The opinion of the court was delivered by: Berman, District Judge.
The Court has before it the two above-captioned cases stemming
from the demolition on January 24, 1998, by the City of New York
of a five story building located at 172 Stanton Street on the
lower east side of Manhattan ("172 Stanton").
In Friedlander, et al. v. Richard Roberts, et al. (98 Civ.
1684) ("Friedlander"), plaintiffs, the former tenants and
occupants of 172 Stanton, seek relief from the City of New York
and several of its officers (the "Municipal Defendants"), as well
as Ruth and Nat Weisberg, the alleged owners of 172 Stanton (the
"Owners"). Plaintiffs assert claims against the Municipal
Defendants under 42 U.S.C. § 1983 for alleged violations of due
process under the United States Constitution, as well as various
pendent state law claims against both the Municipal Defendants
and the Owners. Pursuant to Federal Rule of Civil Procedure
12(b)(6), the Municipal Defendants move to dismiss the Complaint
as to them for failure to state a claim upon which relief can be
granted. Oral argument on the Municipal Defendants' motion was
held on January 7, 1999.
In the second case, 172 White Mountain Ltd. v. City of New
York, et al., (98 Civ. 8007) ("172 White Mountain Ltd."), the
corporate owner of 172 Stanton asserts various claims arising out
of the demolition of 172 Stanton.
For the reasons stated below, the Municipal Defendants' motion
to dismiss in Friedlander is denied, and Friedlander is
hereby consolidated with 172 White Mountain Ltd.
The following facts, which are set forth in the Friedlander
Complaint, are taken to be true for the purposes of this motion.
On January 24, 1998, at approximately 9 a.m., a partial collapse
of the bricks of one section of the north facade occurred at 172
Stanton, a five story building with twelve apartments and one
retail store, located on the lower east side of Manhattan.
(Compl. ¶ 8). Bricks broke away only on the first floor in one
rear section of the facade and between two windows on the second
floor over the same section of facade of 172 Stanton. (Compl. ¶
9). By approximately 9:30 a.m., the police and fire departments
had arrived and ordered Plaintiffs to immediately vacate 172
Stanton, but provided assurance that following an inspection of
the building they would be able to return. (Compl. ¶ 10). Over
the next two hours, representatives of the Office of Emergency
Management, a division
of the Mayor's office, arrived on the scene, as did the Mayor,
who inspected 172 Stanton. (Compl. ¶¶ 11-12). By approximately
1:30 p.m., all streets leading to the site were closed, and at
about 7:00 p.m., the demolition contractor, retained by the New
York City Housing Preservation and Development Authority, began
to demolish 172 Stanton. (Compl. ¶¶ 13-14).
Plaintiffs' allege that 172 Stanton was not in imminent danger
of collapse and was not an immediate peril to the public health
and safety. (Compl. ¶¶ 19, 54). Witnesses to the demolition,
including an architect, reported that at no time during the 17
hour demolition process did 172 Stanton show signs that it would
have otherwise collapsed. (Compl. ¶ 18). Plaintiffs allege that,
at no time were they "given timely notice with an opportunity to
be heard in a court of law of any demolition proceeding . . ."
(Compl. ¶ 17). Plaintiffs further allege that the decision and
policy determination by the Municipal Defendants to demolish 172
Stanton was made in an "arbitrary and capricious manner in that
the City and its Employees failed to abide by Article 8, §§
26-235 through 26-243 of the New York City Administrative Code
and consequently as a direct abuse of due process." (Compl. ¶
52). Plaintiffs claim that the Municipal Defendants have engaged
in a "pattern and practice of demolishing certain buildings"
without following the requirements of the law and this conduct
"is a result of a misguided policy and not a random or
unauthorized act." (Compl. ¶ 26).
B. Motion to Dismiss Standard
In resolving a motion to dismiss, the Court must accept the
factual allegations set forth in the complaint as true, and draw
all reasonable inferences in favor of plaintiff. See Shalaby v.
Saudi Arabian Airlines, 1998 WL 782021 at *4 (S.D.N.Y. Nov. 9,
1998). A complaint may not be dismissed under Rule 12(b)(6)
unless it appears "beyond doubt that the plaintiff can prove no
set of facts in support of his claim which would entitle him to
relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2
L.Ed.2d 80 (1957). In other words, the burden upon the movant is
substantial as the issue before the Court on a Rule 12(b)(6)
motion "is not whether a plaintiff is likely to prevail
ultimately, `but whether the claimant is entitled to offer
evidence to support the claims. Indeed, it may appear on the face
of the pleading that a recovery is very remote and unlikely but
that is not the test.'" Gant v. Wallingford Board of Education,
69 F.3d 669, 673 (2d Cir. 1995) (quoting Weisman v. LeLandais,
532 F.2d 308, 311 (2d Cir. 1976) (per curiam)).
The Municipal Defendants' motion does not withstand the
aforementioned analysis. Plaintiffs procedural due process claim
is essentially that the Municipal Defendants failed to provide
them with a predeprivation hearing prior to the demolition to
which they say they were entitled because "172 Stanton was not in
imminent danger of collapse." (Compl. ¶ 56). See Catanzaro v.
Weiden, 140 F.3d 91, 94 (2d Cir. 1998) ("procedural due process
requires an opportunity for a meaningful hearing prior to the
deprivation of a significant property interest").*fn1 Plaintiffs
also assert a substantive due process claim arguing that the
determination to demolish 172 Stanton was made in "an arbitrary
and capricious manner" pursuant to a "misguided policy" and in
violation of the New York City Administrative Code. (Compl. ¶¶
25-26, 52). See Id. at 95 (quoting Kaluczky v. City of White
Plains, 57 F.3d 202, 211 (2d Cir. 1995)) ("[s]ubstantive due
process protects [individuals] against government action that is
arbitrary, conscience-shocking, or oppressive in a constitutional
sense, but not against government action that is `incorrect' or
At this very early stage of the litigation, prior to the taking
of any discovery, it is premature to hold that plaintiffs cannot
produce probative evidence on the basis of which a fact finder
could predicate a due process violation. This question must await
the development of a ...