United States District Court, S.D. New York
OPINION AND ORDER
Edgardo Ramos, U.S.D.J.
Harold Hirsch brings this action against the City of New
York, the City of New York Department of Buildings (the
“DOB”), and the New York City Department of
Environmental Protection (the “DEP”),
(collectively, the “City” or
“Defendants”), pursuant to 42 U.S.C. § 1983,
18 U.S.C. § 241, and the Racketeer Influenced and
Corrupt Organizations Act, 18 U.S.C. § 1962
(“RICO”). Plaintiff alleges violations of his
federal constitutional rights under Section 1983 as a result
of the City's alleged failure to follow regulations that
protect citizens from having their rent-stabilized apartments
destroyed and their failure to intervene to prevent private
citizens from so harming Plaintiff. Plaintiff further alleges
a conspiracy to violate his constitutional rights pursuant to
18 U.S.C. § 241, and violations of RICO because the
municipal employees allegedly acted in their official
capacity when engaging in a scheme to defraud citizens. Doc.
1 at 1, Doc. 18. Pending before the Court is Defendants'
motion to dismiss. Docs. 14. For the reasons set forth
herein, Defendants' motion is GRANTED.
Factual Background 
Harold Hirsch, a disabled man, is a tenant of 666 West End
Avenue, New York, New York (the “Subject
Premises”). Doc. 1 ¶¶ 5, 17. Plaintiff has
lived in a rent-stabilized apartment in the Subject Premises
since 1983. Id. ¶ 16. Plaintiff alleges that
from 2010 to 2016 the City was complicit in a scheme of the
building's owners to conduct widespread construction on
the Subject Premises in order to force out rent-stabilized
tenants, create market-rate apartments in their place, and
generate increased profits for the owner and the City alike.
Id. at ¶¶ 15, 19-21. Plaintiff alleges
that the City was complicit because it improperly approved
and renewed applications for work permits for the Subject
Premises that falsely represented that the building was
vacant and contained no rent-stabilized apartments.
Id. ¶¶ 18, 23. According to Plaintiff, the
City's issuance of full work permits and failure to
confirm whether the representations contained in them were
true constitutes a violation of law. Moreover, Plaintiff
asserts that, while the owners only renovated the market-rate
apartments in the building, the owners intentionally and
negligently caused 300 rent-stabilized tenants in 178 units
to be displaced, injured, or poisoned, and attempted to
physically force out rent-stabilized tenants in order to
convert those apartments to market-rate ones. Id.
result of the building construction, which included the use
of jackhammers to point the building's outer walls,
“the outer walls of the [Subject Premises] br[oke]
through into Plaintiff's apartment.” Id.
¶ 24. This resulted in internal damage of
Plaintiff's apartment, the surrounding hallways, and the
lobby area. Id. The construction also damaged the
heating, electricity, telephones, plumbing, and air
ventilation systems of the Subject Premises. Id.
Additionally, because the ventilation and water systems were
allegedly compromised by “toxins and poisons”
resulting from the construction, Plaintiff's kitchen and
bathroom suffered water damage, toxic mold build-up,
collapsed ceilings, and exposed electrical wiring.
Id. ¶ 25. Plaintiff claims that from November
2010 to April 2016, highly deadly toxins, poisons, and
powdered cement were released into the air in Plaintiff's
apartment, making it difficult for Plaintiff to see or
breathe in his apartment unit. Id. ¶ 24. Though
Plaintiff does not specify his precise medical condition, he
alleges that he had to wear masks and was ultimately forced
to begin medical treatment because of his exposure to the
toxins in his apartment and the common areas of the Subject
Premises. Id. ¶¶ 21, 39 (alleging that
“Mr. Hirsch was forced to endure years of suffering and
pain and serious, possibly terminal medical condition from
these toxins in his apartment; and caused him to be fearful
to return home to his apartment which he has lived in for
over 30 years.”), 55. Although Plaintiff does not
specify precisely over what duration, he alleges that
residents of the Subject Premises issued “daily
complaints” related to these conditions, resulting in
the collapse and redesign of New York City's
non-emergency information hotline, known as NYC311.
