Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Mohamed A. Hafez v. City of Schenectady

April 19, 2012

MOHAMED A. HAFEZ, PLAINTIFF,
v.
CITY OF SCHENECTADY, BRIAN U. STRATTON, KEITH LAMP, DOMENIC VISCARIELLO AND ELISA WICKHAM, DEFENDANTS.



The opinion of the court was delivered by: Mae A. D'Agostino, U.S. District Judge:

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

On May 10, 2010, Plaintiff pro se commenced this action by the filing of a Summons and Complaint, in which he alleged claims of retaliation in violation of his First Amendment rights, unlawful search and seizure in violation of his Fourth Amendment rights, selective enforcement in violation of the Equal Protection Clause of the Fourteenth Amendment, and a state-law cause of action for intentional infliction of emotional distress. See Dkt. No. 1 at ¶¶ 48-51, 54-57.

Plaintiff also alleged that Section 210 of the Code of Ordinances of the City of Schenectady (the "Code") is unconstitutional and that Defendant Schenectady's requirement that a landlord obtain a rental certificate for each apartment rented has been unfairly enforced against him for a variety of reasons, including in retaliation for his prior tax grievances and because of his "newcomer" status in Schenectady. See id. at ¶¶ 52-53.

On June 27, 2011, Plaintiff moved for a temporary restraining order and a preliminary injunction "enjoining the defendants and the City of Schenectady's code enforcement officers during the pendency of his action from retaliating against, or harassing, me or enforcing the Schenectady Rental Certificate Ordinance against me, my properties or my business during the pendency of this case, because the Ordinance is unconstitutionally vague and I am being irreparably harmed from the arbitrary and discriminatory enforcement of the Ordinance which inhibits the exercise of my First Amendment constitutional rights." See Dkt. No. 38-1 at 1. On June 28, 2011, the Court denied Plaintiff's motion for a temporary restraining order but ordered Defendants to show cause "why a preliminary injunction should not be entered enjoining defendants during the pendency of his action from enforcing Section 210 of the Code of Ordinances, City of Schenectady, against plaintiff, and any further relief that the Court may deem proper[.]" See Dkt. No. 39. On August 30, 2011, the Court denied Plaintiff's motion for a preliminary injunction, finding that Plaintiff failed to establish both a likelihood of success on the merits and that he will suffer irreparable harm if the Court declined to issue a preliminary injunction. See Dkt. No. 46.

Currently before the Court is Defendants' motion for summary judgment.

II. BACKGROUND

A. Relevant statutory provisions

On October 9, 2007, the Council of the City of Schenectady enacted Section 210 of the Code of Ordinances of the City of Schenectady. See Dkt. No. 42-8. The Council provided that [t]he purpose of this chapter is to establish a procedure and standards for the identification and registration of rental properties, to ensure that the City has a meaningful, efficient and effective means of communicating with those persons and companies who own rental properties, to provide for the inspection of certain residential rental property when there is a change in occupancy, and to fix the responsibilities on owners to ensure that residential rental property is maintained in accordance with the standards set forth in this chapter and the building and property maintenance codes promulgated by the New York State Department of State. This chapter is adopted to promote the health and safety of tenants and to alleviate conditions of substandard housing, including slums and blight.

See id. at § 210-1.

In pursuit of these goals, the Code requires that each owner obtain a "valid rental certificate or temporary rental certificate" prior to permitting an apartment to be occupied (the "rental certificate ordinance" or "ordinace"). See id. at § 210-6 -- 210-8.*fn1 Specifically, the Code provides that, "[w]henever a vacancy shall exist in a rental unit and a leasing is about to occur, or whenever there is a change in occupancy, the owner shall submit a written application for a rental certificate. This application shall indicate the name and address of the owner, the location of the property and the identity of the rental unit by number or other suitable means." See id. at § 210-8(A)(2).*fn2 Thereafter, within five (5) days of receipt of the rental certificate application, Defendant Schenectady's building inspector shall inspect the rental unit to determine if it is in compliance with specified portions of the Code that relate to safety and health concerns for the tenants. See id. at § 210-8(A)(3).*fn3

