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LUEDEKE v. VILLAGE OF NEW PALTZ

August 27, 1999

BILL LUEDEKE, PLAINTIFF,
v.
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.

I. BACKGROUND

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 § 44.22(f):

  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[,] [1998] will result in them being advertised as unpaid in preparation for the March tax sale." Def.Ex. K.

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. ยง 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 ...


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