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Hirsch v. City of New York

United States District Court, S.D. New York

January 10, 2018



          Edgardo Ramos, U.S.D.J.

         Plaintiff 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.

         I. Factual Background [1]

         Plaintiff, 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.[2] Id. ¶¶ 20-21.

         As a 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).

         On 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.

         In 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.”).

         II. Procedural History

         Plaintiff 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.

         Defendants 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. Doc. 14.

         III. Legal Standard

         On a 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.

         A. Liability Under § 1983

         Section 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[3] 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)).

         B, RICO Claims

         “RICO 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)).

         IV. Discussion

         A. Liability Under § 1983[4]

         The 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)[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. ΒΆΒΆ 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 ...

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