To enforce the above sections, "[d]uring regular business hours or in an emergency, the Building Inspector or his representative or any duly authorized City representative, upon the showing of proper credentials and in the discharge of his duties, may enter any building or rental unit within a building." See id. at § 210-9(A). Moreover, "[a]t the request of the Building Inspector, the Corporation Counsel is authorized to make application to the City Court of the City of Schenectady or any other court of competent jurisdiction for the issuance of a search warrant to be executed by a police officer in order to conduct an inspection of any premises believed to be subject to this chapter." See id. at § 210-9(B). Further, "[t]he Building Inspector may seek a search warrant whenever the owner, managing agent or occupant fails to allow inspections of any dwelling unit contained in the rental property where there is a reasonable cause to believe that there is a violation of this chapter, or a violation of the New York Uniformed Building Code Act or of any code of the City of Schenectady or any applicable fire code." See id. The fee for the inspection and issuance of a rental certificate is $50 and $25 for each subsequent reinspection, but "[t]he fee for the issuance of a rental certificate whenever an owner fails to submit an application for a rental certificate as required by this chapter prior to renting a unit is $100." See id. at § 210-14(A), (B).

If a landlord violates the provisions at issue in the present matter, he may be subject to a fine and may potentially face misdemeanor prosecution. See id. at § 210-18(B). Specifically, the provision provides as follows:

(1) A violation of Article III of this chapter shall be an offense and shall be punishable by a fine of not less than $150 and not exceeding $250, or by a civil penalty of not less than $250. A separate offense shall be deemed committed on each day on which a violation occurs or continues.

(2) A second, independent violation of Article III during an eighteen-month period, and any willfully, intentional and knowingly made violation of Article III, shall be a Class A misdemeanor and shall be punishable by a fine of not less than $500 and not exceeding $1,000 and a period of incarceration of not less than ten (15)*fn4 days, nor exceeding one year. A separate offense shall be deemed committed on each day on which a violation occurs or continues.

See id.

B. Underlying conduct

In 2003, Plaintiff moved to the City of Schenectady. See Dkt. No. 52-3 at ¶ 1; Dkt. No. 61 at ¶ 1. Plaintiff, individually and as the sole shareholder of Crane Properties, Inc., owns several rental properties in Schenectady. See Dkt. No. 61 at ¶ 2. As of October 1, 2009, Plaintiff and/or Crane Properties, Inc. owned properties at 26 Selden Street, 1151 Crane Street, 727 Crane Street, 1671 Broadway, 1594 Union Street, 1521 Van Vranken Avenue, and 1221 Albany Street. See id. at ¶ 3.

In June of 2009, a number of Plaintiff's properties were re-assessed by the City Assessor's office. See id. at ¶ 4. Plaintiff successfully grieved the tax re-assessment of 727 Crane Street, but unsuccessfully grieved 1521 Van Vranken Street and 1151 Crane Street. See id. at ¶ 5.

On October 1, 2009, Defendant Viscariello, a Code Enforcement Officer, received a complaint that a new business opened at 727 Crane Street. See Dkt. No. 52-3 at ¶ 6; Dkt. No. 61 at ¶ 6.*fn5 Upon receiving notice of the complaint, Plaintiff asked Defendant Wickham to accompany him to the 727 Crane Street property. See Dkt. No. 61 at ¶ 7. Upon arriving at the property, Defendants Wickham and Viscariello were allowed to enter the building. See Dkt. No. 52-24 at 44-46; Dkt. No. 52-25 at 8-9. Inside the building, on the first floor, Defendant Viscariello observed coolers, wires hanging from the ceiling, coiled wire on the floor, unattached plumbing fixtures, and open sewer line traps. See Dkt. No. 61 at ¶ 9. Shortly after Defendants Wickham and Viscariello arrived, Plaintiff arrived at the building and, after a brief discussion, Plaintiff asked them to leave his property. See id. at ¶ 10.

Thereafter, Plaintiff was issued two appearance tickets and notices of prosecution for a rental inspection violation, unsafe conditions, and a stop-work order for his 727 Crane Street property. See id. at ¶ 11. On November 6, 2009, Plaintiff was issued an "Information for Violation" regarding the stop-work order and the unsafe conditions appearance tickets. See id. at ¶ 12; Dkt. No. 52-11.

On November 9, 2009, Plaintiff attended a meeting with City officials for the purpose of resolving the October 1, 2009 appearance tickets. See Dkt. No. 61 at ¶ 13. At that time, Plaintiff agreed to install a two (2) hour fire-rated ceiling between the first and second floors of 727 Crane Street. See id. at ¶ 14. Further, on September 27, 2010, the charges against Plaintiff were dropped but Plaintiff plead guilty, on behalf of Crane Properties, Inc., to working without a building permit and paid the $350 fine with his personal credit card. See id. at ¶ 16; Dkt. No. 52-15.

