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Iannucci v. City of New York

January 3, 2006

ROBERT IANNUCCI, PLAINTIFF,
v.
CITY OF NEW YORK, DEFENDANT.



The opinion of the court was delivered by: Sifton, Senior Judge.

MEMORANDUM OPINION AND ORDER

Plaintiff Robert Iannucci brings this action for damages against the City of New York under 42 U.S.C. § 1983, alleging deprivation of his rights to procedural and substantive due process under the Fourteenth Amendment of the United States Constitution. Plaintiff alleges the City of New York (the "City") failed to prevent police vehicles and vehicles belonging to police officers from parking on the curbs and sidewalks in front of his properties and driveways leading to them, causing damage and depriving him of their use. Presently before the court are defendant's motion for summary judgment and plaintiff's cross-motion for summary judgment, both brought pursuant to Rule 56 of the Federal Rules of Civil Procedure. Alternatively, in the event that both motions are denied, plaintiff moves to strike the defendant's answers for failure to comply with discovery demands. For the following reasons, defendant's motion for summary judgment is denied, and plaintiff's cross-motions are denied.

BACKGROUND

The following facts are drawn from the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits submitted in connection with this motion. The facts are undisputed unless otherwise noted.

Plaintiff is the owner of several buildings located near the 84th Police Precinct and the Police Academy in Brooklyn, New York. (Iannucci Aff. ¶ 5). In 1982 and 1983, plaintiff purchased 309 Gold Street, 171 Johnson Street, and 311-313-315 Gold Street in Brooklyn. On November 20, 2002, plaintiff purchased 325 Gold Street, a ten story commercial building, and on November 20, 2003, plaintiff purchased 173-175 Johnson Street. (Iannucci Aff. ¶ 5). During the entire time plaintiff has owned these properties, official New York Police Department vehicles and private vehicles with New York City parking placards (collectively "City vehicles") have parked and double-parked illegally on the curbs, sidewalks and streets abutting plaintiff's properties on a daily basis. Although City vehicles do not encroach onto plaintiff's property, they prevent access to them. (Iannucci Aff. ¶ 11). The ability of plaintiff and his tenants to enter and exit plaintiff's buildings has been restricted. (Iannucci Aff. ¶ 11).

Plaintiff's properties are located within the "self- enforcement" zone of the 84th Precinct, which means that the police in that precinct are responsible for enforcing traffic and parking laws in that area. (Accardi Dep. at 14-15; Sferrazza Dep. 13-14). Approximately 270 officers are assigned to the 84th Precinct. (Sferrazza Dep. at 7). Sergeant Edward Accardi of the 84th Precinct, who served as the precinct's Traffic Safety Supervisor, testified at his deposition that although there was no official policy within the 84th Precinct with regard to the enforcement of parking and traffic regulations in the area, efforts were made by Sergeant Accardi and other precinct commanders to curb illegal parking by City vehicles, including routine ticketing, writing of summonses, and towing of the illegally-parked vehicles. (Accardi Dep. at 18-20, 40-41). Although Sergeant Accardi "felt [they] got compliance with members of the 84th," he acknowledged that illegal parking continued to be a frequent problem. (Accardi Dep. at 36-44). The police department does not have parking facilities for City vehicles apart from a fenced lot located on the north side of Tillary Street, which accommodates approximately fifty cars. (Accardi Dep. 17, 44; Sferrazza Dep. at 7).

The illegal parking has caused damage to the curbs and sidewalks near plaintiff's properties, requiring significant repair. On one occasion, the City of New York assessed plaintiff for the repair of the sidewalks adjacent to his property in the amount of $50,000. (Iannucci Aff. ¶ 16). Plaintiff has complained repeatedly to City and police authorities, both in person and in writing, over the past twenty years. (Iannucci Aff. ¶ 13; Pl. Ex. K). Plaintiff made several in-person complaints to Sergeant Accardi and Captain Sferrazza. (Ianucci Aff. ¶ 13; Sferrazza Dep. at 17). Despite his complaints, City vehicles continue to park illegally on the curbs and sidewalks abutting plaintiff's properties blocking driveways to plaintiff's properties.

In November 2002, plaintiff commenced this Section 1983 action against the City seeking monetary damages and attorney's fees for the violation of his procedural and substantive due process rights. The City initially moved for judgment on the pleadings dismissing the complaint, arguing that: (1) the complaint failed to state a claim upon which relief can be granted; (2) the action was barred by prescription; (3) the action was untimely; and (4) the action was barred by the doctrine of laches. On October 16, 2003, I denied the motion in an oral opinion. On October 27, 2003, the City moved for reconsideration of that decision, which I denied in a Memorandum and Order dated March 16, 2004.

Presently before the court are defendant's motion for summary judgment and plaintiff's cross-motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure and to strike the defendant's answer for failure to comply with discovery demands.

DISCUSSION

Summary Judgment Standard

A motion for summary judgment should be granted where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); Celotex Corp v. Catrett, 477 U.S. 317 (1986). A motion for summary judgment may be defeated by the nonmoving party if that party produces facts establishing that there is a material issue of fact for trial. See Montana v. First Federal Sav. & Loan Ass'n of Rochester, 869 F.2d 100, 103 (2d Cir.1989). The role of the court is "not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried." Knight v. United States Fire Ins. Co., 804 F.2d 6, 11 (2d Cir.1986). The "court must view the evidence in the light most favorable to the party against whom summary judgment is sought and must draw all reasonable inferences in his favor." L.B. Foster Co. V. American Piles, Inc., 138 F.3d 81, 87 (2d Cir.1998); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Where both sides move for summary judgment, a court is not required to grant judgment as a matter of law for one side or the other. Schwabenbauser v. Bd. of Educ. of Olean, 667 F.2d 305, 313 (2d Cir.1981). Instead, it must evaluate "each party's motion on its own merits, taking care in each instance to draw all reasonable inferences against the party whose motion is under consideration. Id. at 314.

Defendant's Motion

Plaintiff brings claims under 42 U.S.C. § 1983*fn1 alleging violations of his procedural and substantive due process rights under the Fourteenth Amendment. The Fourteenth Amendment provides that "[n]o State shall...deprive any person of life, liberty, or property, without due process of law." U.S. Const. Amend. XIV. To prevail on a procedural or substantive due process claim, the plaintiff must first demonstrate that he had a constitutionally "protected property interest" established through "some independent source such as state law." Board of Regents v. Roth, 408 U.S. 564, 577 (1972). "The hallmark of property, the [Supreme] Court has emphasized, is an individual entitlement grounded in state law, which cannot be removed except for cause" Logan v. Zimmerman Brush Co., 455 U.S. 422, 430 (1982); see also Board ...


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