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Meserole Street Recycling, Inc. v. City of New York

January 23, 2007

MESEROLE STREET RECYCLING, INC., AND 847 HUDSON STREET CORP., PLAINTIFFS,
v.
THE CITY OF NEW YORK, THE NEW YORK CITY DEP'T OF SANITATION, JOHN J. DOHERTY, INDIVIDUALLY AND AS COMMISSIONER OF THE NEW YORK CITY DEP'T OF SANITATION, AND : "JOHN" GELOMBARDO, "JOHN": MISDIAGMA, AND "JOHN" CRIOELLO, INDIVIDUALLY AND AS EMPLOYEES OF THE CITY OF NEW YORK, DEFENDANTS.



The opinion of the court was delivered by: Gerard E. Lynch, District Judge

OPINION AND ORDER

Plaintiffs 847 Hudson Street Corp. ("Hudson") and Meserole Street Recycling, Inc. ("Meserole"), who own property involved in New York City's recycling industry, seek relief pursuant to Section 1983, 42 U.S.C. § 1983, for defendants' search of their commercial premises without a warrant, which they claim violated their right to be secure from unreasonable searches under the Fourth Amendment. U.S. Const. amend. IV. They also ask this Court to exercise supplemental jurisdiction over their claim under Article 78 of the New York Civil Practice Law and Rules, N.Y. C.P.L.R. §§ 7801-7806, that local authorities have improperly rejected their application for a municipal permit. Defendants -- the City of New York, the city's Department of Sanitation, and various employees of these entities -- (collectively, "City") now move to dismiss. They argue that plaintiffs have failed to state a federal claim upon which relief may be granted, and they urge dismissal of the state claim for lack of jurisdiction. For the following reasons, the City's motion will be denied as to the federal claim, but will be granted as to the state claim.

BACKGROUND

I. Section 1983 Claim

Plaintiff Hudson owns the property in Brooklyn, New York, where plaintiff Meserole owns and operates a private facility receiving recyclable materials such as paper and cardboard. The recycling operation proceeds under a permit issued to Meserole by the New York State Department of Environmental Conservation. (Amended Compl. ¶ 4, citing Permit No. 2-6104-00214/00001; D. Ex. 1, DEC Permit No. 2-6104-00214/00001 ("DEC Permit").) Plaintiffs do not hold a permit from the City to operate their business.

On June 14, 2005, by approximately 8 p.m., a number of city sanitation officers, including defendants Gelombardo, Misdiagma, and Crioello, had assembled outside the perimeter of plaintiffs' property, which was fenced and gated. Shortly thereafter, a truck, belonging to a nonparty, was admitted onto the property. The officers then demanded entry onto the property, and at least one officer entered the property without permission via a "railroad access." (Amended Compl. ¶ 44.)

Plaintiffs at first refused the officers' demand for entry, but, following the officers' shouted "orders" and a threat to take "police action" (Amended Compl. ¶ 48), plaintiffs' personnel opened the gate that was blocking the officers' access. Plaintiffs were apprised that all the sanitation officers, who numbered more than three, were armed, and at least some of them were visibly carrying firearms.

Once plaintiffs opened the gate, the officers immediately entered and searched the property. They had not obtained a warrant to do so. Although the nonparty's truck was seized and impounded, plaintiffs were not cited for any violation or otherwise sanctioned as a result of the search. Plaintiffs subsequently filed this action pursuant to 42 U.S.C. § 1983, claiming that the search violated their Fourth Amendment rights and that they suffered damages as a result.

II. Article 78 Claim

In August and September 2002, Meserole applied to defendant Department of Sanitation for a permit to transfer putrescible waste (essentially, waste prone to rotting). By a letter dated November 17, 2005, that agency rejected Meserole's application, stating that Meserole had failed to conduct an environmental review process, that certain new "siting rules" had been adopted since Meserole had filed its application, that its application was deficient and incomplete, and that Meserole would have to contact the agency if it wished to pursue its application. (Amended Compl. ¶ 81.)

Plaintiffs allege that there is reason to believe the rejection letter was sent to "chill" plaintiffs' exercise of their rights and in retaliation for their opposition to defendants' search of their property and seizure of the nonparty's truck in June 2005. (Amended Compl. ¶ 75.) They further protest the sufficiency of the agency's various stated, substantive grounds for rejection. (Id. ¶¶ 83-91.) They seek an order pursuant to New York's Article 78, N.Y. C.P.L.R. §§ 7081-7086, which provides for judicial review of the reasonableness of state administrative decisions, invalidating the rejection and compelling the Department of Sanitation immediately to process Meserole's application and initiate necessary review procedures.

DISCUSSION

I. Rule 12(b)(6) Motion: Federal Claim

A. Motion to Dismiss Standard

Defendants have moved to dismiss the federal claim of this action pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing that it is not a claim upon which relief may be granted. A defendant is entitled to dismissal of a claim on this ground only if it can show either that the complaint fails to provide fair notice of the basis of the claim, Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512-14 (2002), or that "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Patel v. Searles, 305 F.3d 130, 135 (2d Cir. 2002) (citation and internal quotation marks omitted).

When deciding a 12(b)(6) motion, the Court must take as true the facts as alleged in plaintiff's complaint. Bolt Elec., Inc. v. City of New York, 53 F.3d 465, 469 (2d Cir. 1995). It may consider documents incorporated in the complaint by reference. Chambers v. Time Warner, 282 F.3d 147, 152-53 (2d Cir. 2002). It may also take judicial notice of local ordinances and regulations. See Newcomb v. Brennan, 558 F.2d 825, 829 (7th Cir. 1977); Monk v. Birmingham, 87 F. Supp. 538, 539 (D. Ala. 1949), aff'd, 185 F.2d 859 (5th Cir. 1951); Players, Inc. v. City of New York, 371 F. Supp. 2d 522, 531 n.5 (S.D.N.Y. 2005). All reasonable inferences must be drawn in the plaintiff's favor. Freedom Holdings, Inc. v. Spitzer, 357 F.3d 205, 216 (2d Cir. 2004). However, "[g]eneral, conclusory allegations need not be credited . . . when they are belied by more specific ...


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