United States District Court, E.D. New York
DYCK LIVANT, Plaintiff,
GREGORY M. CLIFTON, individually and in his capacity as an investigator for the Town of Islip, THE TOWN OF ISLIP, ISLIP TOWN SUPERVISOR PETE McGOWAN, individually and in his capacity as Islip Town Supervisor, THE TOWN BOARD OF ISLIP, ISLIP TOWN BOARD MEMBER BRIAN FERRUGGAIRI, ISLIP TOWN BOARD MEMBER PAMELA GREEN, ISLIP TOWN BOARD MEMBER CHRISTOPHER BODKIN, ISLIP TOWN BOARD MEMBER WILLIAM ROWLEY each individually and in their capacities as Islip Town Board Members, JOHN DOES 1-10, JANE DOES 1-10, said names being fictitious and intended to represent employees, contractors, agents, and/or assignees of the Town of Islip and Suffolk County, ANY OTHER UNKNOWN AGENTS, assignees and/or employees of the Town of Islip and Suffolk County, and SUFFOLK COUNTY, Defendant(s).
The opinion of the court was delivered by: THOMAS PLATT, JR., Senior District Judge
MEMORANDUM AND ORDER
This action was brought by Dyck Livant ("Livant" or
"Plaintiff") against Gregory M. Clifton ("Clifton") individually
and in his capacity as an investigator for the Town of Islip, Town of Islip ("Town"), Islip
Town Supervisor Pete McGowan ("McGowan"), Town Board of Islip
("Town Board"), Islip Town Board Members Brian Ferruggairi
("Ferruggairi"), Pamela Green ("Green"), Christopher Bodkin
("Bodkin") and William Rowley ("Rowley), Suffolk County, John and
Jane Does 1-10 of the Town ("Town John and Jane Does") and County
of Suffolk, and Any Other Unknown Agents of the Town ("Town
Agents") and County of Suffolk, alleging violations of
42 U.S.C. § 1983 and State law claims for trespass, conversion and
Before the Court is one motion:
1. Defendants Town, Town Board, McGowan, Ferruggairi,
Green, Bodkin, Rowley, Clifton, Town John and Jane
Does, and Town Agents (collectively "Town
Defendants") move pursuant to Fed.R. Civ. P. 12(c)
to dismiss Plaintiff's second amended complaint.
For the following reasons, the Town Defendants' motion is
GRANTED as to the federal claims, and the Court DECLINES to
exercise jurisdiction over the State law claims, DISMISSING
same without prejudice.
A. Factual History
On January 5, 2001, certain of the Town Defendants conducted a search of Plaintiff's home pursuant to a valid warrant in order
to substantiate claims that Plaintiff was violating the Town Code
by illegally using his one-family home as a three-family home and
keeping debris and unregistered vehicles on his property. (Ans.
to 2nd Amend. Compl., Exhs. A-C; Amend. Compl. at ¶
29).*fn1 That same day, criminal charges were filed against
Plaintiff for the aforementioned violations. (Ans. to 2nd
Amend. Compl., Exh. B; Amend. Compl. at ¶ 34).
After the lawful search of Plaintiff's property and pursuant to
the dictates of the Town's nuisance abatement law, the Board held
a hearing on March 6, 2001, and passed a resolution requiring
Plaintiff to clean up his lawn and remove the debris in question.
(2nd Amend. Compl. at ¶ 29). Notice of the resolution was
sent to Plaintiff via registered mail but was returned unclaimed.
(2nd Amend. Compl. at ¶ 36). Apparently, Plaintiff was in
Mexico visiting friends and "seeking medical treatment." (2nd
Amend. Compl. at ¶ 35). On various dates in March and April of 2001, certain of the
Town Defendants, acting pursuant to the resolution, entered
Plaintiff's property and removed the debris. (2nd Amend.
Compl. at ¶¶ 30-1). Plaintiff claims that the debris was not, in
fact, debris, but "ten Bogward Isabella classic cars" and a
trailer "full of antique furniture." (2nd Amend. Compl. at ¶
65) Further, Plaintiff alleges that while removing his antiques,
certain of the Town Defendants carelessly destroyed Plaintiff's
fence, broke flower pots, took tools and created large ditches on
his lawn. (2nd Amend. Compl. at ¶ 42)
B. Procedural History
Plaintiff filed the instant action on July 2, 2002 and amended
his complaint on July 29, 2002. On, December 5, 2003, the Town
Defendants moved pursuant to Fed.R. Civ. P. 12(c) to dismiss the
action, and Plaintiff cross-moved to amend his complaint as to
the State law claims, for a second time. This Court heard oral
argument and denied the Town Defendants' motion without prejudice
to renew, and granted Plaintiff's motion for a second amendment.
Plaintiff subsequently filed a second amended complaint on
January 5, 2004, alleging violations pursuant to 42 U.S.C. § 1983
of the Fourth and Fourteenth Amendments for unlawful search and
seizure and the Fifth and Fourteenth Amendments for lack of due
process and uncompensated takings of his property. In addition, Plaintiff alleged State law claims of conversion, trespass and
A. Rule 12(c) Standard of Review
In deciding a Fed.R. Civ. P. 12(c) motion, a Court
must "accept all
allegations contained in the complaint as true, and draw all
reasonable inferences in favor of the non-movant." Sheppard v.
