The opinion of the court was delivered by: David N. Hurd United States District Judge
MEMORANDUM-DECISION and ORDER
Plaintiff Diane Pilchen ("Pilchen" or "plaintiff") brought an action against defendant City of Auburn, New York ("City" or "defendant"), seeking declaratory and injunctive relief, along with damages, resulting from the termination of water service to her residence and the subsequent denial by the City of water service under her name. Pilchen has moved for partial summary judgment pursuant to Rule 56(a) of the Federal Rules of Civil Procedure, seeking a declaratory judgment on her three causes of action and a determination that defendant is liable to her for damages. Defendant filed a cross motion seeking summary judgment pursuant to Rule 56(b) of the Fed. R. Civ. P., but failed to submit a Statement of Material Facts with the motion as required by Local Rule 7.1(a)(3). Oral argument was heard on January 22, 2010, in Utica, N.Y. and decision was reserved.
The defendant (the non-movant party here), did not controvert any of the material facts set forth by the plaintiff (the movant), in plaintiff's Statement of Material Facts, therefore the undisputed facts as stated by the movant have been admitted and utilized to consider the motion and cross-motions of the parties. See L.R. 7.1(a)(3).
In 2007, the City revamped its procedure for handling delinquent water and sewer service accounts. Rather than adding delinquent water charges to the property tax bill of the owner at year-end as had been its traditional practice, the City elected to institute new procedures to improve the speed of collecting quarterly water service bills. The new process which began on July 1, 2007, called for a notice to be sent to the owner once a quarterly water payment was thirty days past due. If the account reached sixty days delinquent, a notice would be mailed to the owner warning that the water would be turned off in ten days if the delinquency was not cured. Simultaneously, a notice would be affixed to the premises advising occupants the water service was in danger of being disconnected in ten days. The notice posted at the affected building did not provide the occupant with an opportunity to a hearing prior to the service being disconnected. The City shortened the time frame for this process in May, 2008, mailing the first notice twenty days after the quarterly bill became overdue, and sending the termination warning after forty days of delinquency, with disconnection of service possible ten days later. The notice posted at the property did not change.
Plaintiff rented a home located at 12 Elm Street in Auburn, New York, and in 2008, she had resided there for a period of two years. Pilchen's monthly rental payments covered not only use of the residence, but also water service, with the landlord responsible for the payment of the water bills. The City mailed quarterly water bills for the Elm Street property to the landlord at her Florida address during 2008.
The Florida-based landlord apparently failed to make her required payments to the City of Auburn for water service at the Elm Street property. On April 15, 2008, the City sent a certified letter to the landlord, informing her the water to 12 Elm Street would be turned off in ten days if payment was not received prior to the deadline. Plaintiff, as the tenant, was not notified of the impending water disconnection by defendant. Defendant turned off water service to 12 Elm Street on April 30 and assessed a fee of $50 to the landlord's account. Pilchen went to the office of the water department on May 2 requesting water service be restored to her home, but the City refused to reconnect unless the delinquency was satisfied. Plaintiff paid $300 toward her landlord's arrearage and the City reinstated water service to her home, assessing a $50 reinstatement fee to the water account.
Subsequent to the payment made by Pilchen, on May 30, 2008, the City mailed another notice of termination to their customer in Florida stating that she owed $578.35 for water service to the Pilchen residence. Once again, the City did not notify the plaintiff that water to her home was in danger of being turned off. Defendant mailed yet another letter to the landlord on June 27, informing her the water service to 12 Elm Street would be disconnected for nonpayment. The City mailed a $794.83 water bill to the landlord's Florida address on July 7, consisting of the past due amount of $578.35 and $196.80 for the current quarterly service. The defendant did not send any copies of these letters or bills to the plaintiff's address. However, the City did post a notice at the Elm Street home for the purpose of advising residents therein that water service to the home would be disconnected within a short period of time. The notice posted by the City failed to include any method by which the pending water termination could be contested by the plaintiff.
