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Smith v. City of Albany

March 27, 2006


The opinion of the court was delivered by: Norman A. Mordue, D. J.



This action arises from demolition of a multiple-family residential dwelling in the City of Albany in September 2003 under the auspices of the City of Albany Building Code which authorizes the Commissioner of Buildings in the City of Albany to order emergency demolition of buildings deemed unsafe or unfit for human habitation.


On August 14, 2002, Albany Police Officer James Teller was called to assist the city's animal control unit with the removal of several dogs from an apartment at 141 Henry Johnson Boulevard, a three-family residential building in the City of Albany. Two of the three apartments at the home were occupied by tenants. At least two people lived on the second floor of the building along with the aforementioned dogs. At least one gentlemen lived on the first floor and the basement apartment was vacant. Officer Teller then requested the presence of defendant Captain Henry J. Abriel of the Albany Fire Department due to a "relatively severe condition inside" the building. Officer Teller told Captain Abriel when he arrived at the scene that he had observed heavy maggot infestation and roach infestation inside the building and that the condition of the areas where the dogs were kept on the second floor resembled an "open air kennel."

Abriel thereafter personally inspected the building and observed the first floor ceiling "black with roaches." Abriel also observed the following conditions inside the building at 141 Henry Johnson Boulevard: 1) roaches on the walls and cabinets of both the first and second floors; 2) "spongy" and in some cases totally deteriorated flooring with no linoleum or carpeting; 3) "raw" plywood or subflooring saturated with urine on top of floor joists; 4) flooring that "sagged" under Abriel's body weight on the second floor; 5) "piles of feces" throughout the rooms where the dogs were kept; 6) drains in the building that did not function; 7) 600-700 pounds of "stagnant," "standing water" in a cast iron tub due to the drain being in disrepair; 8) finished tiles on the floor in the bathroom in "bad shape;" 9) mice and rodents in the basement; and 8) garbage barrels in the basement with maggot infestations. Abriel observed from the street that the exterior wall on the south side of the building "bowed" approximately four to six feet in the area where the bathrooms were located. Additionally on the exterior of the building, Abriel observed that many of the window sills were rotting, and storm windows were "hanging off." Abriel noted that "a lot" of the asphalt siding on the outside of the building was missing and "a lot" of the clapboards underneath it were missing and deteriorating. According to Abriel, it was the worst vermin infestation he had ever seen. He described the conditions at 141 Henry Johnson Boulevard as "deplorable."

After his initial inspection, Captain Abriel called defendant Robert C. Forezzi, Sr., Chief of the Albany Fire Department, as well as the County Health Department and Social Services, the Police Department and the Public Safety Commissioner, John Nielson. Personnel from these offices were generally called in the case of unsafe or unfit living conditions discovered in the city and comprised what was known as the "Citizens Protective Team." According to Abriel, as the original building inspector, it was his job to give team members a "general rundown" of conditions inside the building and then allow them to perform their own inspections. To wit, Abriel stated: "Here's what we got, we have 10 dogs, police are confiscating the dogs, I have two elderly people on the first floor, three younger children on the second floor, go see what you think."*fn2 According to Abriel, there were a number of police officers who walked through the building as well as personnel from the County Health Department, but "the two people from Social Services were reluctant. They wanted to put their tieback suits on first." Abriel told them to "just take a quick peak," but "[a]fter their initial walk-through, the two Social Services representatives decided to stay outside and have [the tenants] come out to the front porch."

Chief Forezzi spoke briefly with Captain Abriel on the telephone prior to arriving at the scene. Forezzi asked Avriel to tell him "how bad" the problems were at 141 Henry Johnson Boulevard "on a scale of 1 to 10 . . . and he said it's an 11." Upon arriving, Chief Forezzi performed his own brief inspection of the premises. Chief Forezzi observed a "wet," "sagging," "soft," and "sloping" floor "saturated" with urine in the top apartment. The floor "sagg[ed" when Chief Forezzi stepped on it. Chief Forezzi believed that the second floor was in "imminent danger" of collapsing or "pushing the wall out." Further, Chief Forezzi believed that the second floor was a threat to the structural integrity of the entire building which he thought could possibly collapse. Specifically, Chief Forezzi stated that "the floor was rotting and it was unsafe for somebody to live there and walk on that floor." The Chief also observed garbage on the floor and roach and maggot infestation "throughout" the building, dead rats and mice, a bowed exterior wall, holes in the interior walls, a falling roof cornice and a "rotting," soft floor around the toilet in the bathroom that also had standing water in the tub. Finally, Chief Forezzi noted that an electrical fire hazard existed in the building. To wit, Forezzi observed extension cords running between apartments from one floor to another due to a lack of working electricity in some apartments. It appeared that electricity was limited to the first floor apartment or possibly the basement.

