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July 10, 2003


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


Plaintiffs, one of which owned the long idle Thunderbolt roller coaster*fn1 at Coney Island, here contend that former Mayor Rudolph Giuliani caused the City of New York to tear down the Thunderbolt without affording plaintiffs notice or an opportunity to be heard. He allegedly did so out of racial animus, to retaliate for a prior lawsuit against the City, and to accommodate the owners of the New York Mets. Discovery having been completed, the matter is before the Court on the defendants' motions for summary judgment dismissing the complaint.


A. Parties

Plaintiffs are Wantanabe Realty Corp. ("Wantanabe"), Coney Island Resorts, Inc. ("CIR"), and Horace Bullard. Bullard allegedly is the principal owner of CIR and, through a nominee, the owner of Wantanabe.*fn2 He is half black and half Puerto Rican.*fn3

The defendants are the City of New York, former Mayor Giuliani, ten officials of the City Departments of Buildings ("DOB") and of Housing, Preservation and Development ("HPD"), N.B.I. Equipment Corp. ("NBI"), and NBI's president, Anthony Noto. NBI was the contractor that demolished the Thunderbolt pursuant to a contract with the City.

B. The Complaint

1. Background

Bullard at some point in the past planned to develop an amusement/entertainment/commercial project in Coney Island. CIR was the intended developer, and Bullard, CIR and Wantanabe worked together to create a real estate assemblage for the project.*fn4 In the course of doing so, Wantanabe acquired ownership of property that included Block 7074, Lot 105, on the Kings County tax map, which contained the Thunderbolt and a building beneath it.*fn5

Bullard's project required the use not only of the property owned by Wantanabe, but of certain adjacent property owned by the City.*fn6 The complaint alleges that CIR entered into a binding contract with the City pursuant to which title to the entire area would have been vested in the City, subject to a ninety-nine year lease back to CIR. Plaintiffs assert that the City repudiated the deal during the Giuliani administration and decided to build a minor league stadium, Keyspan Park, for the New York Mets on the City-owned portion of the property.*fn7 Litigation ensued and was unresolved when this action was filed. Subsequently, however, the Second Circuit affirmed Judge Glasser's decision, which granted summary judgment dismissing the case, holding among other things that the City's obligation to enter into the lease had been contingent upon CIR obtaining financing for the project and that CIR had failed to do so.*fn8

2. The Alleged Plan

In any case, while the litigation was pending, the City built the stadium, now Keyspan Park. The complaint alleges that Fred Wilpon, the owner of the Mets, and his son complained to then Mayor Giuliani that the Thunderbolt was an "eyesore" that would command the view of patrons attending games at the stadium. The Mayor was disturbed and wanted to satisfy the Wilpons*fn9 Based on this desire, as well as an allegedly "strong personal animus" toward Bullard based both on his race and his having named the mayor as a defendant in the litigation concerning the development project, Giuliani is said to have "put in motion a plan . . . to destroy and remove" the Thunderbolt.*fn10

In order to carry out the plan, the Mayor is alleged to have "conveyed . . . his desire that the Thunderbolt . . . be declared unsafe and removed in such a manner as to prevent the owner . . . from exercising its legal remedies to forestall such removal."*fn11 This is said to have been the impetus for the City's demolition of the roller coaster in November 2000 without any prior notice to plaintiffs.*fn12

C. The Legal Context

Before turning to the evidence, it is helpful to set out the legal context with respect to demolition of unsafe buildings in New York City.

In general, "[a] municipality may demolish a building without providing notice and an opportunity to be heard if there are exigent circumstances which require immediate demolition of the building to protect the public from imminent danger."*fn13 In other circumstances, however, such summary action is inappropriate.

Article 8 of the New York City Administrative Code*fn14 sets out procedures for removing or repairing hazardous structures (the "Unsafe Building Procedure" or "UBP"). In brief summary, the Unsafe Building Procedure contemplates the following steps:

