United States District Court, Northern District of New York
August 27, 1999
BILL LUEDEKE, PLAINTIFF,
VILLAGE OF NEW PALTZ AND ALISON MURRAY, DEFENDANTS.
The opinion of the court was delivered by: McAVOY, Chief Judge.
MEMORANDUM — DECISION & ORDER
Plaintiff Bill Luedeke commenced the instant litigation against
Defendants Village of New Paltz and Alison Murray (collectively
"defendants") pursuant to 42 U.S.C. § 1983 arising out of
defendants' issuance of snow removal fines to plaintiff, the
placement of a lien on his property, and their subsequent
intention to sell his home at a tax sale in satisfaction of such
fines. Presently before the Court are defendants' motion for
summary judgment pursuant to FED.R.CIV.P. 56 seeking dismissal of
the Complaint in its entirety, and plaintiff's cross-motion for
summary judgment pursuant to FED.R.CIV.P. 56 seeking judgment on
his Complaint as a matter of law.
The facts surrounding the instant litigation are undisputed.
Plaintiff owns a home and property at 66 South Chestnut Street in
the Village of New Paltz (the "Village"), State of New York (the
"State"). Plaintiff's property is on the east side of South
Chestnut Street. South Chestnut Street is the local name for
State Route 208. The State of New York owns the property
consisting of Route 208, the sidewalk on the east side of Route
208, plus an additional eight feet east of the sidewalk.
The Village has a snow removal ordinance (the "ordinance") that
requires "[t]he owner or occupant of any real property . . .
abutting any sidewalk . . . [to] keep such sidewalk free and
clear of snow and ice at all times." VILLAGE OF NEW PALTZ
MUN.CODE § 44.22(a). Specifically, property owners are required
to remove snow and ice from the sidewalk within twenty-four hours
"after cessation of every fall of snow or formation of ice on the
sidewalk abutting the premises." Id., at 44.22(b). Pursuant to
If snow or ice shall remain on a sidewalk for more
than twenty-four (24) hours after the cessation of
snowfall or the formation of ice, the Village may
provide for the removal thereof at the expense of the
owner . . . of the abutting premises. . . . The
Village Treasurer shall send a statement to the owner
. . . of the premises abutting the sidewalk from
which the snow or ice shall [not] have been removed.
If the charge is not paid, it shall be a lien upon
the premises abutting the sidewalk and shall be
collected by the Village Treasurer as an assessment
upon said premises on the real property tax
statements. . . .
Although plaintiff usually cleared the sidewalk in front of his
property, there came a point in time when he discontinued doing
so. As a result, the Village had the snow removed and, pursuant
to the Village Code, billed plaintiff for the costs of such
removal. Plaintiff was billed a total of five times for snow
removal during the period of 1995 through 1998.
In the winter of 1995-1996, plaintiff was assessed $55.49 for
snow removal. Plaintiff paid this charge "under protest." On
December 9, 1996, the Village removed snow from the sidewalk in
front of plaintiff's property and billed him $70.03. The bill
contained a notice that "if this charge is not paid by April 15,
1997, it will become a lien upon the premises . . . and collected
on the Real Property Tax Statement next coming due." Def.Ex. H.
Plaintiff failed to pay the $70.03, and the charge, therefore,
appeared on his 1997 Statement of Village Taxes. See Def.Ex. I.
On June 30, 1997, plaintiff appeared at the Village Hall
offering to pay all taxes due on his property except the snow
removal assessment. The Village Treasurer
advised plaintiff that she was not authorized to accept a partial
payment of a tax bill and, therefore, did not accept plaintiff's
proffer. See id.
On that same day, plaintiff showed Defendant Alison Murray
("Murray"), Code Enforcement Officer for the Village, a copy of
his survey that demonstrated that his property boundary ended
several feet east of the sidewalk. According to plaintiff, this
conclusively demonstrated that he was not subject to the snow
removal ordinance because his property did not abut the sidewalk;
rather, the State's property abutted the sidewalk. Murray
conferred with the Village Attorney and Village Mayor, who
advised that plaintiff had an obligation to clear the sidewalk
pursuant to the ordinance.
