United States District Court, E.D. New York
JOSEPH CANZONERI, as Guardian of the ESTATE of KATHLEEN POWELL, Plaintiff,
INCORPORATED VILLAGE OF ROCKVILLE CENTRE, DANIEL CASELLA, individually, and as Superintendent of the Village of Rockville Centre, Department of Buildings, JOHN BUSHING, individually, and as Chief of the Village of Rockville Centre, Fire Department, A. THOMAS LEVINE, individually, and as Village Attorney for the Village of Rockville Centre, SGT. BRIAN BURKE, individually, and as a Police Officer of the Village of Rockville Centre and FRANCIS QUIGLEY, individually, and as Village Administrator of the Village of Rockville Centre, Defendants
For the Plaintiff: Gerard N. Misk, Esq., of Counsel, Ginsburg & Misk, Queens Village, New York.
For the Defendants: Edward K. Kitt, Esq., of Counsel, Goldberg Segalla, LLP, Garden City, New York.
MEMORANDUM OF DECISION AND ORDER
Arthur D. Spatt, United States District Judge.
On February 14, 2012, the Plaintiff Joseph Canzoneri (the " Plaintiff" or " Canzoneri" ), temporary guardian of the person and property of Kathleen Powell, commenced this action under 42 U.S.C. § 1983 and § 1988 against the Defendants Incorporated Village of Rockville Centre (the " Village" ), Daniel Casella (" Casella" ), individually, and as Superintendent of the Village of Rockville Centre, John Bushing (" Bushing" ), individually, and as Chief of the Village of Rockville Centre, Fire Department, A. Thomas Levine (" Levine" ), individually, and as Village Attorney for the Village of Rockville Centre, Sgt. Brian Burke (" Burke" ), individually, and as a Police Officer of the Village of Rockville Centre, and Francis Quigley (" Quigley, and collectively the " Defendants" ), individually, and as Village Administrator of the
Village of Rockville Centre, to recover damages for the alleged deprivation and destruction of the property of Powell without due process or just compensation.
In particular, the Plaintiff alleges that the Defendants violated Powell's rights under the Fourteenth Amendment to the United States Constitution and under the Constitution of the State of New York. The Plaintiff asserts that the Defendants improperly confined and restrained Powell without just cause in violation of her civil rights and under color of authority in violation of 42 U.S.C. § 1983, and that, as a result, she suffered great distress, including injury and damages to her person and property. The Plaintiff further contends that the Defendants illegally and improperly confiscated a vehicle owned by Powell without just cause or due process. Finally, the Plaintiff maintains that the Defendants improperly demolished a residence owned by Powell, without just cause and without proper notice.
Presently before the Court is a motion by the Defendants pursuant to Federal Rules of Civil Procedure (" Fed. R. Civ. P" ) 12(b)(1) and 12(b)(6) to dismiss the amended complaint. For the following reasons, the Defendants' motion to dismiss is granted in part and denied in part.
A. Factual Background
The following facts are drawn from the amended complaint and considered in a light most favorable to the Plaintiff.
Pursuant to an Executor's Deed dated August 21, 2009, Powell became the sole owner in fee simple of the premises located at 83 Clinton Avenue, Rockville Centre, New York. After becoming owner of the property, Powell had been hospitalized from on or about January 10, 2011 up to and including June 10, 2011. Due to Powell's illness, the condition of the home in which she resided deteriorated.
On January 12, 2011, Daniel Casella, the Building Department Superintendent of Rockville Centre, visited the premises and determined that the residence was unsafe and called a " board up crew" to board the doors and windows.
On January 13, 2011, Casella issued a Notice of Violation to Powell indicating unsanitary conditions on the premises, and giving Powell ten days to remediate the problem. The Notice was sent returned receipt requested on January 13, 2011, and was returned as undeliverable. On February 24, 2011, Casella prepared a letter to Powell, including an invoice for $948 with reference to boarding of the premises. This letter was also returned as undeliverable.
