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DE VILLAR v. CITY OF NEW YORK

January 27, 1986

LUIS DE VILLAR; MARCO RODRIGUEZ; CARMEN PIETRI, JOSEPH PIETRI and PEDRO PIETRI as representatives of the Estate of WILLIAM PIETRI, decedent; CARMEN VALETTE; CONSTANCE HOTALING;, ANGELA HARIRI as representative of the Estate of BETTY BONILLA, decedent; ERIC HOTALING; SYLVIA VEGA, HECTOR LOPEZ; and STEVEN JONES, Plaintiffs, against THE CITY OF NEW YORK; ANTHONY GLIEDMAN, individually and in his capacity as COMMISSIONER, DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT OF THE CITY OF NEW YORK; and MILTON SILVERMAN, individually and in his capacity as a REAL PROPERTY MANAGER of the OFFICE OF PROPERTY MANAGEMENT of the DEPARTMENT OF HOUSING, PRESERVATION AND DEVELOPMENT OF THE CITY OF NEW YORK, Defendants


The opinion of the court was delivered by: LEVAL

OPINION AND ORDER

PIERRE N. LEVAL, U.S.D.J.

Defendants move for summary judgment dismissing charges brought by squatters and illegal occupants at 126 La Salle Street, a city-owned building. These plaintiffs allege that their eviction from the building without notice by the New York City Department of Housing Preservation and Development and by the New York City Police violated their constitutional rights. Their action is brought under 42 U.S.C. § 1983. A motion for Judgment on the pleadings was previously denied. Summary Judgment is now granted. *fn1"

 Background

 Defendants are the City of New York; Anthony Gliedman, individually and as Commissioner of HPD; and Milton Silverman, individually and as the Real Property Manager of the Office of Property Management of the HPD.

 Six plaintiffs are implicated in this motion. Carmen Valette, Constance Hotaling, Eric Hotaling, and Sylvia Vega were squatters who entered the building without permission or authority in the Fall of 1981. Luis del Villar *fn2" and Marco Rodriguez, having been hired as superintendents at 126 La Salle in January 1981, were terminated in August 1981, after which time they continued to live in the building illegally without paying rent.

 Title to the building vested in the City of New York in 1977 through in rem tax foreclosure. In May 1981, the building was placed in a Consolidation Program, pursuant to which the building was to be closed down because it was underutilized and too expensive to repair. On June 15, 1981, HPD ordered the immediate relocation of the residents remaining in the nine occupied apartments at 126 La Salle (Pl. Affid., Ex. B). Eve Lampert, the Area Director of HPD, ordered on August 31, 1981, that the burner for the heating system and all other salvageable materials be removed from the building.

 In October 1981, defendant Milton Silverman, an assistant to Eve Lampert, went to 126 La Salle to attempt to persuade squatters to leave the building and to direct legal tenants to find other apartments (Def's Affid. P 3 & 4 ). He returned to the building for the same purpose on November 9, 1981 (Complaint, P 28). At both times, Mr. Silverman was accompanied by police officers (Complaint P 27 & 28).

 On December 7, 1981, HPD posted a vacate order in 126 La Salle informing the occupants that they must vacate the premises within thirty days (Complaint, P 30). On December 8, 1981, twelve HPD officials accompanied by approximately thirty police officers entered the building under the direction of defendant Milton Silverman (Complaint, P 33). The officers ordered all residents to vacate or face arrest for criminal trespass (Complaint P 34). All plaintiffs abandoned their apartments except Constance Hotaling who was arrested and held for an hour (Complaint, P 35) *fn3" The occupants were not allowed to gather their belongings that day (Complaint, P 35). The next day they were permitted to remove their personal property from the building.

 Plaintiffs filed an Article 78 Proceeding, New York Civil Practice Law and Regulations, in New York State Supreme Court, New York County. On December 28, 1981, the State Supreme Court ordered that certain of the plaintiffs be allowed to reenter their apartments in 126 La Salle (Complaint, Ex. 1). They were permitted to remain in their apartments until they were relocated by the City to other housing in 1983 and 1984. The City consented by stipulation on February 22, 1983 to civil suit in exchange for plaintiffs cancelling the scheduled hearing in the Article 78 proceeding (Complaint, Ex. 3).

 On March 8, 1983, plaintiffs filed suit against defendants in New York State Supreme Court and in federal district court, alleging violation of their Fourteenth Amendment rights, pursuant to 42 U.S.C. § 1983, and the state tort claims of unlawful eviction, trespass, assault, false arrest and intentional infliction of emotional distress.

 Discussion

 Summary Judgment is to be granted under Fed.R.Civ.P. 56(c) only if the competent evidence submitted demonstrates that there is no material issue of fact and that the moving party is entitled to judgment as a matter of law. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970). The affidavits and exhibits submitted by the parties "must be viewed in the light most favorable to the party opposing the motion." United States v. Diebold, 369 U.S. 654, 655, 8 L. Ed. 2d 176, 82 S. Ct. 993 (1962); Burtnieks v. City of New York, 716 F.2d 982, 985 (2d Cir. 1983). However, when a party has made a showing sufficient to warrant summary judgment, the opposing party is obliged to come forward with affidavits or other properly qualified evidence to demonstrate that there is a material issue of fact.

 In the first two counts of their complaint, plaintiffs allege that their eviction by HPD officials acting under color of state law deprived them of their right to property without due process of law as well as of their substantive due process rights. Defendants concede that they were acting under color of state law. But there is no showing of any violation of constitutional rights. Plaintiffs have failed to submit evidence raising a material issue of fact as to the denial of any federal constitutional right. Moreover, even if plaintiffs had shown evidence of a constitutional violation, ...


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