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Yany's Garden LLC v. City of New York

United States District Court, E.D. New York

January 15, 2020

YANY'S GARDEN LLC and NARUL TONY HACK, Plaintiffs,
v.
THE CITY OF NEW YORK, NEW YORK CITY, DEPARTMENT OF BUILDINGS, NEW YORK CITY DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT, RASSOUL AZARNEJAD, AMY MARCUS, PHILLIP MATTOON, DENNIS ZAMBOTTI, SCALA CONTRACTING CO. INC., NYCTL 2012-A TRUST, THE BANK OF NEW YORK MELLON AS COLLATERAL AGENT AND CUSTODIAN FOR THE NYCTL 2012-A TRUST, and JOHN DOE No. 1 THROUGH 10, Defendants.

          MEMORANDUM & ORDER

          NICHOLAS G. GARAUFIS, UNITED STATES DISTRICT JUDGE

         Plaintiffs Yany's Garden LLC ("Yany's Garden") and Narul Tony Hack bring this action against the City of New York ("NYC" or the "City"), the NYC Department of Buildings ("DOB"), the NYC Department of Housing Preservation and Development ("HPD"), Rassoul Azarnejad, Amy Marcus, Philip Mattera, [1] and Dennis Zambotti (collectively, the "City Defendants"), and Scala Contracting Co. Inc. ("Scala"), NYCTL 2012-A Trust ("NYCTL"), the Bank of New York Mellon as Collateral Agent and Custodian for the NYCTL 2012-A Trust ("BNY" and, together with NYCTL, the "Trust"), and John Does 1-10. (See Am. Compl. (Dkt. 6).) Plaintiffs assert claims arising out of an emergency declaration, emergency repair work, a tax lien, and judgment of foreclosure and sale issued against Plaintiffs' undeveloped property in Whitestone, Queens, New York (the "Property") under 42 U.S.C. § 1983 and various state law causes of action, including: Article 1, Section 6 of the New York Constitution, trespass, injury to property, wrongful conversion, intentional infliction of emotional distress, negligence, failure to protect, and illegal tax lien foreclosure. (See id.)

         Currently before the court are motions to dismiss Plaintiffs' Amended Complaint by the Trust and the City Defendants. (See Trust Mot. to Dismiss ("Trust Mot.") (Dkt. 19); City Defs. Mot. to Dismiss ("City Defs. Mot.") (Dkt. 20).) For the following reasons, the Trust Defendants' motion is GRANTED and the City Defendants' motion is GRANTED IN PART and DENIED IN PART.

         I. BACKGROUND

         A. Facts

         The court takes the following statement of facts largely from Plaintiffs' Amended Complaint, the well-pleaded allegations of which the court generally accepts as true for purposes of the motions to dismiss. See N.Y. Pet Welfare Ass'n v. City of New York, 850 F.3d 79, 86 (2d Cir. 2017).

         Plaintiffs are successive owners of the Property. On March 16, 2004, Narul Tony Hack, a resident of Bayside, Queens, acquired title to the Property: Queens County Tax Block 4541 Lot 10. (Am. Compl. ¶¶ 27, 42-43.) In November 2004, Hack began to construct a building on the Property, but he ceased construction in June 2005. (Id. ¶¶ 44-45.) Five years later, the Property remained undeveloped and consisted of an open basement foundation surrounded by a six-foot plywood fence. (Id. ¶ 46.) Hack ultimately sold the Property to Yany's Garden, a New York LLC. (Id ¶¶ 25-26, 29.)

         Defendants DOB and HPD are departments of the City. (Id. ¶¶ 31, 32.) Defendants Azarnejad and Marcus are HPD employees. (Id ¶¶ 33-34.) Defendants Mattera and Zambotti are DOB employees. (Id. ¶¶ 35-36.) Defendant Scala is a New York corporation with its principal place of business in Brooklyn, New York. (Id. ¶ 37.) Defendant NYCTL is a Delaware business trust created pursuant to a 2012 agreement between NYC and the Wilmington Trust Company. (Id ¶38.) Defendant BNY is a New York banking corporation. (Id. ¶ 39.) Defendants John Doe 1-10 are unknown employees and agents of the Defendants. (Id. ¶ 40.)

