The opinion of the court was delivered by: McMAHON, District Judge.
MEMORANDUM DECISION AND ORDER GRANTING DEFENDANTS' MOTION FOR
Defendants filed a motion for summary judgment on the grounds
that Plaintiff had failed to state a claim against either Mr.
Margotta and the Village of Sleepy Hollow, and on the alternate
ground that Mr. Margotta is qualifiedly immune from suit as an
official of the village. For the grounds set out below, I grant
summary judgment in favor of defendant Margotta and dismiss the
case against the Village of Sleepy Hollow.
The following is a statement of facts viewed most favorably to
The Village of Sleepy Hollow, New York, a town known until 1996
as North Tarrytown, has a population of around 9,000 citizens of
diverse racial, ethnic, and socio-economic backgrounds. Hispanics
represent the largest single ethnic group in the Village; 49
percent of the school-aged population is Hispanic. See New York
Times, "A Sense of the Past in a Diverse Village," 18 July 1999.
Plaintiff Cirilo Rodriguez is a Hispanic building contractor in
the Village of Sleepy Hollow.
Defendant James Margotta is the Sleepy Hollow Building
Inspector, a part-time position he has held for approximately
fifteen years. In that capacity, Mr. Margotta is responsible for
enforcing the Village Zoning Code and Building Code, both of
which incorporate the New York State Uniform Fire Prevention
Code. In the course of his duties, Mr. Margotta has had occasion
to inspect buildings where the plaintiff is owner, tenant,
and/or, in several instances, the general contractor. It is the
inspection of several of these work sites and the enforcement of
the village and state building and fire codes that are at issue
in this case.
166 Cortlandt: Chester Chicken
In late 1995, Plaintiff and Miguel Jiminez (a former member of
the Village Zoning Board of Appeals and father-in-law of
Plaintiff) sought a permit to install a fried chicken take-out
restaurant at 166 Cortlandt Street known as "Chester Chicken."
The building was owned, at the time, by a Mr. Ianerelli. Mr.
Margotta denied the application on October 25, 1995, pursuant to
§ 62.20.1 of the Village Zoning Code, which requires that there
be at least 200 feet between food service establishments. (The
proposed restaurant was within 200 feet of "Mike's Deli.") After
the matter was referred to the Zoning Board of Appeals, a
variance was issued. The ZBA approved the installation of the
fried-chicken establishment on January 17, 1996, at the same time
declaring that there was no adverse impact on the environment,
thus avoiding the need for a State Environmental Quality Review
Act. (Margotta Aff.Ex. D).
The record indicates that Plaintiff and Mr. Jiminez did not
make an application for a building permit until May 24, 1996.
This request was based on drawings signed by architect Sean
McCarthy on March 15 and April 15, 1996. Plumbing permits are
required for all plumbing and gas work done in the village; no
plumbing permit was requested. Because the site was a food
service establishment, a review of the plans by the Westchester
County Department of Health was also required. On March 19, 1996,
The Department of Health found the McCarthy plans unacceptable
because, among other things, the plans did not include the
location of required pieces of equipment such as exhaust
discharge. The Department requested an addendum to the original
drawings of the restaurant.
At around this time, Mr. Margotta visited the site and
performed an inspection of the premises. By late March, much of
the plumbing work had been installed, as was
gas piping and a gas-fired heating unit. On March 25 and March
29, Mr. Margotta wrote to the Village Attorney, Janet Gandolfo,
informing her that he had discovered code violations during his
inspection of the premises, and noting that the plumbing and gas
work was completed in violation of Village Code § 45-5
(performing plumbing work without a license) and § 45-28
(installing plumbing without a plumbing permit). In his
correspondence he noted his concern that the plumbing and gas
installation created a fire hazzard and potential danger to
tenants in the apartment building above the proposed restaurant,
and recommended that legal action be taken against the occupants
of the store if the violations were not remedied. Mr. Margotta
also informed Mr. Ianerelli that as owner of the property he was
responsible to see that the plumbing and gas work was carried out
in compliance with the code. On May 10, 1996, Mr. Margotta met
with Water Scott, the Regional Associate Architect of the New
York Codes Bureau, to clarify the provisions of the Fire
Prevention and Building Code as applied to a take-out food
business such as Chester Chicken. In a follow-up letter to Mr.
Margotta, Mr. Scott noted that the Code required the installation
of either a code-conforming fire-resistant separation between the
kitchen and customer area or a code-conforming sprinkler system.
