UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK
November 2, 2010
ALBERT AND FRANCES, PLAINTIFFS,
WATKINS GLEN INTERNATIONAL, INC., AND SCHUYLER COUNTY SHERIFF'S DEPARTMENT, DEFENDANTS
The opinion of the court was delivered by: Charles J. Siragusa United States District Judge
This is an action, apparently brought pursuant to 42 U.S.C. § 1983, in which the Plaintiffs, proceeding pro se, allege that Defendants violated their due process rights under the Fifth Amendment to the United States Constitution, by evicting them from their residence without due process. Now before the Court is an application for preliminary injunctive relief. For the reasons that follow, the application is denied.
Plaintiffs Albert and Frances, who indicate that they have no last name, but who were formerly known as Albert Valent and Frances Valent,*fn1 contend that Defendants wrongfully evicted them from their home, which Plaintiffs identify as "2031 Baker Hill Road," in the Town of Dix, Schuyler County, New York. Plaintiffs indicate that their residence consists of a house, along with "about 350 acres" of land, on which they maintain a variety of farm animals.
On October 27, 2010, the Schuyler County Sheriff evicted Plaintiffs, based on an eviction warrant signed on September 20, 2010, by the Honorable Judith F. O'Shea, Justice of the New York State Supreme Court, Schuyler County, in the action Watkins Glen International ("W GI"), Petitioner, against Albert Valent and Frances E. Valent, a/k/a Albert and Frances, Index No. 2010-0053. The action by W GI was a proceeding to recover possession of real property, pursuant to New York Real Property Actions and Procedure Law ("RPAPL") § 741. The eviction warrant directed the sheriff to remove all persons from "2001 Baker Hill Road," "further described as Tax Map # 84-1-41.2, Tax Map # 94.00-1-6.1, Tax Map # 84.00-1-41.2 and a portion of the property identified as Tax Map # 84.00-1-41.11 as set forth in the Decision and Order of Justice Judith F. O'Shea, dated August 13, 2010, and to put said petitioner in full possession thereof."
Attached to Plaintiffs' Complaint in this action is a copy of Justice O'Shea's Decision and Order dated August 13, 2010. In it, Justice O'Shea described the property at issue, which she referred to as "2001 Baker Hill Road," as being accurately described in W GI's Schedule A. Schedule A described the property as consisting of, in pertinent part, a white house and a blue house, along with approximately 400 acres of land.*fn2 (O'Shea Decision and Order at 3).*fn3 Justice O'Shea stated that although this property had once belonged to Plaintiffs Albert and Frances, they had lost ownership of the property in 2001, as a result of the foreclosure of a tax lien. Subsequently, W GI purchased the property. Nevertheless, Albert and Frances continued to live on the land and to conduct farming activities.
In the action pending before Justice O'Shea, Albert and Frances argued that W GI did not own the property on which they resided, for several reasons. First, they stated that they had never received the property tax bills, which went unpaid and which resulted in the 2001 tax lien foreclosure. Additionally, they maintained that there were defects in the property descriptions in the deeds conveying title to W GI. And further, they argued that W GI's petition, seeking to evict them from the property, did not accurately describe the property on which they were residing. On this last point, Justice O'Shea stated: "The gist of [Albert and Frances' argument] is that 2001 Baker Hill Road is a blue house on 5 acres of land, while they live in a white house with 400 acres of land, thereby making the petition defective." (O'Shea Decision and Order at 2). Significantly, though, Albert and Frances indicated that, although the property on which they resided had been known as "2031 Baker Hill Road" prior to the tax lien foreclosure, "Schuyler County [later] removed the address from their home and placed it on a cell phone tower." Id. at 4. Albert and Frances further stated that following the tax foreclosure, at their request, the County referred to their address as being "Highland Drive, Lot 5, Clarkson Tract, John W . W atkins Patent, Land of Valent." Justice O'Shea rejected Albert and Frances' arguments concerning the alleged deficiencies of W GI's petition, and ruled that W GI was the owner of the subject property, including the property described in the aforementioned Schedule A. And specifically, Justice O'Shea ruled that the property, which, again, she referred to as "2001 Baker Hill Road," included the white house and several hundred acres of land, upon which Albert and Frances had been living unlawfully since the tax lien foreclosure. (O'Shea Decision and Order at 5) ("The record as a whole clearly establishes that petitioner [W GI] has title to the property, that respondents [Albert and Frances] unlawfully remain in possession of the premises, and that eviction is warranted.")
It is noteworthy that the aforementioned action before Justice O'Shea was not the first lawsuit in which W GI had sought to evict Albert and Frances. Plaintiffs' Complaint refers to another such action, which was commenced by W GI against Albert and Frances in Schuyler County Court in 2008. (W atkins Glen International, Petitioner, against Albert Valent and Frances E. Valent, Index No. 08-029). As part of that proceeding, Albert and Frances raised some of the same arguments that they subsequently raised before Justice O'Shea, including the argument that W GI's petition did not accurately describe the property on which they lived. Regarding this earlier action, Justice O'Shea stated, in her Decision and Order: "Petitioner previously commenced a similar ejectment proceeding against respondents in 2008, however, in a Decision and Order issued by the Hon. Molly Reynolds Fitzgerald on July 9, 2009, the petition was dismissed due to a defective property description." (O'Shea Decision and Order at 2). Following the dismissal of the earlier action, W GI hired a surveyor to correct the defective property description, and then commenced the second eviction proceeding.
