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Iannucci v. City of New York


March 21, 2007


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


Plaintiff Robert Ianucci ("Ianucci") brings this action against Defendant City of New York ("City") to recover damages for the City's alleged failure to prevent New York City police officers from parking their vehicles on sidewalks, curbs, and driveways on or adjacent to plaintiff's properties, causing damage and depriving plaintiff of the use of his property.*fn1

Pursuant to 42 U.S.C. § 1983, plaintiff alleges that the City violated his procedural and substantive due process rights under the Fourteenth Amendment.*fn2 Presently before the Court is defendant's motion for partial summary judgment, seeking dismissal of plaintiff's claim for damages based on the assignment of claims related to property at 325 Gold Street. In November 2002, plaintiff bought this property from its prior owner, who assigned all claims related to the property to plaintiff. For the reasons set forth below, defendant's motion is granted.


The following facts are drawn from the parties' submissions in connection with this motion. Disputes are noted.

Plaintiff Ianucci is a resident of the State of New York and owns several buildings located on Gold and Johnson streets in Brooklyn, New York. The City of New York is a municipal corporation organized under the laws of the State of New York.

In 1982, plaintiff purchased two properties located at 309 Gold Street and 171 Johnson Street in Brooklyn, New York. In 1983, plaintiff purchased property located at 311, 313, and 315 Gold Street (which is also known as 167-169 Johnson Street). Defendant's Opposition Memorandum, p. 2.

In April 2001, plaintiff began leasing office space at 325 Gold Street, a ten story commercial building which was then owned by the Garden City Company ("Garden City"). Thereafter, Garden City was under the oversight of the U.S. Bankruptcy Court and was put up for sale by a court appointed trustee. See Defendant's Local Rule 56.1 Statement, ¶ 6; Def. Exh. 1, For Sale or Not for Sale?, The Garden City News, April 20, 2001. On November 20, 2002, plaintiff purchased the 325 Gold Street property from Garden City. As part of his purchase of the 325 Gold Street property, Garden City assigned to plaintiff claims relating to 325 Gold Street between 1983, when Garden City acquired 325 Gold Street, until November 20, 2002, the date Garden City conveyed the property to plaintiff. Around this time, plaintiff also purchased property at 173 and 175 Gold Street.

Plaintiff alleges that since 1983, New York City vehicles, such as police patrol cars, Fire Department cars, Emergency Medical Services trucks, Department of Transportation trucks, and private vehicles with New York City parking placards (collectively "City vehicles"), have parked and double-parked illegally on the sidewalks, curbs, and streets abutting plaintiff's properties on a daily basis.*fn3 According to plaintiff, "[t]he double parked cars impede the flow of traffic," including pedestrian traffic, "and thus block access to plaintiff's building." Plaintiff's Opposition Memorandum, p. 6. "The cars blocking the loading bays prevent businesses from sending or receiving deliveries." Id. Lastly, plaintiff states, "[t]his image of rows of double parked cars, and cars illegally parked on the sidewalks creates a negative image that detracts from the plaintiff's ability to rent his properties in accordance with the prevailing values of the area." Id.

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 have been 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 caused the curbs and sidewalks in front of the properties to become cracked and damaged, 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 $60,000. Ianucci Affidavit, dated Feb. 16, 2007, ¶ 22.

Plaintiff states that since 1982, he notified the City "on multiple occasions" that the City's official vehicles and City Placard vehicles were parking on the sidewalks and curbs in front of the properties, and that the vehicles were double parking and blocking the driveways to the premises. Despite his complaints, City vehicles continued to park illegally on the curbs and sidewalks abutting plaintiff's properties. In 2005, plaintiff sold all properties listed above, except for the 325 Gold Street property.

In November 2002, plaintiff commenced this Section 1983 action seeking monetary damages and attorney's fees for the alleged violation of his procedural and substantive due process rights. Plaintiff also seeks to recover damages that Garden City, the prior owner, allegedly suffered with respect to the 325 Gold Street property during the period of Garden City's ownership, from 1983 through November 2002. Approximately 78% of plaintiff's claim of lost rents arises from the 325 Gold Street property for the period during which Garden City owned the property.*fn4



This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331, 28 U.S.C. § 1343, which grants district courts original jurisdiction over civil actions commenced by any person "to redress the deprivation, under color of State law, . . . custom or usage, of any right, privilege or immunity secured by the Constitution or by any Act of Congress providing for equal rights of citizens . . .," and 42 U.S.C. § 1983.*fn5

Summary Judgment Standard

A court must grant a motion for summary judgment if the movant shows that "there is no genuine issue as to any material fact" and that "the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. Pro. 56(c). "An issue of fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Elec. Inspectors, Inc. v. Village of East Hills, 320 F.3d 110, 117 (2d Cir. 2003).

