The opinion of the court was delivered by: MCAVOY
This action, brought pursuant to 42 U.S.C. § 1983, focuses upon the circumstances surrounding the demolition by defendants of a building owned by plaintiff Christian Heidorf. Plaintiff claims a number of constitutional violations.
Defendants now move to dismiss the Complaint, or in the alternative, for summary judgment. Plaintiff moves, in limine, to declare certain evidence relevant and admissible.
Plaintiff purchased a 1.22 acre piece of property in the Town of Gansevoort in 1980 for $ 18,500. Pl. Aff. P 4; Ex. F at 12. On the property stood the Dutch Reformed Church ("the Church"), a house and a small garage. Id. The Church was built by Herman Gansevoort, the son of a Revolutionary War General in George Washington's army, in 1848. Pl. Ex. B. Religious services in the Church had ceased by 1958, but because of its unique architectural and historical value, see Pl. Ex. C, plaintiff planned to use the Church to house a museum dedicated to the preservation and study of American military history.
The Church remained vacant from 1980 to 1995 as plaintiff attempted to solicit the interest of non-profit and municipal entities in transferring the Church in the hope of obtaining federal or state restoration funds. Def. Rule 7.1(f) Stat. P 6; Pl. Rule 7.1(f) Stat. P 6; Pl. Aff. P 6. These efforts, including an offer to transfer the Church to defendant Town of Northumberland ("the Town"), were unsuccessful. Id. ; Def. Ex. F. Plaintiff did succeed, however, in having the Church placed on both the New York State and National Registers of Historic Places on December 2, 1994 and January 20, 1995, respectively. Pl. Aff. P 10.
Throughout the same period, the condition of the Church continued to deteriorate. Pl. Rule 7.1(f) Stat. P 5. Over the years, the bell tower began to lean, and a 2-3 foot hole developed in the roof. Pl. Ex. F at 16. As a result, the ceiling and parts of the front of the Church began deteriorating as well. Id.
On Saturday, August 12, 1995, plaintiff left home for fourteen-day military duty in the New York Army National Guard at Fort Drum in Watertown, New York. Pl. Aff. at 11. On August 13, 1995, the portion of the roof of the Church supporting the steeple and belltower collapsed into the interior of the Church. Def. Rule 7.1(f) Stat. P 8; Pl. Rule 7.1(f) Stat. P 8. Soon thereafter, plaintiff's fiancee, Christine Robinson, arrived at the scene, as did fire department personnel and other Town officials. One of the officials who arrived was defendant Donald Coons, the Town's part-time Building Inspector. Coons had been a self-employed contractor for twenty-five years when he became Building Inspector in 1993. Def. Ex. H at 4-5.
Upon arriving at the scene, Coons walked around the building at a distance of approximately 20 feet, checking the walls for cracks and trying to estimate how far out the walls had expanded. Def. Ex. H at 37. Coons claims that as a result of the steeple's collapse, the south wall of the Church at the midpoint had a outward bulge of approximately 18", and was badly cracked with a 4" opening at the edge of the window header. Pl. Aff. Ex. G. Furthermore, according to Coons, the front wall was more severely damaged, sustaining outward bulges of at least 18" and severe cracks. Id. In Coons' opinion, that wall was ready to collapse.
Because Coons feared for the Church's stability and the safety of the children that often played in the area, he pronounced the building condemned. Robinson Aff. P 7. Coons informed Robinson of his decision, who told him that plaintiff was not home. Robinson Aff. P 7. Coons assured Robinson that plaintiff would be given notice that the building had been condemned, and would be given time to repair, stabilize or demolish the structure. Robinson asked Coons for his phone number so that plaintiff could call him once plaintiff got in touch with Robinson. Id. P 8.
In the meantime, the property was cordoned off with yellow tape, and defendant Edgar King, the Town Supervisor, arrived, to whom Coons expressed his concerns about the instability of the Church. Def. Ex. I at 57. At some point, Coons made the decision to "secure" the building, which the Court presumes to mean demolish.
Accordingly, King told Coons: "this is your job, this is what you were hired to do, you're the man that has to make this judgment and the Town Board hires you and I am the Supervisor and I stand by you. Whatever decision you make, I am not going to second guess you. You're the man that makes those decisions, I don't." Id. at 58-59.
