in light of plaintiffs' contentions that their property and housing
should have been "grandfathered in," and therefore did not violate the
zoning provisions at all.)
In sum, drawing all reasonable inferences against the moving party and
in favor of the plaintiffs, I must conclude that sufficient triable
issues exist on each of the elements of these claims to require that
defendants' summary judgment motion requesting dismissal of these causes
of action be denied.
Defendants have made no arguments in regard to any of the other claims
raised by plaintiffs, and therefore there is no basis for this Court to
dismiss any of the other claims.*fn1
II. The Immunity Question.
Defendants argue that the individual defendants in this case, as
municipal officers, are entitled to immunity, because such immunity
applies "for actions taken or decisions made during the course of their
employment if those acts are of a discretionary and/or quasi-judicial
nature." (Def.Mem. at 24.)
However, defendants' arguments make no distinction between the federal
and state-law claims in this action, nor do they recognize the
distinction between New York's common law immunity principles and the
very different guidelines that. govern immunity under federal civil
rights claims. Consequently, the bulk of their argument, which is based
primarily on three New York cases applying New York's common law of
immunity to state officials who were defendants in state common law
negligence claims, simply is not applicable to the federal claims in the
case. As the Second Circuit explained in Jobson v. Henne, 355 F.2d 129
(2d Cir. 1966),
both the language and the purpose of the Civil Rights
Acts are inconsistent with the application of common
law notions of official immunity in all suits brought
under these provisions. . . . To hold that all state
officials in suits brought under § 1983 enjoy an
immunity similar to that they might enjoy in suits
brought under state law "would practically constitute
a judicial repeal of the Civil Rights Acts."
Furthermore, and perhaps more basically, the purpose
of § 1983 as well as the other Civil Rights
provisions is to provide a federal remedy for the
deprivation of federally guaranteed rights in order to
enforce more perfectly federal limitations — on
unconstitutional state action. To hold all state
officers immune from suit would very largely frustrate
the salutary purpose of this provision.
Id. at 133 (citations omitted). See also Tango to Tulevech, 61 N.Y.2d 34,
42, 471 N.Y.S.2d 73, 459 N.E.2d 182 (1983) (analyzing g state common law
claim of negligence against county probation officer under state law
immunity principles, but then noting that the public official defendant
was "arguably entitled to a qualified immunity under Federal law" in the
federal claim under 42 U.S.C. § 1983). The Jobson court did recognize
the continuing vitality, in suits brought under the Civil Rights
provisions, of common law immunity from suit afforded legislative and
judicial officers, but noted that the rationale of legislative immunity
"should not be extended to suits against state administrative
officials." Id. at 133 n. 10 (emphasis added).
While defendants do cite one federal case, Butz v. Economou,
438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978), in support of their
argument for absolute immunity, the Butz case actually held that federal
executive officials exercising discretion, just like state executive
officials sued under 42 U.S.C. § 1983, are entitled only to
qualified immunity in suits for damages arising from allegedly
unconstitutional action, "subject to those exceptional situations where
it is demonstrated that absolute immunity is essential for the conduct of
the public business." Id. at 507, 98 S.Ct. 2894; see also id. at 496-97,
98 S.Ct. 2894 (citing Scheuer v. Rhodes, 416 U.S. 232, 247-48, 94 S.Ct.
1683, 40 L.Ed.2d 90 (1974), Wood v. Strickland, 420 U.S. 308, 95 S.Ct.
992, 43 L.Ed.2d 214 (1975), and O'Connor v. Donaldson, 422 U.S. 563, 95
S.Ct. 2486, 45 L.Ed.2d 396 (1975), for the application of qualified
immunity to high officials of the state executive branch, school
administrators, and superintendent of a state hospital, respectively);
Harlow v. Fitzgerald, 457 U.S. 800, 817-18 & n. 30, 102 S.Ct. 2727,
73 L.Ed.2d 396 (1982) (defining the elements of qualified immunity in
holding "that government officials performing discretionary functions
generally are shielded from liability for civil damages insofar as their
conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known").*fn2 The Supreme
Court carefully limited the application of such absolute immunity to
individuals whose roles were functionally comparable to those of a
judge, like grand jurors and prosecutors, and were exercised within
systems that provided safeguards for the potential plaintiff (including
insulation of the judge from political influence) that were equivalent to
those present in the judicial process. It then determined that modern
federal hearing examiners or administrative law judges, and those agency
officials performing certain functions analogous to those of a
prosecutor, should be able to claim absolute immunity. Id. at 512-16, 98
S.Ct. 2894. The roles of building inspector and mayor are not
functionally comparable to those of judge or prosecutor — and they
certainly are not insulated from political influence — and thus the
rationale of Butz does not apply. See also Santangelo v. State,
101 A.D.2d 20, 28 n. 4, 474 N.Y.S.2d 995 (N.Y.A.D. 1984) (noting that the
federal test for absolute immunity, which analyzes "whether the
official's role is `functionally comparable' to that of a judge (Butz v.
