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Riano v. Town of Schroeppel

United States District Court, Second Circuit

October 18, 2013

BRENDA RIANO, Plaintiff,
TOWN OF SCHROEPPEL, by the TOWN BOARD OF THE TOWN OF SCHROEPPEL, consisting of PATRICK J. NUGENT, Town Supervisor, PAUL M. GILBERT, Town Councilman, RICHARD P. KLINE, Town Councilman, WILLIAM GODFREY, Town Councilman, WILLIAM W. VANDYKE, Town Councilman, ROBERT DALTON, Code Enforcement Officer of the Town of Schroeppel, and PAUL D. CASPER, JR., former Town Supervisor of the Town of Schroeppel, Defendants.


TERRY RICE, ESQ., RICE & AMON, Suffern, New York, Attorneys for Defendants.


MAE A. D'AGOSTINO, District Judge.


On March 1, 2013, Plaintiff commenced this suit by filing a notice of petition and verified petition in New York State Supreme Court, Onondaga County. See Dkt. No. 1 at 5-50 ("Petition").[1] In the Petition, Plaintiff asserts claims arising out of Defendants' issuance of a demolition permit and subsequent stop-work order. Plaintiff seeks a declaratory judgment pursuant to Section 3001 of the New York Civil Practice Law and Rules and damages under 42 U.S.C. § 1983. See id. On March 28, 2013, Defendants timely removed the action to this Court pursuant to 28 U.S.C. § 1441 et seq., on the grounds that it "arises under the Constitution and laws of the United States and involves a federal question." See Dkt. No. 1 at 2, ¶ 3. Currently before the Court is Plaintiff's motion to remand to New York State Supreme Court. See Dkt. No. 3.


The following facts are alleged in Plaintiff's Petition. Plaintiff Brenda Riano is an individual residing in Phoenix, New York. See Petition ¶ 2. Defendant Town of Schroeppel ("Town") is a municipal corporation organized under the laws of the State of New York. Id. ¶ 3. Defendants Patrick J. Nugent (Town Supervisor), Paul M. Gilbert (Town Councilman), Richard P. Kline (Town Councilman), William Godfrey (Town Councilman), and Paul W.VanDyke (Town Councilman), are sued in their official capacities as elected members of the Town of Schroeppel Town Council. Id. ¶ 4. Defendant Nugent is also sued in his individual capacity. Id. ¶ 5. Defendant Robert Dalton, the Town's Code Enforcement Officer, is sued in both his official and individual capacity. Id. ¶ 6. Defendant Paul D. Casler, Jr. is the former Town Supervisor and is sued in his individual capacity. Id. ¶ 7.

In 2007, the Town passed a local law titled "Local Law Providing for the Administration and Enforcement of the New York State Uniform Fire Prevention and Building Code, " which provides:

This local law provides for the administration and enforcement of the New York State Uniform Fire Prevention and Building Code (Uniform Code) and the State Energy Conservation Construction Code (the Energy Code) in this Town. Except as otherwise provided in the Uniform Code, other state law, or other section of this local law, all buildings, structures, and premises, regardless of use or occupancy, are subject to the provisions of this local law.

Id. ¶ 9 (quoting Local Law No. 1 of 2007 of the Town of Schroeppel ("Local Law No. 1")). Local Law No. 1, Section 5 provides that a building permit which conforms to the requirements of the Uniform Code is a prerequisite for projects, including demolition of any building or structure. See id. ¶ 36.

Article 18 of the New York Executive Law, the New York State Uniform Fire Prevention and Building Code Act, states:

1. The provisions of this article and of the uniform fire prevention and building code shall supersede any other provision of a general, special or local law, ordinance, administrative code, rule or regulation inconsistent or in conflict therewith[.]
2. Nothing herein shall be construed as affecting the authority of the state labor department to enforce a safety or health standard issued under provisions of sections twenty-seven and twenty-seven-a of the labor law.

Id. ¶ 54 (quoting N.Y. Exec. Law § 383). The New York State Department of Labor, pursuant to its authority under New York State law, has promulgated regulations regarding asbestos surveys under 12 N.Y.C.R.R. Part 56. Subsection 56-5.1(g) mandates that an asbestos survey is a prerequisite to the issuance of a building or demolition permit. See id. ¶ 58.

On March 24, 2011, Plaintiff visited the Town Code Enforcement Office ("CEO") to obtain a permit to demolish a building which formerly housed her bowling alley business, the Phoenix Bowl Inn Sports Center ("Bowl Inn"). Plaintiff was instructed by a clerk in the CEO that all she would need to submit in order to obtain the demolition permit is a permit application, a certificate of insurance, and a thirty dollar ($30.00) fee. See id. ¶¶ 10-17, 24. Thereafter, on March 25, 2011, the CEO issued Plaintiff the requested demolition permit for the Bowl Inn. See id. ¶¶ 18-19.

Plaintiff commenced demolition of the Bowl Inn on April 19, 2011, and on April 20, 2011, Plaintiff was verbally issued a stop work order for the demolition by Defendant Dalton, on the grounds that an asbestos survey had not been conducted prior to issuance of the demolition permit. See id. ¶¶ 20, 24, 73. On April 25, 2011, Plaintiff received a written Notice of Violation and Order to Comply from the New York State Department of Labor, Division of Asbestos Control. This notice informed Plaintiff that, since she had failed to prepare an asbestos survey prior to the commencement of demolition of the Bowl Inn, the entire site was deemed contaminated. As a result, all of the remaining debris was to be assumed contaminated with asbestos containing material and, therefore, had to be handled and disposed of as asbestos. See id. ¶¶ 27-28.

Plaintiff had contracted with non-party Alpco Recycling ("Alpco") for the demolition of the Bowl Inn. The contract called for Alpco to demolish the entire building, recycle or sell any material capable of being recycled or sold, level the grade of the site, and remove any remaining debris. Alpco could not sell or recycle any of the scrap metal and other materials because of the State Department of Labor's determination that the debris from the demolition that had been completed, as well as the parts of the Bowl Inn that had not yet been demolished, were deemed contaminated by asbestos. As a result, Alpco backed out of performing the remainder of its obligations under the contract, and Plaintiff has not completed the demolition and removal See id. ¶¶ 76-77.

Plaintiff had also contracted with a non-party retail sales company to purchase the Bowl Inn property for development. This contract required that the site be cleared of the Bowl Inn structure. Since Plaintiff did not satisfy this condition, the developer withdrew from the contract for sale. See id. ¶¶ 78-79.

Plaintiff alleges that

Local Law No. 1 is in violation of the State of New York Labor Law and its regulations dealing with asbestos[.]
The Town of Schroeppel Code Enforcement Officer is prohibited and would be negligent under the State Labor Law to issue a Demolition Permit for a building or structure, knowing there has not been prepared an asbestos survey for ...

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