United States District Court, E.D. New York
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For Plaintiff: Lawrence E. Kelly, Bayport, NY.
For Town, McGintee, Prince, Hammerle, and Loewen, Defendants: Brian S. Sokoloff and Mark A. Radi of Sokoloff Stern LLP, Westbury Avenue, Carle Place, NY.
For Schirrippa, Narvilas, Jilnicki, Glogg, and Grenci, Defendants: Anne C. Leahey, David H. Arntsen, John M. Shields, and Kelly E Wright of Devitt Spellman Barrett, LLP, Smithtown, NY.
For Mansir, Defendant: Keith V. Tola, Rondiene Erin Novitz, and Scott Ira Gurtman of Cruser Mitchell & Novitz LLP, Second Floor, Farmingdale, NY.
MEMORANDUM AND ORDER
JOSEPH F. BIANCO, United States District Judge.
On June 22 and September 14, 2009, individuals acting at the direction of the Town of East Hampton (the " Town" ) entered plaintiff Thomas Ferreira's (" plaintiff" or " Ferreira" ) property located at 63 Navy Road in Montauk, New York (the " Property" ) and removed many unregistered and inoperative vehicles, tools, and other items. The Town was acting pursuant to two resolutions passed by the Town Board directing the removal of " litter," as that term is defined by Chapter 167 of the Town Code, from the Property.
In response to those events, plaintiff brings this action against the Town and individual defendants Dominic Schirrippa (" Schirrippa" ), Madeleine Narvilas (" Narvilas" ), John Jilnicki (" Jilnicki" ), Kenneth Glogg (" Glogg" ), Thomas Grenci (" Grenci" ), William McGintee (" McGintee" ), Julia Prince (" Prince" ), Pete Hammerle (" Hammerle" ), Brad Loewen (" Loewen" ), and Pat Mansir (" Mansir" ), in their official and individual capacities. He asserts the following constitutional claims pursuant to 42 U.S.C. § 1983: (1) the Town resolutions were unconstitutional bills of attainder; (2) he was deprived of his property without due process of law; (3) he was subjected to unreasonable searches and seizures, in violation of the Fourth Amendment; (4) the deprivation of his property constituted a violation of his substantive due process rights; and (5) he was treated differently from others similarly situated to himself, in violation of the Equal Protection Clause of the Fourteenth Amendment.
All defendants have moved for summary judgment pursuant to Federal Rule of Civil Procedure 56. For the reasons that follow, the motions are granted in part and denied in part. First, the Court grants summary judgment for all defendants as to plaintiff's bill of attainder claim because the Town Board resolutions at issue, which authorized the removal of litter, did not impose the necessary " punishment" for the resolutions to constitute bills of attainder. Authorizing the removal of litter or the abatement of a public nuisance is a legitimate, nonpunitive, regulatory measure. Second, with respect to plaintiff's procedural due process claim, the Court holds that the conceded absence of a pre-deprivation hearing would constitute a due process violation unless the defendants could demonstrate the existence of an emergency. In the instant case, construing the evidence most favorably to plaintiff (including the fact that defendants knew about the conditions on the Property for many years), there is sufficient evidence to create a genuine issue of disputed fact as to whether defendants, in the absence of an emergency, abused their discretion by conducting the removals before giving plaintiff an opportunity to be heard. Accordingly, the procedural due process claim must proceed to trial. Third, the Court rejects plaintiff's contention that the Town needed a warrant in order to execute the removals. However, the Court also concludes that the reasonableness of
the removals depends in part upon whether they were conducted in conformity with due process--a disputed issue at this juncture. Moreover, there are disputed issues of fact as to whether plaintiff's tools and other non-litter were removed from the Property, which goes to the reasonableness of the manner in which the searches and seizures were conducted. Accordingly, plaintiff's Fourth Amendment claim must also proceed to trial. Fourth, the Court grants summary judgment for all defendants as to plaintiff's substantive due process claim because it is duplicative of his Fourth Amendment claim. Fifth, the Court holds that the class-of-one equal protection claim cannot survive summary judgment. In brief, plaintiff has failed to present evidence from which a reasonable jury could find that he was similarly situated to other properties that, he claims, kept vehicles outdoors without the Town's interference.
In sum, plaintiff has established triable issues of fact as to whether his procedural due process and Fourth Amendment rights were violated. With respect to the respective defendants' liability for those violations, first, the Town may be held liable because all relevant actions were authorized by the Town Board and can thus be considered municipal policy. Defendants Prince, Hammerle, Loewen, McGintee, and Mansir are, however, entitled to absolute legislative immunity because their sole involvement in this case stems from their votes as members of the Town Board. Finally, the Court grants Schirrippa, Narvilas, Jilnicki, Glogg, and Grenci's motion for summary judgment on the basis of qualified immunity. None of the rights plaintiff invokes are clearly established law; in fact, plaintiff has pointed to other court decisions under similar factual circumstances, which seem to support the legality of the defendants' actions in this case. Thus, the Court grants summary judgment for Schirrippa, Narvilas, Jilnicki, Glogg, and Grenci on qualified immunity grounds. As a result of this Memorandum and Order, only plaintiff's procedural due process and Fourth Amendment claims against the Town survive summary judgment.
The following facts are taken from the parties' depositions, declarations, exhibits, and respective Local Rule 56.1 statements of facts. Upon consideration of a motion for summary judgment, the Court construes the facts in the light most favorable to the nonmoving party. See, e.g., Capobianco v. City of New York, 422 F.3d 47, 50 n.1 (2d Cir. 2005). Unless otherwise noted, where a party's Rule 56.1 statement is cited, that fact is undisputed, or the opposing party has not pointed to any evidence in the record to contradict it.
The Property at issue sits on just under one-quarter of an acre facing Fort Pond Bay in Montauk. (SS 56.1 ¶ ¶ 2, 18; DSB 56.1 ¶ ¶ 2-3. It has been in plaintiff's family since 1948, and plaintiff began living there permanently in 1995. (SS 56.1 ¶ ¶ 1, 21-36, 38-40, 55; DSB 56.1 ¶ ¶ 1, 4-8.) The Property has been zoned " A Residential" since 1982. (SS 56.1 ¶ ¶ 2, 54; DSB 56.1 ¶ 14.) It contains a " pre-existing nonconforming repair garage as defined by the East Hampton Town Code." (SS 56.1 ¶ 67; see id. ¶ ¶ 70-76; DSB 56.1 ¶ ¶ 15-16.) It does not include a pre-existing, nonconforming recycling and scrap yard. (SS 56.1 ¶ ¶ 220-21.)
Plaintiff, a self-employed automobile mechanic, has operated his auto repair business from the Property since 2001. (SS 56.1 ¶ ¶ 57-62; DSB 56.1 ¶ ¶ 18, 23.) He has also operated a taxi business and a towing business out of the Property. (SS 56.1 ¶ 91; DSB 56.1 ¶ ¶ 11, 24-26.) Plaintiff received a Town business permit to operate a " light" repair garage on October 25, 2007, although that permit expired one year later, and he did not renew the permit until January 23, 2009. (SS 56.1 ¶ ¶ 77-79.) He first registered his repair shop at the Property with the New York State Department of Motor Vehicles on ...