The opinion of the court was delivered by: Harold Baer, Jr., District Judge
Plaintiff William Brody ("Plaintiff" or "Brody"), in this long-running litigation to challenge the taking of his property, brings, pursuant to his Amended Complaint of August 28, 2006, constitutional claims against Defendants Village of Port Chester (the "Village"), G&S Port Chester LLC ("G&S"), Village of Port Chester Industrial Development Agency ("Village IDA"), and Hudson United Bank Co. ("Hudson") (collectively, "Defendants"). Brody's remaining claim alleges, pursuant to 42 U.S.C. § 1983, violations of procedural due process by Defendants relating to the condemnation of his property by the Village under N.Y. E.D.P.L. § 201 et. seq.*fn1
Brody now moves for partial summary judgment on his procedural due process claims against Defendants. Brody seeks a declaratory judgment that his procedural due process rights were, in fact, violated, and an award of nominal damages of $1.*fn2
Because genuine issues of material fact remain as to whether Brody had "actual notice" of the condemnation proceedings, Brody's motion for partial summary judgment is denied.
Familiarity is assumed with facts and prior opinions in this litigation.*fn3 A brief recounting of the facts germane to this motion follows.
A. Environmental Review Process
In 1996, Plaintiff William Brody purchased commercial property in an area of the Village of Port Chester that had long been slated for redevelopment. See Brody v. Village of Port Chester, 434 F.3d 121, 124 (2d Cir. 2005) ("Brody III"). In 1998, according to Brody, he heard that the property might be part of another proposed redevelopment plan. Brody avers he called the Port Chester mayor over twenty times and went to the library to look up eminent domain law. See Affidavit of Plaintiff William Brody, December 29, 2006 ("Brody Aff."), at ¶¶ 7, 12-13.
On November 18, 1998, the Village published and made available for public review and comment a Supplemental Draft Environmental Impact Statement ("Draft EIS"), pursuant to the New York State Environmental Quality Review Act, which requires local governments to prepare an environmental impact statement for any proposed action that may have an effect on the environment. See N.Y. ENVTL. CONSERV. § 8-0109(2) (2007). The Village, in Section 2.3.8 of that Draft EIS, summarized (albeit not entirely correctly) the then-operative sections of New York Eminent Domain Procedure Law relevant to a potential challenge to a taking of property. The Village's summary read as follows:*fn4
"The EDPL requires the condemnor to review the public purpose of a proposed condemnation at a public hearing held at least ten (10) but no more than thirty (30) days prior notice by publication. At the hearing, the condemnor must outline the purpose and proposed location or alternate locations of the public project.
"The hearing may be adjourned without limit from time to time. Within ninety (90) days after the close of the hearing the condemnor must issue its determination and findings, which must minimally specify (a) the public purpose of the project, (b) the location of the project and the reasons for selection of that location and (c) the general impact of the project on the environment and residents of the locality.
"The determination and findings are reviewable by the Appellate Division in an Article 78 proceeding commenced within thirty (30) days after the completion of the publication of the determinations."
Declaration of Brian Belowich, January 9, 2007 ("Belowich. Decl."), at Ex. A. As Brody points out, the Village incorrectly stated that the Determination and Findings are reviewable in an Article 78 proceeding. Rather, the Determination and Findings are exclusively reviewable in a proceeding pursuant to N.Y. E.D.P.L. § 207.
N.Y. E.D.P.L. § 207(B). Aside from that incorrect statement of jurisdiction, the Village more or less stated the applicable procedural requirements of E.D.P.L. § 207 correctly. An E.D.P.L. § 207 proceeding must, in fact, be brought in the Appellate Division. See id. The time limit for such an EDPL proceeding is, in fact, 30 days. See id.
Conversely, however, the period to seek Article 78 review is 120 days, not 30. Also, Article 78 relief is sought in the Supreme Court, not the Appellate Division. N.Y. C.P.L.R. §§ 217, 7804.*fn5
In any case, Brody submitted a letter of comment in response to the Draft EIS, dated January 11, 1999, in which he asked, inter alia, "[D]oes this seizure violate my rights under the state constitution." Brody Aff., Ex. B. In March 1999, the Village published and made available for public review and inspection a Supplemental Final Environmental Impact Statement ("Final EIS"). See Belowich Decl., Exs. B, C. The Final EIS repeated the partially incorrect statements made in Section 2.3.8 of the Draft EIS regarding a challenge to a Determination and Findings under New York eminent domain law. The Final EIS also incorporated by reference the Appendix of the Draft EIS that included verbatim sections of the N.Y.
E.D.P.L. See id. The Final EIS also specifically responded to Brody's comment letter, stating generally that the "redevelopment of a designated urban renewal area is a public purpose," but did not, in that response, address procedures to challenge the taking. See Affidavit of Dana Berliner, December 29, 2006 ("Berliner Aff."), Ex. C at 6-2.
Brody hired the attorney Garrison Corwin to represent him in the environmental review process. Brody Aff. ¶ 9. Corwin reviewed the SFEIS and "three volumes of" the SDEIS. Brody Aff., Ex. A at 5-6. On March 18, 1999, Corwin and Brody attended the Village's public hearing regarding the SFEIS, at which Corwin spoke on Brody's behalf. Brody Aff., Ex. A at 5-8. Brody avers, and the transcript of the hearing appears to bear him out, that at the March 18, 1999 hearing, neither the EDPL, the date of issuance of the determination and findings, nor the attendant 30-day review period was discussed. Brody Aff., Ex. A.
Corwin subsequently sent a one-page letter to Brody on March 19, 1999, outlining his possible legal options regarding the environmental review process. Belowich Decl., Ex. E. Corwin recommended that Brody take "no specific action until we have the actual approval resolution in connection with the [Final EIS]," and that Corwin would meet with the Village's special counsel regarding the urban renewal proceedings to "discuss the situation, generally." Id. Generally, Corwin avers that he did not represent Brody in connection with eminent domain proceedings and did not give him advice regarding New York eminent domain procedures. Berliner Aff., Ex. H.
On May 22, 1999, the Village published notice of a public hearing to be held on June 7, 1999 regarding the public use of the redevelopment project. Brody Aff. Ex. C. The hearing notice stated the time, place, and subject matter of the hearings, and cited to Article 2 of the EDPL (albeit not EDPL § 207 specifically). Id. Brody heard about the June 7, 1999 hearing, attended, and spoke for four minutes. Brody Aff. ¶ 16. Brody generally avers that he thought this hearing was "just an intermediate step" and that "anything that happened would happen much later." Brody Aff. ¶ 21-22. Defendants admit that Brody and the other attendees ...