Following his inspection, which he conceded lasted 15 minutes or less, Captain Abriel made a determination that 141 Henry Johnson Boulevard was an "unsafe" building, "unfit for habitability." Captain Abriel conceded that he was not an engineer, but he received extensive training as a firefighter, fire investigator and code inspector via the fire department. In addition to his professional training, Captain Abriel testified that based on his "30 years of construction knowledge," 141 Henry Johnson Boulevard was "unrepairable." Further, the vermin infestation was "so heavy," it was "probably not" possible to eradicate it. Captain Abriel conceded during his deposition that "separately," the structural problems with the house "could have been repaired." However, eliminating the infestation "probably would have destroyed the building" because "[t]hey would have probably had to remove all the walls and floors." Abriel averred that "taken as a whole, with the whole structure into account, with the infestation on board, I mean, it was just a no win situation." Captain Abriel recommended to Chief Forezzi that the building be demolished.

Chief Forezzi believed the building was an imminent danger to the building's occupants and the public at large. He also said the building "could have been" in imminent danger of collapsing. By "imminent," Chief Forezzi meant "there is a possibility that it's going to come down, that the public is in jeopardy." Like Captain Abriel, Chief Forezzi conceded that he was not an engineer, but he had also received extensive training in building inspection and code enforcement through the fire department. Forezzi consulted with Commissioner Nielsen, who had the ultimate authority of what to do with the building. According to Forezzi, the "consensus" was to demolish the building. Chief Forezzi believed that the decision to demolish the building was based on the "severity" of the "deplorable" conditions inside the building as well as its structural deficiencies.

Section 133-54 of the Code of the City of Albany captioned "Unsafe and unfit buildings" states:

The Commissioner [of Buildings] may determine that a building is unsafe by reason of the condition of the building or premises, including but not limited to structural instability in whole or in part, failure, inoperability or absence of adequate sanitary waste disposal, water supply, electrical, plumbing, heating and ventilating systems or facilities, vermin and insect infestation or unsanitary, dilapidated, decaying or overcrowded conditions.

Section 133-55 of the Code entitled "Power to act in emergencies" further provides:

(A) Whenever the Commissioner finds that a violation of this Part 2 exists which, in his opinion, requires immediate action to abate a direct hazard or an immediate danger to the health, safety or welfare of the occupants of a building or of the public, the Commissioner may, without prior notice or hearing, take any action authorized herein which is reasonably necessary to abate or remove the condition.

(B) Such action may include but is not limited to demolition of the building or structure, vacating the occupants of the premises and of surrounding premises, closing of public or private streets or rights-ofway, termination of utility service, erection of barricades and other protections and the performance of physical work on the premises. §§ 133-54 and 133-55, Art. IX, Part 2, Chapter 133 of Part II of the Code of the City of Albany.

Once the decision to demolish the building was reached, Captain Abriel asked someone in his office to call the City's demolition contractors. Three demolition contractors arrived at the scene on the morning of August 14, 2002, performed individual inspections of the building and then prepared standard bid forms with the estimated cost of the proposed work. None of the contractors, including defendant DiTonno & Sons Demolition, took part in the decision to demolish the building, nor were they present when the decision to demolish the building was made. However, while preparing his company's bid to demolish the property, Dominic DiTonno did note that the back part of the house was "cobbed up," or "not put together too good." The City ultimately awarded the demolition job to, the DiTonnos, the lowest bidder. The DiTonnos based their bid on the amount of debris observed on the premises and the estimated cost of hauling and disposing of it.*fn3

The DiTonnos planned to demolish 145, 143 and 141 Henry Johnson Boulevard on August 14, 2002 in that order. They did not have a building permit to perform the emergency demolitions on that date, but they said it was typical for them to complete the building permit application after the emergency demolition occurred on oral orders from the City of Albany. The DiTonnos would then receive the official building permit along with payment from the City for the demolition job. The DiTonnos also had to wait for the tenants to vacate the buildings and the utilities inside to be shut off before beginning the demolition work. Somewhere between 5:00 and 6:00 p.m., after demolishing 145 Henry Johnson Boulevard, Dominic DiTonno recalled that Captain Abriel informed he and his brother that 143 Henry Johnson Boulevard was not going to be torn down. The brothers then commenced demolition of plaintiff's building. Dominic and Daniel DiTonno understood from what they were told by City officials that the reason that plaintiff's building was being demolished was because of an infestation of cockroaches and mice. At no time did either of the DiTonno's ever go inside 141 Henry Johnson Boulevard prior to performing the demolition due to the presence of an angry tenant who was breaking windows above their heads as they cased the outside of the building. Dominic DiTonno also stated they chose not to go into 141 Henry Johnson Boulevard after a police officer told them "that there was roaches falling on his shoulders while he was walking around" inside the building.

