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June 12, 1985

ARTHUR SHEINER, Plaintiff, against THE CITY OF NEW YORK, Defendant

The opinion of the court was delivered by: MCLAUGHLIN



McLAUGHLIN, District Judge

 This is an action under 42 U.S.C. § 1983, and under common-law theories of trespass and negligence, to recover for the alleged wrongful destruction of plaintiff's house. Each party has moved for summary judgment. Fed. R. Civ. P. 56. Alternatively, plaintiff seeks leave to amend his complaint. Fed. R. Civ. P. 15. For the reasons developed below, summary judgment will be entered for defendant.


 The undisputed material facts are as follows. Plaintiff, at all times relevant to this action, resided in Nassau County at 30 Vernon Avenue, Atlantic Beach, New York. During this time he was the record owner of real property located in New York City at 44-04 Hough Place, also known as 44-04 Norton Avenue, Queens, New York (the "property"). As of September 18, 1981 there was a one-story frame house on the property. Sometime in 1982, however, that house was demolished without plaintiff's knowledge or permission, pursuant to an Order of the New York Supreme Court, Queens County.

 Razing defendant's house was the culmination of proceedings instituted by defendant's Department of Buildings (the "Department"). Article 8 of Part I of Chapter 26, Title C of the Administrative Code of the City of New York (the "Code") governs the removal and repair of unsafe buildings within the City. Article 8 states defendant's policy regarding the procedures to be followed for the demolition or removal of such unsafe buildings.

 Section C26-80.0 of the Code provides that any vacant building not continuously guarded, or not sealed and secured against unauthorized entry, is deemed dangerous to human life, health and morals. When a Department employee reports that a building is unsafe within the meaning of Article 8, the Department must serve the owner with a notice containing, inter alia, an order requiring him to bring the building into conformity with the Code. Id. § 80.5(a) (the "Notice and Order"). The notice must further state that upon the owner's failure to comply, a survey will be made. If the surveyors report that the building is unsafe, then a trial upon the allegations of the report will take place in New York Supreme Court. Id.

 The prescribed Notice and Order must be served personally on the owner if he can be found within the City of New York after diligent search. Id. § 80.5(b). If after such search the owner cannot be served, the Code requires that the Notice and Order be posted on the building to which they refer, and be mailed to the owner at his last known address. Id. §§ 80.5(b), 84.5(d).

 In December, 1981 a process-server employed by defendant visited the property three times in an attempt to serve plaintiff personally with a combined Notice of Unsafe Building and Structure, Order, Notice of Survey and Summons. Finally, having been unable to locate plaintiff, the server affixed the Notice and Order to the door of the building and mailed a second copy to plaintiff at his residence in Atlantic Beach.

 The Notice and Order informed plaintiff that his house on Norton Avenue was unsafe because it was open, vacant and unguarded. The Order required plaintiff either to make the building safe by securing it or to take the building down. It also required plaintiff immediately to inform the Queens Borough Superintendent of buildings whether he assented to the Order, otherwise a survey would be made on January 4, 1982. If the building was reported unsafe by the surveyors, a trial would be held in Supreme Court, Queens County, on January 27, 1982 to determine whether the building should be secured or demolished.

 Plaintiff never contacted the Superintendent of Buildings, and on January 4, 1982 a survey of the building was made. The surveyors concluded that the building was unsafe in that it was open, vacant and unguarded, with rubbish and debris throughout. They recommended that the building be either restored to its last lawful occupancy, sealed, or demolished.

 A trial on the allegations in the survey was held on January 27, 1982. In the Matter of the Application of the City of New York Against the Unsafe Building and Structure Located at 44-04 Norton Avenue, No. 1243/82 (Supreme Ct. Queens County). Upon plaintiff's default, the action was tried to the Court, which heard testimony from one of the surveyors and received an affidavit from defendant's process-server.

 That same day, the Court issued a precept finding that: (1) plaintiff had been duly served with the Notice and Order (2) the building was open, vacant and unguarded; (3) windows and doors were broken or missing; (4) there was rubbish throughout the building; and (5) the building was a "fire, health and moral hazard." Exhibit 6 to Affidavit ...

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