The party seeking summary judgment has the burden of demonstrating that no genuine issue of material fact exists. Apex Oil Co. v. DiMauro, 822 F.2d 246, 252 (2d Cir. 1987). In order to defeat such a motion, the non-moving party must raise a genuine issue of material fact. Although all facts and inferences are to be construed in the light most favorable to the non-moving party, the non-moving party may not rely on conclusory allegations or unsubstantiated speculation. Twin Labs., Inc. v. Weider Health & Fitness, 900 F.2d 566, 568 (2d Cir. 1990).

Standing Requirement

Defendant City argues that plaintiff lacks standing to sue based on the assignment of claims relating to the premises at 325 Gold Street.


Standing is "the threshold question in every federal case, determining the power of the court to entertain the suit." Warth v. Seldin, 422 U.S. 490, 498 (1975). Standing implicates two questions:

First, whether the plaintiff-respondents allege 'injury in fact,' that is, a sufficiently concrete interest in the outcome of their suit to make it a case or controversy subject to a federal court's Art. III jurisdiction, and, second, whether as a prudential matter, the plaintiff-respondents are proper proponents of the particular legal rights on which they base their suit.

Singleton v. Wulff, 428 U.S. 106, 112 (1976). The Supreme Court has held that "[o]rdinarily, one may not claim standing in this Court to vindicate the constitutional rights of some third party." Id. at 113 (1976) (quoting Barrows v. Jackson, 346 U.S. 249, 255 (1953)) (internal quotations omitted). Similarly, it is a "well-settled principle that a Section 1983 claim must be based upon the violation of plaintiff's personal rights, and not the rights of someone else." Archuleta v. McShan, 897 F.2d 495, 497 (10th Cir. 1990), quoted in McKelvie v. Cooper, 190 F.3d 58, 64 (2d Cir. 1999). See also McCloud v. Delaney, 677 F.Supp. 230, 232 (S.D.N.Y. 1988) ("A party may not assert a civil rights claim on behalf of another, each party must establish that he or she was personally deprived of rights or privileges secured by the Constitution."); Sterngass v. Bowman, 563 F.Supp. 456, 459 (S.D.N.Y. 1983) ("One may not sue under 42 U.S.C. § 1983 for deprivation of another's constitutional rights"). Courts have also denied standing to litigants who claim standing based on an assigned economic interest. See, e.g., Carter v. Romines, 560 F.2d 395, 396 n.1 (8th Cir. 1977).*fn6

Courts have recognized "a limited exception," Georgia v. McCollum, 505 U.S. 42, 55 (1992), to the rule against third party standing where the third party has made "two additional showings." Kowalski v. Tesmer, 543 U.S. 125, 131 (2004). "First, we have asked whether the party asserting the right has a 'close' relationship with the person who possesses the right." Id (citing Powers v. Ohio, 499 U.S. 400, 411 (1991)); see also Singleton, 428 U.S. at 112 ("[T]he relationship between the litigant and the third party may be such that the former is fully, or very nearly, as effective a proponent of the right as the latter."); Griswold v. Connecticut, 381 U.S. 479 (1965) (court permitted physician defendant to assert privacy rights of married persons physician advised). "Second, we have considered whether there is a 'hindrance' to the possessor's ability to protect his own interests." Kowalski v. Tesmer, 543 U.S. 125, 131 (2004) (citing Powers v. Ohio, 499 U.S. 400, 411 (1991)); see also Singleton v. Wulff, 428 U.S. 106, 115-16 (1976) (stating that the court considers "the ability of the third party to assert his own right. Even where the relationship is close, the reasons for requiring persons to assert their own rights will generally still apply."*fn7 ). The Supreme Court "has allowed standing to litigate the rights of third parties when enforcement of the challenged restriction against the litigant would result indirectly in the violation of third parties' rights." Kowalski, 543 U.S. at 130 (quoting Warth v. Seldin, 422 U.S. 490, 510 (1975) and citing Doe v. Bolton, 410 U.S. 179 (1973); Griswold v. Connecticut, 381 U.S. 479 (1965); Barrows v. Jackson, 346 U.S. 249 (1953)) (emphasis in original). "Beyond these examples," however, the Supreme Court "[has] not looked favorably upon third-party standing." Kowalski, 543 U.S. at 131 (citation omitted).


