Kshel Realty Corp. v. City of New York

293 F. App'x 13
CourtCourt of Appeals for the Second Circuit
DecidedAugust 5, 2008
DocketNos. 06-4557-cv(L), 07-3035-cv(con)
StatusPublished
Cited by3 cases

This text of 293 F. App'x 13 (Kshel Realty Corp. v. City of New York) 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
Kshel Realty Corp. v. City of New York, 293 F. App'x 13 (2d Cir. 2008).

Opinion

SUMMARY ORDER

Plaintiffs-Counter-Claimants-Appellants Kshel Realty Corporation and Stardial Communications Corporation, doing business as Irreplaceable Artifacts (“Plaintiffs”), appeal from the order of the district court granting summary judgment to the Defendants-Counter-Claimants-Appellees the City of New York, the Department of Buildings of the City of New York (“DOB”), and other city agencies and employees (collectively, “City”) on the Plaintiffs’ procedural and substantive due process claims. The Plaintiffs’ claims arose from the destruction of a building, owned by Kshel in which Stardial was a tenant, located at Second Avenue and Houston in Manhattan (“Building”). The City demolished the Building after DOB officials issued an immediate emergency declaration authorizing that demolition, pursuant to DOB Operation Policy and Procedure Notice # 16/93 (“OPPN”). We assume the parties’ familiarity with the remaining facts and the proceedings in the district court.

We review a grant of summary judgment de novo, “examining the evidence in the light most favorable to, and drawing all inferences in favor of, the non-movant.” Sheppard v. Beerman, 317 F.3d 351, 354 (2d Cir.2003). “Summary judgment is appropriate only if it can be established ‘that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.’ ” Id. at 354-55 (quoting Fed.R.Civ.P. 56(c)). In this case, the record contains no evidence establishing a genuine issue of material fact with respect to whether the City violated the Plaintiffs’ procedural or substantive due process rights when it demolished the Building.

Procedural Due Process

In evaluating a plaintiffs procedural due process claim, this Court asks “(1) whether plaintiffs possessed a protected liberty or property interest, and, if so, (2) what process plaintiffs were due before they could be deprived of that interest.” Sealed v. Sealed, 332 F.3d 51, 55 (2d Cir.2003). In this case, the parties do not dispute that the demolition of the Building deprived the [15]*15Plaintiffs of their property rights. Rather, the Plaintiffs argue that the City violated their procedural due process rights when it failed to provide them with adequate predeprivation process before demolishing them building.

Our analysis of the Plaintiffs’ procedural due process claim begins with the Supreme Court’s holding in Parratt v. Taylor, 451 U.S. 527, 538, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), that although notice and predeprivation hearing are generally required, the lack of such predeprivation process will not violate due process in certain circumstances provided there is sufficient postdeprivation process available to the person deprived of his property interest. As the Court recognized in Parratt, “either the necessity of quick action by the State or the impracticality of providing any meaningful predeprivation process, when coupled with the availability of some meaningful means by which to assess the propriety of the State’s action at some time after the initial taking, can satisfy the requirements of procedural due process.” Id. at 539, 101 S.Ct. 1908. Generally, “[i]t is sufficient, where only property rights are concerned, that there is at some stage an opportunity for a hearing and a judicial determination.” Hodel v. Va. Surface Min. and Reclamation Ass’n, Inc., 452 U.S. 264, 303, 101 S.Ct. 2352, 69 L.Ed.2d 1 (1981).

Here, the relevant question is whether it was impractical for the City to provide some form of predeprivation process. “In situations where the State feasibly can provide a predeprivation hearing before taking property, it generally must do so regardless of the adequacy of a postdeprivation tort remedy to compensate for the taking---- Conversely, in situations where a predeprivation hearing is unduly burdensome in proportion to the liberty interest at stake ... or where the State is truly unable to anticipate and prevent a random deprivation of a liberty interest, postdeprivation remedies might satisfy due process.” Zinermon v. Burch, 494 U.S. 113, 132, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990) (internal citations omitted).

Further, where, as in this case, the challenged taking resulted from an official’s discretionary decision to invoke an emergency procedure, this Court affords “the decision to invoke the procedure some deference.” Catanzaro v. Weiden, 188 F.3d 56, 62 (2d Cir.1999). In Catanzaro, we addressed a plaintiffs challenge to a city official’s decision to invoke an emergency procedure that resulted in the demolition of buildings owned by the plaintiff after that official determined that the buildings had been rendered unsafe by an auto accident. In that case, we observed “[ujnder Hodel, the due process guarantee is offended only when an emergency procedure is invoked in an abusive and arbitrary manner; therefore, there is no constitutional violation unless the decision to invoke the emergency procedure amounts to an abuse of the constitutionally afforded discretion.” Id. (citing Hodel, 452 U.S. at 302-03, 101 S.Ct. 2352). Accordingly, “where there is competent evidence allowing the official to reasonably believe that an emergency does in fact exist, or that affording predeprivation process would be otherwise impractical,” an official’s decision to invoke an emergency procedure and proceed without predeprivation process does not violate due process. Id. at 63.

In this case, the Plaintiffs argue that evidence that the Building was stable after the collapse of the wall demonstrated a genuine issue of material fact with respect to whether affording them predeprivation process would have been impractical. The record contains declarations from associ[16]*16ates of the Plaintiffs who were at the scene before and during demolition and who stated that the Building appeared to be stable after the wall collapse and from an expert who stated that the Building could have been stabilized and made safe through shoring rather than demolition. It is undisputed, however, that the south wall collapsed and that the Building had sustained considerable damage as a result. Further, the record also contains evidence that a sizeable hole formed in the south wall of the Building after the collapse and that several people at the scene observed dislodged and hanging structural beams, multiple collapsed floors, sagging and sloping floor slabs and other portions of the Building that were in imminent danger of further collapse. As we determined in Ca-tanzaro, “[i]n light of these undisputed facts, and despite the evidence submitted by Plaintiffs, which we assume to be true for purposes of this analysis, that the building was in fact structurally sound, no reasonable trier of fact could find that [the City officials] acted arbitrarily or otherwise abused [their] discretion, in deciding to invoke the emergency procedure.” 188 F.3d at 63.

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Bluebook (online)
293 F. App'x 13, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kshel-realty-corp-v-city-of-new-york-ca2-2008.