United States District Court, E.D. New York
MEMORANDUM & ORDER
NICHOLAS G. GARAUFIS, UNITED STATES DISTRICT JUDGE
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,  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.)
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.
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.
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.)
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.
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. (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.)
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.
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.
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.)
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.)
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).)