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131 & Madison Realty Corp. v City of New York
2002 NY Slip Op 30158(U)
November 5, 2002
Sup Ct, NY County
Docket Number: 107637/99
Judge: Michael D. Stallman
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SUPREME COURT OF THE STATE OF NEW YORK -                    NEW YORK COUNT
HON. MICHAEL
PRESENT:                                                    PART
Justice
The following papers, numbered 1 to                         were read on this motion
PAPERS NUMBERED
SCANNED
of                                                          Order to Show Cause - Affidavits - Exhibits ...
Answering Affidavits - Exhibits
Replying Affidavits
Cross-Motion :                                              No
Upon the foregoing papers, it is ordered that this motion
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Index No.
Plaintiff,                                                                                                  Decision and Order
In this plenary action, plaintiff seeks damages for the City’s allegedly unlawful demolition of
its building. Plaintiff moves for summary judgment pursuant to CPLR 3212. Defendant City of New
York cross-moves for leave to amend its answer to assert a defense of governmental immunity, and
for summary judgment dismissing the complaint. These motions address a novel issue: Is the City’s
decision to summarily demolish plaintiffs building, without notice or priorjudicial approval, immune
from post-demolition judicial review?
FACTS
Plaintiff owned a building at 41 East                                                                       Street, also known as 2081 Madison Avenue, in
Manhattan. Plaintiffs building shared a common party wall with an adjoining City owned building,
2083 Madison Avenue.
On August  19,  1998, the Department of Buildings  (DOB) responded to an emergency
condition at 2081 and 2083 Madison Avenue. At his deposition, DOB inspector George Gabourel
testified that upon his arrival at the site, he saw that several floors of 2083 had collapsed, and bricks
had fallen from the common wall. Gabourel recommended that 2083 be demolished, and concluded
if 2083 were demolished, then 208 1 could not stand alone. Gabourel therefore recommended that
208 1 be demolished too. The City then issued an Emergency                                                  which directed that 2081




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be demolished “to protect the public safety.” On the same day, August 19, 1998, the City contracted
with defendant Gateway Demolition, which actually carried out the demolition. Plaintiff states that
it did not learn of the demolition until it received a letter from the City, dated August 21, 1998, after
the building had already been demolished.
I
Plaintiffs complaint pleads two theories of recovery against the City of New York. The first
cause of action asserts that the City was negligent and reckless in the decision to demolish, and in
process of demolishing, plaintiff‘s building. The second cause of action asserts that the demolition
was an unlawful taking of plaintiffs property under color of law in violation of 42 USC                     1983.
By decision and order dated October 31, 2001, this Court granted Gateway’s motion for
summary judgment dismissing the complaint as against it and denied plaintiffs motion to amend its
complaint to assert a claim that the City negligently maintained 2083.
The Court denied the proposed amendment of the complaint because the notice of claim
neither mentioned 2083 Madison Avenue, the City’s building, nor alleged a negligence cause of
action. The notice of claim simply alleged the “unlawful and reckless destruction, demolition and
taking of plaintiffs building, 2081 Madison Avenue . . .                                                    . .by the City.” In denying that motion to
amend, the Court determined that the proposed amendment of the complaint would have added a
different theory of liability and altered the nature of the standard of conduct alleged to have been
wrongful.  Because the notice of claim contained no reference to negligence and no reference to
negligent maintenance of the City’s building, and because the time to seek leave to file a late notice
                                                                                                            of claim (or to amend the notice of claim to assert a different theory of liability;   Gen. Municipal
Law                                                                                                         had expired, the Court lacked the power to grant the amendment.
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For the same reason, to the extent that the first cause of action against the City pleads
negligence and carelessness, it is beyond the scope of the notice of of claim and is not properly part
of this case'.  To the extent that summary judgment searches the record, the Court deems the first
cause of action against the City limited to the                                                            reckless demolition of plaintiff's building, and
otherwise dismissed.
The second cause of action against the City is within the scope of the notice of claim to the
extent that it pleads a wrongful taking of                                                                 property without due process of law in violation
of the federal and state Constitutions (U.S. Const.                                                        Amend; N.Y. Const. Art I, $ 6 ) and 42 US..
