Chompupong v. City Schenectady

511 F.Supp.3d 228

Viroj CHOMPUPONG and Malinee Chompupong, Plaintiffs,

v.CITY SCHENECTADY, John Does 1-10 and XYZ Corp. 1-10, Defendants.

1:17-cv-929 (MAD/CFH)

United States District Court, N.D. New York.

Signed December 18, 2020

OF COUNSEL: ANTHONY D. DOUGHERTY, ESQ., LINDA S. ROTH, ESQ., TARTER KRINKSY & DROGIN LLP, 1350 Broadway, New York, New York 10018, Attorneys for Plaintiffs.

OF COUNSEL: JAMES J. BURN, ESQ., MURPHY BURNS LLP, 407 Albany Shaker Road, Loudonville, New York 12211, Attorneys for Defendant City of Schenectady.

MEMORANDUM-DECISION AND ORDER

Mae A. D'Agostino, U.S. District Judge:

I. INTRODUCTION

Plaintiffs Viroj and Malinee Chompupong commenced this action on August 22, 2017, asserting claims against the City of Schenectady (the "City"), Jackson Demolition Service, Inc. ("Jackson"), the Schenectady Metroplex Development Authority ("Metroplex"), and unnamed John Does and XYZ Corps. See Dkt. No. 1. The Chompupongs asserted claims for due process and unlawful taking in violation of 42 U.S.C. § 1983 and conspiracy to do so against the City and Metroplex. Plaintiffs further asserted claims against the City for abuse of authority, trespass, negligence, and intentional destruction of property. Finally, the Chompupongs alleged a violation of 42 U.S.C. § 1983, trespass, negligence, and intentional destruction of property against Jackson.

In March of 2019, Defendants each filed separate motions to dismiss for failure to state a claim. Dkt. Nos. 35, 38 & 39. On July 24, 2019, the Court issued a Memorandum-Decision and Order granting in part and denying in part the City's motion to dismiss, and granting in their entirety Metroplex's and Jackson's motions to dismiss. Dkt. No. 58.

On July 27, 2020, the City moved for summary judgment on Plaintiffs’ remaining claims. Dkt. No. 79. For the reasons set forth below, the City's motion is granted in part and denied in part.

II. BACKGROUND

Plaintiffs, the Chompupongs, are individuals and residents of the State of New York and were the owners of real property in Schenectady, referred to as the Nicholaus Building. See Dkt. No. 79-2 at ¶ 1. Defendant City of Schenectady, is a State of New York municipality. Id. at ¶ 2.

The Chompupongs purchased the Nicholaus Building on February 3, 2004. Id. at ¶ 3. The ground floor of the Nicholaus Building was leased to commercial tenants while the three apartments on the upper floors were leased to residential tenants. Id. On April 1, 2016, the Nicholaus Building was damaged as a result of construction work on or related to the Electric City Apartments development project adjacent to the Nicholaus Building. Id. at ¶ 4. Because of this damage, on April 1, 2016, the City issued an order to vacate the Nicholaus Building, which was accordingly evacuated. Id. at ¶¶ 5-7.

After the Nicholaus Building was damaged, it was shored up and stabilized by the City and Metroplex, with the assistance of various engineers and contractors. See id. at ¶ 19. Around June 2016, an entity, but not the City, hired Ausfeld & Waldruff Surveyor, LLC ("A&W") to provide survey monitoring and measurements for the Nicholaus Building. Id. at ¶ 20.

Although the Chompupongs gave the inspector permission to enter, the Mayor of the City obtained a search warrant before entering the building on November 29, 2016. Id. at ¶ 23. The building was inspected on December 1, 2016, and nine "Unsafe Structure" code violations were issued, which called for corrective action by December 12, 2016. Id. at ¶ 24. Following a structural evaluation by M.J. Engineering and Land Surveying, P.C. ("M.J. Engineering") on December 6, 2016, a report was issued on December 21, 2016, which recommended "that immediate action be taken to stabilize the building foundations and repair the noted structural deficiencies," and that "[i]n the event that [the] building cannot be stabilized immediately, the structure should be demolished to prevent further de-stabilization of the structure and potential failure." Id. at ¶ 27.

On March 6, 2014, A&W took additional monitoring points that had been monitored on the northeast and west faces of the Nicholaus Building in June 2016. Id. at ¶ 31. Christopher Dooley, P.E. received the survey monitoring data complied by A&W on March 7, 2017. Id. at ¶ 32. Mr. Dooley then spoke with A&W for further clarification. Id. at ¶ 33. M.J. Engineering then prepared another report on March 20, 2017, to discuss the findings and his professional recommendations based the surveying monitoring data, which was sent to Carl Falatico, Corporation Counsel of the City. Id. at ¶ 34.

