The opinion of the court was delivered by: David G. Larimer United States District Judge
Plaintiff, Frederick Tarantino, commenced this action under 42 U.S.C. § 1983, against the City of Hornell, New York (sometimes "City") and three City officials, asserting claims arising out of defendants' enforcement of a City ordinance imposing certain requirements on the owners of rental properties within Hornell. Defendants have moved for summary judgment.
At the time of the events giving rise to this lawsuit, plaintiff owned two rental properties in Hornell: a two-family unit at 175-177 River Street, and another two-family unit at 16-161/2 Davenport Street. Plaintiff also owned a residence in Amherst, New York. According to plaintiff, he typically stayed at the Amherst property on weekends, and at 177 River Street on weekdays. Plaintiff's Depo. (Def. Ex. I) at 6-9.
At the time of the relevant events, § 120-1(B) ("the ordinance") of the Code of the City of Hornell ("Code") provided that an owner of rental property within Hornell could not rent the property to tenants unless the owner had a certificate of occupancy ("C.O.") for the property issued by the City's code enforcement officer. Section 120-1(B) further provided that a property owner could not obtain a C.O. unless he first gave the City proof that the property was insured, and that the City was listed as a party to be notified in the event that the insurance policy lapsed or was cancelled. Any owner of rental property was also required to designate a Hornell resident as an agent to accept legal service on the property owner's behalf. Def. Ex. C.
In June 2003, defendant Timothy Aiken, who was the City's code enforcement officer, sent plaintiff a letter reminding him of the requirements of § 120-1(B). The letter stated, in part, that "[t]o date, many landlords are not in compliance with this law; therefore, this letter is to serve as notice that the city will be strictly enforcing this law." Def. Ex. K. Aiken stated that to avoid being in violation of the ordinance, plaintiff should submit the documents required by § 120-1(B). Id. Plaintiff does not dispute that he was one of several Hornell landlords who received such letters. See Defendants' Statement of Undisputed Material Facts ("DSMF") (Dkt. #28) ¶ 42; Plaintiff's Response to Defendants' Statement of Undisputed Material Facts ("PSMF") (Dkt. #33) ¶ 42. Plaintiff did not respond to, or take any action as a result of, this letter. DSMF ¶ 48; PSMF ¶ 48.
According to plaintiff, he was told by the downstairs tenant at the Davenport Street property in September 2004 that a code enforcement officer had been at the building and had gone into the upstairs apartment. Plaintiff alleges that he had recently given the upstairs tenants an eviction notice, after they had been there for only a week, because they were "extraordinarily difficult tenants," Dkt. #33-4 ¶ 20. Plaintiff infers from those circumstances that the tenants probably called the officer because they were angry at plaintiff for evicting them. Id. ¶ 21.
Defendants contend that there is no evidence that anyone from the Code Enforcement Office entered the upstairs apartment at Davenport Street at around that time period, but they do agree that they did have contact with one of the upstairs tenants. Defendants state that on September 24, 2004, Aiken received a telephone call from one of those tenants, Renee Bayea. The exact reason for her call is unclear, but it appears that she had some sort of complaint about the property. See Aiken Aff. (Dkt. #27-5) ¶ 17; DSMF Ex. M. Bayea also allegedly informed Aiken that she had just recently begun renting the apartment at 161/2 Davenport Street from plaintiff. DSMF ¶¶ 43, 44; PSMF ¶¶ 43, 44.
Aiken states that because it appeared from Bayea's information that plaintiff had rented the property to her without first obtaining a C.O., Aiken sent plaintiff another letter, dated September 24, 2004, stating that the City's records showed that the Davenport Street property had not been inspected since 1998, and that "prior to the renting of the above-mentioned property, the Code Enforcement Officer must inspect the property and determine if a Certificate of Occupancy can be issued." Aiken Aff. ¶ 17; Def. Ex. N. The letter asked plaintiff to respond within three business days. Id. Plaintiff admits that he received this letters, which, like the June 2003 letter, was mailed to him at 177 River Street. Dkt. #33 ¶ 46. Plaintiff did not respond to this letter either, however. Id. ¶¶ 48, 49.
