432 East 1 1th St. Corp. v. The City of N.Y.

2011 NY Slip Op 31186

432 EAST 1 1th STREET CORP., and ROBERT J. GIURDANELLA, Plaintiffs, v. THE CITY OF NEW YORK and "JOHN DOE 1" through "JOHN DOE XX", intended to be individuals who were involved in the acts complained of herein but their identity and/or the extent of their involvement is not yet fully known to the Plaintiffs, Defendants.

Index No. 109308/05

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: Part 52

Dated: April 29, 2011

Filed: May 3, 2011

DECISION/ORDER

HON. CYNTHIA S. KERN, J.S.C.

Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion for: _________________________________________________________________

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¦Notice of Cross Motion and Answering Affidavits¦2       ¦
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¦Exhibits                                       ¦4       ¦
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Plaintiffs commenced the instant action to recover damages sustained when the City of New York (the "City") ordered the demolition of a portion of plaintiffs' building located at 638 East 12th Street (the "Subject Premises") in New York, New York. The City moves for summary judgment dismissing the complaint on the grounds that plaintiffs cannot meet their burden of proof to succeed on their claims and that the City is entitled to immunity from plaintiffs' claims. The City also moves for summary judgment on its counterclaims for costs and expenses incurred in demolishing the portion of the Subject Premises at issue in this action. The court grants theCity's motion in its entirety for the reasons set forth below.

The relevant facts are as follows. The New York City Department of Buildings (the "DOB") is the City's agency charged with the authority and responsibility to oversee the maintenance of buildings or structures in New York City. Section 643 of the New York City Charter ("Charter") and sections 26-127, 26-235, 26-243, 27-127 and 27-110 of the New York City Administrative Code contain the provisions guiding the DOB in determining whether an emergency exists and the procedures for acting upon such a determination. DOB Operations Policy and Procedure # 16/93 ("OPPN #16/93") sets forth the criteria for determining whether an emergency situation should be classified as an "Emergency" or an "Immediate Emergency" and the procedures for responding to the emergencies. In this regard, OPPN #16/93 provides that an '"Immediate Emergency' will be declared on a building with life threatening structural damage and/or in imminent danger of collapse" and that the expectation is that work on such a structure will begin by the day after the declaration. An "Emergency" will be declared on a building with serious structural damage and/or a deteriorating condition when a collapse or failure is expected in the very near future and work on such a building is expected to begin within 30 to 60 days of the declaration. OPPN #16/93 also states that the City must notify the owner of the building of the declaration.

On Thursday April 1, 2004, DOB inspector Calvin Warner inspected the Subject Premises in response to a complaint. Inspector Warner found a hazardous condition at the Subject Premises and issued a violation. Specifically, Inspector Warner found that there was a failure to maintain the building's exterior walls-that the west exterior at roof level was bulging out of plumb approximately two feet from front to rear at two story building. He also found thatbricks were cracked due to the wall leaning out of plumb and that the west exterior bearing wall was leaning inward creating danger of collapsing onto the playground of the school next door. Inspector Warner informed his supervisors of the suspected emergency conditions at the Subject Premises. As a result, Max S. Lee, a plan examiner at DOB and Paul Harkin, a Supervising Inspector at DOB inspected the Subject Premises on that same date and wrote a Special Report of their findings. Lee and Harkin found that "[t]he front portion of the building at 638 East 12th Street experienced an excessive lateral movement along its west wall" and that "the west elevation of this wall is approximately 2 foot out of plumb bulging out over the driveway (see photos 1 & 2), while the east wall is being dragged, concave inward to the building." Lee and Harkin concluded that the "hazardous condition render[ed] the building unsafe to be occupied" and that "the instability of this structure may also endanger the occupants, the school children, at the adjacent property should the west wall collapse." The report recommended that the front portion of the building should be demolished immediately and that the owner of the building should appoint an engineer to investigate the structural integrity of the remaining three-story structure in the rear portion of the building. As a result of the finding made in this report, on April 2, 2004, Laura V. Osorio, acting in her capacity as the Borough Commissioner ("Commissioner Osorio") issued an Immediate Emergency Declaration for the Subject Premises. The Immediate Emergency Declaration stated that the "West exterior masonry wall at the second story window [was] bulging approximately 2' out of plumb to the west and in imminent danger of collapse into school yard of Public School 61" and that the "East masonry wall [was] leaning inwards to West." As a result of these conditions, Commissioner Osorio ordered the owner of the Subject Premises to demolish the structure at the front of the lot. A copy of this declarationwas mailed to the owner of the Subject Premises and a telephone call was made conveying this information. Between April 8 and April 11, 2004, an architect acting on behalf of the owner of the Subject Premises filed a work permit application and supporting documents to repair a portion of the building subject to demolition. In accordance with the plan, the first story of the front building at the subject premises could be (and ultimately was) saved from demolition. Permits to repair that portion of the building were issued on April 12, 2004 and the Emergency Declaration was amended to preserve the portion now planned for repair. The City's Housing Preservation Development undertook the demolition of the unpreserved portion at a cost of $32,000. On August 21, 2005, plaintiff filed the instant action seeking damages for the demolition and destruction of the Subject Premises without due process of the law.

On a motion for summary judgment, the movant bears the burden of presenting sufficient evidence to demonstrate the absence of any material issues of fact. See Wayburn v Madison Land Ltd. Partnership, 282 A.D.2d 301 (1st Dept 2001). Summary judgment should not be granted where there is any doubt as to the existence of a material issue of fact. See Zuckerman v City of New York, 49 N.Y.2d 557, 562 (1980). Once the movant establishes a prima facie right to judgment as a matter of law, the burden shifts to the party opposing the motion to "produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which he rests his claim." Id.

"[A] municipality may demolish a building without providing notice and an opportunity to be heard if there are exigent circumstances which require immediate demolition of the building to protect the public from imminent danger... Although notice and a predeprivation hearing are generally required, in certain circumstances, the lack of such predeprivation processwill not offend the constitutional guarantee of due process, provided there is sufficient postdeprivation...