Economou, 438 U.S. 478, 513, 98 S.Ct. 2894, 57 L.Ed.2d 895 [(1978]), [is]
a narrower test than that adopted in New York (see Tango v. Tulevech,
61 N.Y.2d 34, 471 N.Y.S.2d 73, 459 N.E.2d 182)").
Defendants have presented no argument whatsoever as to whether the
individual defendants might be entitled to the qualified immunity
potentially available under federal civil rights claims, or as to the
standards that should apply to a determination of such immunity; thus,
that claim is deemed abandoned.
Defendants have also failed to present a dispositive statement of New
York immunity law even as it would apply to the state claims alleged
here. The primary case on which defendants rely, Rottkamp v. Young,
21 A.D.2d 373, 249 N.Y.S.2d 330 (N.Y.A.D. 1964), aff'd, 15
358 N.Y.2d 831, 257 N.Y.S.2d 944, 205 N.E.2d 866 (1965), supports the
defendants' proposition that a public building inspector in New York,
sued under a state common law negligence claim, is immune from liability
for a discretionary act even if he or she was motivated by malice, but
the case specifically notes that "[a]n exception is made when the right
of an elective franchise is denied, and perhaps for the abrogation of
civil rights." Id. at 376 n. 1, 249 N.Y.S.2d 330. Moreover, the
subsequent affirmation by New York's Court of Appeals, in Tango v.
Tulevech, supra, of the applicability of this state common law immunity
rule to actions against public officials, sheds no light on the civil
rights question, since the court in Tango applied immunity to a common
law negligence claim, not to a claimed violation of a state civil rights
statute, and the court further determined that no federal right was at
issue in that case. Since all the state law claims in this action can
fairly be said to allege the "abrogation of civil rights," Rottkamp at
376 n. 1, 249 N.Y.S.2d 330, the case's cited by defendants simply do not
dispose of the question raised.
In addition, defendants make no mention of the New York cases that have
limited the application of the immunity defense even outside of the civil
rights context. See, e.g., Teddy's Drive In, Inc. v. Cohen, 47 N.Y.2d 79,
81-82, 416 N.Y.S.2d 782, 390 N.E.2d 290 (1979) ("The issue is whether
[the public official] . . . so abused his official powers that he divested
himself of any immunity which otherwise might have shielded him. . . .
[Public officials] are clothed with a limited immunity. while discharging
their public responsibility" (see Rottkamp [supra]). . . . But the immunity
is not absolute and will not shield a [public official] who, because of
his [or her] misfeasance, has stepped outside the scope of his [or her]
authority. The actions [in this case] amount to misfeasance, and . . .
defendant is personally liable to [plaintiff] in conversion); Hladik v.
Town of Malta, 55 N.Y.2d 786. 788, 447 N.Y.S.2d 249, 431 N.E.2d 974
(1981) ("although the individual defendant is referred to as building
inspector of the Town . . ., this appears to be a description of his
official title rather than a characterization of the capacity in which he
is sued. The fair intendment of the pleading is to state a cause of
action (for conspiracy to defraud plaintiffs) against [defendant] in his
individual capacity, beyond the shelter of sovereign immunity").
In the absence of a dispositive statement of the scope and
applicability of New York's common law immunity principles to civil rights
actions based on New York's statutory and constitutional law, it would
not be appropriate for me to conclude that the individual defendants are
immune from the state law claims in this action.
Accordingly, for the reasons stated above, the individual defendants'
motion to dismiss both the federal and the state law claims on the ground
of immunity is denied.
III. Defendants' Argument That This Is a SLAPP Suit.
The individual defendants claim that the action filed against them by
the plaintiffs is a "SLAPP" suit, or strategic lawsuit against public
participation, under the laws of New York, and that certain consequences
flow from this characterization. Plaintiffs respond that this lawsuit
does not meet the requirements of a SLAPP suit, and that even if it did,
the consequences would not be applicable in a federal action.
The New York Court of Appeals described SLAPP suits in 600 West 115th
Street Corp. v. Von Gutfeld, 80 N.Y.2d 130, 589 N.Y.S.2d 825,
603 N.E.2d 930 (1992), cert den., 508 U.S. 910, 113 S.Ct. 2341, 124
L.Ed.2d 252 (1993), shortly after New York's SLAPP legislation was
enacted. The court explained,
In recent years, there has been a rising concern about
the use of civil litigation, primarily defamation
suits, to intimidate or silence those who speak out at
meetings against proposed land use development and
other activities requiring approval of public boards.
Termed SLAPP suits — strategic lawsuits against
public participation — such actions are
characterized as having little legal merit but are
filed nonetheless to burden opponents with legal
defense costs and the threat of liability and to
discourage those who might wish to speak out in the
future. In response, New York State enacted a law
specifically aimed at broadening the protections of
citizens facing litigation arising from their public
petition and participation (see, L. 1992, ch. 767).
600 West 115th Street, 80 N.Y.2d at 138 n. 1, 589 N.Y.S.2d 825,
603 N.E.2d 930 (emphasis added).