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CAPOZZI v. CITY OF OLEAN

November 28, 1995

WILLIAM CAPOZZI, Plaintiff,
v.
THE CITY OF OLEAN, NEW YORK; CITY OF OLEAN, NEW YORK, DEPARTMENT OF CODE ENFORCEMENT; RONALD M. BLAKESLEE, individually and in his official capacity as Olean Code Enforcement Officer; CITY OF OLEAN, NEW YORK, POLICE DEPARTMENT; PATRICK BRANDOW, individually and in his official capacity as Olean Chief of Police; UNKNOWN POLICE OFFICER/S, individually and in their official capacity as Olean Police Officers; CITY OF OLEAN, NEW YORK, FIRE DEPARTMENT; JOHN W. GIBBONS, individually and in his official capacity as Olean Fire Chief; PAUL MELFI, individually and in his official capacity as Acting Olean Fire Chief; JOHN M. HART, JR., individually and in his official capacity as Olean City Attorney, Defendants.



The opinion of the court was delivered by: FOSCHIO

 JURISDICTION

 A consent to proceed before the undersigned was filed in this matter on August 2, 1995. The matter is presently before the court on Plaintiff's motion for partial summary judgment, dated October 30, 1995, and Defendant's cross-motion for summary judgment, dated November 1, 1995.

 BACKGROUND

 Plaintiff, William Capozzi, filed this action under 42 U.S.C. § 1983 on November 21, 1994, alleging that his constitutional rights were violated when Defendants unreasonably entered his home without a warrant and ordered him to vacate the premises without adequate pre- or post-deprivation remedies. Defendants contend the entry was reasonable under the circumstances presented, and that he was given adequate remedies as required under the United States Constitution.

 Trial is scheduled to commence in this matter on December 4, 1995. On October 30, 1995, Plaintiff filed a motion for partial summary judgment seeking a determination that Defendants the City of Olean, New York, the City of Olean, New York Department of Code Enforcement ("DCE"), the City of Olean, New York Fire Department ("Fire Department"), John W. Gibbons, and Paul Melfi, intentionally deprived Plaintiff of property without due process of law in violation of Plaintiff's rights under the Fourteenth Amendment, and additionally seeking an award of nominal damages of one dollar against either or both John W. Gibbons and Paul Melfi in their individual capacities, along with an award of attorney's fees and costs.

 Thereafter, on November 1, 1995, Defendants filed a motion for summary judgment on the ground that Plaintiff had failed to state a claim against any Defendant; for summary judgment upon the grounds of qualified immunity for each individual named Defendant; or, alternatively, for partial summary judgment dismissing the punitive damages claim against any individual Defendant. *fn1"

 Oral argument on the matter was held on November 13, 1995.

 For the reasons as set forth below, Plaintiff's motion for summary judgment is DENIED. Defendants' cross-motion for summary judgment is GRANTED in part and DENIED in part.

 FACTS

 Plaintiff, William Capozzi, on the date of the incident at issue in this lawsuit, was the owner of and resided at a two-family home located at 510 North Sixth Street in the City of Olean, New York. Capozzi was, at that time, seventy-two years of age. *fn2"

 On December 23, 1993, at approximately 12:05 p.m., in response to a telephone call received from Christy Sherlock, the resident living at 514 North Sixth Street located next door to Capozzi's home, that she had not seen Capozzi for approximately a week and a half to two weeks, see Exhibit B, Affidavit in Opposition to Defendants' Motion for Summary Judgment, Deposition of Christy Sherlock, at pp. 11, 27, City of Olean Police Officer Timothy Gore was dispatched to Sherlock's home to investigate. Sherlock advised Gore that Capozzi, an elderly gentleman, lived alone, and that she believed that he was inside the home, but that she had not seen him for some period of time. Officer Gore went over to 510 North Sixth Street, Capozzi's home, and knocked on the doors, calling to Capozzi, but received no answer. Gore then returned to Sherlock's home, and contacted his supervisor, Edwin Triesky.