There is no dispute that with respect to the 325 Gold Street property, plaintiff seeks to assert third-party standing. Therefore, plaintiff must meet the "close relationship" and "hindrance" criteria to fall within the exception of the standing rule. See Kowalski, 543 U.S. at 131.

1. "Close Relationship"

Plaintiff argues that he meets the "close relationship" criterion because "[f]irst, there was an initial relationship which was born as owners of similarly situated property and property rights. Second, the plaintiff was a tenant of 325 Gold Street beginning in April 2001." Plaintiff's Opposition Memorandum, p. 14.*fn8

For the period between 1983 and April 2001, when plaintiff was neither an owner nor a tenant of the 325 Gold Street property, plaintiff's relationship with Garden City was not sufficiently close to meet the first criterion of the standing rule exception. Although the rights of both plaintiff and Garden City were allegedly violated by the City's parking practices, plaintiff cannot demonstrate how, during this period, the City's conduct against plaintiff brought about constitutional violations with respect to Garden City. The City's allegedly illegal conduct against plaintiff's property during this period does not necessarily mean that that same conduct would similarly affect Garden City's property.

Regarding the period between April 2001 and November 2002, when plaintiff was a tenant of the 325 Gold Street property, the City's parking practices did allegedly cause both plaintiff and Garden City deprivations of constitutional rights with respect to that property. As a tenant, plaintiff did not suffer lost rent, the injury about which plaintiff largely complains, but plaintiff has alleged that he suffered damages arising out of impeded traffic of automobiles and pedestrians and the inability to send and receive deliveries. Accordingly, for this period, plaintiff meets the first criterion for obtaining third-party standing.*fn9

2. "Hindrance"

With respect to the second criterion of the standing rule exception, plaintiff has not demonstrated that Garden City could not itself assert the claim for damages related to the 325 Gold Street property. The only evidence cited by plaintiff in relation to Garden City's alleged inability to sue is an article published in a local publication, The Garden City News. The article dated April 20, 2001 reports that the "Garden City Company . . . is being offered for sale in order to pay the debts of one of its bankrupt shareholders . . . ." For Sale or Not for Sale?, The Garden City News, April 20, 2001, p. 1. The article reported that the shareholder, Lawrence Kassover, "had filed for personal bankruptcy in 1998, and his holdings are being liquated by a trust . . . ." Id. Kassover is alleged to have held only 5.25% of the company. Plaintiff has offered no evidence showing that the company was in fact sold and whether the company was unable to bring a claim on its own behalf, either after the sale or during the period during which the alleged violations by the City occurred. In any event, the Supreme Court has found that indigent parties are not precluded from advancing their constitutional rights. See Kowalski v. Tesmer, 543 U.S. 125, 131-32 (2004) (noting that "[i]t is uncontested that an indigent denied appellant counsel has open avenues to argue that denial deprives him of his constitutional rights" and that lack of representation is not "the type of hindrance necessary to allow another to assert the indigent defendants' rights"). More fundamentally, plaintiff has not shown how prosecuting his suit on the basis of third-party standing "is necessary to insure protection of the rights asserted." Warth v. Seldin, 422 U.S. 490, 510 (1975). The rights plaintiff seeks to assert on behalf of Garden City are the same rights plaintiff asserts on his own behalf. Accordingly, plaintiff's claim for damages arising from defendant's alleged conduct in relation to the property at 325 Gold Street for the period of 1983 to November 2002 is dismissed and defendant's motion for partial summary judgment is granted.


For the foregoing reasons, defendant's motion for partial summary judgment is granted.

The clerk is directed to transmit a copy of the within to the parties and to the Magistrate Judge.


Charles P. Sifton (electronically signed) United States District Judge

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