M.J. Engineering concluded that the Nicholaus Building shifted and displaced to the west. Id. at ¶ 36. M.J. Engineering stated that the Nicholaus Building should immediately be permanently stabilized or, if not, demolished. Id. at ¶ 37. The Letter Report of M.J. Engineering was signed by Mr. Dooley, a licensed professional engineer in the State of Vermont. Id.

On March 29, 2017, Mr. Dooley received additional monitoring data taken on that day from A&W, which revealed no additional movement since the previous recording. Id. at ¶ 39. On April 7, 2017, Mr. Dooley met with Robert Gach, an attorney representing Metroplex, Schenectady Fire Chief Senecal, and Corporation Counsel Falotico. Id. at ¶ 40. Mr. Dooley stated at the meeting that due to the lack of permanent stabilization, the Nicholaus Building was an immediate threat to collapse and that M.J. Engineering would not recommend waiting any amount of time to address the threat. Id. at ¶ 44. Mr. Dooley then prepared a Structural Assessment Letter that same day reiterating these assessments and emailed it to Mr. Falatico. Id.

The City's Acting Building inspector, Dominick Viscariello, reviewed the Structural Assessment Letter from Mr. Dooley that afternoon. Id. at ¶ 45. Mr. Viscariello authorized the demolition of the Nicholaus Building pursuant to City Code § 138-30(f), which grants the Building Instructor authority to order the demolition of a building that poses an imminent danger to human life or health. Id. at ¶¶ 45-47.

Mr. Viscariello then prepared a Notice of Violation stating that the Nicholaus Building was unsafe and needed to be demolished and affixed the Notice to the door of the Nicholaus Building, as well as a Notice of Violation to the owner of the Nicholaus Building, which was also affixed to the door of the building stating that the building was unsafe due to major structural failures and needed to be demolished immediately. Id. at ¶ 48.

Counsel for the Chompupongs was notified that afternoon by telephone that the Nicholaus Building had shifted by less than half an inch, was allegedly in danger of collapse, and, based on the City's police authority, would be demolished immediately. Id. at ¶ 49.

The Chompupongs strongly objected to the demolition of the Nicholaus Building and made an emergency application to the Honorable Thomas Buchanan of the Supreme Court of the State of New York, County of Schenectady, to stay the demolition. Id. at ¶ 50. Justice Buchanan denied the request for a stay, and Jackson proceeded to demolish the Nicholaus Building. Id. at ¶¶ 51-52.

III. DISCUSSION

A. Standard of Review

A court may grant a motion for summary judgment only if it determines that there is no genuine issue of material fact to be tried and that the facts as to which there is no such issue warrant judgment for the movant as a matter of law. See Chambers v. TRM Copy Ctrs. Corp. , 43 F.3d 29, 36 (2d Cir. 1994) (citations omitted). When analyzing a summary judgment motion, the court "cannot try issues of fact; it can only determine whether there are issues to be tried." Id. at 36–37 (quotation and other citation omitted). Moreover, it is well-settled that a party opposing a motion for summary judgment may not simply rely on the assertions in its pleadings. See Celotex Corp. v. Catrett , 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quoting Fed. R. Civ. P. 56 (c), (e) ).

In assessing the record to determine whether any such issues of material fact exist, the court is required to resolve all ambiguities and draw all reasonable inferences in favor of the nonmoving party. See Chambers , 43 F.3d at 36 (citing Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ) (other citations omitted). Where the non-movant either does not respond to the motion or fails to dispute the movant's statement of material facts, the court may not rely solely on the moving party's Rule 56.1 statement; rather the court must be satisfied that the citations to evidence in the record support the movant's assertions. See Giannullo v. City of New York. , 322 F.3d 139, 143 n.5 (2d Cir. 2003) (holding that not verifying in the record the assertions in the motion for summary judgment "would derogate the truth-finding functions of the judicial process by substituting convenience for facts").

"Assessments of credibility and choices between conflicting versions of the events are matters for the jury, not for the court on summary judgment." Jeffreys v. City of New York , 426 F.3d 549, 553–54 (2d Cir. 2005) (quotation omitted). "However, ‘[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Id. (quoting Anderson , 477 U.S. at 252, 106 S.Ct. 2505 (emphasis and alterations in original)). "To defeat summary judgment, therefore, nonmoving parties ‘must do more than simply show that there is some metaphysical doubt as to the material facts,’ ... and they ‘may not rely on conclusory allegations or unsubstantiated speculation.’ " Id. (quotations omitted).

B. Fourth Amendment Illegal Seizure

The City asserts that it is entitled to summary judgment on Plaintiffs’ Fourth Amendment claims because emergency circumstances existed which made the demolition of the Nicholaus Building reasonable. Dkt. No. 79-16 at 3-4. The Court disagrees.

"The ...