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Cho v. City of New York

United States District Court, S.D. New York

January 12, 2018

Cho et al, Plaintiffs,
City of New York et al, Defendants.



         Plaintiffs Jameelah El-Shabazz, Sung Cho, and David Diaz bring this purported class action pursuant to 42 U.S.C. § 1983, alleging that the settlement agreements that they signed between two and five years ago to resolve the City of New York's nuisance abatement actions against them are unconstitutional and unenforceable. Plaintiffs allege that these settlement agreements, which were so ordered by judges in New York state courts, contained waivers of their constitutional rights. Plaintiffs allege that two of them agreed to such waivers because of the threat of eviction from their residences and the remaining one because of the threat of closing his business. Defendants have moved to dismiss the complaint on a variety of procedural and pleading infirmities pursuant to Fed.R.Civ.P. 12(b)(6). The Court raised the issue of subject matter jurisdiction, specifically the Rooker-Feldman doctrine. Because the Court finds that the Rooker-Feldman doctrine applies, as detailed further below, the matter is dismissed without prejudice.[1]


         Plaintiffs bring this suit against the City of New York, Mayor Bill de Blasio, the New York City Police Department ("NYPD"), Police Commissioner James P. O'Neill, New York City Law Department, and Corporation Counsel of the City of New York Zachary W. Carter. The plaintiffs here are all former defendants in nuisance abatement proceedings brought by the City of New York (the "City"). The following facts are drawn from Plaintiffs' Complaint, accepted as true, as well as matters of which the Court may take judicial notice.

         New York City Nuisance Abatement Law

         In 1977, the New York City Council enacted the Nuisance Abatement Law (N.Y.C. Admin. Code. §§ 7-701 et seq.).[2] Characterized in the Complaint as a "no fault eviction ordinance, " Compl. ¶¶ 24-35, the ordinance allows the City to close a residence or business for a period up to one year when it can show-under a civil standard-that an enumerated criminal offense occurred on the premises. N.Y.C. Admin. Code §§ 7-701 et seq. Enumerated offenses include, among other things, drug crimes, stolen property offenses, prostitution, obscenity, and liquor law violations. Id. § 7-703. The owner or leaseholder of the property does not need to be responsible for the offense. Compl. ¶ 25. At the time of the events in question, the ordinance allowed the City to initiate an action by filing an ex parte motion for a "temporary closing order" sealing the location where the alleged crime occurred, without any prior notice or opportunity to be heard. N.Y.C. Admin. Code § 7-709; Compl. ¶ 30. After the premises are closed down, an individual would then have three days to prepare for a hearing at which the court would decide whether the premises should remain closed for the duration of the litigation. N.Y.C. Admin. Code § 7-710. If the City prevails on the merits of the nuisance abatement action, the City can obtain an order closing the premises for up to a year, as well as civil fines of $1, 000 for each day the nuisance is in existence. N.Y.C. Admin. Code §§ 7-714(c), 7-716(a).

         These abatement actions rarely proceed all the way to a final decision by a judge, and instead, are almost always resolved by settlement. Compl. ¶ 35. The Complaint alleges that the ordinance led to a policy and practice of settling these abatement actions on the condition that residents and business owners agree to waive constitutional rights. Id. ¶¶ 35-37. In these settlements, individuals consent to warrantless searches of their homes or exclusion of certain individuals from their residences, or businesses consent to warrantless searches, the installation of and provision of access to security cameras, and the imposition of fines without any judicial intervention. Id. ¶ 36.

         Subsequent to this action, the ordinance has been amended. The law now provides a defense based on innocence, see N.Y.C. Admin. Code §§ 7-725, 7-726, and limits the use of ex parte closing orders to alleged prostitution offenses and to dangerous or uninhabitable buildings. Id. § 7-709(a).

         Individual Plaintiffs

         A. Sung Cho

         Sung Cho is an owner of a laundromat business, formally organized as Nagle Washrite LLC. Compl. ¶ 12. Nagle Washrite LLC, a limited liability company in which Cho is the sole member, is also a plaintiff. Id. ¶ 12. In December 2014, the City brought a nuisance abatement action against the laundromat based on two stolen-property offenses that allegedly occurred at the business. Id. ¶¶ 46-47. The City sought closure for a period of one year and civil penalties. Id. ¶ 46. There was no closure of the laundromat, [3] but Cho just had one week before having to appear at a hearing to show cause why his business should not be ordered closed for the duration of the litigation. Id. ¶ 47. Because of the risk that his store would be closed, Cho signed a settlement agreement or Stipulation of Settlement to end the action. Id. ¶ 49; Mbaye Decl. Ex. H. In that agreement, he consented to unannounced warrantless inspections of the premises, the installation and maintenance of surveillance system for access by the NYPD, and to the waiver of his due process right to a hearing in the event he or his "customers, employees, and/or representatives" are accused of future violations by the NYPD. Compl. ¶ 52-53; Mbaye Decl. Ex. H. Cho also agreed that the Stipulation of Settlement would be part of any sale of the business, as to bind any future owner. Compl. ¶ 55.

         B. David Diaz

         On September 4, 2013, the City brought a nuisance abatement action against David Diaz. Id. ¶ 65. The City also obtained an ex parte order closing the apartment, which was issued on the basis of an affidavit of an NYPD officer describing the May 9, 2013 raid of Diaz's apartment, which turned up a small amount of contraband, and an unnamed confidential informant purchasing drugs from an unnamed individual. Id. ¶¶ 61-64, 67. Although the City was legally entitled to close Diaz's apartment, Diaz spoke with an NYPD attorney, who informed him that the City would allow the family to stay temporarily to avoid throwing Diaz's infant daughter onto the street. On September 6, Diaz appeared at the scheduled preliminary injunction hearing for the case. Id. ¶¶ 69-70. Unaccompanied by an attorney, Diaz spoke with an attorney representing the City who advised him that it would be risky to fight the action given the consequences for him and his infant daughter. Id. ¶ 74. Diaz signed a Stipulation of Settlement under which he agreed to exclude several family members from the apartment. Id. ¶¶ 74, 98; Mbaye Decl. Ex. F.

         C. Jameel ...

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