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Sula v. City of Watervliet

October 19, 2006

GEORGES SULA, PLAINTIFF,
v.
CITY OF WATERVLIET, CITY OF WATERVLIET BUILDING EPARTMENT, CITY OF WATERVLIET POLICE DEPARTMENT, MAYOR D. CARLSON, INDIVIDUALLY AND IN HIS CAPACITY AS MAYOR, PAUL MURPHY, INDIVIDUALLY AND IN HIS CAPACITY AS GENERAL MANAGER AND COMMISSIONER OF PUBLIC SAFETY, STEVEN HOFFMAN, INDIVIDUALLY AND IN HIS CAPACITY AS BUILDING INSPECTOR, MARK GILCHRIST, INDIVIDUALLY AND IN HIS CAPACITY AS BUILDING INSPECTOR, DEFENDANTS.



The opinion of the court was delivered by: Norman A. Mordue, Chief U.S. District Judge:

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

This action arises from demolition of a single family residential dwelling in the City of Watervliet, New York, in March 2005. Defendants have moved to dismiss plaintiff's complaint for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6).

II. FACTUAL AND PROCEDURAL BACKGROUND

The Court notes that its recitation of the relevant "facts" concerning the present motion are premised on allegations in the complaint, statements in attorneys' affidavits, statements in factual affidavits submitted by witnesses and information gleaned from unsworn, uncertified exhibits to the parties' moving papers. The Court relies on the parties' factual submissions only for the purpose of setting forth the context in which it has analyzed the present request for relief. The propriety of submitting such material in support of or opposition to a motion under Rule 12(b)(6) of the Fed. R. Civ. P. will be addressed below. The demolished building was located at 1412 First Avenue and was a two-story brick structure in duplex with 1410 First Avenue. At some time, the building was damaged by fire and the interior was gutted. The building was unoccupied and in a state of obvious disrepair when plaintiff purchased it on October 28, 2004. At that time, plaintiff paid back property taxes owed by the previous owner and intended to "rehab" the building. Within days of plaintiff's purchase of the building, City inspectors entered the home to conduct an engineering review after someone allegedly complained that bricks were falling off of the facade of the building. On November 9, 2004, the City notified plaintiff that failure to address and remedy the various safety issues and structural deficiencies noted by its building inspector and consulting engineer within 30 days would result in condemnation of the building.

Thereafter, plaintiff retained an engineer to assess the structural integrity of the building and propose necessary repairs. Based upon the determination by plaintiff's engineer that the building was structurally sound and could reasonably and safely be repaired, plaintiff requested that the 30-day time period for completing repairs be extended.

On November 24, 2004, the City wrote to plaintiff advising him that his request for an extension of the repair time frame was denied, that the building was condemned, and that the City would be moving forward with demolition. The record is not entirely clear concerning all of the events which followed. What is evident is that plaintiff appeared in court a number of times with and without an attorney in an effort to comply with orders to barricade the building and obtain plans and blueprints demonstrating his intent to repair the building. Plaintiff also applied for and obtained a barricade permit. In early March 2005, the building was demolished. The City contends plaintiff was notified of the planned demolition as evidenced by three letters sent to him on November 9, 2004, January 11, 2005, and February 8, 2005.*fn1 Although plaintiff acknowledges receiving the first notice concerning the requirement that he make repairs within 30 days, he denies ever receiving the latter two letters. Since he was appearing in court and making every effort to comply with requirements to repair the building, plaintiff claims he was shocked by the demolition and had absolutely no idea it was going to occur.

Plaintiff alleges in his complaint that defendants violated his constitutional rights in various ways by demolishing his property. He also alleges that he was targeted or treated differently by defendants on account of his race or national origin in violation of the constitution. To wit, plaintiff, who is an African immigrant, asserts that an offensive racial epithet - "niggers not allowed" - was spray painted on his building. Plaintiff contends that when he reported the incident to police, they did nothing to investigate this alleged "hate crime" against him.

Defendants have moved to dismiss the complaint for failure to state any legally viable cause of action. Plaintiff opposes this motion

III. DISCUSSION

A. Standard of Review

The standard applicable to motions to dismiss is well-settled. On a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), the Court must accept the allegations of the complaint as true, and draw all reasonable inferences in favor of the nonmoving party. See Grandon v. Merrill Lynch & Co., 147 F.3d 184, 188 (2d Cir. 1998); Gant v. Wallingford Bd. of Educ., 69 F.3d 669, 673 (2d Cir. 1995). Therefore, the issue before the Court on such a motion "is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." King v. Simpson, 189 F.3d 284, 287 (2d Cir. 1999) (quoting Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir. 1995)).

B. Deprivation of Constitutional Rights

Plaintiff bases his constitutional claims on 42 U.S.C. ยง 1983, ...


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