         On September 28, 2010, Mattera inspected the Property and found that it had been abandoned for four years and its open foundation and "out of plumb" fencing was an "Emergency condition pursuant to Section 28-215.1 of the NYC Administrative Code." (Emergency Decl.[2] (Dkt. 20-3); see also Am. Compl. ¶¶ 47, 75.) Consequently, Mattera issued an Emergency Declaration, which required: (1) the Property's open foundation to be filled; (2) the site to be graded; and (3) the replacement of the existing plywood fence with a chain link fence. (Am. Compl. ¶ 47; see also Emergency Decl.) Both Zambotti and Marcus allegedly signed-off on the Emergency Declaration. (Am. Compl. ¶¶ 48-49.) Scala performed the work ordered by that Declaration, and billed the City $17, 011 for the work performed. (Id. ¶¶ 56, 78.) Azarnejad subsequently approved Scala's work. (Id. ¶ 50.)

         Plaintiffs allege that no Defendant provided Hack with notice of the Emergency Declaration or the work completed on the Property. (Id. ¶¶ 54, 57, 58, 60, 64, 69, 96.) The Amended Complaint does not state when Hack first became aware of the work completed pursuant to the Emergency Declaration.

         In December 2010, a tax lien was placed on the Property. (Id. ¶ 79.) The City sold the tax lien to NYCTL in August 2012. (Id. ¶ 80.) On February 3, 2017, a judgment of foreclosure and sale was entered against the Property. (Id. ¶ 6.) Plaintiffs allege that Hack was not served with appropriate notice pursuant to this judgment. (Id. ¶ 11.) On October 3, 2017, a notice to amend the Property's street address was filed in the Queens County Clerk's Office. (Id., ¶ 13.) On May 11, 2018, NYCTL auctioned the tax lien to a purchaser who subsequently abandoned the purchase. (Id. ¶¶ 142-43.) On October 12, 2018, NYCTL resold the tax lien to an unnamed third party. (Id. ¶87.)

         Plaintiffs allege that, as a result of Defendants' actions, Hack has difficulty functioning normally, and that he suffers from abdominal pain, digestive disorder, sleep deprivation, paranoia, anxiety, and depression. (Id. ¶ 88.)

         B. Procedural History

         Plaintiffs filed their original complaint in this court on May 11, 2018. (Compl. (Dkt. 1).) Plaintiffs filed their Amended Complaint on November 27, 2018. (Am. Compl.) The Amended Complaint alleges multiple New York state law causes of action and one federal claim arising under 42 U.S.C. § 1983. (Id. ¶¶ 89-149.) Plaintiffs allege under 42 U.S.C § 1983 that Defendants: (1) discriminated against Hack in violation of the Equal Protection Clause of the Fourteenth Amendment by misapplying administrative procedure in issuing a September 2010 Emergency Declaration, (2) deprived Hack of his Fifth and Fourteenth Amendment right to a hearing prior to issuing the September 2010 Emergency Declaration, and (3) conducted an unlawful seizure of Hack's property in violation of the Fourth Amendment through demolition of structures on the Property in October 2010. (Id. ¶¶ 95-97, 99, 104-05.)

         The Trust and the City Defendants moved to dismiss on May 14, 2019 and May 15, 2019, respectively. (See Trust Mot.; City Defs. Mot.) Following various extensions of time, both motions were fully briefed by August 16, 2019. (See Corrected Reply Mem. in Further Supp. of Trust Mot. (Dkt. 31); Reply Mem. in Further Supp. of City Defs.' Mot. (Dkt. 32).) Scala was served on November 30, 2018 but has not appeared in the case. (See Returned Summons (Dkt. 35).)

         II. ...


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