On May 24, 1996, plaintiff and Mr. Jiminez made their first
application for a building permit at 166 Cortlandt. A building
permit allows the holder to carry out planned changes to a
structure; occupancy or operation of the site is permitted only
upon issuance of a Certificate of Occupancy (CO). The building
permit for Chester Chicken was approved by Mr. Margotta on June
4, 1996. On June 5, 1996, Mr. Rodriguez applied to the New York
Department of State for a variance to the fire code requirement
of the installation of either a fire separator or a sprinkler.
The owner, Mr. Ianerelli, filed an objection to Mr. Rodriguez's
application for the variance, due to the fact that the building
was old and of wood frame construction. On July 12, 1996, Mr.
Margotta performed an inspection of the kitchen in the presence
of the project architect, Mr. McCarthy. Mr. McCarthy wrote to Mr.
Rodriguez recommending that Mr. Rodriguez correct the problems
with the kitchen in accordance with his revised plans and that he
notify the Building Department for a future inspection. In
August, the Department of State held a hearing on the variance
matter; the request for variance was denied on September 26,
In December 1996, Mr. Rodriguez applied for a CO. On December
18, 1996, Mr. Margotta informed Mr. Rodriguez that the CO would
be issued after several remaining problems were corrected. The CO
was issued on January 30, 1997. Mr. Rodriguez operated Chester
Chicken and earned a profit of approximately $2,000 a week until
he sold his interest in the restaurant to Luis Muniz in November
Electrical Violations: Prosecution by the Village
In June 1997, the Village brought charges against Mr. Rodriguez
in connection with his tenancy at 169 Cortlandt for 1)
maintaining an electrical wiring system with voltage in excess of
50 volts in violation of Village Code 18-2; 2) altering the
equipment used for the distribution of electricity without a
prior permit from the Building Inspector in violation of Village
Code 18-12; 3) engaging in the business of electrical contracting
within the village without registering with the Village Clerk in
violation of Village Code 18-19.; and 4) turning on or restoring
electrical current without prior inspection of the premises, in
violation of Village Code § 18-9. The charges were brought
following a complaint by the owner, Mr. Iannerelli, to Mr.
Margotta. Mr. Margotta inspected the wiring in question and found
it to be hot to the touch. A further inspection was made by the
village electrical inspector, Mr. Marabito, who confirmed Mr.
A full evidentiary hearing was held, at which plaintiff was
represented by counsel. The court found Mr. Rodriguez guilty of
charges 1, 2, and 4. Mr. Rodriguez was found not guilty of charge
3. He was fined $50 for each of the guilty charges. Shortly
before the decision was rendered by the Village Court, the
plaintiff filed a Notice of Claim against the defendants which
served as the prerequisite to the filing of this action. (This
action was filed on February 19, 1998.)
The apartment building at 85-87 Cortlandt was constructed in
the late 19th Century and has a long history of structural
problems. In 1990, when the building was in imminent danger of
collapse, Mr. Margotta declared the building unfit for human
habitation; the Village ordered the then owner to vacate the
tenants of the building and immediately shore up the building.
Problems with code compliance continued throughout the early
1990s. In May 1998, plaintiff and Mr. Jiminez purchased the
building under the name "Biombo, Inc.," with the intent to
renovate portions of it. They engaged the services of Ron
Turnquist, a local architect, to draw up plans for the
renovation. On May 29, 1998, Mr. Turnquist filed an application
for a building permit with Mr. Margotta. On June 2, 1998, Mr.
Margotta informed Mr. Turnquist that a building permit would not
be issued until 1) a complete set of plans for the building was
prepared, and 2) Mr. Turnquist completed exploratory work
concerning the structural defects in the building that had been
uncovered by earlier engineering reports (reports which Mr.
Margotta made available to Mr. Turnquist).
Upon visiting the site on June 28, 1998, Mr. Margotta
discovered that Mr. Rodriguez and three other men were installing
flooring at the building in violation of the building permit
requirement. At a later date, and after discussions with Mr.
Turnquist about the building permit, Mr. Margotta agreed that he
could approve the plans for a "piecemeal," rather than a
complete, renovation. As is standard in renovations to older
buildings, plaintiff and his father-in-law were required to seek
approval of the Architectural Review Board (ARB) for approval of
stucco work on the facade of the building. The ARB ...