On January 26, 1998, the Village sent plaintiff a letter
advising him that "the 1997 Village taxes on . . . [his] property
are still outstanding . . . [and that] [f]ailure to pay these
taxes by February 13th[,]  will result in them being
advertised as unpaid in preparation for the March tax sale."
Plaintiff continued to refuse to pay the snow removal charge
until he was advised by his mortgage lender that "[i]f payment is
not remitted within twenty-nine (29) days of the date of this
letter, [we] will have no alternative but to remit payment for
these taxes in accordance with your mortgage agreement . . . [and
establish] a tax escrow account." Def.Ex. L. Plaintiff paid the
outstanding assessments "under protest," and his property was not
sold at a tax sale.
Plaintiff commenced the instant litigation pursuant to
42 U.S.C. § 1983 claiming that the snow removal ordinance deprived
him of his due process rights as guaranteed by the Fourteenth
Amendment to the United States Constitution. Currently before the
Court are defendants' motion for summary judgment pursuant to
FED. R.CIV.P. 56 seeking dismissal of the Complaint in its
entirety, and plaintiff's cross-motion pursuant to FED.R.CIV.P.
56 seeking judgment on the Complaint as a matter of law.
A. Summary Judgment Standard
The standard for summary judgment is well-settled. 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 Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); see also
Chertkova v. Connecticut Gen. Life Ins. Co., 92 F.3d 81, 86 (2d
Cir. 1996). 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, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986)
(quoting FED.R.CIV.P. 56(c)). The initial burden is to
demonstrate "that there is an absence of evidence to support the
nonmoving party's case." Id. at 2554.
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. See Celotex Corp., 106 S.Ct. at 2548.
A dispute regarding a material fact is genuine if a reasonable
jury could return a verdict for the non-moving party; that is,
whether the non-movant's case, if proved at trial, would be
sufficient to survive a motion for judgment as a matter of law.
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct.
2505, 2511, 91 L.Ed.2d 202 (1986). When reasonable minds,
however, could not differ as to the import of the evidence, then
summary judgment is proper. See Bryant v. Maffucci,
923 F.2d 979,
982 (2d Cir.), cert. denied, 502 U.S. 849, 112 S.Ct. 152, 116
L.Ed.2d 117 (1991). Although 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
Constr. Corp. v. City of New York, 762 F.2d 243, 249 (2d Cir.
1985), cert. denied, 484 U.S. 918, 108 S.Ct. 269, 98 L.Ed.2d
226 (1987), 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.
Consolidated Rail, 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, 106 S.Ct. at 1356); see also Western
World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir.
1990). Indeed, the nonmoving party's opposition may not rest on
mere allegations or denials of the moving party's pleading, but
"must set forth specific facts showing that there is a genuine
issue for trial." FED.R.CIV.P. 56(e).
Because the underlying facts are not in dispute, the present
matter is particularly suited for summary judgment. With this
standard in mind, the Court will now address the parties' motions
for summary judgment.
B. Whether the Snow Removal Ordinance Violated Plaintiff's Due
Defendants move to dismiss plaintiff's Complaint on the ground
that there was no due process violation because plaintiff had
adequate pre-deprivation and post-deprivation state-law remedies.
Specifically, defendants contend that plaintiff could have
commenced a proceeding pursuant to N.Y.C.P.L.R. Art. 78, a
declaratory judgment compelling a judicial determination whether
his interpretation of the ordinance is correct, an action under
N Y REAL PROPERTY TAX LAW ART. 7 challenging the assessment, or
sued the Village for a refund.