Defendants contend that on September 28, 2004, Hornell Police Officer Mike Sexsmith called the Code Enforcement Office and stated that both apartments at Davenport Street were currently occupied, but that there was no C.O. for the property. Def. Ex. O; Dkt. #33 ¶ 47. Nine days later, on October 7, 2004, Aiken prepared an information charging plaintiff with "commit[ing] the offense of Renting [the Davenport Street property] without a Certificate of Occupancy," as well as an appearance ticket directing plaintiff to answer that charge. Def. Ex. P.
The appearance ticket was sent by certified mail addressed to plaintiff at 177 River Street on October 8, 2004. The envelope was eventually returned by the Postal Service stamped, "UNCLAIMED." Def. Ex. R. The envelope also bears markings indicating that delivery was unsuccessfully attempted on October 8, 14, and 24, 2004. Id.
The Hornell Common Council held a regularly scheduled meeting on November 23, 2004. Plaintiff attended the meeting, at which he read into the record a statement that he had prepared concerning what he believed to be the unconstitutionality of the requirements imposed on landlords by § 120-1(B). Plaintiff's Aff. (Dkt. #33-4) ¶ 26; Def. Ex. X. Plaintiff cited Sokolov v. Village of Freeport, 52 N.Y.2d 341, 343 (1981), in which the New York Court of Appeals held that "the imposition of a penalty upon a landlord for renting his premises without first consenting to a warrantless search violates the property owner's Fourth Amendment rights." Plaintiff's letter also indicated that if "these violations of civil rights [were not] corrected," the City might find itself faced with "a class action law suit ... ." Def. Ex. X.
The day after the meeting, the Hornell Tribune newspaper ran an article about plaintiff's statements at the meeting. The article also quoted Hornell Mayor Shawn Hogan as stating, inter alia, that plaintiff was "showboating," and that plaintiff "wouldn't do this if he thought he had a leg to stand on." Plaintiff's Ex. M.
Aiken (who was not at the November 23 meeting) states in an affidavit that he missed work for much of November 2004, for personal reasons. When he returned to his office on November 30, Aiken prepared two additional informations charging plaintiff with violating the Code provisions requiring him to designate a local agent to accept service of process on plaintiff's behalf, and to submit proof that plaintiff's properties were covered by fire and liability insurance. Def. Ex. S. Aiken prepared appearance tickets on those charges, which he made returnable on December 17, 2004. Def. Ex. T. Aiken also revised the return date of the as-yet-unserved October 7 appearance ticket to that same date. Def. Ex. Q.
After preparing the informations and appearance tickets, Aiken called plaintiff at work and arranged to meet with him later that day, November 30.*fn1 Plaintiff met Aiken as agreed, at which time Aiken personally served him with the appearance tickets.
Plaintiff appeared in court on November 30 to answer the charges against him, and pleaded not guilty. In July 2005, the City withdrew the charges. Amended Complaint ¶ 27; DSMR ¶ 72. It is not clear whether any reason was given for the City's decision.
Also in July 2005, the City amended § 120 of the Code by adding a provision that the Code Enforcement Office "shall be required to obtain a search warrant whenever an owner, agent or person in charge refuses to permit a warrantless inspection of the premises ... ." Plaintiff's Ex. F § 120- 1(C)(2). The amended Code further provides that all rental units "shall be inspected and certified by the Code Enforcement Office ...," and that "it shall be unlawful and a violation of this chapter to rent ... any ... rental unit without the inspection and certification as required herein." Id. § 120-1(C)(1).
Plaintiff commenced this action in November 2005, against the City, Aiken, Hogan, and Joseph Pelych, who at all relevant times was the Hornell City Attorney. The amended complaint (Dkt. #21) asserts six causes of action under § 1983 and New York law: (1) a claim for malicious prosecution; (2) a claim captioned, "Invalidation of Unconstitutional Laws," alleging that § 120-1, both in its current form and as it existed prior to the July 2005 amendment, is unconstitutional in several respects; (3) a claim alleging that defendants have violated plaintiff's constitutional rights to free speech, due process, equal protection, and freedom from unlawful searches, as well as plaintiff's rights under the Contracts Clause of article I, § 10 of the United States Constitution; (4) a claim alleging "negligent enactment and enforcment [sic] of law"; (5) a slander claim; and (6) a claim for intentional infliction of emotional distress. Plaintiff seeks over one million dollars in compensatory and punitive damages, and a declaration that the relevant sections of the Code are unconstitutional.
