Posted by: Patricia Salkin | August 23, 2015

Fed. Dist. Court in NY Upholds Issuance of a Demolition Permit and Stop Work Order and Dismissed Due Process and Equal Protection Claims

Plaintiff commenced a lawsuit arising out of Defendants’ issuance of a demolition permit and subsequent Stop Work Order. As to the procedural due process claim, the court found that the Plaintiff had the ability to challenge the administrative decision/Stop Work Order through an Article 78 proceeding, and her failure to do so was fatal to her procedural due process claim. Since Plaintiff acknowledged that the statute of limitations period had not yet expired, her failure to timely bring an Article 78 proceeding further precluded Plaintiff’s procedural due process claim. The substantive due process claim similarly failed because given the discretion the Code Enforcement Officer had to issue the Stop Work Order, it was clear that Plaintiff had no vested property interest in the demolition permit or to demolish the building. Moreover, the fact that Plaintiff owned the property for many years and operated a bowling facility on it did not provide Plaintiff with the unfettered right to then demolish the facility without complying with local and state regulations.

Next, the court upheld the dismissal of Plaintiff’s Equal Protection claim because it failed to plausibly allege the existence of similarly situated individuals treated differently from her or that there was no rational basis for the difference in treatment. The Contracts Clause claim also failed because Plaintiff had not alleged that a change in the law impaired her contractual relationships; instead, Plaintiff alleged that the implementation of a pre-existing law impaired her contractual relationships, which was outside the scope of the Contracts Clause. Finally, the Court found that the individual Defendants were entitled to qualified immunity because an objectively reasonably official would not believe that he was violating Plaintiff’s rights, since Plaintiff was not in compliance with New York law as a result of her failure to obtain an asbestos survey prior to commencing demolition. Accordingly, the Defendants’ motion to dismiss was granted.

Riano v Town of Schroeppel, 2015 WL 4725359 (NDNY 8/10/2015)

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