Beerman, 18 F.3d 147
, 150 (2d Cir. 1994). The Plaintiff's
complaint must not be dismissed unless "it appears beyond doubt
that the plaintiff can prove no set of facts in support of his
claim which would entitle him to relief." Ad-Hoc Comm. of Baruch
Black and Hispanic Alumni Ass'n v. Bernard M. Baruch College,
835 F.2d 980
, 982 (2d Cir. 1987) (quoting Conley v. Gibson,
355 U.S. 41
, 45-46 (1957)).
B. Qualified Immunity
Qualified immunity is a three step analysis. Wilson v. Layne,
526 U.S. 603, 609 (1999). First, the Court "must determine
whether plaintiff has alleged a violation of a constitutional
right. Then, [the Court] consider[s] if the violated right was
clearly established at the time of the conduct. Finally, if
plaintiff had a clearly established, constitutionally protected
right that was violated . . . [plaintiff] must demonstrate that
defendants' actions were not objectively reasonable." Harhay v. Town of Ellington Bd. of
Ed., 323 F.3d 206, 211 (2d Cir. 2003) (citations omitted).
Here, Defendants Clifton (Town Investigator), McGowan (Town
Supervisor), Town John and Jane Does, and the Town Agents are all
entitled to qualified immunity because Plaintiff has failed to
allege a violation of a constitutional right. Each of Plaintiff's
constitutional claims is now taken in turn:
i. Fourth and Fourteenth Amendments: Search and Seizure
Plaintiff alleges that the above-named Defendants entry onto
his property in order to abate the alleged nuisance was
unconstitutional because it was done without a search warrant. On
the contrary, it is well established that a municipality, within
the exercise of its police powers, has the right to "summarily"
abate a nuisance. See In the Matter of 4M Holding Co., Inc. v.
Town Bd. of the Town of Islip, 81 N.Y.2d 1053, 1055 (1993)
("Town Boards may summarily abate nuisances in this manner in
appropriate circumstances and compel property owners to bear the
cost of abatement without prior notice"); Brancato v. City of
New York, 244 F. Supp. 2d 239
, 245 (S.D.N.Y. 2003) ("The City's
emergency abatement law . . . is constitutional. It is well
recognized that when a local government, in the proper exercise
of its delegated powers, summarily abates a nuisance, it may
compel the owner of the property involved to bear the cost of abatement"). Further, the resolution of the
Board directing that the nuisance be abated without a warrant,
adopted pursuant to Islip Town Code § 32-5, is a constitutionally
adequate substitute for a judicial warrant. Accordingly, there
was no Fourth Amendment violation and Defendants are entitled to
qualified immunity on this claim.
Even assuming, arguendo, that the above-named Defendants were
required to get a judicial warrant before abating the nuisance on
Plaintiff's property, all are still entitled to qualified
immunity because their actions were objectively reasonable. All
Defendants reasonably relied on (and acted pursuant to) the
Town's nuisance abatement law and subsequent resolution of the
Board, passed after a hearing, which gave them authority to enter
Plaintiff's property and abate the nuisance.
Therefore, Defendants Clifton, McGowan, Town John and Jane Does
and Town Agents are all entitled to qualified immunity for their
entry on, and removal of, Plaintiff's property.
ii. Fifth and Fourteenth Amendments: Due Process
For notice to be sufficient under the Due Process Clause, "it
must (I) `be reasonably calculated, under all the circumstances,
to apprise interested parties of the pendency of the action and
afford them an opportunity to present their objections, (ii) convey the required information, (iii)
afford a reasonable time for those interested to make their
appearance.'" Brancato, 244 F. Supp. 2d at 242 (quoting
Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314
Plaintiff alleges that the Town Defendants violated his right
to procedural due process because they failed to give him
adequate notice of the nuisance abatement hearing and subsequent
resolution. Although the Town Defendants apparently did not give
Plaintiff notice of the hearing (Islip Town Code § 32-5 does not
require it), the Town Defendants did sent out a certified letter
to Plaintiff at his home address, notifying him of the Board's
adoption of the resolution (required by Islip Town Code § 32-5),
and their intention to abate it themselves if Plaintiff did not
respond within the given time period. Plaintiff argues, however,
that this subsequent notice via certified letter to his home was
inadequate, because he was out of the country and did not receive
The fact that Plaintiff did not actually receive the certified
letter, however, does not mean that due process was not
satisfied. See Mullane, 339 U.S. at 314; United States v.
Perez-Valdera, 899 F. Supp. 181, 184 (S.D.N.Y. 1995) ("The
Mullane test does not ask whether notice was actually received,
but rather whether the means selected were `such as one desirous
of actually informing the absentee might reasonably adopt to accomplish it'")
(quoting Mullane, 339 U.S. at 315). Indeed, as long as the
service was "reasonably calculated" to "apprise interested
parties of the pendency of the action," there is no violation.
