Posted by: Patricia Salkin | April 1, 2014

Fed. Dist. Court in NY Rejects Procedural Due Process Claim for Nonconforming Use Because Plaintiffs Had an Adequate Post-Deprivation Remedy

Plaintiffs’ store occupied a portion of the first floor of a building erected before 1940, when the Town first implemented a zoning code. Under a grandfather clause in the zoning code any structure and use that lawfully existed before 1940 can continue to remain, exist, and be used, regardless of compliance with the current code. Plaintiff Ahmed bought an electric griddle, a sandwich press device and hotdog roller, and several tables and chairs, but never opened their packaging and left the tables and chairs stacked and unused. Nevertheless, defendants entered and advised plaintiffs that they could not prepare food at the premises for sale and consumption, because that would alter the store from a grandfathered retail store into a restaurant, violating the current zoning code. Plaintiffs immediately removed the items from the premises. Defendant issued a “Notice of Violation” and Summons, which stated that an inspection revealed an unsafe condition and construction without a permit.

Defendants moved to dismiss the procedural due process claim because plaintiffs availed themselves of an adequate post-deprivation remedy – a NY CPLR Article 78 proceeding. Plaintiffs argued that the claim should not be dismissed, because defendants failed to follow procedures in the Town Code and the Article 78 proceeding could not address pre-deprivation violations or reward damages. The court reasoned that an Article 78 proceeding provides the opportunity to review whether a body or officer ‘failed to perform a duty enjoined upon it by law’ or whether a specific act was ‘made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion,’ and permits the state court to remedy the violation by ordering a hearing or a return of the unlawfully seized property.” (quoting N.Y. C.P.L.R. 7803). Accordingly, the court dismissed the procedural due process claim.

Ahmed v Town of Oyster Bay, 2014 WL 1092363 (EDNY 318/2014)

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