1983.
Plaintiff claims entitlement to judgment as a matter of law because the City never sought a
precept order from the Supreme Court and did not otherwise notify plaintiff of its intention to
demolish 2081. Plaintiff asserts that the City lacked authority to order the demolition of plaintiffs
building. The City contends that it has the authority to demolish a building without a precept order
in emergency situations where, as here, plaintiffs building was in imminent danger of collapse.
The federal and state due process clauses each provide that no person may be deprived of
property by state action without due process of law.  U.S. Const. Amend.  14; N.Y. Const. Art. I
6.  Under its inherent police power and common law nuisance theory, government may act to
To the extent that the complaint alleges claims based on theories in conflict with those set
forth in the notice of claim, the complaint lacks validity.   Negligence and carelessness are a
conceptually different, lesser standard of culpability than recklessness. Where, as here, in the absence
of a timely motion to amend the notice of claim equivalent to a motion for                                 to serve a late notice
(made within 1 year and 90 days of accrual), a pleading may not                                            claim beyond that set
forth in the notice of claim.
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protect members of the public from danger. to life and health posed by private property. See
Municipal Corporations                                                                               24.561. Due process generally requires that government give
an owner notice, an opportunity to be heard and a chance to remove the hazard before proceeding
                                                                                                     to abate or demolish, unless the condition poses an imminent emergency.                               Catanzaro v.
                                                                                                     140 F3d 91 (2d Cir. 1998); Matter of City of New York v. Unsafe Building, 77                          562 (Sup.
Ct. N.Y. City., M. Evans, J., 1973); Moses v.,                                                       Council of Long Beach, 71                                                                             925 (Sup.
                                                                                                     Ct., Nassau Cty. 1971). Thus, the City’s police power must be exercised in a manner consistent with
due process.
                                                                                                     The City of New York has adopted procedures for abating hazards posed by unsafe structures
                                                                                                     and codified them in the City Charter and Administrative Code.  N.Y.C. Charter                        643; N.Y.C.
Admin. Code                                                                                          26-235 through 26-243.
The New York City Charter empowers the Department of Buildings to perform the City’s
functions relating to unsafe buildings and structures, including the power to take necessary legal
action to remove unsafe conditions including the sealing or demolition of such buildings.
Charter                                                                                              643 states:
The department shall enforce, with respect to buildings and structures,
such provisions of the building code, zoning resolution, multiple
dwelling law, labor law and other laws, rules and regulations as may
govern the construction, alteration, maintenance, use, conditions,
mechanical equipment and inspection of buildings or structures in the
city, and shall perform the functions of the City of New York relating
to
(1) the designation of buildings  and  structures as
unsafe  and  the  necessary  legal  action  in  relation
thereto prior to the removal of the unsafe condition
through demolition or sealing except as provided in
section eighteen hundred two of this charter.
(2) the shoring of hazardous and unsafe buildings and
structures.
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Article 8 of Chapter 1 of Title 26 of the Administrative Code                                               26-235 through
entitled “Unsafe Buildings and Property,” governs the procedures by which the DOB removes unsafe
conditions by demolition or sealing.
Section 26-235 provides, in pertinent part:
Any structure or part of a structure or premises that from any cause
may at any time become dangerous or unsafe, structurally or as a fire
hazard   shall be taken down and removed or made safe and secure ...
The quoted language states the general objective - to make the affected building safe, if
possible, or to demolish the building if that is not possible.  Article 8 then describes the
procedures to be followed in cases involving unsafe buildings. Administrative Code                          26-236 provides
that immediately upon receipt of an inspection report that shows the building to be unsafe, DOB
enters the report on a docket of unsafe buildings. The owner must be served with a written notice
containing a description of the condition, and an order either to make the building safe or to remove
the building. The owner is expected to contact the DOB immediately and either accept or reject the
order.  If the owner agrees to the order, then it has 24 hours to commence the abatement of the
unsafe or dangerous condition (Admin. Code                                                                  26-237).