Id. ¶ 13. Plaintiff further asserts that the
U.S. Post Office discontinued delivery to the Subject
Premises as a result of the ongoing construction.
Id. ¶ 35. On the basis of these facts,
Plaintiff alleges that Defendants should have known of the
conditions at the Subject Premises, but failed to prevent
further harm to Plaintiff. Id. ¶¶ 13, 35
(alleging that these facts “should have warned the City
of New York and it[s] investigative units” about the
conditions at the Subject Premises).
December 11 and 12, 2012, and January 24, 2013, Olmsted
Environmental Services, Inc. conducted a health and safety
inspection survey of the Subject Premises and found toxins
and health and safety issues such as lead, asbestos,
crystalline silica dust, mold, and exposed electrical wiring.
Id. ¶ 26. Plaintiff does not allege that the
City conducted this study or was ever made aware of its
results. On January 27, 2015, Plaintiff filed suit in New
York state court against the private owners, operators, and
contractors involved in construction at the Subject Premises,
alleging various violations of state and federal law and
seeking damages, costs, and attorney's fees. Doc. 17,
Attach. 2, at 1, 22-23. Shortly thereafter, on February 19,
2015, the DEP sent inspectors to review a vacated
rent-stabilized apartment at the Subject Premises. As a
result, the Subject Premises was shut down as a hazmat site
for asbestos and construction at the site was discontinued.
Id. ¶ 27. Plaintiff, however, conclusorily
alleges that the DEP only acted “in an attempt to hide
their illegal activities.” Id. ¶ 56.
furtherance of his conspiracy claim, Plaintiff alleges that
DOB building inspectors unlawfully cleared code violations
and removed such violations from DOB's website.
Id. ¶ 35. Plaintiff also conclusorily suggests
that the City may be engaged in “corruption” or
that its employees may be engaged in a “pay for
play” agenda. Id. (“Whether this was
done purposefully through the corruption of the city or
benign neglect due to city employees accepting this through a
‘pay for play' agenda which is now being
investigated by the Department of Justice and also the N.Y.
County D.A.'s Office; or the result of criminal
ineptitude or incompetence, it does not matter.”).
filed a complaint on February 9, 2017, bringing seven causes
of action under 42 U.S.C. § 1983, 18 U.S.C. § 241,
and 18 U.S.C. § 1962, and seeking compensatory and
punitive damages. Doc. 1 ¶¶ 2, A-B. In addition to
the City of New York, Plaintiff named as Defendants the DOB
and DEP, as well as its officials and inspectors (the
“Doe Defendants”) in their official and
individual capacities. Doc. 1 ¶¶ 6-11.
submitted an order for an extension of time to answer the
complaint on February 27, 2017, stating that they needed
additional time to investigate the allegations in the
complaint. Doc. 8. On April 14, 2017, Defendants requested a
pre-motion conference to seek permission to dismiss the
complaint. Doc 11. The Court granted Defendants' request,
and a pre-motion conference was held on May 2, 2017. On May
4, 2017, Defendants filed a motion to dismiss the complaint.
motion to dismiss pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure, the Court must accept as true all
of the factual allegations from the complaint, and draw all
reasonable inferences in the plaintiff's favor.
Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014).
However, this requirement does not apply to legal
conclusions, bare assertions, or conclusory statements.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)). The complaint must adhere to Rule 8(a), which has
been interpreted to require that the complaint contain enough
factual matter for the claim to be plausible on its face.
Id. (citing Twombly, 550 U.S. at 570). A
claim is facially plausible “when the plaintiff pleads
factual content that allows the Court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Id. (citing Twombly, 550
U.S. at 556). Rule 8(a) “does not unlock the doors of
discovery for a plaintiff armed with nothing more than
conclusions.” Id. at 678-79. If the plaintiff
has not “nudged [his] claims across the line from
conceivable to plausible, [the] Complaint must be
dismissed.” Twombly, 550 U.S. at 570.
