The opinion of the court was delivered by: ARTHUR SPATT, District Judge Page 2
MEMORANDUM OF DECISION AND ORDER
This action arises out of claims by the pro se plaintiff Walter N.
Iwachiw ("Iwachiw" or the "plaintiff") against the defendants the City of
New York City Parking Violations Bureau (the "PVB"), the New York City
Department of Finance (the "DOF"), the New York City Mayor's Office on
Disabilities (the "Mayor's Office"), Mayor Michael Bloomberg
(collectively, the "City Defendants"), New York State, the New York State
Department of Motor Vehicles (the "DMV"), Governor Pataki (collectively,
the "State Defendants"), the Kemper Insurance Companies ("Kemper"),
Kemper Auto & Home Insurance Company, Kemper Independence Insurance
Company, Lumbermans Mutual Casualty Company, American Motorists Insurance
Company (collectively, the "Insurance Companies"), Marshal Catherine
Stringer ("Stringer"), Diana Martinez ("Martinez"), Diamond Towing, Inc.
("Diamond Towing"), and Martinez 131-10 Auto Corp. d/b/a/ J&J Auto
Repair ("J&J Auto"). Presently before the Court are motions by the
City Defendants and the State Defendants to dismiss the respective causes
of action against them pursuant to Federal Rule of Civil Procedure
("Fed. R. Civ. P.") 12(b)(6).
The following facts are taken from the amended complaint which the
Court takes to be true for the purpose of this motion.
Iwachiw claims that on November 3, 2001 the DMV improperly suspended
his driver's license and registration. These suspensions were allegedly
caused by the DMV's negligence in (1) failing to maintain its computer
network and database; (2) blaming Kemper for the "problems in the
plaintiff['s] records that resulted in the suspension"; and (3) failing
to "supervise, train and resolve problems" between Kemper and the DMV.
Am. Compl. ¶ 21. Kemper was also "negligent" because it
"fail[ed] to properly supervise the interface between the [DMV] and
[DMV] [sic]." Am. Compl. ¶ 22.
On or about June 25, 2002, the plaintiff's 1980 Ford van (the "Van")
was "taken by the operations" of Diamond Towing, Martinez, J&J
Storage, the PVB, and New York City. Am. Compl. ¶ 14. Iwachiw claims
that he was prevented from recovering the Van because his license and
registration were improperly suspended and because the DMV refused to
temporarily lift these suspensions. As a result, Iwachiw accumulated more
than $2,000 in storage and towing fees. He also claims that the Van was
damaged and its contents were stolen. In addition, on or about August 28,
2002, Martinez "intentionally struck [Iwachiw] with a chain link gate"
and denied him access to his personal property. Am Compl. ¶ 16.
On or about September 3, 2002, the PVB and the DOF issued a "sales
hold" which prevented the sale of the Van at a public auction. The
purpose of the sales hold was to allow Iwachiw "time to perfect [the]
Appeal and deal with [the] alleged investigation into [the] tow." Am.
Compl. ¶ 23. On September 19, 2002, the PVB refused to renew the
sales hold. Subsequently, on or about November 14, 2002, the Van sold for
$200 at a public action allegedly "before due process was completed
. . . to intentionally destroy evidence of damage of the [Van] and in
retaliation for whistle blowing." Am. Compl. ¶ 17.
B. Procedural Background
On September 19, 2002, the plaintiff commenced this action in the
United States District Court for the Southern District of New York by
Order to Show Cause seeking a temporary restraining order and a
preliminary injunction. The accompanying verified complaint alleged
"violations of the Constitution, Americans with Disability Act, civil
rights, due process, equal protection under the law and voter rights with
respect to N.Y.S. registered voters." This case was subsequently
transferred to this Court.
By Order dated January 10, 2003, this Court sua sponte dismissed the
complaint for failure to comply with Federal Rules of Civil Procedure
("Fed.R. Civ. P.") 8 and 10. The plaintiff was granted leave to file an
Amended Complaint within thirty days of the date of the Order.
Thereafter on February 10, 2003 the plaintiff filed an amended
complaint alleging that the State Defendants were negligent in (1)
failing to maintain its computer network and database; (2) blaming Kemper
for the "problems in the plaintiff['s] records that resulted in the
suspension"; and (3) failing to "supervise, train and resolve problems"
between Kemper and the DMV. Am. Compl. ¶ 21. The amended complaint
also alleges that the City Defendants violated his right to "due process"
by towing and selling his van and are liable for the allegedly negligent
acts of its subcontractors. Am. Compl. ¶ 17.
Iwachiw also claims that (1) this is an Article 78 proceeding to
alleged "improper finding" of the NYC Parking Violations
Bureau/Department of Finance in Parking Violations Summons No.
3453447750; (2) because he is "disabled," the seizure of his vehicle
prevented him from traveling to and from "medical appointments, family
appointments and political actions such as petition gathering," Am.
Compl. ¶ 19; and (3) "organized crime" which allegedly controls the
State and local government, "did interfere with and directed enforcement
against the plaintiff as retaliation for political actions, to interfere
in the political aspirations of the plaintiff and retaliate for the
whistleblowing of the plaintiff." Am. Comp. p. 10.
Presently before the Court are two separate motions to dismiss the
complaint for failure to state a claim, filed by the New York City
Defendants and the New York State defendants, respectively.