By way of follow-up, on March 1, 2011, Quigley wrote a letter to Julia Powell, presumably a relative of Kathleen Powell, although the relation is unclear, that referenced the prior letters and a need to remediate the premises. The March 1, 2011 letter stated that the failure of Powell to act would require further action by a court and/or further action by the Village Board of Trustees. However, despite the contents of the letter, there was no action by any Court or the Village Trustees. The letter dated March 1, 2011 was returned as undeliverable.
On or before May 16, 2011, Casella emailed an attorney completing Medicaid applications for Powell. Casella inquired about the exterior cleanup of her property, as there was debris and the grass was overgrown.
At some point, Nancy B. Simmons, as Executive Vice President of Mercy Medical Center, commenced a proceeding pursuant to Article 81 of the New York Mental Hygiene Law for the appointment of a
guardian of Powell. Following a hearing, on June 6, 2011, Justice Joel Asarch of the New York State Supreme Court signed a consent order appointing the Plaintiff, Joseph Canzoneri, as temporary guardian of the estate of Powell.
On June 14, 2011, Casella learned about a meeting with an advocate of Powell scheduled for May 19, 2011, but no one appeared on behalf of Powell for the meeting.
On June 15, 2011, Casella arranged for contractors to disconnect the sewer connection to 83 Clinton Avenue, allegedly without notice to the Plaintiff or Powell.
Also, the Plaintiff alleges that, despite the fact that the Village was aware of Powell's condition from January 11, 2011 through June 17, 2011, they took no steps to properly notify her or anyone acting on her behalf of any actions they were taking regarding her premises. Furthermore, the Plaintiff alleges that, despite the fact that prior to June 17, 2011, the Village, through Levine, had become aware of the appointment of the Plaintiff as temporary guardian for Powell, the Defendants took no steps to notify him of any actions they were taking with regard to her real property.
On June 17, 2011, Levine advised the Plaintiff that upon inspection of the premises, the Village determined that the premises constituted an immediate hazard and he issued a directive to demolish the structure pursuant to Village Code Chapter 122. The Plaintiff asserts that Village Code Chapter 122 does not authorize the directive referenced by Levine's email, but requires further action by the Board of Trustees, including possibly an action in a court of appropriate jurisdiction.
Also, on June 17, 2011, at approximately 10:40 a.m., after Powell was found in her home allegedly in violation of a " No-Occupancy" Order, Burke ordered her removal. It is unclear how Powell left the premises as the amended complaint states that Village Police took her in handcuffs, yet Plaintiff's Memorandum of Law states that she was taken via Nassau County Ambulance.
Regardless, the Plaintiff asserts that, at approximately 2:15 p.m. on this day, June 17, 2011, the demolition of Powell's home began and the structure was in fact demolished. Also, on June 17, 2011, the Village, allegedly improperly and without notice, impounded Powell's 1997 Plymouth Voyager Minivan, even though the vehicle was apparently legally parked on Powell's premises. In impounding Powell's vehicle, the Plaintiff alleges that the Village caused damage to the vehicle, ultimately resulting in its total loss.
Subsequent to the actual demolition, on June 18, 2011, an application for a building permit for demolition was made. On June 23, 2011, an application for a demolition permit was made and approved. At no point did Powell seek compensation through New York State remedies for the demolition of her home and the taking of her vehicle prior to commencing the present action.
On July 14, 2011, the Plaintiff filed a notice of claim pursuant to § 50 of the New York General Municipal Law with the Village. On August 8, 2011, the Plaintiff served on the Village an amended notice of claim, describing the subject claim as " [d]amages for destruction of real and personal property." (Def's Mem, Exh 7.)
On August 26, 2011, Judge Knobel issued an order authorizing the Plaintiff to " . . . appear on behalf of [Powell] in any litigation, including litigation against the Incorporated Village of Rockville Centre as a result of the action taken by said Village against the property of Ms. Powell . . . [with] any settlement or payment of
legal fees . . . subject to the approval of a court of competent ...