At approximately 1:15 p.m., Robinson told Coons, King, and the other Town personnel present that she would contact plaintiff. Robinson Aff. P 10. Her attempt was unsuccessful, however, and upon returning outside, she was told by Coons that because of the "imminent danger" the Church presented, a decision had been made to knock out the most obviously bulging sections of the walls. Id. P 11. Coons did not indicate that the entire structure would be demolished, nor did he give Robinson anything in writing regarding the Town's authority to take such action, or regarding plaintiff's responsibilities in connection therewith. Furthermore, defendants did not attempt to contact an engineer at any point. Robinson Aff. P 12; Pl. Ex. H at 8-9; Pl. Ex. I at 22-24.
Coons contacted defendant George Corlew, the Town Highway Superintendent, and asked him if he had anything available with which to demolish the Church. Def. Ex. H at 50; Ex. I at 8. Corlew brought the "Gradall", a ditch digging device with a bucket. Def. Ex. I at 14. The demolition began soon thereafter. Id. at 15. After the center of the Church had been knocked down, the remaining front side of the wall was demolished. Robinson Aff. P 12. The rest of the Church followed; by 3 p.m. on August 12, 1995, the entire Church was destroyed. See Def. Ex. G.
Plaintiff commenced this lawsuit on March 20, 1996, alleging that defendants, under color of law, deprived him of his rights under the Fourth, Fifth,
Ninth and Fourteenth Amendments to the United States Constitution. Plaintiff brings these federal claims under 42 U.S.C. § 1983, and brings state law claims for intentional infliction of emotional distress, negligence, and injunctive relief.
Defendants now move to dismiss the Complaint, or, in the alternative, for summary judgment.
A. Defendant's Motion to Dismiss/Summary Judgment.
Defendants move pursuant to Fed.R.Civ.P. 12(b)(6) to dismiss plaintiff's Complaint for failure to state a claim upon which relief may be granted, or, in the alternative, for summary judgment pursuant to Fed.R.Civ.P. 56. Rule 12(b) provides, however, that where matters outside the pleadings are submitted to and considered by the Court on a motion to dismiss under Rule 12(b)(6), "the motion shall be treated as one for summary judgment...and all parties shall be given reasonable opportunity to present all material pertinent to such a motion." The parties have submitted a number of materials on the present motion, which itself is pled in the alternative, putting plaintiff on notice that defendants were moving for summary judgment. "Thus, the Court finds that the most practical alternative under Rule 12(b) is to treat the motion as one for summary judgment." Nason v. American Canadian Tour, Ltd., 942 F. Supp. 220, 223 (D. Vermont 1996); see Janneh v. Runyon, 932 F. Supp. 412, 415 and n.2 (N.D.N.Y. 1996), aff'd, 108 F.3d 329 (2d Cir. 1997); Dawson v. DEA, 927 F. Supp. 748, 751 n.6 (S.D.N.Y. 1996), aff'd, 112 F.3d 503 (2d Cir. 1997).
(1) The Standard for Summary Judgment.
Under Fed. R. Civ. P. 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 law . . . where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Matsushita Electrical Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). The burden to demonstrate that no genuine issue of material fact exists falls solely on the moving party, Heyman v. Commerce and Industry Insurance Co., 524 F.2d 1317 (2d Cir. 1975), and the trial court must resolve all ambiguities and draw all inferences in favor of that party against whom summary judgment is sought. Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 465 (2d Cir.1989); Eastway Construction Corp. v. City of New York, 762 F.2d 243, 249 (2d Cir. 1985), cert. denied, 484 U.S. 918, 98 L. Ed. 2d 226, 108 S. Ct. 269 (1987).
Once the moving party has met its burden, the non-moving party must come forward with specific facts showing that there is a genuine issue for trial. Matsushita, 475 U.S. at 585-86. A dispute regarding a material fact is genuine "if evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). When reasonable minds could not differ as to the import of the evidence, then summary judgment is proper. Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.1991), cert. denied, 502 U.S. 849, 116 L. Ed. 2d 117, 112 S. Ct. 152 (1991). The motion will not be defeated by a non-movant who raises merely a "metaphysical doubt" concerning the facts or who only offers conjecture or surmise. Delaware & H.R. Co. v. Conrail, 902 F.2d 174, 178 (2d Cir.1990), cert. denied, 500 U.S. 928, 111 S. Ct. 2041, 114 L. Ed. 2d 125 (1991)(quoting Matsushita, 475 U.S. at 586).
It is with these considerations in mind that the Court addresses defendants' motion for summary judgment.
Defendants first argue that because the Church had become a danger and a nuisance, plaintiff had no protected property ...