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HABINIAK v. RENSSELAER CITY MUN. CORP.

March 16, 1996

RICHARD HABINIAK, Plaintiff,
v.
RENSSELAER CITY MUNICIPAL CORPORATION, Defendant.



The opinion of the court was delivered by: MCAVOY

 Plaintiff pro se Richard Habiniak commenced this action on November 13, 1995, asserting RICO and Fourteenth Amendment violations. Defendant Rensselaer City Municipal Corporation filed its answer and affirmative defenses on December 11. Plaintiff then filed a motion to strike defendant's affirmative defenses as legally insufficient and a motion for partial summary judgment with respect to his due process claim. After summarizing the factual allegations giving rise to plaintiff's causes of action. the Court will consider these motions in turn.

 I. Background

 According to plaintiff, police officers from the Rensselaer City Police Department (RCPD) arrested him and conducted a warrantless search of his home three months after a confidential informant for the RCPD purchased a small quantity of marijuana from plaintiff's wife, Debra Habiniak. Plaintiff alleges that he was subsequently charged on three drug-related counts and one fireworks count. On November 28, 1989, plaintiff allegedly entered a plea agreement pursuant to which he pled guilty to the charge of criminal possession of marijuana. At a state-court hearing later that day, plaintiff allegedly received a three-year probationary sentence and was ordered to pay a $ 1,000 fine; the remaining three charges were dismissed.

 On September 5, 1991, the United States commenced a civil forfeiture action against plaintiff's home in the District Court for the Northern District of New York by filing a verified complaint and supporting affidavit. P's Ex. A.) The Government's verified complaint alleged that on May 23, 1989, plaintiff sold 6.82 grams of marijuana to a "cooperating individual" on plaintiff's premises for $ 45.00, and that on August 29, 1989, a search of plaintiff's property uncovered six ounces of marijuana packaged for sale, plastic baggies, a scale for weighing marijuana, and approximately $ 415.00 in currency. (Id.) On the same day, the Government allegedly filed a notice of pendency with respect to plaintiff's house, which apparently affected plaintiff's ability to secure a loan on September 23. Pursuant to this Court's issuance of a Warrant of Seizure and Monition on February 7, 1992, (P's Ex. B), the United States Marshall Service for the Northern District of New York allegedly seized plaintiff's home and executed an "occupancy agreement" permitting plaintiff to reside in it pending final disposition of the forfeiture action. According to plaintiff, at no time during the pendency of the federal government's action did defendant file a verified claim on the subject property.

 Seven days later, on April 27, this Court ruled that the value of the subject property, less the cost of government investigation and enforcement, was overwhelmingly disproportionate to the value of marijuana plaintiff possessed or the appropriate criminal fine for plaintiff's conduct. Accordingly, the Court dismissed the Government's forfeiture action on Eighth Amendment grounds. United States v. Real Property: 835 Seventh Street, 820 F. Supp. 688 (N.D.N.Y. 1993), appeal dismissed, 28 F.3d 103 (2d Cir. 1994). On August 30, 1993, upon motion for reconsideration, the Court permitted the Government to supplement the record, but otherwise upheld its earlier dismissal of the forfeiture action. United States v. Real Property: 835 Seventh Street, 832 F. Supp. 43 (N.D.N.Y. 1993). Although unmentioned in plaintiff's Complaint or Memorandum of Law, he filed a petition with this Court in December, 1993, for an Injunction Pendente Lite and a Protective Order, with a view to enjoining defendant "from initiating any action or proceedings against petitioner's property known as 835 7th Street, Rensselaer, New York." United States v. Real Property: 835 Seventh Street, 1993 U.S. Dist. LEXIS 17435, 1993 WL 513283 (N.D.N.Y. Dec. 2, 1993). Because of procedural defects in his petition, the Court denied plaintiff the relief he sought. On October 21, 1995, plaintiff allegedly received a letter from defendant's corporation counsel instructing him to vacate the subject property by November 30, 1995.

 II. Motion to Strike Affirmative Defenses

 In his sentence-long Memorandum of Law to Strike Defendant's Affirmative Defenses, plaintiff cites Heller Financial, Inc. v. Midwhey Powder Co., 883 F.2d 1286, 1294 (7th Cir. 1989), to support his assertion that all six of defendant's affirmative defenses are legally insufficient. *fn1" Regardless of how the Seventh Circuit treats motions to strike affirmative defenses for legal insufficiency, this Court follows the Second Circuit principle disfavoring such motions and the Second Circuit rule that such motions are not granted "'unless it appears to a certainty that plaintiffs would succeed despite any state of the facts which could be proved in support of the defense.'" William Z. Salcer, Panfeld, Edelman v. Envicon Equities Corp., 744 F.2d 935, 939 (2d Cir. 1984) (citing Durham Industries, Inc. v. North River Ins. Co., 482 F. Supp. 910, 913 (S.D.N.Y. 1979) (quoting Lehmann Trading Corp. v. J. & H. Stolow, Inc., 184 F. Supp. 21, 22-23 (S.D.N.Y. 1960)), vacated on other grounds, 478 U.S. 1015 (1986). The Salcer court also cited with approval Wright and Miller's contention that "even when the defense presents a purely legal question, the courts are very reluctant to determine disputed or substantial issues of law on a motion to strike; these questions quite properly are viewed as determinable only after discovery and a hearing on the merits." 5 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure ยง 1381, at 800-01 (footnotes omitted).

 III. Motion for Partial Summary Judgment

 A. Summary Judgment Standard

 Plaintiff moves for partial summary judgment on his due process claim against defendant. Under Fed. R. Civ. Pro. 56(c), if there is "no genuine issue as to any material fact ... the moving party is entitled to a judgment as a matter of ... where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986), on remand, 807 F.2d 44 (3d Cir. 1986), cert. denied, 481 U.S. 1029 (1987). The burden to demonstrate that no genuine issue of material fact exists falls solely on the moving party, Heyman v. Commerce and Indus. Ins. Co., 524 F.2d 1317 (2d Cir. 1975), and the trial court must ...


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