The opinion of the court was delivered by: Gary L. Sharpe District Court Judge
MEMORANDUM-DECISION AND ORDER
Plaintiff Cinema Art Theater, Inc., an adult movie theater, commenced this action pursuant to 42 U.S.C. §§ 1982, 1983, 1985, and 1988 alleging violations of its constitutional rights in connection with defendants' removal of its marquee. (2d Am. Compl., Dkt. No. 36.) Pending is defendants' motion for summary judgment, (Dkt. No. 63), and the Theater's cross-motion for partial summary judgment, (Dkt. No. 66). For the reasons that follow, defendants' motion is granted in part and denied in part, and the Theater's cross-motion is denied.
Until its closure in 2006 for alleged violations of the Troy City Code, the Cinema Art Theater, Inc., a New York corporation, was in the business of showing adult movies and selling adult novelty items at its property at 285-289 River Street, Troy, New York. (Defs. SMF ¶ 1, Dkt. No. 63:2; Pl. Resp. Mem. of Law at 2, Dkt. No. 66:2.) Jan DeGroote is the sole shareholder and president of the Theater. (See Defs. SMF ¶ 1, Dkt. No. 63:2.)
On April 13, 2006, defendants Russ Reeves, City Engineer for theCity of Troy, and Thomas O. Garrett, Fire Chief for the City of Troy, visited the Theater to investigate alleged complaints that bricks and masonry were falling in the rear of the building. (See id. at ¶¶ 2, 4.) During the investigation, which was comprised of a visual inspection lasting approximately thirty minutes, Reeves claims to have noticed that the Theater's marquee, which overhangs a heavily-traveled pedestrian sidewalk, was showing signs of deterioration. (See id. at ¶ 6.) In an April 13 letter detailing his observations, Reeves stated as follows:
Using the Fire Department Aerial Tower Truck, we evaluated the front marquee signage and attachments. There is evidence of moisture penetration in flashed and caulked joints.... There are two deteriorated and rusted wire cables that are supporting the marquee and the signage.... The cables are attached to the building with a single bolt into the masonry joint as shown. The additional chain attachment ... is not in tension and is offering no supplemental support to the wider portion of the marquee and sign. This methodology of attachment is inadequate and in addition to the structural components that are supporting this marquee are deteriorated. For public safety, we have closed off the westerly sidewalk with in [sic] this marquee area along River St. and are requiring you to remove this marquee within a twenty-four hour period; otherwise, the City will remove it and invoice you accordingly with a fine and an issue to appear in court. (Kindlon Aff., Ex. F, April 13 Letter at 4-5, Dkt. No. 66:10.) According to defendants, this letter was delivered to the building manager at the Theater that day and was also "sent to [DeGroote] via facsimile." (Defs. SMF ¶ 6, Dkt. No. 63:2.) A copy of the letter was also "cc'ed" to, among others, Troy Mayor Henry Tutunjian.(See Kindlon Aff., Ex. F, April 13 Letter at 6, Dkt. No. 66:10.) In addition to delivering the letter, defendants further claim that Reeves personally spoke with DeGroote that day, informing him of the condition of the marquee. (See Defs. SMF ¶¶ 6-7, Dkt. No. 63:2.) According to DeGroote, however, he never received a copy of the April 13 letter or had any conversation with Reeves or with any other City of Troy employee as to the condition or removal of the marquee. (See Pl. Resp. SMF ¶ 7, Dkt. No. 66:1; Pl. Resp. Mem. of Law at 3, Dkt. No. 66:2.) Instead, DeGroote claims he received notice of the situation on the evening of April 13, when he "received a telephone call from his then-attorney Michael Deal, who explained that the City of Troy was going to demolish the marquee the next day." (Pl. Resp. Mem. of Law at 4, Dkt. No. 66:2.)
The next day, April 14, defendants claim that a contractor hired by DeGroote came to City Hall and met with Reeves and his staff. (See Defs. SMF ¶ 8, Dkt. No. 63:2). According to defendants, "the contractor refused to identify himself, sign for the necessary permit to begin work on the marquee or to cooperate with city officials in giving them the necessary information to fill out the permit form." (See id. at ¶ 8.) Reeves testified that based on these actions he "determined that the repair work would not begin on the marquee within the specified 24 hour period." (Id. at ¶ 9.) Thus, he explained, "in order to assure the safety of the public, and given the nature of the situation, [he] gave the order to remove the marquee from the building." (Id.) DeGroote denies ever "retain[ing] or send[ing] a contractor to pick up a permit from City Hall." (Pl. Resp. SMF ¶ 8, Dkt. No. 66:1.)