Plaintiff cross-moves for summary judgment contending that an
adequate pre-deprivation remedy is required when the complained
of deprivation results from the operation of established
procedures and that the snow removal ordinance provides for no
hearing to determine whether the property at issue abuts the
sidewalk within the meaning of the ordinance. Plaintiff contends
that the ordinance allows the Village to assess a lien without
any prior hearing as to the validity of the charge and that the
charge may then form the basis of a foreclosure sale without any
opportunity for the taxpayer to contest the validity of the
charges before they become final.
The first steps in any case involving due process are to
ascertain (1) whether the plaintiff has a property interest, and
(2) whether there has been a deprivation thereof. See Gudema v.
Nassau County, 163 F.3d 717, 724 (2d Cir. 1998). There is little
doubt, and the parties do not dispute, that plaintiff has a
property interest in his house and surrounding property. See
United States v. The Premises and Real Property at 4492 Livonia
Rd., Livonia, New York, 889 F.2d 1258, 1264 (2d Cir. 1989)
("[A]n individual's expectation of privacy and freedom from
governmental intrusion in the home merits special constitutional
protection."). Placing a lien upon one's property "is not a
negligible deprivation." West v. Zurhorst, 425 F.2d 919, 920
(2d Cir. 1970); see also Connecticut v. Doehr, 501 U.S. 1, 111
S.Ct. 2105, 2113, 115 L.Ed.2d 1 (1991) ("[E]ven the temporary or
partial impairments to property rights that attachments, liens,
and similar encumbrances entail are sufficient to merit due
process protection."). Having found that plaintiff was deprived
of a property interest, the next question is whether he was
afforded due process of law.
The general rule is that the due process of law demands prior
notice and hearing. See United States v. James Daniel Good Real
Property, 510 U.S. 43, 114
S.Ct. 492, 500, 126 L.Ed.2d 490 (1993) ("Good"). "We tolerate
some exceptions to the general rule requiring predeprivation
notice and hearing, but only in extraordinary situations where
some valid governmental interest is at stake that justifies
postponing the hearing until after the event." Id. at 501
(internal quotations omitted). In determining what process is
due, courts often balance the importance of the private interest
and the length or finality of the deprivation, the likelihood of
governmental error and the probable value of additional
safeguards, and the magnitude of the governmental interests
involved. See id.; see also Logan v. Zimmerman Brush Co.,
455 U.S. 422, 102 S.Ct. 1148, 1157, 71 L.Ed.2d 265 (1982) (citing
Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 902-903, 47
L.Ed.2d 18 (1976); Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct.
2963, 2977-78, 41 L.Ed.2d 935 (1974)). Balancing these factors,
the Court finds that plaintiff was entitled to a pre-deprivation
First, plaintiff's interest in retaining ownership of his
residence and surrounding property free and clear of all
encumbrances, save the mortgage into which he freely and
knowingly entered, is substantial. Few things could be more
invasive of one's rights than interfering with the ownership of
his or her home. See Good, 510 U.S. 43, 114 S.Ct. 492, 501, 126
L.Ed.2d 490 ("[Plaintiff's] right to maintain control over his
home, and to be free from governmental interference, is a private
interest of historic and continuing importance."); see, e.g.,
United States v. Hudson, 100 F.3d 1409, 1425 (9th Cir. 1996),
cert. denied, ___ U.S. ___, 118 S.Ct. 353, 139 L.Ed.2d 274
(1997). A lien on plaintiff's property could substantially
interfere with his ownership rights such as his ability to freely
transfer title. See Good, 114 S.Ct. at 501; Doehr, 111 S.Ct.
Second, there is a substantial risk of governmental error in
light of the ambiguity of the meaning of the word "abut" in the
Village ordinance, the apparent fact that the Village does not
review deeds and property lines prior to fining residents for
noncompliance, and the fact that the determination to impose the
lien was based upon a one-sided view of the facts and law. See
Doehr, 111 S.Ct. at 2112-13. "The purpose of an adversary
hearing is to ensure the requisite neutrality that must inform
all governmental decisionmaking. That protection is of particular
importance here, where the Government has a direct pecuniary
interest in the outcome of the proceeding." Good, 114 S.Ct. at
502; see also Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct.