On January 21, 2010, Plaintiff submitted a rental certificate application for six apartments at 1151 Crane Street. See Dkt. No. 61 at ¶ 17. On February 18, 2010, Code Enforcement Officer Maurci performed inspections of, and issued rental certificates for, apartments five, six, and seven at 1151 Crane Street. See id. at ¶ 18. That same day, Code Enforcement Officer MacDonald inspected apartments two, three, and four at 1151 Crane Street. See id. at ¶ 19. Rental certificates were not, however, issued for these apartments. See id. On February 19, 2010, Plaintiff was issued a notice of prosecution for failure to have rental certificates for apartments two, three, and four. See id. at ¶ 20; Dkt. No. 52-18.

On February 24, 2010, Plaintiff wrote a letter to Defendant Stratton complaining about the notice of violation. See id. at ¶ 21. On March 8, 2010, Plaintiff sent Defendant Stratton a follow-up letter. See id. at ¶ 22. Defendant Lamp sent Plaintiff a letter on March 26, 2010, which states that the rental certificates were not issued because Plaintiff prevented an inspection of the building's basement. See id. at ¶ 23.*fn6 Plaintiff did not reapply for rental certificates for the apartments inspected by Mr. MacDonald because he "saw no need . . . since [he] already paid $150 for the inspections." See Dkt. No. 52-24 at 90-92.

On April 27, 2010, Plaintiff was issued a citation for having a plumbing leak and a hole in the ceiling at his property on 1671 Broadway. See Dkt. No. 61 at ¶ 25; Dkt. No. 52-22. That same day, Plaintiff was also issued a citation for failure to have a rental certificate on file for apartment three at 1671 Broadway, which was occupied at the time of inspection. See id. at ¶ 26; Dkt. No 52-23.

On May 10, 2010, Plaintiff commenced this action, alleging that Defendants violated his constitutional rights. Specifically, Plaintiff claims the following violations: (1) retaliation in violation of his First Amendment rights; (2) unlawful search and seizure in violation of his Fourth Amendment rights; (3) selective enforcement in violation of the Equal Protection Clause of the Fourteenth Amendment; and (4) that Section 210 of the Code is unconstitutionally vague. See Dkt. No. 1.

III. DISCUSSION

A. Summary judgment standard

A court may grant a motion for summary judgment only if it determines that there is no genuine issue of material fact to be tried and that the facts as to which there is no such issue warrant judgment for the movant as a matter of law. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir. 1994) (citations omitted). When analyzing a summary judgment motion, the court "'cannot try issues of fact; it can only determine whether there are issues to be tried.'" Id. at 36-37 (quotation and other citation omitted). Moreover, it is well-settled that a party opposing a motion for summary judgment may not simply rely on the assertions in its pleading. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (quoting Fed. R. Civ. P. 56(c), (e)).

In assessing the record to determine whether any such issues of material fact exist, the court is required to resolve all ambiguities and draw all reasonable inferences in favor of the nonmoving party. See Chambers, 43 F.3d at 36 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 2513-14, 91 L. Ed. 2d 202 (1986)) (other citations omitted). Where the non-movant either does not respond to the motion or fails to dispute the movant's statement of material facts, the court may not rely solely on the moving party's Rule 56.1 statement; rather, the court must be satisfied that the citations to evidence in the record support the movant's assertions. See Giannullo v. City of N.Y., 322 F.3d 139, 143 n.5 (2d Cir. 2003) (holding that not verifying in the record the assertions in the motion for summary judgment "would derogate the truth-finding functions of the judicial process by substituting convenience for facts").

B. 42 U.S.C. § 1983

Section 1983 imposes liability for "conduct which 'subjects, or causes to be subjected' the complainant to a deprivation of a right secured by the Constitution and laws." Rizzo v. Goode, 423 U.S. 362, 370-71 (1976) (quoting 42 U.S.C. § 1983). Not only must the conduct deprive the plaintiff of rights and privileges secured by the Constitution, but the actions or omissions attributable to each defendant must be the proximate cause of the injuries and consequent damages that the plaintiff sustained. See Brown v. Coughlin, 758 F. Supp. 876, 881 (S.D.N.Y. 1991)(citing Martinez v. California, 444 U.S. 277, 100 S. Ct. 553, 62 L. Ed. 2d 481, reh. denied, 445 U.S. 920, 100 S. Ct. 1285, 63 L. Ed. 2d 606 (1980)). As such, for a plaintiff to recover in a section 1983 action, he must establish a causal connection between the acts or omissions of each defendant and ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.