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Bush v. City of Utica

United States District Court, N.D. New York

June 4, 2013

NICOLE BUSH, as Administrator of the Estate of Bruce A. Bush; MICHELE L. CRANE, as Administrator of the Estate of Douglas K. Crane; CONNIE DRAKE, Individually as Surviving Spouse and as Administrator of the Goods, Chattels and Credits of Glenard W. Drake, Jr.; and SHARON MARIE HAMILTON, as Guardian of the Infants of Terry Singh and as Proposed Administrator of the Estate of Terry Singh, Plaintiffs,
CITY OF UTICA, NEW YORK; CITY OF UTICA FIRE DEPARTMENT; and RUSSELL BROOKS, Chief of City of Utica Fire Department, in his Official and Individual Capacity, Defendants

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DAVID N. HURD, United States District Judge.


This civil rights action arises from a fatal fire that occurred on September 20,

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2009, at 102 James Street in Utica, New York. Bruce Bush, Douglas Crane, Glenard Drake, Jr., and Terry Singh (collectively " decedents" ) perished in the fire. Plaintiffs Nicole Bush, as administrator of Bruce Bush's estate (" Bush" ); Michele Crane, as administrator of Douglas Crane's estate (" Crane" ); Connie Drake, as the surviving spouse of and administrator of the goods, chattels, and credits of Glenard Drake (" Drake" ); and Sharon Marie Hamilton, as guardian of the infants of Terry Singh and proposed administrator of Terry Singh's estate (" Hamilton" ) (collectively " plaintiffs" ) filed this action on September 19, 2012.

Plaintiffs bring federal and state claims against defendants the City of Utica (" the City" ); the City of Utica Fire Department (" UFD" )[1] and UFD Chief Russell Brooks (" Chief Brooks" ) (collectively " defendants" ). The federal claims, brought pursuant to 42 U.S.C. § 1983, include an alleged deprivation of substantive due process (First Cause of Action), a violation of equal protection (Second Cause of Action), and a failure to train and/or supervise Monell claim (Third Cause of Action).[2] The state claims include wrongful death claims (Fifth and Sixth Causes of Action), pain and suffering (Seventh Cause of Action), and negligence/gross negligence (Eighth Cause of Action).

Defendants have filed a motion to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(1), (6), and (7). Plaintiffs have responded in opposition, and defendants replied. The motion was considered on submit, with no oral argument.


The following facts, taken from the complaint, are assumed true for purposes of the motion to dismiss. See Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). During the relevant time period decedents resided as tenants in four separate apartments in the rear of 102 James Street in Utica (" the residence" ). Prior to September 2009, employees of the City inspected the residence and found the smoke detectors, fire alarm, and sprinkler system to be inoperable and, therefore, in violation of City building codes and state law. Further, the owners of the residence failed to register it in accordance with the City's Rental Dwelling Inspection Law.

The City had numerous contacts with tenants of the residence regarding these code violations. Representatives of the City advised the tenants, including decedents, that the City would ensure the owners rectified the violations. In April 2008 the City commenced a civil proceeding to force the owners to register the residence pursuant to the Rental Dwelling Inspection Law. On June 23, 2008, a court order was entered directing the owners to so register the residence within ten days. However, the City did not enforce this order, and the owners did not register the residence.

On September 20, 2009, the residence caught fire, and numerous emergency calls were made to summon the UFD. Some of these calls were placed by decedents from inside the residence. During these phone calls decedents were advised--presumably by 9-1-1 operators--that help was on the way. Decedents were also directed to stay

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where they were in the residence and get to a window if possible. The UFD arrived on scene but did not implement appropriate firefighting techniques to rescue decedents, who were known to be trapped inside the rear apartments of the residence. The rear apartments were readily accessible through a rear stairwell, which was not consumed by fire or smoke. Members of the UFD physically prevented bystanders, including decedents' family members and friends, from entering the burning residence in an attempt to rescue decedents. Specifically, UFD members stopped and restrained a citizen bystander--clad only in a T-shirt and shorts--after he entered the rear stairwell and proceeded to the second floor landing, which was near all four decedents' respective apartments.

While on scene, Chief Brooks reportedly told bystanders that he " was not going to risk the lives of any members of the Department for individuals who resided on James Street." Compl. ¶ 52. This reflected a general " don't go in policy" that guides the UFD's response to all fires occurring in low-income housing properties in the City. Id. ¶ 73.

All four decedents ultimately perished in the fire as a result of smoke inhalation and thermal burns. Thereafter, defendants failed to conduct a thorough and proper investigation into the cause of the fire and the UFD's response. Such an investigation was hindered by an unwritten " code of silence," by which members of the UFD refuse to discuss what efforts, or lack thereof, are used to combat fires in low-income neighborhoods. Id. ¶ 77.

The following facts, although not included in the complaint, are noted for purposes of defendants' jurisdictional challenge. See Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000) (a court may consider evidence outside the pleadings when considering a motion to dismiss for lack of subject matter jurisdiction).

On December 16, 2010, plaintiffs Bush and Crane, as administrators of the estates of Bruce Bush and Douglas Crane respectively, filed a complaint in New York State Supreme Court, Oneida County. These two plaintiffs brought claims for wrongful death and pain and suffering against the City and Timothy and Richard Klotz, the owners of the residence (" the Klotzes" ). Similarly, on December 17, 2010, Drake filed a complaint in the Supreme Court, Oneida County, as surviving spouse of Glenard Drake and administrator of his goods, chattels, and credits. Drake asserted wrongful death and pain and suffering claims against the City.


Defendants seek dismissal of the complaint pursuant to Rule 12(b)(6) for the following reasons: (1) the alleged federal civil rights violations are merely state tort claims; (2) there is no affirmative duty to provide firefighting services upon which to base the substantive due process claim or, in the alternative, their conduct was not conscience-shocking; (3) there is insufficient allegations of discrimination to state an equal protection claim or, in the alternative, there was a rational basis for defendants' conduct; (4) Chief Brooks is entitled to qualified immunity; (5) the state claims are all untimely; and (6) plaintiff Hamilton does not have standing to assert claims as " proposed" administrator of Terry Singh's estate. Defendants also argue that ...

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