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BRANCATO v. CITY OF NEW YORK

February 5, 2003

VINCENT BRANCATO, PLAINTIFF
v.
THE CITY OF NEW YORK; MICHAEL R. BLOOMBERG, MAYOR OF THE CITY OF NEW YORK; THE NEW YORK CITY DEPARTMENT OF HEALTH AND MENTAL HYGIENE; THOMAS R. FRIEDAN, COMMISSIONER OF THE DEPARTMENT OF HEALTH AND MENTAL HYGIENE; THE NEW YORK CITY DEPARTMENT OF FINANCE; MARTHA STARK, COMMISSIONER: OF THE DEPARTMENT OF FINANCE; AND WILLIAM C. THOMPSON JR. COMPTROLLER OF THE CITY OF NEW YORK, DEFENDANTS.



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

DECISION AND AMENDED ORDER

Plaintiff Vincent Brancato ("Brancato") brings this action pursuant to 42 U.S.C. § 1983 and 1988 claiming violations of his rights under the due process clause of the Fourteenth Amendment of the United States Constitution. Brancato seeks declaratory relief, an order removing the lien placed by defendants against the property involved here, a judgment in an amount in excess of $25,000, and attorney's fees, costs and expenses. Defendants are the City of New York ("the City"); the City's Department of Health and Mental Hygiene ("DOH"); the City's Department of Finance ("DOF"); Michael R. Bloomberg, the Mayor of the City; Thomas R. Friedan, the Commissioner of DOH; Martha E. Stark, the Commissioner of DOF; and William C. Thompson, Jr., Comptroller of the City ("Comptroller") (collectively, "Defendants"). Defendants have moved to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim. For the reasons set forth below, the Court grants the motion in its entirety.

I. BACKGROUND*fn1

In mid-November 1999, Brancato received a notice of a violation of the City's health code on his property, a vacant lot of about 5000 square feet, located at 205 York Avenue, Staten Island, New York (the "Property")in the form of an order from the Commissioner of Health (the "Order"). (Declaration of Paul Brancato, dated October 21, 2002 ("Brancato Decl.") Exh. 1.) The Order instructed Brancato to remove all indicated violations, "and any similar violations that arise after the issuance of this order." (Id.) The Order clearly warned Brancato that unless the Property was adequately exterminated and cleaned, the DOH would clean and exterminate the premises "causing the nuisance conducive to feeding and habitation of rats." (Id.) Furthermore, the Order indicated that the City would bill Brancato for the cost of "abating the health nuisances" and "[i]f the bill is not paid promptly, the charges will become a priority lien against the premises . . ." Id. The Order also indicated in bold letters that "no further notices or warning prior to reinspection by the department of health" would be provided. In response to the Order, Brancato alleged that he cleaned the Property and informed DOH that he had done so, within about a week of receiving the Order.

In mid-May 2001, Brancato received correspondence from the DOF indicating that he was being charged for cleanup expenses for a health code violation on the Property (the "Charge"). The Charge amounted to $22,949.00 for abating the nuisance on the approximately 50 by 100 foot lot.

Upon receiving the Charge, Brancato inquired of the DOH into the basis for the Charge. DOH explained that the Charge was pursuant to the Order Brancato had received in 1999. Brancato was referred to the Comptroller, to whom he submitted a Notice of Claim. In response to this Notice of Claim, the Comptroller issued a settlement offer.

Second, Brancato states a claim for damages based on the City's negligently excessive cleanup charges, in that the City failed to mitigate damages by employing "more cost efficient and customary equipment and methods to conduct the alleged cleanup." (Compl. ¶ 69.) In his Memorandum in Opposition to Defendants' Motion to Dismiss, Brancato does not address this cause of action. In any event, the Court understands it to be an ordinary tort claim, before this Court pursuant to its pendent jurisdiction. Upon dismissal of Brancato's § 1983 claim, the Court declines to consider the state law cause of action. See United Mine Workers v. Gibbs, 383 U.S. 715, 725-26 (1996).

III. DISCUSSION

A. STANDARD OF REVIEW

Dismissal of a complaint for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6) is proper only where "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief." Harris v. City of New York, 186 F.3d 243, 247 (2d Cir. 1999). On a Rule 12(b)(6) motion to dismiss, the court accepts all well-pleaded factual assertions in the complaint as true and draws all reasonable inferences in favor of the plaintiff. See Hishon, 467 U.S. at 73; see also McGinty v. State of New York, 193 F.3d 64, 68 (2d Cir. 1999).

B. DUE PROCESS

Brancato claims that the lien placed on the Property by the City after the Charge billed to him was not paid constituted a deprivation of property without due process in violation of the Constitution of the United States and 42 U.S.C. § 1983. Specifically, Brancato cites inadequacies in Defendants' stated policies and practices concerning notice and in the City's administrative hearing process.

To establish a violation of 42 U.S.C. § 1983, a plaintiff must prove that the conduct complained of was committed by a person or persons acting under color of state law and that the conduct deprived plaintiff of rights, privileges or immunities secured by the Constitution of the United States. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 150-151 (1970). There is no doubt that the allegations set forth by Brancato satisfy the state action element of a ยง 1983 claim; all the Defendants clearly acted ...


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