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DEBARI v. TOWN OF MIDDLETON

May 21, 1998

JUNE DeBARI, ARTHUR DeBARI, GERARD DeBARI and LAWRENCE DeBARI, Plaintiffs,
v.
TOWN OF MIDDLETON, NEW YORK; VILLAGE OF MARGARETVILLE, NEW YORK; JOHN MATHIESEN; WALTON HELEY, JR. and CARL WALLMAN, Defendants.



The opinion of the court was delivered by: MCAVOY

MEMORANDUM-DECISION & ORDER

 McAVOY, CHIEF DISTRICT JUDGE:

 This action, brought pursuant to 42 U.S.C. § 1983, arises from the demolition by defendants *fn1" of a building owned by plaintiffs. Plaintiffs claim a number of constitutional violations.

 Defendants now move for summary judgment pursuant to FED. R. CIV. P. 56 dismissing the Complaint in its entirety, and plaintiffs' cross-move to amend the Complaint. For the reasons that follow, defendants' motions for summary judgment are granted in part and denied in part, and plaintiffs' cross-motion to amend the Complaint is granted to the extent stated herein.

 I. BACKGROUND

 On January 19, 1996, a winter storm swept across the State of New York, causing severe flooding and property damage in the Town of Middletown and the Village of Margaretville, both of which are located in Delaware County, New York. *fn2" As a result, by proclamation dated January 19, 1996, Alan Rosa, Town Supervisor for the Town of Middletown, declared a State of Emergency, pursuant to New York Executive Law, Article 2-B, effective immediately for the Town of Middletown. By proclamation dated January 19, 1996, Raymond Christensen, Chairman of the Delaware County Board of Supervisors, also declared a State of Emergency, pursuant to New York Executive Law, Article 2-B, effective immediately for the entire Delaware County. *fn3"

 Following the issuance of her proclamation, Town Supervisor Rosa requested that engineers from the Department of State, State of New York, inspect certain buildings that had been damaged by the storm. On January 20 and 21, 1996, at the request of Rosa, Mark Blanke, P.E., Senior Engineer of the Department of State, inspected several buildings in the Village of Margaretville that had been damaged by flooding to determine their structural soundness. Accompanying Blanke during these inspections were the following local officials: Town Code Enforcement Officer and building Inspector Walton Heley, Jr., Town Fire Inspector Carl Wallman and Town Deputy Code Enforcement Officer John Mathiesen.

 One of the many buildings inspected was that of the plaintiffs (the "DeBari Building"), located on Bridge Street in the Village of Margaretville. Heley and Wallman accompanied Blanke on the inspection of the DeBari Building. Prior to the flood, the DeBari Building had consisted of two connecting structures. The northeast structure was two stories in height, and the southwest portion of the building was one story. The flood, however, caused the northeast structure to shift from its foundation and become detached from the southwest portion. After inspection, Blanke concluded that the northeast rectangular portion of the DeBari Building was structurally unstable and should not be occupied. Heley and Wallman concurred with Blanke.

 Thereafter, based upon the inspection and subsequent conclusions of the inspectors, Heley, in his capacity as Town Code Enforcement Officer and Building Inspector, condemned the northeast rectangular portion of the DeBari Building. Pursuant to New York Executive Law, Article 2-B, and the State of Emergency Proclamation dated January 24, 1996, Rosa ordered the demolition of the condemned portion of the DeBari Building.

 Before commencement of the demolition, the Town directed personnel from Hubbell, Inc. ("Hubbell"), a company contracted by the Town of Middleton to demolish the unsafe portion of the DeBari Building, to assist plaintiffs in the removal of their personal property from the building. Hubbell sent a front-end loader to the DeBari Building for this purpose. Plaintiffs removed all of their personal belongings from the DeBari Building. At no time following the condemnation and prior to the demolition did Gerard DeBari inform Town officials that he disagreed with the determination by the Town that the building should be condemned and demolished.

 On January 29 and 30, 1996, the condemned portion of the DeBari Building was demolished and the demolition debris removed from the property.

 On October 3, 1997, plaintiffs commenced the instant action. The Complaint--far from a paragon of clarity--asserts a claim under 42 U.S.C. § 1983 based upon the following:

 
The defendants in acting under color of state [sic] acted in an unconstitutional fashion by violating the property rights, civil rights, and due process rights of plaintiffs and, in fact, committed unconstitutional prior restraint of the plaintiffs [sic] rights.

 See Complaint, at P 24.

 II. DISCUSSION

 A. Plaintiffs' Cross-Motion to Amend the Complaint

 Fed. R. Civ. P. 15(a) provides that leave to amend "shall be freely given when justice so requires." Such leave should be denied, however, when it would be futile, cause undue delay or prejudice, or when it is sought in bad faith. Foman v. Davis, 371 U.S. 178, 182, 9 L. Ed. 2d 222, 83 S. Ct. 227 (1962). In this case, plaintiffs' proposed Amended Complaint merely identifies with specificity the Constitutional amendments upon which their § 1983 action is based; it does not add any new causes of action nor otherwise alter the original Complaint. Notably, defendants' motions for summary judgment construe the original Complaint as asserting claims pursuant to the Constitutional amendments specifically identified in the Amended Complaint. As such, leave to amend is granted to the extent that plaintiffs' claims survive defendants' motions for summary judgment.

 B. Standard For Summary Judgment

 The standard for summary judgment is well-settled. A party seeking summary judgment must demonstrate that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). The moving party bears the initial burden of "informing the . . . court of the basis for its motion, and identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 ...


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