1. Upon receipt of a report from a DOB employee that a structure is unsafe or dangerous, the borough superintendent shall cause the report to be docketed in the department's records. Notice shall be served on the owner with a description of the dangerous condition and an order that the structure be made safe or removed.*fn15
2. Should the superintendent determine that there is "actual and imminent danger" that a structure may fall, he or she "shall . . . cause the necessary work to be done to render such structure . . . temporarily safe until the proper proceedings provided for unsafe structures by this subchapter are instituted."*fn16
3. If the owner indicates that it will comply with the superintendent's order, it must begin work within twenty-four hours.*fn17 If the owner fails to comply with the order, the premises are surveyed and the report placed before the state supreme court for a determination whether the structure is unsafe or dangerous and "whether the unsafe or dangerous structure or premises shall be vacated and repaired and secured, or repaired and secured, or taken down and removed. . . ."*fn18
4. If the court determines that the building is unsafe or dangerous, it shall issue a "precept" reciting the verdict and commanding the borough superintendent to repair or take down the structure.*fn19
While the UBP does not specifically authorize the City to demolish a building without obtaining a precept from the supreme court, even in the event of an imminent threat to life or safety,*fn20 the City's position is that it may do so. DOB Operations Policy and Procedure Notice #16/93 (the "OPPN") creates a two-tiered procedure for demolition of dangerous structures:
• Where a building has suffered "life threatening structural damage" or is "in imminent danger of collapse," the DOB may issue a so-called Immediate Emergency Declaration pursuant to which it expects work to "begin by the day after the declaration."*fn21
• Where a building has "serious structural damage" or is in "a deteriorating condition when a collapse or failure is expected in the very near future," the DOB may issue an Emergency Declaration pursuant to which it expects work to begin within thirty to sixty days. In such cases, however, an unsafe building violation is written.*fn22
When the DOB proceeds under the OPPN, it does not commence a UBP proceeding or seek a precept.*fn23 It does, however, send a notice to the owner.

D. Legal Theories

The complaint asserts nine claims for relief:

• The first asserts that the demolition without following the Unsafe Building Procedure deprived Wantanabe of its right to procedural due process in violation of the Fourteenth Amendment.
• The second maintains that the demolition in the manner alleged in the complaint was "so arbitrary, conscience-shocking, and oppressive" as to deprive Wantanabe of its right to substantive due process under the Fourteenth Amendment.
• The third contends that the defendants, by failing to resort to the Unsafe Building Procedure, intentionally treated Wantanabe "differently from all others similarly situated" without any rational basis. It further alleges that former Mayor Giuliani was motivated by animus against Bullard based on his race and the other circumstances alleged. Accordingly, it maintains that the defendants deprived Wantanabe of the equal protection of the laws in violation of the Fourteenth Amendment.
• The fourth asserts that defendants conspired to enter upon Wantanabe's property for the purpose of depriving it of the equal protection of the laws out of racial animus and thereby violated 42 U.S.C. § 1985(3).
• The fifth alleges that all of the defendants were aware of the Unsafe Building Procedure and of the conspiracy to deprive Wantanabe of its rights, yet failed to prevent one another from so acting, allegedly in violation of 42 U.S.C. § 1986.
• The sixth claim asserts that the defendants acted in part out of a desire to retaliate against plaintiffs for the prior federal lawsuit and thereby violated 42 U.S.C. § 1985(2).
• The seventh contends that the demolition was an uncompensated taking of property of Wantanabe in violation of the Fourteenth Amendment.
• The eighth asserts that defendants violated Wantanabe's rights under Article I, §§ 6, 7(a), and 11 of the New York Constitution, which parallel the Due Process, Equal Protection, and "Takings" Clauses of the U.S. Constitution.
• The ninth seeks relief on behalf of Wantanabe on the theory of common law trespass.*fn24
The first seven claims all rest on 42 U.S.C. § 1983.

D. The Evidence

1. Initial City Hall Involvement

Former Mayor Giuliani had at least one conversation with either Fred Wilpon, the owner of the New York Mets, or his son in which either the elder or younger Wilpon said that the roller coaster was an eyesore, that it looked dangerous, and that children would be in the area once the stadium was built.*fn25

Mayor Giuliani held daily morning meetings during his administration at which up to twenty different issues were discussed on any given day.*fn26 He acknowledged at his deposition that the Thunderbolt was mentioned "in the context of talking about the baseball stadium," either in these meetings or on another occasion.*fn27

Michael Carey, then president of the Economic Development Corporation ("EDC), the agency responsible for the stadium project, was more specific about one such meeting. He testified that he was present on an occasion during the summer or fall of 2000 when the Mayor inquired how the stadium project was going and asked also what else the City was "doing out there,"*fn28 evidently a reference to Coney Island redevelopment. Bullard's name came up as a property owner in the area. In the course of a discussion about whether the City could work with Bullard, Jeffrey Hess, a senior advisor to the Mayor, said that the City had tried to work with Bullard before, that Bullard had been "dedesignated," and that he showed no indication of financial viability or a successful track record.*fn29 Carey told the group that Bullard "had not performed" and that Carey "would be very, very leery of signing up with him as opposed to looking for other opportunities for development at Coney Island and with people that probably had a better track record."*fn30

