MEMORANDUM DECISION AND ORDER GRANTING DEFENDANTS' MOTION FOR
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,
Defendants Dobbs Ferry, Bonsteel, Slavin, and "Richard Doe"
move pursuant to Fed.R.Civ.P. 12(b)(6) to dismiss plaintiff's §
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 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.)
On July 22, 1999, a meeting was held between GDC, Bonsteel,
Slavin, and the Village's consulting engineers. The Minutes
indicate that they decided that "GDC
will perform a condition survey of the Overhoff property and
Rudy's terrace. A seismograph will be placed on the terrace and
the Overhoff property during the installation of the sheet piles.
Michelle Bonsteel will issue a foundation permit (footings only)
after the sheet piles have been installed, to allow for the
construction of the MSE [mechanically stabilized earth] wall."
(Id. at Ex. I.)
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." (Id.) Because GDC
did not have an agreement with the owner of the adjacent
property, RKA requested a legal opinion as to what the Village's
role should be in the matter.
On August 2, 1999, Bonsteel made a site visit to Livingston
Ridge. The daily field report from that day says that Bonsteel
had decided to contact all parties to inform them that sheeting
operations had started, and that "Ginsburg was proceeding at
their own risk." (Id. at Ex. M.)
By memo of August 4, 1999 to Bonsteel, another engineer,
Converse Consultants, expressed concerns about the stability of
the wall to be constructed. According to Converse, none of the
walls were designed for seismic conditions. The memo said, in
part: "We understand that driving the sheet pile walls is in
progress. We strongly recommend the sheet pile wall construction
be postponed until all relevant design issues are resolved." (Id.
at Ex. L.) On August 12, 1999, Converse again questioned the
impact of GDC's proposal to build the wall as designed, and
threatened to withdraw from the project if it were to commence in
present form. (Id. at Ex. N.)
GDC installed the sheet piling wall and soil anchors, which
were driven fifty feet under the plaintiff's property. When
plaintiff learned that facilities were being constructed on her
property, she demanded that the workmen stop. But the workmen
ignored her instructions and continued. Plaintiff then contacted
the Village Police Department, which sent officers to plaintiff's
residence. The police officers refused to intervene, but they
attempted to contact Bonsteel. Because she was unavailable, the
assistant building administrator, Mr. Dunn, told them that he
would confirm that the work was being performed consistent with
the approved plans.
Dunn allegedly did not inspect the plans, and Overhoff never
got an explanation from Bonsteel. Plaintiff contends that
Bonsteel and Slavin avoided her, and kept her from gaining
information about GDC's actions.
On August 11, 1999, the Village received its opinion from the
outside counsel. The outside counsel concluded that the developer
of an adjacent property does not have the right to encroach on a
neighbor's land for the purpose of protecting its own property.
The counsel explained that this is not a case of a right to
lateral support, since such a right is to protect land in its
natural state. (Silverman Aff. at Ex. B.) However, the legal
opinion said that the Village had no obligation to intercede,
In sum, the instant dispute is between private
parties. Its resolution does not belong to the
Village, given the absence
of local, statutory authority on this issue. Rather,
its resolution appears to lie within the jurisdiction
of a court, which will weigh the equities in a
proceeding brought pursuant to Section 881 of the
Real Property Actions and Proceedings Law.
(Id.). Section 881 of the RPAPL provides a remedy to an owner
seeking to make improvements to real property where permission to
enter the premises of an adjoining owner has been refused.
Plaintiff contends that, by declining to stop GDC's
encroachment onto her property, defendants failed to comply with
the dictates of its own code and applicable state law, and
violated her rights to Due Process and Equal Protection under the
U.S. Constitution. Defendants argue that plaintiff has no
constitutional entitlement to having a village official issue a
stop-work order. They further contend that plaintiff was not
treated differently from others who were similarly situated.
For the reasons stated below, the moving defendants' motion for
summary judgment is granted.
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides
for dismissal of a complaint that fails to state a claim upon
which relief can be granted. The standard of review on a motion
to dismiss is heavily weighted in favor of the plaintiff. The
Court is required to read a complaint generously, drawing all
reasonable inferences from the complaint's allegations.
California Motor Transport Co. v. Trucking Unlimited,
404 U.S. 508, 515, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972). "In ruling on a
motion to dismiss for failure to state a claim upon which relief
may be granted, the court is required to accept the material
facts alleged in the complaint as true." Frasier v. General
Electric Co., 930 F.2d 1004, 1007 (2d Cir. 1991). The Court must
deny the motion "unless it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim which
would entitle him to relief." Stewart v. Jackson & Nash,
976 F.2d 86, 87 (2d Cir. 1992) (quoting Conley v. Gibson,
355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)).