 After speaking to Gore, Triesky contacted the Olean Department of Fire, Buildings, and Emergency Services. Firefighters Robert Bartholomew and Steven Wolfe were dispatched, and acting Fire Chief Paul Melfi went along to assist, arriving at the Capozzi home at approximately 1:11 p.m.

 The firefighters used a hydraulic ram to force open the rear upper door of Capozzi's home, a device that separates the door frame from the locks without breaking the components. At the time of entry, Capozzi was in his bed, however, the entry awakened him and he met with the firefighters and Officer Gore. The officers noted that at the time of entry there was no heat in the building, despite the very cold December temperatures. *fn3" The only heat apparently was coming from one burner on a kitchen range where a large pot of water was heating. Captain Melfi stated that the interior of the home was in "terrible condition," see Exhibit G, Plaintiff's Notice of Motion, Statement of Captain Melfi, that articles of "everything imaginable," Id., was piled from floor to ceiling, that the ceiling was collapsing in the kitchen because of water leaking after a tree fell on the structure, damaging the roof, and that the stove was packed full of papers, articles of clothing, and other items. While the officers were at the scene, Capozzi received a telephone call from a friend, indicating that his telephone was operable.

 Richard Swift of the Cattaraugus County Department of Social Services, Adult Protective Services Division, and Wendy Jerge of the Cattaraugus County Department of Aging were summoned to the scene by the officers to assist Capozzi. Olean Code Enforcement Officer Ronald Blakeslee *fn4" was also called to the scene by Captain Melfi so that the apparent structural and mechanical defects in the home could be inspected. Officer Blakeslee inspected the building and deemed it to be dangerous, later posting a sign on the exterior which characterized the structure as a "dangerous building." See Exhibit B, Plaintiff's Notice of Motion. According to Plaintiff, Blakeslee ordered him to leave the building, and directed that he discontinue residing in his home. Defendants deny that Blakeslee gave any such direction. Rather, Defendants contend that Capozzi was told that severe weather conditions made his continued occupation of the home, with no heat and leaking water, inadvisable, and that Capozzi did not protest. See Exhibit H, Plaintiff's Notice of Motion, at p. 16.

 Adult Protective Services arranged for Capozzi to stay at the YMCA in Olean for the weekend, and that suitable housing would be found thereafter. The Society for the Prevention of Cruelty to Animals ("SPCA") was contacted to locate Capozzi's cat at his home. Prior to leaving the building, Captain Melfi contacted the Water Department to shut off the water so that the pipes would not freeze. The Water Department indicated that it could not shut off the water unless "water was running out the doors and windows." See Exhibit G, Plaintiff's Notice of Motion. Later in the day, another police officer, Lieutenant Mooney, was told to reenter the building to shut off the water. Lieutenant Mooney found Capozzi back in the house. Capozzi stated that he had come back for something to eat, and that he was checking on his house. According to Lieutenant Mooney, the water was not shut off because Capozzi directed him not to do so, although Capozzi disputes this statement. The water was eventually shut off from the curb, after a period of days.

 An Order to Remedy from Officer Blakeslee of the Department of Code Enforcement, dated December 28, 1993, was sent to Capozzi, by certified mail, with receipt on January 3, 1994, directing that the code violations be repaired by January 10, 1994. Capozzi was also served with a notice pursuant to Olean Code § 6-239 directing him to repair or demolish the building within thirty days of receipt of the notice. See Exhibit E, Plaintiff's Notice of Motion. Capozzi was not served with notice of a hearing pursuant to Olean Code § 6-240 as no written request for a hearing was received, nor did the building inspector serve a report of non-compliance on Capozzi or to the Olean Fire Chief. However, Mr. Berry, by letter dated January 31, 1994, requested that "any notice given by the Fire Chief pursuant to section 6-240 of ...


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