I. Fourth Amendment Claim
The amended complaint alleges that "[d]efendants ... deprived plaintiff of his ... right ... to be free from illegal searches guaranteed ... by the ... Fourth Amendment ... ." Dkt. #21 ¶ 60. The complaint alleges that defendants did so by "entering [plaintiff's] rental property at 16 1/2 Davenport Street and conducting an inspection of the property without plaintiff's consent." Dkt. #21 ¶ 66.
Plaintiff's Fourth Amendment claim appears to be based entirely on the alleged entry by a code enforcement officer into the upstairs apartment on Davenport Street in September 2004. Although defendants contend that there is no proof that anyone from the City ever searched or even entered the Davenport Street property, any dispute in that regard is immaterial.*fn2 Assuming the truth of plaintiff's allegations, it is clear that, even if there was a "search" or inspection of the property, no Fourth Amendment violation occurred, because the tenants in possession of the property consented to the search.
The entire factual basis for this claim is plaintiff's allegation that in September 2004, he was told by the downstairs tenant at Davenport Street that a code enforcement officer had been there and had entered the upstairs apartment. Plaintiff alleges, however, that the upstairs tenants had called the Code Enforcement Office with a complaint out of spite, because they were angry at plaintiff for giving them an eviction notice. There is no evidence that any City officer entered the property without the consent of either plaintiff or at least one of the occupants.
To succeed on a Fourth Amendment claim alleging an unlawful search, a plaintiff must demonstrate standing, which requires a showing that he had a reasonable expectation of privacy in the place that was searched. See Minnesota v. Carter, 525 U.S. 83, 88 (1998); Rakas v. Illinois, 439 U.S. 128, 143-44 and n. 12 (1978)); Warren v. Williams, No. Civ.A. 304CV537, 2006 WL 860998, at *10 (D.Conn. Mar. 31, 2006); Godshalk v. Borough of Bangor, No. Civ.A. 03-1465, 2004 WL 999546, at *10 (E.D.Pa. May 5, 2004).*fn3
Plaintiff has not made, and cannot make on the facts presented, such a showing here. It is well established that a landlord does not have a reasonable expectation of privacy with respect to property that he has rented to a tenant, and that is occupied by that tenant. See, e.g., Johnson v. Weaver, 248 Fed.Appx. 694, 697 (6th Cir. 2007) (state department of natural resources officers did not violate property owner's Fourth Amendment rights when they knocked on door of tenant's house, notwithstanding owner's prior order to officers to stay off his property, since the tenant lived there, and plaintiff's "ownership alone d[id] not create a reasonable expectation of privacy"); Steinhauser v. City of St. Paul, 595 F.Supp.2d 987, 1006-07 (D.Minn. 2008) (landlords did not have reasonable expectation of privacy in their tenants' apartments, and therefore lacked standing to bring § 1983 claims based on searches of tenants' apartments); United States v. Cruz, 475 F.Supp.2d 250, 257 (W.D.N.Y. 2007) ("Ownership of premises alone does not automatically confer standing"); DiBlasi v. Borough of East Rutherford, No. 05-1980, 2006 WL 2246374, at *5-*6 (D.N.J. Aug. 3, 2006) (finding sua sponte that plaintiff lacked standing to assert Fourth Amendment claims with respect to rental properties that he owned but in which he did not reside, and that even if plaintiff did have standing, "it is clear that no Fourth Amendment violation occurred because the respective tenants at these residences gave consent for the Borough Officers to enter the property"); Dearmore v. City of Garland, 400 F.Supp.2d 894, 900 (N.D.Tex. 2005) ("the property owner has no expectation of privacy if the property is leased" to another); Gardner v. McGroarty, No. 3:CV-99-1634, 2002 WL 32107213, at *9 (M.D.Pa. Mar. 26, 2002) (city defendants did not violate Fourth Amendment in their search of apartment building owned by plaintiff, where they received the consent of plaintiff's tenants to search the individual apartments).
