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May 16, 2001


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


Plaintiff Margaret Overhoff brings suit against Ginsburg Development, L.L.C. ("GDC"), Northeast Drilling, Inc. ("Northeast"), and Northbrook Contracting Corp. ("Northbrook") for trespass, negligence, intentional infliction of emotional distress, and against the Village of Dobbs Ferry ("Dobbs Ferry"), Building Inspector Michelle Bonsteel, Village Administrator Margaret Slavin, and "Richard Doe" for violation of her constitutional rights under 42 U.S.C. § 1983, as a result of Village officials' failure to stop GDC from building a wall that encroached on her property. This action was commenced in the Supreme Court of the State of New York, Westchester County, on June 8, 2000. It was timely removed to this Court on August 17, 2000.

Defendants Dobbs Ferry, Bonsteel, Slavin, and "Richard Doe" move pursuant to Fed.R.Civ.P. 12(b)(6) to dismiss plaintiff's § 1983 claims.


Plaintiff Margaret Overhoff owns property at 33 Livingston Avenue in Dobbs Ferry, New York. For many years, the property next door was an undeveloped area that developers sought to use for a housing cluster. After conducting an environmental review that lasted from 1989 to 1995, the Village Board approved a plan to develop the adjacent lot on December 3, 1996. The plan required the developer to present and to seek approval of construction plans, and to detail every aspect of construction.

On August 21, 1998, the property was sold to the current owner, Ginsburg Development L.L.C. ("GDC"). During the period from the acquisition of the property through approximately June 1999, GDC presented and secured various approvals from the Village to amend the 1996 resolution. On June 17, 1999, GDC's consulting engineer sent a set of plans to GDC (and copied them to the Village) indicating that a retaining wall was to be constructed in a way that could encroach on plaintiff's property.

The construction on the site — now called Livingston Ridge — began in earnest in early 1999.

In April 1999, one of the Village consulting engineers noted that the GDC's site improvements did not conform to approved plans and encroached on the property of a neighbor to the south — Dr. Christine Sekaer. As a result of GDC's work, a slope failure had adversely impacted Sekaer's property and presented a safety risk. Building Inspector Bonsteel issued a stop work order and a imposed a requirement on GDC to secure an easement for any work on the adjacent property. On April 7, 1999, Bonsteel imposed several restrictions on GDC's work, including a requirement that GDC provide the Village with "copies of easements and/or agreements with neighboring property owners for work to be conducted on their premises." (Overhoff Aff. at Ex. D.)

On April 14, 1999, one of the Village consultants, TRC Raymond Keyes Associates ("RKA"), recommended that work resume, provided that (among other requirements) it was done under the supervision of engineers Carlin Simpson & Associates, and that there would be no encroachment into adjacent properties without proper easement agreements in place. RKA also recommended putting up temporary walls to secure a building on GDC's property that was subject to unstable slope conditions.

In June 1999, GDC sought to redirect a sewer line to avoid running it through a retaining wall. In order to do so, it was necessary to encroach on plaintiff's property. GDC therefore sought to negotiate an easement with the plaintiff for temporary access onto the plaintiff's property to install the sewer line, and for the right to make subsurface improvements within the easement area. Plaintiff refused GDC's offer of $20,000 for such an easement, and the offer later was withdrawn. As a result, GDC informed the Village on June 18, 1999 that:

In the event that Ms. Overhoff is unwilling to grant this permission, we will have no recourse except to place the sewer line on the Livingston Ridge property, as originally approved by the Village. We will install a temporary connection and complete the permanent connection as the retaining walls are completed. We will not trespass on Ms. Overhoff's property.

(Overhoff Aff. at Ex. E.)

By letter of July 7, 1999, Slavin wrote to Mark Ginsburg of GDC to express her concerns that site inspections were not being made at Livingston Ridge, pursuant to the site plan resolution. She wrote: "The Village's position on this matter is very simple. It was condition [sic] of site plan approval that a geotechnical engineer provide on site inspections. GDC is not presently living up to that condition." (Id. at Ex. G.)

On July 12, 1999, at Bonsteel's request, RKA visited the Livingston Ridge site, and observed that three two-tiered stone retaining walls had been constructed. They noted that "the transition slope encroaches into the adjacent property to the south of the . . . foundation" (Id. at Ex. H.), and that the work deviated from the site plans that were on file with the Village. (Id.) RKA further stated that "[a]lthough discussions with . . . GDC indicated that temporary work easement agreements with the adjacent property owner were secured, it is our understanding that the Village had no knowledge of this transaction." (Id.)

After reviewing GDC design drawings, by letter of July 28, 1999 to Village Administrator Margaret Slavin, RKA concluded that the GDC walls "could possibly encroach upon adjacent properties." (Id. at Ex. K.) The letter noted that it was incumbent on an adjacent property owner to permit the contractor to enter on the property for the purpose of inspection, installation of sheeting, bracing, or underpinning as required to protect the adjacent property. However, "Martin Ginsburg has indicated that he has no agreement with the owner of the adjacent property to allow encroachment, temporary or permanent, resulting from . . . construction of the Livingston Ridge Project." ...

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