The opinion of the court was delivered by: Tom, J.
California Suites, Inc. v Russo Demolition Inc.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
SUPREME COURT, APPELLATE DIVISIONFirst Judicial Department
Peter Tom,J.P. David B. Saxe John W. Sweeny, Jr. Rosalyn H. Richter Sallie Manzanet-Daniels, JJ. Index
Plaintiff appeals from an order of the Supreme Court, New York County (Cynthia S. Kern, J.), entered May 24, 2010, which granted the City defendants' motion to dismiss the complaint as against them, and denied plaintiff's cross motion to amend the complaint. Altman Schochet LLP, New York (Irina Fulman, Zalman Schochet and Michael A. Valentine of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York (Victoria Scalzo, Stephen J. McGrath and Karen Selvin of counsel), for respondents. TOM, J.P.
In September 2006, plaintiff, the owner of a six-story hotel located at 610 West 111th Street in Manhattan, known as the Ellington Hotel, was issued a building permit by the Department of Buildings (DOB) to construct a five-story addition on the roof of the hotel. In October, the DOB halted construction at the site and conducted an audit, issuing a list of objections to the work that had been performed.
In November 2006, the DOB notified plaintiff of its intent to revoke the permit based on the objections raised on the audit unless plaintiff demonstrated why the permit should not be revoked. In May 2007, the DOB revoked all permits and directed that all work cease. In June 2008, the DOB conducted a structural integrity assessment of the illegally altered building and concluded that due to improper construction, the "structural stability of the building [hotel] is affected," and a "Life-safety risk is present due to the lack of required egress from the building--accesses to the roof and exits from the roof." The DOB issued an "Emergency Declaration" dated June 23, 2008, informing plaintiff that the "building, or [a] portion thereof, has been declared unsafe and in imminent peril," that "because of the severity of the condition," the structure "must be repaired or demolished immediately" and that "responsibility to take such action is yours." The Emergency Declaration further states that the City would perform the necessary remedial work at plaintiff's expense if plaintiff failed to cure the defects. The New York City Department of Housing Preservation and Development (DHPD) sent plaintiff an "Urgent Notice," dated July 14, 2008 advising that it would retain a contractor, at plaintiff's expense, to cure the emergency condition unless plaintiff acted immediately. Plaintiff failed to respond, and DHPD engaged defendant Russo Demolition, Inc. to conduct remedial work. Between August 18 and August 25, 2008, Russo Demolition undertook and completed the demolition of the steel structure erected on the roof of the premises.
On August 26, 2008, plaintiff commenced this action against Russo Demolition alleging trespass, conversion and negligence. The complaint has since been amended, first to add the municipal defendants and, again, to name a second Russo defendant, A. Russo Wrecking, Inc. (collectively, Russo). The second amended complaint asserts that on or about August 19, 2008, Russo, acting on behalf of the municipal defendants, unlawfully entered onto plaintiff's hotel property and removed the steel structure from the roof. The complaint further asserts that Russo failed to provide any evidence of its authority to remove the steel structure despite plaintiff's repeated requests.
As noted, the original complaint, which had alleged trespass and conversion, named only Russo Demolition as defendant. Legal proceedings were initiated on August 21, 2008, when plaintiff applied for a temporary restraining order and preliminary injunction against any further entry onto its premises or removal of its property by Russo Demolition. The municipal defendants were added some seven months later, when the complaint was amended on March 17, 2009. The complaint assumed its present form when it was amended several months later to add a cause of action for negligence.
It may be fairly inferred from the second amended complaint that plaintiff alleges Russo lacked lawful authority to remove the steel structure from the roof of plaintiff's hotel because the DHPD likewise lacked lawful authority to direct Russo to perform the necessary demolition work. However, the issue of lack of notice was first raised in plaintiff's opposition papers to defendant's dismissal motion, which, relying on Calamusa v Town of Brookhaven (272 AD2d 426 ) and Scott v Town of Duanesburg (176 AD2d 988 ), advanced the theory that the municipal defendants' failure to provide notice and opportunity to be heard before the demolition work was performed "is a violation of due process rights for which liability will attach" (internal quotation marks omitted). Therefore, by way of cross motion, plaintiff sought to amend the complaint to allege explicitly that the demolition work was performed "without providing to Plaintiff notice of the Municipal Defendants' intent to demolish the steel structure and an opportunity to cure the existing condition, to the extent such condition was dangerous or unsafe."
Defendants' motion to dismiss asserted that the complaint fails to state a cause of action for conversion, trespass or negligence, arguing that absolute immunity extends to acts within the exercise of administrative discretion -- here, the determination that removal of the steel structure was warranted. Furthermore, the municipal defendants alleged that plaintiff had received the requisite notice of the proposed removal of the dangerous offending structure by certified mail.
In opposition, plaintiff contended that it "never received such notice." The opposing papers included the affidavit of Alan Lapes, the owner of the property, who stated, "I never received these notices. Moreover, no agent of California Suites Inc. ever signed ...