2680, 2693, n. 9, 115 L.Ed.2d 836 (1991) (Scalia, J.) ("[I]t
makes sense to scrutinize governmental action more closely when
the State stands to benefit"). The value of additional safeguards
here is unquestionable. Determining whether a particular property
owner actually violated the snow removal ordinance could avoid
the situation presented here where that property owner could be
wrongfully deprived of his property interest.
Finally, the Village's interest here is relatively
insignificant. Although the Village argues that its interests are
substantial because it needs to take swift action to remove the
"imminent dangers to pedestrians which cannot await the
conclusion of court proceedings," Def. Reply Mem. of Law at 4,
the Court disagrees. The benefits of sidewalks that are free and
clear of snow and ice are unquestionable. However, the Village
could easily remove the snow itself, as it does under the
ordinance, and then institute a procedure to determine who is
liable for the costs of such removal. This would accommodate all
the interests involved without imposing any unreasonable burden
on the Village. Indeed, the Village utilized a similar procedure
in the past. Under the prior snow ordinance, property owners who
allegedly were in violation of the snow ordinance were issued an
appearance ticket and the property owner was entitled to have a
hearing before the Town Court.*fn1 See Def. Ex. C. This, of
course, complied with due process' requirements of notice and a
meaningful opportunity to be heard. Furthermore, post-deprivation
safeguards do not adequately reduce the risk of an interference
with plaintiff's property rights. "`The Fourteenth Amendment
draws no bright lines around three-day, 10-day or 50-day
deprivations of property. Any significant taking of property by
the State is within the purview of the Due Process Clause.'"
Doehr, 111 S.Ct. at 2115 (quoting Fuentes v. Shevin,
407 U.S. 67, 92 S.Ct. 1983, 1997, 32 L.Ed.2d 556 (1972)). Thus, any
increased burden upon the Village pales in comparison to the
substantial property interest involved here. Accordingly,
plaintiff was entitled to a pre-deprivation hearing.
This conclusions is buttressed by the fact that the Village's
actions here were not random and unauthorized, but were taken
pursuant to a Village policy. While "`an adequate
post-deprivation remedy is a defense to a Section 1983 due
process claim where the deprivation is random and unauthorized, .
. . [it is not a defense] where the deprivation complained of
results from the operation of established state procedures.'"
Alexandre v. Cortes, 140 F.3d 406, 411 (2d Cir. 1998) (quoting
Butler v. Castro, 896 F.2d 698, 700 (2d Cir. 1990)); see also
Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 3203, 82 L.Ed.2d
393 (1984); Gudema, 163 F.3d at 724; Hellenic Am. Neighborhood
Action Comm. v. City of New York, 101 F.3d 877, 880 (2d Cir.
1996), cert. dismissed, 521 U.S. 1140, 118 S.Ct. 15, 138
L.Ed.2d 1048 (1997). Here, the assessments were authorized
pursuant to an established procedure — the snow removal
ordinance. Compare Gudema, 163 F.3d at 724 (suspension of
driver's license by Chief of the Internal Affairs Unit of the
Nassau County Police Department was random and unauthorized where
the Chief did not have authority to suspend licenses and there
was no County policy or practice to suspend licenses). The
Village was clearly "in a position to provide for predeprivation
process." Hellenic Am., 101 F.3d at 880 (quoting Hudson, 468
U.S. at 534, 104 S.Ct. 3194). The remaining question is whether
the Village provided plaintiff with an adequate predeprivation
The Village did provide plaintiff with notice. Plaintiff was
provided with "Notice[s] of Assessment For Snow or Ice Removal
Village of New Paltz." The notices apprised plaintiff that he was
in violation of section 44.22, the amount of the assessments, and
that failure to pay the fines by a date certain "will become a
lien upon the premises . . . and collected on the [next] Real
Property Tax Statement." Plaintiff also received a 1997 Statement
of Village Taxes that detailed levies of $895.94 for "Village
Tax" and $70.03 for "Snow Removal." Plaintiff further received a
notice on January 26, 1998 that his tax bill was in arrears and
that "[f]ailure to pay these taxes by February 13th [would]
result in them being advertised as unpaid in preparation for the
March tax sale."
