Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

PUCCIO v. TOWN OF OYSTER BAY

November 1, 2002

DEBRA J. PUCCIO, PLAINTIFF,
V.
TOWN OF OYSTER BAY, LEONARD KUNZIG, GARY BLANCHARD, AND KENNETH BOYCE, DEFENDANTS.



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

MEMORANDUM OF DECISION AND ORDER
This case involves allegations by Debra Puccio ("Puccio" or the "plaintiff") that the Town of Oyster Bay (the "Town"), Leonard Kunzig ("Kunzig"), Gary Blanchard ("Blanchard"), and Kenneth Boyce ("Boyce") (collectively, the "defendants") violated her equal protection rights by issuing a certificate of occupancy without properly inspecting the house she purchased. Presently before the Court are the following motions: (1) a motion by Kunzig to dismiss the complaint for lack of personal jurisdiction; (2) a motion by the Town to dismiss the complaint for failure to state a claim upon which relief can be granted; (3) a motion by the Town to dismiss the complaint against Kunzig, Boyce and Blanchard on the basis of qualified immunity; and (4) motions by Kunzig and the Town for Rule 11 sanctions.

I. BACKGROUND

The following facts are taken from the complaint. In July 1998, the plaintiff's real estate agent took the plaintiff and her husband to see a recently refurbished home located at 32 Midway Drive (the "house") in Plainview, New York. At that time, the house had undergone major renovations which were nearly completed. After the plaintiff and her husband made an inspection of the house, they made a verbal bid to their real estate agent, who then relayed that bid to Kunzig, the seller's broker. The sellers of the house accepted their bid.
On the following day, the plaintiff and her husband returned to the house to sign a binder and to leave a "good faith" check. During that visit, the plaintiff alleges that for the first time, she and her husband noticed that the basement smelled damp and the floor and walls appeared wet. They told their real estate agent that they wanted the basement waterproofed prior to the sale. The agent informed the couple that the sellers had refused their request to waterproof the basement and that, consequently, the sellers had accepted a second offer on the house. The agent suggested that the plaintiff and her husband contact Kunzig directly to further convey their interest in the house.
Shortly thereafter, the plaintiff's husband telephoned Kunzig. During the conversation, Kunzig allegedly informed the plaintiff's husband that the Town's building inspector inspected the house on several occasions and assured him that the house was properly built and in conformance with building codes and regulations. At that time, neither the plaintiff nor her husband were aware that Kunzig was the Assistant Controller of the Town and that Kunzig had promised the builder of the house that he would make sure that the paperwork for the house "got pushed through" the Town's Planning and Development Department.
The plaintiff alleges that the Town's files revealed that the Town-approved blueprint for the house did not conform with the actual layout of the house. Further, the plaintiff alleges that an inspection of the house revealed that (1) support beams were not secured and improperly spaced; (2) the chimney was too short causing carbon monoxide to back into the house; and (3) a room in the basement was filled with building debris, including asbestos. The plaintiff claims that Blanchard was the Town building inspector assigned to inspect the house. Also, the plaintiff alleges that no documents were in the Town's files that demonstrated that a plumbing permit was ever issued for the house. According to the complaint, the Town employed Boyce as a plumbing inspector to inspect and perform the plumbing work on the house.
The plaintiff asserts that the individual defendants are members of the local republican party and that they are all life-long friends. The complaint indicates that Kunzig was instrumental in helping Boyce obtain his position as a plumbing inspector for the Town and in helping him obtain the plumbing contract on the house. Further, the plaintiff claims that Kunzig used his position as a Town official and was paid a sum of $2,000 to "expedite plans and permits" for the house.
II. DISCUSSION

A. Personal Jurisdiction over Kunzig

Kunzig contends that this Court never obtained jurisdiction over him because a summons was not mailed to him at his actual place of business or residence. An individual may be served pursuant to the law of the forum state. Fed.R.Civ.P. 4(e)(1). In New York, service upon a natural person is governed by Section 308 of the New York Civil Practice Law and Rules which provides, in pertinent part, that:
Personal service upon a natural person shall be made . . . by delivering the summons within the state to a person of suitable age and discretion at the actual place of business . . . of the person to be served and by mailing the summons to the person to be served at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business . . ., such delivery and mailing to be effected within twenty days of each other . . . .
N.Y.C.P.L.R. ยง 308(2) (McKinney 2000) (emphasis added). Both the delivery and the mailing are required. Id. In the present case, although a summons and complaint was delivered to a person of suitable age and discretion at Kunzig's place of employment, the affidavit of service does not indicate that a subsequent mailing occurred. In addition, Puccio does not allege that the summons ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.