When matters outside of the pleadings are presented in response
to a motion to dismiss the complaint for failure to state a
claim, the court may either exclude the additional material and
decide the motion on the complaint alone, or convert the motion
to one for summary judgment and afford all parties the
opportunity to present supporting material. Friedl v. City of
New York, 210 F.3d 79 (2d Cir. 2000). In response to defendants'
motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), plaintiffs
submitted documents into the record. Accordingly, I will convert
the motion to dismiss into a motion for summary judgment.
Unfortunately for plaintiff, her evidence supports, rather than
undermines, defendants' motion.
1. Due Process Claims
Plaintiff argues that Building Inspector Bonsteel deprived her
of her constitutionally-guaranteed property rights by failing to
prevent GDC from encroaching on her property without an easement.
In order to maintain a 1983 action, two elements must be
present: (1) the conduct complained of must have been committed
by a person acting under color of state law, and (2) the conduct
complained of must have deprived a person of rights and
privileges secured by the Constitution or laws of the United
States. Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir. 1994);
Hazan v. City of New York, 1999 WL 493352 (S.D.N.Y. 1999).
Because the actions (and alleged inaction) complained
of occurred while the Building Inspector and Village
Administrator were acting in their capacity as representatives of
the Village of Dobbs Ferry, they were acting under color of law.
The question therefore is whether plaintiff was deprived of a
right guaranteed by the U.S. Constitution.
To demonstrate a violation of due process rights in a land use
case, the plaintiff must prove that she possesses a
federally-protected property right. See Vertical Broadcasting v.
Town of Southampton, 84 F. Supp.2d 379 (E.D.N.Y. 2000). It is
only when such a right is established that the court may turn to
a discussion of whether there has been a deprivation of that
right without due process. Id. While Section 1983 is often used
as a vehicle to challenge local land use decisions, federal
judicial review of decisions in such matters is extremely
deferential. As often stated, federal courts hearing civil rights
cases do not sit as zoning boards of appeal over local zoning
decisions. Natale v. Town of Ridgefield, 170 F.3d 258, 263 (2d
Cir. 1999) (quoting Village of Belle Terre v. Boraas,
416 U.S. 1, 13, 94 S.Ct. 1536, 39 L.Ed.2d 797 (1974) (Marshall, J.,
In its landmark decision in Board of Regents v. Roth,
408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), the Supreme Court
held that to have a "property" interest entitled to Fourteenth
Amendment procedural protection, "a person clearly must have more
than an abstract need or desire for it. He must have more than an
unilateral expectation of it. He must, instead, have a
legitimate claim of entitlement to it." Id. at 577, 92 S.Ct.
2701 (emphasis added). The court continued:
Property interests, of course, are not created by
the Constitution. Rather, they are created and their
dimensions are defined by existing rules or
understandings that stem from an independent source
such as state law — rules or understandings that
secure certain benefits and that support claims of
entitlement to those benefits.
Plaintiff contends that she has a property right in an
undisputed fee interest in her land. She is not, however, arguing
that the government actively encroached on her property. Rather,
she claims that the Village officials knew that GDC's plans
violated the 1996 resolution, and that they nevertheless declined
to prevent the construction of a wall on her land in violation of
local rules that required easements to be in place in such
To succeed on her claim, plaintiff must demonstrate that she
has a legitimate claim of entitlement to have the government get
involved — in this case, by issuing a stop-work order. Here,
plaintiff cannot contend that she was entitled to a stop-work
order, because the issuance of such an order is a purely
discretionary act. See Massa v. City of Kingston, 235 A.D.2d 947,
652 N.Y.S.2d 857 (3d Dep't 1997) ("The action of a building
inspector in determining whether or not an applicant is entitled
to issuance of a building permit or in the issuance of a
stop-work order is discretionary and quasi-judicial in nature.");
City of New York v. 17 Vista Assocs., 84 N.Y.2d 299,
618 N.Y.S.2d 249, 642 N.E.2d 606 (1994) ("The decision whether to
issue a permit is a discretionary determination and the actions
of the government in such instances are immune from lawsuits
based on such decisions"). Plaintiff had a right, under New York
law, to have the Village's decision made in a manner that was not
arbitrary and capricious. But if she thought the Village was
acting arbitrarily and capriciously in not issuing the stop work
order, she had the means to enforce that right by bringing a
proceeding under C.P.L.R. Article 78 in the New York State
Supreme Court. But that did not entitle her to force the Village
to take what is purely discretionary action.
This case differs from the fact patterns in most cases of this
ilk (and from all cases cited by the parties), because in those
cases the plaintiffs asserted a property interest in the
government's issuance of a license or certificate that would
enable them to make alterations or improvements on their own
land. See, e.g., Yale Auto Parts v. Johnson,