Administrative Code                                                                                         26-238 provides for appointment of a three-person survey team, which
includes an architect and engineer. The surveyors issue a report concerning the alleged unsafe
condition.  Administrative Code                                                                             26-239 provides for judicial review of the survey. Whenever the
report recites that the building is unsafe, the Corporation Counsel, at such time specified in the notice
to the owner, places the notice and report before a justice of the Supreme Court, presumably by
commencement of a special proceeding. Because of the exigency of the situation, the proceeding has
preference over all other matters                                                                           )
If the judge, jury or court-appointed referee finds the building to be unsafe, the court issues a
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“precept,” directing the DOB to vacate and repair and secure the building, or to repair and secure,
or to take down or remove the building                                                                      Section 26-243 permits the City to perform
work to render the building “temporarily safe” until the proper proceedings for unsafe structures are
instituted.
The cited notice provisions of the Administrative Code not only afford due process to the
property owner; they protect the City from post-demolition claims that the City acted illegally. When
the City obtains expedited judicial review of its administrative determination before
immunizes itself from post-demolition litigation like the instant case.
Irrespective of the Administrative Code’s procedure for removing hazardous structures with
notice, the police power, compatible with constitutional requirements, permits the City to remove
imminently dangerous structures without prior notice. Common sense requires the law to recognize
that, when immediate action is required to protect lives and health, due process does not require
consuming impracticable procedure or prior judicial review that would hobble the City’s attempt to
safeguard the public.
If the City does act immediately without seeking prior court approval, due process requires
that the property owner have an opportunity to seek judicial review of the City’s act. Thus, the City
may summarily demolish a building if it finds exigent circumstances which require immediate
demolition to protect the public from imminent danger.                                                      v. City of New York, 68                         936;
see Calamusa v. Town of Brookhaven, 272                                                                     426. However, if immediate demolition was not
required, and that the condition of plaintiffs building would have permitted the City adequate time
to afford plaintiff notice and an opportunity to be heard, the failure to provide notice is a due process
violation for which liability will attach.                                                                  Calamusa v. Town of Brookhaven,
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Whether                                                                                                    structure presented an imminent emergency so as to have permitted the
City to bypass its Administrative Code procedure, is a triable factual question. See                                                                                                                      v.
Town of Babvlon, 194                                                                                       5 17. Whether the City acted unlawfully depends on resolution of this
question at trial.                                                                                         motion for summary judgment, and that branch of the City’s cross-motion
seeking summary judgment, are therefore denied.
Moreover, should it be determined at trial that the City wrongfully bypassed legal process,
plaintiff would have the burden of proving that the City’s act caused the damages plaintiff alleges.
If it is determined at trial that, had the City followed the Administrative Code procedure, the City
would have been granted a precept to demolish the building, then plaintiff may well be entitled only
to nominal damages.
The City’s cross-motion to amend its answer to add the defense of governmental immunity,
is denied. In the sole cause of action against the City, plaintiff alleges that the City’s demolition of
building constituted an unlawful taking without due process of law.  The crux of the
illegality alleged here is that the City did not follow lawful procedure- procedure set forth by its own
Administrative Code. Consequently, this case does not involve the City’s common law tort immunity
for its employees’ discretionary acts.  See,                                                               Lauer v. Citv, 95                                                                              95.
This case must be distinguished                                                                            Tennis                                                                                         v. Citv of New York, 212
481                                                                                                        Dept., 1995) where the plaintiff alleged that that the City’s chosen method of demolition of
a hazardous, partially collapsed structure caused bricks to fall on and damage plaintiffs building.
Rampart held that the City had discretion to select the appropriate means of doing the work and was
immune from tort liability for resulting property damage. Here, the method of demolition is not in
issue. Rather, it is the City’s decision to demolish without prior notice that                             challenges. Were
this Court to hold, as the City requests, that the City’s unilateral choice is immune from liability,
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property owners would be deprived of any judicial review or recourse whatsoever, even if the City’s
demolition was arbitrary or baseless.  Such a result would be incompatible with due process.
This opinion constitutes the decision and order of the Court.
Dated: November                                                                                       2002   ENTER:
MICHAEL D. STALLMAN, J.S.C.

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