Catanzaro v. Weiden

188 F.3d 56, 1999 WL 547880
CourtCourt of Appeals for the Second Circuit
DecidedJuly 28, 1999
DocketNo. 97-7140
StatusPublished
Cited by96 cases

This text of 188 F.3d 56 (Catanzaro v. Weiden) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Catanzaro v. Weiden, 188 F.3d 56, 1999 WL 547880 (2d Cir. 1999).

Opinion

PARKER, Circuit Judge:

This action was brought under 42 U.S.C. § 1983, the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution, and the Fair Housing Act, 42 U.S.C. § 3601, et seq. (“FHA”). Plaintiffs-Appellants allege that Defendants-Appellees, City of Middletown, Mayor Joseph DeStefano, and Alfred Fusco, the Middletown Commissioner of Public Works, violated their due process property rights when they demolished Plaintiff-Appellant Catanzaro’s apartment buildings before determining whether the buildings [58]*58were structurally unsound. The district court found that the negligent demolition of Plaintiffs-Appellants’ building without a predeprivation hearing, pursuant to emergency procedures authorized under the city ordinance, did not violate Plaintiffs-Appellants’ due process or equal protection rights. Plaintiffs-Appellants appeal that ruling, contending that material issues of genuine fact exist to permit a rational jury to conclude that Defendants-Appellees violated their civil rights.

I. BACKGROUND

Plaintiff-Appellant Stephen Catanzaro was the owner of two adjacent three-story buildings that shared a common wall. These buildings were located at 82 and 84 East Main Street, respectively, in the city of Middletown, New York. The buildings were constructed of brick walls and wooden joists and partitions, and housed stores on the street level and walk-up apartments above. In total, the two buildings contained a deli, a bar, and eight low-income apartments. Plaintiff-Appellant Rashon Lai was a tenant in one of the buildings, and Plaintiff-Appellant Warren Kautz (who died prior to the district court’s decision), owned a building next door at 80 East Main Street.

On Sept. 1, 1994 at approximately 2:30 p.m., a car driven by Hyman Weiden crashed into the bar on the first floor of 84 East Main Street. Officer Paul Rickard was the first on the scene. Rickard observed that Weiden’s car had driven through the front wall and windows of the bar, knocking down the cast iron supports. He heard the building creaking and noticed that it was starting to buckle, and that the brick wall was starting to separate. He requested assistance to evacuate the building. Defendant-Appellee DeSte-fano, the Mayor of Middletown, was notified that there was a possible building collapse on East Main Street. DeStefano drove over to the site in his own car, where he was told that only the driver had been seriously hurt and that the building had been evacuated.

Defendant-Appellee Alfred A. Fusco, the Commissioner of Public Works for the City of Middletown, was one of the next officials on the scene, arriving sometime between 3:30 p.m. and 4:00 p.m. He was told by Officer Rickard that there had been no cracks in the front facade when he had arrived, but that now there were one-inch cracks. According to Fusco’s account, “[i]t was apparent that the front of the building was severely compromised and could fall into the public street which was only five feet (5’) from the building.” The City Building Inspector, Ellington Bradford, also noted that the cracks were widening, and that the beam that had been supported by one of the iron supports was sagging. According to William M. Johnson, the City’s Deputy Commissioner of Public Works, “Commissioner Fusco, Phil Pingotti (then Street Superintendent of Public Works) and I decided that 84 East Main had to be immediately demolished because of the condition of the front wall and the type of structure of the building would have created a domino effect of destruction of the building. Because there were power lines close to the front wall, we feared that any collapse of that wall-the main floor beams ran crossways from east to west through the building, so that removal of the front wall first would cause an even greater hazard involving the power lines.” The city officials also noted that blocking the street would have decreased accessibility to and from both a hospital and a firehouse.

Catanzaro and his father were immediately summoned. Fusco claims that “neither Catanzaro made any protest about the demolition of the obviously dangerous and crumbling building. Stephen Catanza-ro’s repeatedly stated concern was his ability to salvage as much personal property as possible from the structure.” After obtaining Catanzaro’s consent, the city officials rented equipment and worked until dark razing the building, pursuant to an [59]*59emergency procedure that is expressly authorized by the Charter and Code of the City. DeStefano, who knew Catanzaro as a “frequent attendee of common council meetings,” noted that Catanzaro was “very upset about the accident” and says he “tried to calm him down.” DeStefano adds, “My purpose for being there was regarding the tenants and to make sure that people were protected. Any issue dealing with property was referred to Mr. Fusco.”

Catanzaro paints a slightly different version of events, one in which DeStefano “was overheard to refer to the result obtained, with satisfaction, if not pleasure, as ‘instant urban renewal.’ ” 1 Drawing an adverse inference from this comment, Appellants allege that the claimed necessity for emergency demolition was pretextual, “because defendants were allegedly attempting thereby to rid the City of housing opportunities for the poor and racial minorities by slowly reducing the low income housing structures available, and that the tenants were in fact members of racial or ethnic minority groups.”

On Sept. 2, 1994, the day after 84 East Main Street had been destroyed, Fusco, Bradford, the Junior Engineer for the City, and a private consulting engineer examined the adjacent building at 82 East Main Street. They determined that damage to the party wall between 82 and 84 East Main Street required 82 East Main Street to be either immediately repaired or torn down.2 Catanzaro claimed that he could not afford to repair the building and signed a consent form, now alleged to have been “coerced,” for the building to be destroyed. Catanzaro claims that he “urged DeStefano and Fusco not to demolish the second building ... and, instead, to consult with experts as to the appropriate course of action,” but that DeStefano and Fusco “refused to allow Catanzaro any time to evaluate the situation,” and that DeStefano “threatened ... Catanzaro with arrest and indicated he wished to teach him a lesson for suing the City [a suit which arose from what Catanzaro claimed was a false arrest].” The building was then demolished. At some point, these demolitions caused damage to 80 East Main Street, which was owned by Plaintiff-Appellant Kautz.

Plaintiff-Appellants claim that there had, in fact, been no emergency on Sept. 1, 1994, the day the car hit 84 East Main Street, since the car had only damaged the exterior, or facade, of the building and did not undermine its structural integrity. Appellants note that, when the car was towed out of the building, the building did not collapse. Appellants also submitted to the District Court an affidavit from Aaron Horowitz, a professional engineer, who examined photographs taken at the scene and said he saw “little or no buckling or sagging of either the facade or any other part of the building.” Since the columns knocked out supported a facade and not a load-bearing wall, Horowitz said, the damaged columns could have been replaced.

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Bluebook (online)
188 F.3d 56, 1999 WL 547880, Counsel Stack Legal Research, https://law.counselstack.com/opinion/catanzaro-v-weiden-ca2-1999.