In July, 2008, plaintiff requested the City establish an account in her name for water service to the Elm Street property because of the apparent default by her landlord. This request was denied by the defendant, who did not provide plaintiff with a written explanation of the reason for denial. Also in July, 2008, plaintiff arranged to make additional payments on the landlord's account, but financial circumstances prevented her from making the promised payments.*fn1 On August 6, defendant terminated water service at the plaintiff's residence and assessed another $50 disconnection fee to the landlord's account. Plaintiff again requested an account be established in her name and was summarily denied. As an alternative, Pilchen sought to pay the current charges on her landlord's bill, a request that was also denied by the City. On August 7, 2008, the City demanded the plaintiff sign an agreement to pay the landlord's arrearage as a prerequisite to having water service restored at her home. The agreement required an immediate $100 payment on August 7 and $50 payments each week until the landlord's debt was fully satisfied. Faced with the choice of signing the agreement or no water in her home, plaintiff signed the agreement and paid $100 toward the landlord's account, with the defendant adding another $50 fee to that account for restoring service.
Pilchen made only one of the $50 payments stipulated in the August 7 agreement and as a result, on September 19, the City posted a notice at her home advising of the impending termination. The City's notice again failed to provide a means by which Pilchen could request a hearing on the matter prior to losing water service at her residence. Although the defendant is unable to provide a copy of the notices it placed on the plaintiff's residence in 2008, the City has provided an example of the notice it currently utilizes to inform residents their water service is scheduled to be disconnected. The new notice, developed after this litigation began, states that tenants have the right to a hearing prior to their water service being terminated.
The City again disconnected water to 12 Elm Street on September 30, 2008, but on this occasion the City's code enforcement department condemned the plaintiff's house as uninhabitable because of the lack of water service to the building.
A. Summary Judgment Standard
Summary judgment must be granted when the pleadings, depositions, answers to interrogatories, admissions, and affidavits show that there is no genuine issue as to any material fact, and that the moving party is entitled to summary judgment as a matter of law. Fed. R. Civ. P. 56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10 (1986); Richardson v. New York State Dep't of Correctional Servs., 180 F.3d 426, 436 (2d Cir. 1999); Lang v. Retirement Living Pub. Co., 949 F.2d 576, 580 (2d Cir. 1991).
The moving party carries the initial burden of demonstrating an absence of a genuine issue of material fact. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552 (1986); Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir. 1990). Facts, inferences therefrom, and ambiguities must be viewed in a light most favorable to the non-movant. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356 (1986); Richardson, 180 F.3d at 436; Project Release v. Prevost, 722 F.2d 960, 968 (2d Cir. 1983).
When the moving party has met the burden, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., 475 U.S. at 586, 106 S.Ct. at 1356. At that point, the nonmoving party "must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56; Liberty Lobby, Inc., 477 U.S. at 250, 106 S.Ct. at 2511; Matsushita Elec. Indus. Co., 475 U.S. at 587, 106 S.Ct. at 1356. To withstand a summary judgment motion, sufficient evidence must exist upon which a reasonable jury could return a verdict for the non-movant. Liberty Lobby, Inc., 477 U.S. at 248-49, 106 S.Ct. at 2510; Matsushita Elec. Indus. Co., 475 U.S. at 587, 106 S.Ct. at 1356.
B. Fourteenth Amendment Procedural Due Process
Pilchen seeks a declaration that the City violated her right to due process by terminating water service to her home without proper notice on several occasions. Plaintiff also seeks a determination that as a result of the alleged violation, the City is liable to her for damages. The relief sought by plaintiff is pursuant to 42 U.S.C. § 1983 which allows for suits to be brought against persons who deprive a party of the rights, privileges or immunities granted through the Constitution. The due process clause of the Fourteenth Amendment warrants that "No State shall . . . deprive any person of life, liberty, or property without due process of law." U.S. Const. amend. XIV § 1.
At issue here is whether the City's actions violated the plaintiff's property rights by disconnecting water service to her residence without proper notification to her. Paramount in determining this matter is whether Pilchen, as the tenant of the residence, had a legitimate property interest in the water service to the home. Additionally, if a property interest exists, the question of what form of due process is required if that interest will be infringed upon by the City must be determined. Finally, the issue of whether the City failed to provide proper due process in declining to provide water service in plaintiff's name must be considered.
To prevail, plaintiff must show that a state actor under color of a statute, acted in a manner which deprived Pilchen of her right to due process prior to infringing upon her property interest. See 42 U.S.C. § 1983 (2006). The City of Auburn is a municipality in the state of New York, and is therefore a state actor. A city "can be sued directly under § 1983 . . . where . . . the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation or ...