On October 28, 2010, the day following the eviction, Plaintiffs commenced this action. Along with their Complaint, Plaintiffs submitted the subject application for preliminary injunctive relief. In that regard, Plaintiffs have submitted a proposed "Temporary Restraining Order and Order to Show Cause," which would restrain Defendants, "from taking any further or other actions of any kind" with regard to Justice O'Shea's warrant, and from preventing Plaintiffs from returning to the property.
Essentially, Plaintiffs contend that the eviction denied them due process, because the eviction warrant referred to "2001 Baker Hill Road," while they purportedly resided at "2031 Baker Hill Road." See, Complaint ¶ 35 ("Defendants knowingly evicted Plaintiffs without a court order, violating all property and constitutional rights and interfering with Plaintiffs' choice of citizenship."). However, as discussed above, Plaintiffs' complaint indicates that the County stopped referring to the property on which they resided as 2031 Baker Hill Road following the tax lien foreclosure. Moreover, Justice O'Shea's Decision and Order clearly included, as part of "2001 Baker Hill Road," the property on which Albert and Frances resided, including the white house and several hundred acres of farm land. In any event, Plaintiffs further allege, in support of their application for injunctive relief, that the eviction may result in "cruelty and/or death to plaintiffs' hundreds of animals." (Complaint at 1). Specifically, Plaintiffs state that there is a large number of animals on the property, including deer, beef cattle, dairy cows, geese, turkeys, guinea hens, chickens, and cats. Plaintiffs express concern that the animals will not be cared for. Their papers, though, indicate that W GI has made arrangements with a local farmer to care for the animals until they are removed from the property, and that Plaintiffs are providing the farmer with instructions concerning the normal care and feeding of the animals. Complaint ¶ ¶ 24-25. Plaintiffs further allege that they were required to leave behind their personal property, with the exception of some clothes. However, attached to Plaintiff's Complaint is a notice from W GI, informing Plaintiffs that their personal property was placed in storage, and that Plaintiffs may claim the property on or before November 30, 2010. Plaintiffs' papers further indicate that their daughter was told, by a representative of W GI, that Plaintiffs could have access to the house by making an appointment with W GI.
Plaintiff's application is an ex parte*fn4 request for injunctive relief under Federal Rule of Civil Procedure 65. That rule states in pertinent part, "[t]he court may issue a preliminary injunction only on notice to the adverse party." Fed.R.Civ.P. 65(a)(1). A court may issue a temporary restraining order without notice to an opposing party, only if the following conditions are met:
[S]pecific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; and ... the movant's attorney certifies in writing any efforts made to give the notice and the reasons why it should not be required.*fn5 Fed.R.Civ.P. 65(b)(1)(A) & (B). To obtain either a temporary restraining order or a preliminary injunction, the movant must make a showing of "(a) irreparable harm; and (b) either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief." Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc. ., 596 F.2d 70, 72 (2d Cir.1979); see also, Jackson v. Johnson, 962 F.Supp. 391, 392 (S.D.N.Y.1997) ("In the Second Circuit, the standard for a temporary restraining order is the same as for a preliminary injunction.") (citations omitted). Preliminary injunctive relief "is an extraordinary remedy that will not be granted lightly." Jackson v. Johnson, 962 F.Supp. at 392 (citations omitted).
The violation of a constitutional right will establish irreparable harm. Lynch v. City of New York, 589 F.3d 94, 99 (2d Cir. 2009). "The Due Process Clause of the Fourteenth Amendment requires that, generally, a person must be afforded the opportunity for a hearing prior to being deprived of a constitutionally protected liberty or property interest."
Patterson v. City of Utica, 370 F.3d 322, 329 (2d Cir. 2004) (citations omitted).
In this case, Plaintiffs have not shown either a likelihood of success on the merits or sufficiently serious questions going to the merits to make them a fair ground for litigation, with a balance of hardships tipping decidedly in their favor. Much to the contrary, the record indicates that Plaintiffs received due process prior to being evicted. The record indicates that Plaintiffs have not owned the subject property since 2001, and that they have no legal right to be on the property. Moreover, Plaintiffs received ample notice of the eviction proceeding, and had an opportunity to be heard and to present evidence at a hearing. At the hearing, Plaintiffs raised the same arguments that they make in this action. Additionally, while Plaintiffs maintain that the eviction warrant was defective because it described the property as 2001 Baker Hill Road, and not 2031 Baker Hill Road, their papers indicate that the property has not been known as 2031 Baker Hill road for a number of years, and that, in any event, Justice O'Shea used the term "2001 Baker Hill Road" to include the property from which Plaintiffs were evicted. Therefore, the eviction warrant pertained to the white house and farm land upon which Plaintiffs were residing.
For these reasons, Plaintiffs have not shown that they are entitled to preliminary injunctive relief.*fn6
Plaintiff's application for preliminary injunctive relief is denied.
IT IS SO ORDERED.
Rochester, New York