While the Village provided plaintiff with notice, they did not
afford him the opportunity for a hearing. See, e.g., Saukstelis
v. City of Chicago, 932 F.2d 1171, 1173 (7th Cir. 1991).
Plaintiff was entitled to "notice reasonably calculated, under
all the circumstances, to apprise . . . [him] of the pendency of
the action and afford [him] an opportunity to present [his]
objections." Mullane v. Central Hanover Bank & Trust Co.,
339 U.S. 306, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950). "The notice
must be of such nature as reasonably to convey the required
information . . . and it must afford a reasonable time for those
interested to make their appearance." Id. (citing Grannis v.
Ordean, 234 U.S. 385, 34
S.Ct. 779, 58 L.Ed. 1363 (1914); see also Roller v. Holly,
176 U.S. 398, 20 S.Ct. 410, 44 L.Ed. 520 (1900)).
On the one hand, the Village afforded plaintiff ample time to
present his objections. He was provided with the Notice of
Assessment for Snow Removal shortly after December 9, 1996. The
notice indicated that the charge would not become a lien on his
property and collected on the Real Property Tax Statement next
due unless it remained unpaid after April 15, 1997, four months
later. Then, once the charge appeared on the Real Property Tax
Statement, plaintiff had until July 1, 1997 to pay the taxes and
assessment without any interest penalty. When the amount due
remained outstanding, the Village again advised plaintiff that he
had until February 13, 1998, over one year, to pay after which
time the property would be prepared for a tax sale in March 1998.
On the other hand, the Village did not afford plaintiff a forum
in which to voice his objections. At no time did the Village give
plaintiff the opportunity to present his legal or factual
arguments to ensure that it made an informed decision. See
Interboro Inst. Inc. v. Foley, 985 F.2d 90, 93 (2d Cir. 1993)
("The purpose of a pre-deprivation hearing is to ensure that
decision-makers have before them the claimant's legal arguments
and do not act on a one-sided or otherwise incomplete factual
presentation."). Although plaintiff attempted to raise his
objections to Murray who, in turn, conferred with the Village
Attorney and Mayor, the Village simply responded that he was
required to comply with the ordinance without providing him any
meaningful opportunity to be heard. The Village never informed
plaintiff that he could contest the validity of the ordinance as
applied to him through a Village-created mechanism.
Plaintiff should not be required to initiate a potentially
expensive, time-consuming state court action to challenge an
assessment imposed upon him by the Village because of his
purported failure to remove snow from the sidewalk. See, e.g.,
Memphis Light, Gas & Water Division v. Craft, 436 U.S. 1, 98
S.Ct. 1554, 1566-67, 56 L.Ed.2d 30 (1978). Rather, the onus
should be on the Village, which initiated the adversarial
proceedings by issuing a Notice of Assessment, to afford
plaintiff an opportunity to be heard.
