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October 27, 1999


The opinion of the court was delivered by: McMAHON, District Judge.


Plaintiff Cirilo Rodriguez is a building contractor in the Village of Sleepy Hollow. Defendant James Margotta is the Building Inspector of the Village. Plaintiff filed a claim against defendants Margotta and the Village of Sleepy Hollow for violating plaintiff's Fourth, Fifth, and Fourteenth Amendment rights in violation of 42 U.S.C. § 1981, 1982 and 1983. Plaintiff alleges that Mr. Margotta's repeated inspections of his construction sites, his demands that plaintiff comply with the local and state building codes, and his support of a criminal action brought against plaintiff for violations of the electrical code, constitute selective enforcement and harassment motivated by personal and racial animus in violation of equal protection and substantive and procedural due process. He further alleges that Margotta's action were in retaliation against plaintiff for exercising his First Amendment right to political speech, and that statements by Margotta to third parties about the quality of Rodriguez's work as a contractor constituted defamation.

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 Plaintiff:

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, 1996.

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 1997.

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. Margotta's findings.

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.)

85-87 Cortlandt

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 ...

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