In line with his decision, Reeves directed Fire Chief Garrett to arrange for a demolition company to remove the marquee on April 14, which Garrett did. (See Defs. SMF ¶ 11, Dkt. No. 63:2.) That day, however, prior to the marquee's removal, DeGroote hired two engineers-Micheal J. Kenneally of Shamrock Engineering P.C. and Neil Weisel of Ryan-Biggs Associates, P.C.-to inspect the structural integrity of the marquee. (Kindlon Aff., Exs. H & I, Dkt. Nos. 66:12 & 66:13.) Upon arrival at the Theater that morning, the engineers initially observed that there were no barricades in place to prevent the public from walking below the marquee. (See id.) With respect to their inspection of the marquee itself, the engineers were able to observe through a hole in the Theater's ceiling that the marquee appeared to besupported by at least one steel beam. (See id.) Based on this and other observations, the engineers concluded that the chains and wires noted by the City of Troy in its report as indicating structural instability were likely not required for the structural integrity of the marquee. (See id.) As to the cables, for example, Mr. Kenneally stated that while "the cables were assumed to support the signage and the marquee, upon actually inspecting the structure, it would have been apparent that the sign was independent structure and therefore, the cables only supported a portion of the load." (Kindlon Aff., Ex. I at 2, Dkt. No. 66:13.) And with respect to the chains, Mr. Kenneally stated that his "observation indicate[d] that chains were not intended to be or at the very least, not acting as structural elements, but rather decorations," explaining that "[i]f the chains were required for the continued structural integrity of the Marquee, they would have been taught [sic] [, which they were not,] and the Marquee would have been significantly out of level[, which it was not]." (Id. at 2-3.) Ultimately, Mr Kenneally opined that "the Marquee was structurally sound and in absolutely no danger of failure or collapse, partial or otherwise." (Id.)
Mr. Wiesel concluded similarly, stating that "the sag in the ornamental chains indicated they were under minimal tension load and therefore thecanopy was likely being supported by structural framing hidden within the architectural finishes." (Kindlon Aff., Ex. H at 4, Dkt. No. 66:12.) Mr. Wiesel further stated that "[a]lthough the upper wire support cables appeared to be in tension, they appeared to be too light to carry the weight of the marquee," concluding that "[s]ince the chains were sagged and the wire support cables were inadequate to support the canopy weight, the marquee was likely being supported by structural framing hidden within the architectural finishes of the marquee." (Id.)
As planned, the marquee was removed on the evening of April 14 and was stored at the City of Troy Fire Station where it was eventually picked up by a representative of DeGroote. (See Defs. SMF ¶¶ 12, 14, Dkt. No. 63:2.) To date, the marquee has not been replaced or restored, and the Theater has not reopened since its closing in March 2006. (See id.)
On April 8, 2009, DeGroote commenced this action against Reeves, Fire Chief Garrett, the City of Troy, City of Troy Mayor Henry Tutunjian, John Doe, and Richard Roe, alleging violations of his federal constitutional and statutory rights. (Dkt. Nos. 1, 7.) On June 25, 2010, this court granted DeGroote's motion to substitute the Cinema Art Theater, Inc. as plaintiff, and, on June 29, the complaint was amended accordingly. (Dkt. Nos. 35, 36.) On October 14, 2010, defendants moved for summary judgment, (Dkt. No. 63), and the Theater's cross-moved for partial summary judgment shortly thereafter, (Dkt. No. 66).
The standard for the grant of summary judgment is well established and will not be repeated here. For a full discussion of the standard, the court refers the parties to its previous opinion in Bain v. Town of Argyle, 499 F. Supp. 2d 192, 194-95 (N.D.N.Y. 2007).
In its complaint, the Theater states, without explanation, that defendants violated its rights under 42 U.S.C. § 1982. Section 1982 provides that "[a]ll citizens... shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property." 42 U.S.C. §1982. To establish a claim under § 1982, a plaintiff must show: "(1) [he] is a member of a racial minority; (2) defendant intended to discriminate on the basis of race; and (3) the discrimination involved one or more of the activitiesenumerated in the statute." Grajales v. Mendez, No. 11 CV 3069, 2011 WL 3163032, at *1 (E.D.N.Y. ...