellate Term, First Department granted a stay of the commitment order on the consent of the City's Corporation Counsel pending appeal. *fn1"

 On the evening of January 9, 1981, plaintiff's first day of imprisonment, Mayor Koch held a press conference at which plaintiff asserts the Mayor, without mentioning Mr. Augustyniak by name, referred to the imprisonment of landlords for failure to provide heat and hot water.

 On February 5th and 6th, 1981, plaintiff was interviewed by a Channel 5 news reporter. During the interview, plaintiff stated that the City in a mere four weeks had brought about the total destruction of all of his work to restore his building. This comment was broadcast on the Channel 5 10:00 news program on February 6, 1981. Augustyniak also asserts that at the conclusion of the news report, the reporter related allegedly defamatory statements made by unidentified City officials.

 Thereafter, HPD moved pursuant to Article 7A of the New York Real Property Actions and Proceedings Law to appoint an administrator to manage plaintiff's building. Section 770 of the New York Real Property Actions and Proceedings Law authorizes HPD to bring actions and proceedings under Article 7A for the appointment of an administrator to collect rents and to correct housing code violations. Plaintiff twice moved for Judge George to recuse herself; both motions were denied. On May 14, 1981, Judge George issued a judgment appointing Patrick Medford as 7A administrator of the building.

 On July 24, 1981, an action was instituted against Augustyniak in the Criminal Court in the City of New York with respect to an elevator violation in his building. The proceeding was dismissed, however, because the 7A administrator Medford rather than Augustyniak was in control of the building at that time. Nevertheless, a warrant had already issued. Therefore, by letter dated September 3, 1981, HPD notified plaintiff that the ...


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