The subject of a lawsuit by Bullard came up as well.*fn31 One or more of those present reported that Bullard had made ad hominem attacks in the lawsuit, accusing Jeffrey Hess and other members of the Giuliani administration "of being . . . dishonest . . . [and] deceitful" and the Mayor and his administration of being "[r]acially prejudiced."*fn32 Jeffrey Hess, Michael Hess (then Corporation Counsel), and probably Denny Young expressed disappointment, chagrin and perhaps anger at the accusations.*fn33 There is no evidence, however, that the Mayor expressed any views concerning the accusations.*fn34 Carey stated, moreover, that there was no discussion at the meeting about "taking any action with respect to the Thunderbolt."*fn35

Deputy Mayor Robert M. Harding, who was at the meeting described by Carey,*fn36 was among the people with whom Giuliani discussed the Thunderbolt.*fn37 He testified that he had become aware of concern about the condition of the roller coaster and saw it in the spring or early summer of 2000 on the day on which ground was broken for the stadium.*fn38

Melvin Glickman, an executive vice president of the EDC, testified that someone told him of a concern regarding the condition and structural safety of the Thunderbolt and that he called Barry Cox, deputy commissioner of the DOB for operations and administration, to request an inspection.*fn39 Cox in turn called Frank Marchiano, the assistant commissioner for DOB operations, and Tarek Zeid, DOB's Brooklyn borough commissioner/superintendent, and asked that the Thunderbolt be inspected.*fn40 Marchiano then called either Joseph Mineo, acting executive chief inspector at DOB, or Zeid, and asked that an inspector look at the structural integrity of the roller coaster.*fn41

2. The Inspection

Zeid assigned Schoefield Padmore, a building inspector, and Edward Mungin, an inspector in the DOB construction division, to inspect the Thunderbolt, which they did on August 31, 2000.*fn42 As the structure was enclosed by a chain link fence, they viewed and photographed it through a zoom lens with a 12 or 14:1 zoom factor and with binoculars.*fn43 Mungin testified that he observed substantial deterioration of the steel, including layers of concaved steel and corroded and flaking steel I-beams, as well as a wooden plank or railroad tie that was dislodged near the top of the roller coaster.*fn44 Padmore too observed that the Thunderbolt was rusting and deteriorated.*fn45 Indeed, plaintiffs admit as much, although they dispute the extent and significance of the damage.*fn46

Following the inspection, Padmore prepared a document called a Special Report.*fn47 It erroneously identified the premises, on the basis of Padmore's research into DOB records, as 3026/98 West 15th Street, which is block 7074, lot 190, on the tax map, actually the address of a City-owned lot adjacent to the Thunderbolt.*fn48 On the "Re:" line of the form, Padmore wrote "Borough Commissioner Special."*fn49 The report went on to state:

"Inspection revealed the steel/metal structural members throughout the entire thunderbolt [sic] ride appear defective, severely rusted and deteriorating.
"In addition, the entire east and west cat walk wood floor and railing rotted, defective and deteriorating throughout and missing at various locations.
"The above is creating a dangerous condition. As a result, I am recommending the premises be process [sic] for emergency demolition. ECB violation number 083100C13T01 issued. See copy attached."*fn50
Padmore completed also an Environmental Control Board ("ECB") notice of violation and hearing form.*fn51 He filled in a box headed "Basis of Violation" with the phrase "Commissioner Special."*fn52 His description of the violation was similar to that in the Special Report, although it ended with the language: "Remedy: make premises safe, and submit engineer's report as to structural stability or demolished to grade & obtain a permit."*fn53 The ECB notice of violation, however, never was processed.*fn54

3. The Emergency Declaration and Notices

Following his receipt of these documents, Zeid, the borough commissioner, issued an Emergency Declaration which required demolition of the roller coaster.*fn55 Zeid testified that he "made that decision based on the recommendations that came in front of [him.]"*fn56 When asked how he had decided to demolish the roller coaster in light of the fact that the ECB notice, unlike the Special Report, had indicated that repair was an option, Zeid said that he made the decision after conferring with Padmore and "the chief" — a reference to DOB Brooklyn Administrative Chief Inspector Darral Hilton, who concurred in the declaration — "that went around the situation where the structural integrity was involved."*fn57

This testimony is somewhat vague, and it is rendered more troubling by Zeid's apparent awareness of Padmore's limitations. He stated that (1) although a qualified individual could get "a good indication" of the structural soundness of rusted steel by visual inspection and touching or sounding it, he believed at the time that Padmore, upon whose report he purportedly relied, was not qualified to do so,*fn58 (2) there were engineers in his department who were qualified,*fn59 and (3) neither he nor those engineers examined the structure.*fn60

In any case, when the declaration form was completed, the word "immediate" preceding the word "emergency" was crossed out,*fn61 thus indicating that declaration was an ...

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