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April 3, 2003


The opinion of the court was delivered by: David N. Hurd, United States District Judge



Plaintiff Khaled Kassim ("plaintiff"), pursuant to 42 U.S.C. § 1983, brought suit against defendants City of Schenectady ("the city" or "defendants") and Michael T. Brockbank ("Brockbank" or "defendants"), alleging that defendants' seizure of his business and property on April 23, 2001, violated the procedural due process clause of the Fourteenth Amendment of the Constitution.

Both plaintiff and defendants filed motions for summary judgment pursuant to Fed. R. Civ. P. 56; plaintiff for partial summary judgment on the issue of liability, and the defendants for summary judgment dismissing the complaint. Oral argument was heard on February 28, 2003, in Albany, New York. Decision was reserved.


In 1998, plaintiff operated Victory Market, a convenience store, on premises located at 605 Craig Street in Schenectady, New York. The premises were owned by Atif Hagel-Khidir, who leased space to plaintiff as a tenant pursuant to a five-year lease beginning June 1, 1998, and ending May 31, 2003. The lease was signed by both parties, and was notarized but never recorded. The owner was living in California, and was responsible for paying the property taxes.

The owner was delinquent in paying the property taxes in the amount of $11,827.78. (Docket No. 16, Exh. C). As a result, the city filed a petition for foreclosure on the property. On September 22, 2000, a copy of the petition and notice of foreclosure upon the property was placed on a bulletin board in the main lobby of the Schenectady County Courthouse, and in the Office of the Director of Finance for the city. The persons personally served with notice of the foreclosure proceedings, according to Brockbank, are "owners and lienors and any other persons who have an interest in the property that we know of or can find." (Docket No. 19, Exh. 3, p. 11, lines 19-21) (emphasis added). Despite Brockbank's admission that he had been aware of the Victory Market for up to two years prior to April 23, 2001, plaintiff himself was never mailed the copy of the petition and notice of foreclosure. The only person personally served by mail with copies of the petition and notice of foreclosure proceedings was the owner in California. Defendants also claim copies of the petition and notice of foreclosure were published in the Schenectady Daily Gazette, a newspaper of large circulation in the city.

A default judgment of foreclosure dated April 7, 2001, was entered in favor of the city on the premises at 605 Craig Street, awarding the city possession thereto. The judgment further ordered the Director of Finance for the city to execute and record a deed to the property, conveying title to the city in fee simple absolute. On April 16, 2001, said deed was delivered to the city, but was not recorded until April 24, 2001.

On April 23, 2001, Brockbank, who was and is Corporation Counsel for the city, along with a city carpenter, an individual from the city's Department of Development, and some police officers, arrived at 605 Craig Street for the purpose of evicting plaintiff from the premises. Richard Voris ("Voris"), who at the time worked as a Property Management Aide for the city's Bureau of Neighborhood Revitalization ("BNR"), was called to meet Brockbank at the premises with a notice to vacate. Brockbank testified that it is BNR's decision, not his, as to whether to seize a foreclosed property, and that he is asked to accompany them to seizures only in unusual situations or where more explanation to the occupants of the properties is required. (Docket No. 19, Exh. 3, p. 31, lines 1-7; p. 20, lines 1-7). On the other hand, Voris' deposition testimony indicates that BNR is mainly responsible for posting notice to vacate forms on the doors of foreclosed properties, preparing the properties for resale, and to assist and follow the orders of Corporation Counsel in accomplishing evictions. (Docket No. 16, Exh. H, p. 7, lines 16-20; p. 18, lines 5-7) Further, according to Voris, he was at 605 Craig Street for only approximately six minutes, while Brockbank was apparently there for around an hour. (Id., Exh. H at p. 17, line 15; Docket No. 19, Exh. 3, p. 17, lines 12-14 (noting that conversation with plaintiff took approximately 45 minutes)).

Voris went to the premises, carrying with him a standard notice to vacate form in which blanks for dates and an address were simply to be filled in. Brockbank told Voris to fill out the form with the necessary information and post it on the door of the premises. The form, dated "4/23/01" and signed at the bottom by Voris, read as follows:

This property located at 605 Craig Street is now owned by the City of Schenectady, through Tax Foreclosure. On 4/23/01 at 8am this property is scheduled to be winterized and secured (boarded-up), and the utilities will be shut off. It is unlawful to reside within the property. All persons and their belongings must be removed from the property on or before 4/23/01. If you have any questions, do not hesitate to contact met at: [phone number omitted].
(Docket No. 16, Exh. E) (underlined portions represent filled in information). One copy of the notice to vacate was posted on the door of the premises, and another was placed in one of Voris' files. This was the first and only notice plaintiff received to vacate the premises, or of the then-concluded foreclosure proceedings. Brockbank, despite being aware of the Victory Market, admits that he made no inquiries as to who owned the store, and claims he was unaware that the premises had a tenant.

According to both Voris and Brockbank, it was custom and practice of the city to provide the notice to vacate to tenants in advance of the seizure of the premises by the city. How much advance notice is given, according to Brockbank, depends on the circumstances. Voris claims that if the properties are occupied, the usual practice is to give the occupants thirty days to vacate. Brockbank, however, who admits that the entire foreclosure process is under his supervision and control, indicated that advance notice of "up to 30 days, sometimes as little as 3 days" is given, but acknowledged that sometimes no advance notice is given, citing one occasion where a building was declared unsafe. (Docket No. 19, Exh. 3, p. 25, lines 14-15). When asked why no advance notice was given to plaintiff, Brockbank responded, "Victory was known to the city to be a difficulty with respect to activities in and around the building from a police point of view. That is, drug sales, commotions, difficulties and problems with policing with respect to that address, namely the Victory Market." (Docket No. 19, Exh. 3, p. 29, lines 17-22).

Brockbank entered the premises and explained to plaintiff and others in plaintiff's employ that the property had been foreclosed for tax delinquency, and that they needed to immediately vacate. It is unclear exactly who accompanied him inside. According to Brockbank, Voris and another BNR employee accompanied him. According to Voris, he never went inside the premises that day. According to one of plaintiff's employees, Marcia Parker, Brockbank, three police officers, Voris, and a cameraman entered the store. However, it is unclear how many remained inside during the time Brockbank was explaining the events to plaintiff. Pad locks were placed on the doors of the Victory Market by city employees.

After a short while, plaintiff left the premises with some cash, some lottery tickets, and some cigarettes. He was told he had thirty days to remove the remainder of his property. Plaintiff claims that he was able to gain access to the premises on some occasions and retrieve some property, but that on other occasions, he was denied access because no one from the city could or would come out and unlock the pad locks. Plaintiff claims he was not given an extension on the thirty-day deadline. As a result, plaintiff claims he was unable to retrieve several items of inventory, equipment, and/or other property within the thirty-day time frame, and that his business was ultimately destroyed.

As noted above, the day after the April 23, 2001, seizure of the premises, the deed delivered to the city on April 16, 2001, was recorded. It is Brockbank's understanding that upon such recording, the city held legal title to the property. Prior to the ...

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