Plaintiff contends that the City has implicitly recognized his subjective privacy interest by amending § 120-1 to provide that the City must obtain a warrant to search a rental dwelling whenever the "owner, agent or person in charge thereof" refuses to permit a warrantless inspection.*fn4
That provision was not in effect in September 2004, when the alleged entry occurred, however.
Even if that provision had been in effect at the time, however, it does not give rise to a constitutionally protected expectation of privacy by a landlord with respect to leased premises. As the Court of Appeals for the Tenth Circuit has explained, in the context of a right-to-privacy claim,
[t]he presence of privacy statutes and regulations may inform our judgment concerning the scope of the constitutional right to privacy. However, such local acts, standing alone, fall far short of the kind of proof necessary to establish a broadly recognized, reasonable expectation of privacy which has been identified by precedent. Thus, plaintiffs cannot rely on state statutes to create a federal constitutional claim.
Flanagan v. Munger, 890 F.2d 1557, 1571 (10th Cir. 1989). See also We Buy, Inc. v. Town of Clarkstown State of New York, No. 06 Civ. 1794, 2006 WL 3016314, at *6 (S.D.N.Y. Oct. 20, 2006) (rejecting plaintiff's "argument that the substantive protections of the Fourth Amendment are expanded because more protective state law creates a reasonable expectation of greater privacy").*fn5
II. Equal Protection/"Class of One" Claim
Plaintiff alleges that "[w]hile defendants cited and prosecuted plaintiff for alleged violations of [§ 120-1], defendants did not cite or prosecute other similarly situated rental property owners in the City of Hornell that did not comply with the requirements" of § 120-1, Amended Complaint ¶ 25, and that by doing so, defendants deprived him of his constitutional right to equal protection, Amended Complaint ¶ 63. The Equal Protection Clause of the Fourteenth Amendment requires the government to treat all similarly situated individuals alike. City of Cleburn v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985). If two individuals are treated differently, despite some facial similarly in their situations, the Constitution requires that there be some rational, legitimate basis for the difference in treatment.
Equal protection challenges are "typically ... concerned with governmental classifications that affect some groups of citizens differently from others." Engquist v. Oregon Dep't of Agric., ___ U.S. ___, 128 S.Ct. 2146, 2152 (2008). "Therefore, individuals pursuing equal protection challenges ordinarily 'allege that they have been arbitrarily classified as members of an identifiable group.'"
United States v. Moore, 543 F.3d 891, 896 (7th Cir. 2008) (quoting Engquist, 128 S.Ct. at 2152) (additional internal quotation marks omitted).
A plaintiff can make out an equal-protection claim without showing that he belongs to a protected group, however, if he can show that he had been "irrationally singled out" for discriminatory treatment. Engquist, 128 S.Ct. at 2153. Such claims are generally referred to as "selective enforcement" or "class of one" claims. See, e.g., Kamholtz v. Yates County, No. 08-CV-6210, 2008 WL 5114964, at *4-*5 (W.D.N.Y. Dec. 3, 2008).
To state a selective-enforcement claim, the plaintiff must allege that, compared with others similarly situated, he was selectively treated, and that "such selective treatment was motivated by an intention to discriminate on the basis of impermissible considerations, such as race or religion, to punish or inhibit the exercise of constitutional rights, or by a malicious or bad faith intent to injure the person." Zahra v. Town of Southold, 48 F.3d 674, 683 (2d Cir. 1995); accord Jones v. J.C. Penny's Dept. Stores, Inc., No. 03-CV-920, 2007 WL 1577758,*9 (W.D.N.Y. May 31, 2007). "A plaintiff generally must satisfy both elements to establish a claim of selective enforcement." Washpon v. Parr, 561 F.Supp.2d 394, 409 (S.D.N.Y. 2008) (quoting LaTrieste Rest. v. Village of Port Chester, 188 F.3d 65, 70 (2d Cir. 1999)); see also Kamholtz v. Yates County, No. 08-CV-6210, 2008 WL 5114964, ...