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October 19, 1995

KELLY IRWIN, an individual, and ROSARIO MANGIO, an individual, Plaintiffs, against CITY OF NEW YORK, a municipal corporation, DEPARTMENT OF PARKS & RECREATION OF THE CITY OF NEW YORK, a municipal agency, BETSY GOTBAUM, individually and in official capacity, PATRICK POMPOSELLO, individually and in official capacity, and CHARLES MCKINNEY, individually and in official capacity, Defendants.

The opinion of the court was delivered by: KAPLAN

 LEWIS A. KAPLAN, District Judge.

 Plaintiffs are owners of a houseboat docked at the 79th Street Boat Basin located in the Hudson River at 79th Street in Manhattan's Riverside Park. The Boat Basin is managed and operated by the New York City Department of Parks and Recreation ("Department of Parks"). The only claim pressed by plaintiffs in opposition to the defendants' motion for summary judgment is that the City's refusal to offer them a new dockage permit for their houseboat violated their right to due process under 42 U.S.C. § 1983, the Fifth and Fourteenth Amendments to the United States Constitution, and Article I, Section 6, of the New York State Constitution. The parties cross-move for summary judgment.


 Plaintiff Kelly Irwin has been a member of the 79th Street Boat Basin community since 1987. (Irwin Aff. P 8) In 1989, Irwin obtained a seasonal dockage permit by the City for her boat, the "Midrift," upon which she and her husband, plaintiff Rosario Mangio, whom she married in 1992, now permanently reside. (Id. PP 8, 17) The permit authorized Irwin to dock the "Midrift" in the Boat Basin from May 1, 1989 through April 30, 1990. By its terms, the permit expired in one year (see dockage permit, Irwin Aff. Ex. B § 3.0) and was "terminable at will by Commissioner [of the Department of Parks] upon good cause being shown." (Id. §§ 2.1, 2.2)

 From the time Irwin's 1989-90 dockage permit expired on April 30, 1990 until May 1992, some residents of the Boat Basin, represented by the Hudson Harbor Preservation Association (the "HHPA"), began to withhold payment of dockage permit fees. Plaintiffs have characterized the withholding as a "rent strike" by which the residents of the marina sought to elicit concessions from the City and the Department of Parks for more favorable conditions. (See Irwin Aff. P 9) During this period, some HHPA members paid their dockage fees into an escrow fund set up by the HHPA, while others paid the fees to the Department of Parks or ceased paying the fees altogether.

 In July 1991, during the "rent strike," the plaintiffs began construction of an additional bedroom on the top of the "Midrift." (See Irwin Aff. P 10; McKinney Aff. P 28) The Department of Parks and the 1989-90 dockage permit, *fn1" require that residents of the marina obtain written consent from the Department prior to making any structural modifications to their boats. (McKinney Aff. PP 24-25; see Dockage Permit, Irwin Aff. Ex. B § 6.14 *fn2" ) Defendants assert that plaintiffs' construction was not in compliance with the terms of their permit, which reflects Department policy. Plaintiffs did not seek advance approval from the Department.

 When the administrator of Riverside Park, Charles McKinney, learned about plaintiffs' unauthorized construction, he requested that the construction stop and that plaintiffs submit an application to the Department of Parks for permission to proceed with the construction. (McKinney Aff. P 29 & Ex. C) He further requested that Irwin and Mangio provide the Department with "a dimensioned plan and side view." (Id. Ex. D) Irwin submitted to McKinney two drawings of the proposed construction with a letter in which she falsely claimed that plaintiffs were constructing "an 'inclosed helm station' which is necessary to the operability of the boat." (See id. Ex. E) In a September 9, 1991 letter, McKinney denied plaintiffs permission for the modifications and advised them to remove the construction from the top of the boat. (Id. Ex. F)

 Plaintiffs assert that the Department's action was arbitrary and unreasonable because the expired 1989-90 dockage permit did not expressly prohibit increases in the height of the boats in the marina. (See id. Ex. G, I & K) They further argue that Section 6.14 of the permit provides that permission for new construction "cannot be unreasonably withheld." McKinney claims, however, that the Department routinely denies requests for permission to make modifications that would increase the height of boats in the marina. (Id. P 25) Plaintiffs resumed construction on the "Midrift," and McKinney informed them that they would be ineligible to receive a new dockage permit unless they removed the construction from the boat by October 1, 1991. (Id. Ex. H)

 Plaintiffs' dispute with the Parks Department played out against the broader background of the "rent strike." The Department met with representatives of the HHPA several times between May 1990 and May 1992 to discuss the physical condition of the 79th Street Boat Basin. (McKinney Aff. PP 20-21) Plaintiffs assert that the Department of Parks and the HHPA reached an agreement, evidenced by a May 6, 1992 letter to counsel for the HHPA from Elizabeth Okin, an Assistant Counsel to the Department of Parks. (See Irwin Aff. Ex. E) In the May 6 letter, entitled "79th Street Boat Basin Dockage Agreement," Okin stated that the Department of Parks "will offer [dockage permits] to those boaters with up-to-date dockage accounts dating from the final payments made under the expired contract, that is, payments made through April 1990." (Id.)

 Plaintiffs assert that the letter describes an enforceable agreement between HHPA and the Department in which the City conferred on residents of the marina who possessed a 1989-90 permit an entitlement to a new dockage permit. (Cpt. P 38) Defendants, on the other hand, maintain that no enforceable agreement conferring an entitlement to a dockage permit was reached. They argue that the Okin letter is not evidence of an agreement but rather that it finalized negotiations for new permits between the Department of Parks and those residents of the marina who had paid all dockage fees that had accrued since May 1990 and who were in compliance with the terms of the 1989-90 permit. (See McKinney Aff. PP 22-23; Okin Letter of November 23, 1992, Irwin Aff. Ex. C) Defendants assert that Irwin was neither current on her dockage fees nor in compliance with the terms of the prior dockage permit due to unauthorized construction on her boat. (Id. PP 23-24)

 The parties' dispute was the subject of extensive correspondence between the plaintiffs' attorney and Elizabeth Okin of the Corporation Counsel's office, acting on behalf of the Parks Department. (Irwin Aff. PP 24-33). Negotiations were conducted on plaintiffs' behalf with Charles McKinney, Administrator of Riverside Park. (Id. P 34) Eventually, plaintiffs met with Manhattan Borough Commissioner of Parks Patrick Pomposello on February 28, 1994. (Id. P 55) Plaintiffs claim that they then reached an oral agreement with Pomposello that the Department would issue plaintiffs a new dockage permit provided that plaintiffs paid their outstanding dockage fees and made a $ 3,000 contribution to the Riverside Park Fund. (Irwin Aff. P 55) They assert that Pomposello represented to them that there would be no difficulty getting the agreement approved by the Commissioner of the Department of Parks, Andrew Stern. (Id. P 56) The proposed agreement, however, was not approved by Stern. (See Irwin Aff. P 58) The Department of Parks has not issued plaintiffs a new permit for their houseboat.


 The parties cross-move for summary judgment. In order to prevail on a motion for summary judgment, a party must establish that there is no genuine issue of material fact and that the party is entitled to ...

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