Liability Under § 1983
1983 grants a right of action to any “citizen of the
United States or other person within the jurisdiction thereof
who has been deprived of “any rights, privileges, or
immunities secured by the Constitution” or federal law
by a person acting under color of state law. 42 U.S.C. §
1983. Thus, in order to state a claim under Section 1983, a
plaintiff must allege that: (1) defendants were state
actors or were acting under color of state law at
the time of the alleged wrongful action; and (2) the action
deprived plaintiff of a right secured by the Constitution or
federal law. Am. Mfrs. Mut. Ins. Co. v. Sullivan,
526 U.S. 40, 49-50 (1999). Section 1983 therefore
“excludes from its reach merely private conduct, no
matter how discriminatory or wrongful” that conduct may
be. Id. at 50. Likewise, “Section 1983 is only
a grant of a right of action; the substantive right giving
rise to the action must come from another source.”
Singer v. Fulton Cnty. Sheriff, 63 F.3d 110, 119 (2d
Cir. 1995). Thus, a civil rights action brought under Section
1983 will stand only insofar as a plaintiff can prove an
actual violation of his rights under the Constitution or
federal law. Id. (citing Adickes v. S.H. Kress
& Co., 398 U.S. 144, 150 (1970)).
provides a private cause of action for ‘[a]ny person
injured in his business or property by reason of a violation
of § 1962 of this chapter.'” Hemi Grp.,
LLC v. City of New York, 559 U.S. 1, 6 (2010) (quoting
18 U.S.C. § 1964(c)). To succeed on a Section 1962
claim, a plaintiff must “independently allege both an
enterprise-a group of persons in an ongoing association-and a
pattern of racketeering activity-a series of allegedly
criminal acts.” DeFalco v. Dirie, 923 F.Supp.
473, 476 (S.D.N.Y. 1996) (quoting Procter & Gamble v.
Big Apple Industrial Buildings, Inc., 879 F.2d 10, 15
(2d Cir. 1989)). A plaintiff seeking to demonstrate a pattern
of racketeering activity under § 1962 must allege (1) at
least two predicate acts of racketeering occurring within a
ten-year period; (2) that the predicate acts are related to
each other; and (3) that the predicate acts amount to or pose
a threat of continued criminal activity. Cofacredit, S.A.
v. Windsor Plumbing Supply Co., Inc., 187 F.3d 229, 242
(2nd Cir. 1999) (citing H.J. Inc. v. Northwestern
Bell, 492 U.S. 229, 239 (1989)).
Liability Under § 1983
City concedes that Defendants “are state actors who act
under color of state law, ” see Doc. 15 at 6,
therefore satisfying the first prong of a Section 1983 claim,
see Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. at
49-50. Nonetheless, Plaintiff's claims must be dismissed
because he fails to allege that those state actors violated a
constitutionally or federally protected right. Six of
Plaintiff's seven causes of action are allegedly
predicated on violations of his constitutional rights.
See Doc. 1 at 11, 12, 15, 16, 17. Plaintiff claims
that Defendants: “accepted false information on the . .
. work permit applications” and failed to “stop
the illegal [construction] work” (Count 1);
“permitted false applications for work permits to be
validated and then granted full work permits, ” which
allowed for the destruction of the apartments in the Subject
Premises (Count 2); violated his civil rights by unlawfully
clearing building code violations and passing inspection
statements (Count 4); acting in their official and individual
capacities, engaged in a “conspiracy” to violate
Plaintiff's civil rights by conspiring to
“intentionally and wrongfully falsify business
records” (Count 5); failed to intercede to prevent
government employees from violating Plaintiff's
constitutional rights (Count 6); and failed to supervise or
train its employees with respect to proper building code
enforcement and inspection and handling of applications and
inspection reviews (Count 7). Id. ¶¶ 41,
48-49, 58-63, 59-60, 65, 72, 78. According to Plaintiff,
these failures amount to violations of rights protected by
the Fourth, Fifth, and Fourteenth Amendments. Doc. 1 at 1;
Doc. 18 at 4. In substance, however, these causes of ...