Here, notice by way of a certified letter to Plaintiff's home
address, even though returned unclaimed, was sufficient under the
Due Process Clause to apprise Plaintiff of the Town's intention
to abate the nuisance on his property. As the Second Circuit
Court of Appeals explained in Fuentes-Argueta v. INS, No.
96-4001, U.S. App. LEXIS 35570 (2d Cir. Dec. 4, 1996):
It cannot be disputed that the use of certified mail
to convey notices of . . . proceedings generally fits
within the bounds of the process due to a litigant or
prospective litigant. The courts have repeatedly
upheld even the use of regular, first-class mail as
constitutionally adequate means of service. Nor do we
find a basis for an exception to this rule in the
instant case merely because the notice was returned
Id at *17-*19 (citations omitted).
In any event, Plaintiff had already been put on notice that the
debris on his property was illegal after the search warrant was
executed and a search was conducted of both the interior and
exterior of his home on January 5, 2001. On that same day,
Plaintiff was personally served with appearance tickets for criminal zoning law violation charges "including that he
unlawfully maintained dilapidated and unregistered vehicles,
debris, and other items on the exterior of his house." (Defs.
Mem. of Law at 20; Ans. to 2nd Amend. Compl., Exh. B).
Accordingly, the Plaintiff had adequate notice that he needed
to remove the unregistered vehicles and other debris from his
property before the Town was forced to do it for him, and thus,
there was no due process violation.
iii. Takings Claim
Defendants argue that Plaintiff's takings claim is not ripe
because he never sought just compensation for his taken property
from the State. Defendants are correct. Under Williamson County
Reg'l Planning Comm. v. Hamilton Bank, 473 U.S. 172, 195 (1985),
"if a State provides an adequate procedure for seeking just
compensation, the property owner cannot claim a violation of the
Just Compensation Clause until it has used the procedure and been
denied." In New York, there are "two such reasonable certain and
adequate provision[s]. One is to seek compensation through the
procedures detailed in the New York State Eminent Domain
Procedure Law. The other is to bring a state law action under
Article I, Section 7 of the New York State Constitution."
Vaizburd v. United States of America, 90 F. Supp. 2d 210, 216-7
(E.D.N.Y. 2000) (citations and quotations omitted); see also Vandor, Inc. v.
Militello, 301 F.3d 37 (2d Cir. 2002) (dismissing a takings
claim on ripeness grounds due to plaintiff's failure to first
seek compensation via an Article 78 proceeding). Accordingly,
Plaintiff's failure to seek these State remedies first prohibits
his takings claim on the grounds of ripeness.
C. Legislative Immunity
Local legislators, such as members of a town board, are
absolutely immune from civil rights lawsuits provided that the
actions for which they are being sued are "legislative." See
Harhay v. Town of Ellington Bd. of Ed., 323 F.3d 206, 210 (2d
Cir. 2003); Carlos v. Santos, 123 F.3d 61, 66 (2d Cir. 1997).
Under the Supreme Court's test in Bogan v. Scott-Harris,
523 U.S. 44 (1998), deciding whether an action is a legislative act
"turns on the nature of the act, rather than on the motive or
intent of the official performing it." Id.
Here, the Board's actions in holding a hearing, voting, and
approving a resolution which authorized the removal of a nuisance
(by Plaintiff or if he so failed, by the Town) are clearly
legislative in nature. Therefore, Defendant Board and its
individual members, Ferruggairi, Green, Bodkin and Rowley, are
entitled to absolute legislative immunity.
D. Municipal Liability In order to find a municipality such as the Town liable,
Plaintiff must show that a "municipal policy or custom caused the
constitutional injury." Leatherman v. Tarrant County Narcotics
Intelligence & Coordination Unit, 507 U.S. 163, 166 (1993);
see also Bd. of the County Comm'rs v. Brown, 520 U.S. 397,
403 (1997); Monell v. N.Y.C. Dep't of Soc. Servs.,
436 U.S. 658, 694 (1978). Here, as explained supra, Plaintiff has failed
to make out any constitutional violations and accordingly, there
can be no municipal liability.
E. State Law Claims
Under 28 U.S.C. § 1367(c)(3), this Court may decline to
exercise supplemental jurisdiction over related State law claims,
if it has "dismissed all claims over which it has original
jurisdiction." Id. While § 1367(c)(3) does not require
dismissal, "in general, where the federal claims are dismissed
before trial, the State claims should be dismissed as well."
Marcus v. AT&T Corp., 138 F.3d 46, 57 (2d Cir. 1998) (citing
Purgess v. Sharrock, 33 F.3d 134, 138 (2d Cir. 1994)); see
also Seabrook v. Jacobson, 153 F.3d 70, 72 (2d Cir. 1998)
(noting that it is particularly appropriate for the district
court to dismiss where "the federal claim on which the state
claim hangs has been dismissed").
As explained supra, this Court is dismissing Plaintiff's
federal claims against the Town Defendants on the basis of
qualified and quasi-judicial immunity. Accordingly, the State claims should also be dismissed,
For the foregoing reasons, the Town Defendants' motion is
hereby GRANTED, and the Court DECLINES to exercise
jurisdiction over Plaintiff's State law claims, DISMISSING same