The Court rejects the Village's argument that due process was
satisfied because plaintiff had ample time to initiate an Article
78, declaratory judgment, or other proceeding prior to the
Assessment becoming a lien on the property. The mere availability
of litigation in the state court system does not comport with due
process's guarantee of a meaningful opportunity to be heard. If
the availability of such proceedings is deemed sufficient under
the Fourteenth Amendment's due process clause, then there would
never be a due process violation because, absent some exceptional
situations, such proceedings would always be available. Under
defendant's rational, the plaintiffs in Goldberg v. Kelly,
397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), for example, were
not denied due process because they could have commenced an
Article 78 or other proceeding challenging the decision to
terminate their welfare benefits. Yet, we know the Supreme Court
found a due process violation. Id., at 1021-22. If the
defendants' argument prevailed, then municipalities would have
virtually unbridled discretion to impinge upon individuals'
property interests, leaving the unwary to retain counsel, search
for state statutes authorizing lawsuits, or otherwise
affirmatively seek out other avenues of redress to ensure their
constitutional rights. The fatal flaw in the Village ordinance is
that it provides no procedure for the resolution of disputes
regarding its applicability prior to the imposition of liens on
property. See Alexandre, 140 F.3d at 412; see also Logan, 102
S.Ct. at 1156 ("[T]he Due Process Clause grants the aggrieved
party the opportunity to present his case and have its merits
fairly judged. Thus it has become
a truism that `some form of hearing' is required before the owner
is finally deprived of a protected property interest.").
For these reasons, the Court finds as a matter of law that the
Village ordinance is unconstitutional and violated plaintiff's
rights under the Fourteenth Amendment. The Village can be held
liable under Monell v. Department of Soc. Svcs., 436 U.S. 658,
98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), for this Constitutional
violation because it was the result of a municipal policy — the
snow removal ordinance. See Goldberg v. Town of Rocky Hill,
973 F.2d 70, 72 (2d Cir. 1992) (stating that a legislative act of a
town qualifies as a municipal policy).
C. Whether Alison Murray is Entitled to Qualified Immunity
The Court must next address the liability of Murray. Murray
issued citations to plaintiff for violating the snow removal
ordinance. When plaintiff went to the Village Hall to pay his
taxes, he showed Murray his deed, which indicated that the state
owned the property on each side of the sidewalk. Murray conferred
with the Village Attorney and Mayor, who indicated that the
ordinance nonetheless applied to plaintiff. That is the extent of
"A government agent enjoys qualified immunity when he or she
performs discretionary functions if either (1) the conduct did
not violate clearly established rights of which a reasonable
person would have known, or (2) it was objectively reasonable to
believe that the conduct did not violate clearly established
rights. A right is clearly established if the contours of the
right are sufficiently clear that a reasonable official would
understand that what he or she is doing violates that right."
McCullough v. Wyandanch Union Free Sch. Dist., 187 F.3d 272 (2d
The Court finds that Murray is not personally liable under §
1983 because she did not violate plaintiff's Constitutional
rights. "`[P]ersonal involvement of [a] defendant in alleged
constitutional deprivations is a prerequisite to an award of
damages under § 1983.'" Id., at 278 (quoting Wright v. Smith,
21 F.3d 496, 501 (2d Cir. 1994)); see also Spencer v. Doe,
139 F.3d 107, 111 (2d Cir. 1998). Under the circumstances of this
case, it cannot be said that Murray was personally involved in
the Constitutional deprivation.
The Constitutional deprivation here was not the issuance of the
citations, but the failure to afford plaintiff an opportunity to
be heard prior to imposing a lien on his property. See
discussion supra at II(B). While Murray issued the citations,
she had no involvement in the decision to place a lien on
plaintiff's property. There is no evidence that she created the
policy under which unconstitutional practices occurred, that she
had any authority to correct such a policy, or that she carried
out that portion of the policy that led to the deprivation of
plaintiff's constitutional rights. She merely carried out her
function of issuing citations to persons she believed were in
violation of the snow removal ordinance.
Because no reasonable, fair-minded trier of fact could find
that Murray was personally involved in the deprivation of
plaintiff's Constitutional rights, she cannot be held liable
therefore. Accordingly, the Complaint against her must be
For the foregoing reasons, defendants' motion for summary
judgment is GRANTED IN PART insofar as the Complaint against
Murray, including the Second Cause of Action for punitive
damages, is DISMISSED. In all other respects, defendants' motion
for summary judgment is DENIED. Plaintiff's motion for summary
judgment is GRANTED IN PART insofar as plaintiff is entitled to
judgment as a
matter of law against the Village.*fn2
IT IS SO ORDERED