Dominic DiTonno remembered the infestation at 141 Henry Johnson Boulevard because he had never "seen a building yet that had that many roaches and mice in it." Indeed, Dominic DiTonno averred "I mean, two days later still pulling debris out of the basement there still was roaches and mice running across the street." During the demolition and debris removal process, both DiTonnos recalled that they flushed the walls of the restaurant next door with a fire hose because mice and roaches were coming out from under debris at 141 Henry Johnson Boulevard, crawling up the side of the restaurant and gathering under the eaves. Daniel DiTonno described the escaping roaches as resembling a "swarm of bees." According to Dominic DiTonno, there were also live roaches and mice in the rubble and in the trucks used to haul away debris.

Dominic DiTonno recalled that plaintiff arrived at the scene of the demolition with a gentleman but he "wasn't really listening to him . . . because usually on a job like that, if it isn't a city official . . . ordering me to do something different, we just are going to do the building."

Indeed, both DiTonnos concurred that during emergency demolitions, their only concern was completing the work as required by their bid.

There is no indication from the record that the City took steps to notify plaintiff of the proposed demolition of his building. Plaintiff testified that he made weekly inspections of his building and the apartments inside. He said he removed trash personally every week from the premises. Plaintiff averred at his deposition that he had never seen a rat, mouse or maggot inside his building. Plaintiff did state that he had "bombed" the building for cockroaches twice in the three months prior to the demolition. Plaintiff stated that the only rats in the vicinity of his building were dead ones in the alley between 141 Henry Johnson Boulevard and the restaurant next door. Plaintiff testified that he had installed new bedroom carpeting and new bathroom flooring in the upstairs apartment within six months of the demolition. He stated that the flooring in the rest of the apartment was of a hardwood construction and was in good repair. Plaintiff did not recall any "bowed" walls or other structural issues existing inside his building. Plaintiff had been in South Dakota since June 2002, however, and did not personally inspect his property or the inside of any of the apartments on the date of the demolition.

Plaintiff testified that at about 2:30 p.m. on August 14, 2002, he happened to be driving by his property to check on the tenants after his return from South Dakota when he observed DiTonno & Sons in front of the building and asked them what was going on. When Dominic DiTonno told plaintiff that they were preparing to demolish three buildings, including 141 Henry Johnson Boulevard, plaintiff immediately called his attorney, Thomas Monjeau. Mr. Monjeau's affidavit states that he received a telephone call from plaintiff at approximately 4:00 p.m. in the afternoon of August 14, 2002, who said that his building was about to be demolished. Immediately upon hanging up the telephone with plaintiff, Mr. Monjeau tried to contact someone in the City of Albany Code Enforcement Office to no avail. Following this attempt, Mr. Monjeau traveled to plaintiff's property where he encountered the DiTonnos who had already demolished 145 Henry Johnson Boulevard. Mr. Monjeau said he had a conversation with "one of the partners of DiTonno & Sons Demolition" who told him they would not be demolishing plaintiff's building until the next morning.

Based on this alleged representation, Mr. Monjeau believed he had time to return to his office and prepare an Order to Show Cause to prevent demolition of the building. However, minutes after returning to his office, plaintiff called Mr. Monjeau to say that demolition of his property had already begun. When Mr. Monjeau arrived back at Mr. Smith's building, it was in the process of being demolished. He noted that the DiTonnos were having "difficulty" tearing the building down because "[it] shook, but did not immediately fall down" when the demolition equipment was hooked onto a window. Mr. Monjeau also stated that during the time he spent at the property observing the demolition, he did not observe any vermin or insects.

Plaintiff alleges in his complaint that the ordinance under which the City ordered his property demolished is unconstitutionally vague and overbroad. He also asserts that demolition of his building constituted an unlawful seizure within the meaning of the Fourth Amendment. Further, plaintiff contends that he was denied due process of law under the Fifth Amendment and that defendants violated his Equal Protection Rights under the Fourteenth Amendment. Finally, plaintiff asserts that the City, along with defendants Robert C. Forezzi, Sr., and Henry J. Abriel, both officers of the City of Albany Fire Department, conspired with defendant DiTtonno & Sons Demolition under 42 U.S.C. ยง 1983 to deprive him of his constitutional rights. All defendants have moved for summary judgment on the ground that plaintiff has failed to meet his burden of proof in establishing any constitutional deprivation in this ...

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