Summary
dismissing claims against the New York City Police and Building Departments on same ground
Summary of this case from Rivera v. Rikers IslandOpinion
99 Civ. 8615 (LAK)
March 7, 2000
ORDER
This matter is before the Court on defendants' motion, pursuant to Fed.R.Civ.P. 12(b)(6), to dismiss the complaint. Although plaintiff brought this action pro se, he now is represented by counsel. Nevertheless, plaintiff has not responded to the motion.
Facts
Although this is a Rule 12(b)(6) motion, defendants have submitted a declaration of counsel and a substantial number of exhibits in its support. While the Court in appropriate circumstances may consider such materials and thereby convert the motion into one for summary judgment, such action would be inappropriate here because the plaintiff has not had appropriate notice of his obligation to submit admissible evidence in opposition to the motion. Nor have defendants complied with Local Civil Rule 56.1. Accordingly, the Court disregards all of the material outside the complaint, the well pleaded factual allegations of which are taken as true for purposes of the motion.
See, e.g., Sawyer v. Am. Fed. of Govt. Employees, 180 F.3d 31, 34 (2d Cir. 1999); Champion v. Artuz, 76 F.3d 483, 485 (2d Cir. 1996).
Plaintiff is the owner of rental property in Queens. On May 16, 1998, New York City Detective Pallachia arrived at the premises, evidently in response to a complaint that plaintiff assaulted one of plaintiff's tenants, found the complainant living in an undesirable trailer on plaintiff's property, and became upset with plaintiff. Pallachia threatened plaintiff and told him that he would get the New York City Departments of Buildings and Housing, Preservation and Development ("HPD") "after him" and "do everything in his power to ensure that [he would] lose [his] building." In due course, the Fire and Buildings Departments and HPD visited the premises and concluded that they were unsafe for human habitation. They issued a vacate order in consequence of which tenants from three floors were required to leave the premises and plaintiff was deprived of rental income. They also issued a number of violations, presumably of the Building Code, which later were dismissed by the Environmental Control Board. Nevertheless, the Department of Buildings refused to lift the vacate order, which plaintiff claims was issued as part of an attempt by the police to punish him for the alleged assault on his tenant.
Cpt ¶ 14.
Id. ¶¶ 15, 19-20.
Id. ¶¶ 21, 26.
Id. ¶¶ 27-28.
Id. ¶¶ 31, 33.
The complaint, which is brought against the New York City Buildings and Police Departments and Detective Pallachia, purports to assert six ill-defined claims for relief. The first contends that the issuance of the vacate order was arbitrary and capricious. The second complains that there was no process by which plaintiff could have challenged the vacate order. The third asserts that plaintiff was deprived of the equal protection of the laws in that persons in his situation are not afforded an immediate hearing under departmental procedures while others are given such protections. The fourth asserts that Detective Pallachia acted improperly and that the Police Department is responsible for his actions. Finally, the fifth and sixth contend that the police department arrested and imprisoned plaintiff without grounds to do so. All of the foregoing is said to have violated plaintiff's federally protected constitutional rights, and jurisdiction is invoked under 28 U.S.C. § 1331.
Discussion
At the outset, the Court is faced with the fact that plaintiff has not sued the City of New York, but merely two City departments and a police detective. The New York City Charter provides that "[a]ll actions and proceedings for the recovery of penalties for the violation of any law shall be brought in the name of the city of New York and not in that of any agency, except where otherwise provided by law." Accordingly, New York City departments, including the Police and Building Departments, are not suable entities. Plaintiff's claims against those departments therefore are dismissed.
N.Y.C. CHARTER § 396.
See, e.g., Falcis v. New York City Police Dept., No. 95 Civ. 2407 (NG), 1997 WL 65798, *1 (E.D.N.Y. Feb. 10, 1997) (dismissing claims against Police and Correction Departments because non-suable entities); Campbell v. Dept of Correction of New York City, No. 95 Civ. 3242 (MBM), 1996 WL 79869 (S.D.N Y Feb. 26, 1996) (same); Wilson v. City of New York, 800 F. Supp. 1098, 1101 (E.D.N.Y. 1992) (same as to Police Department).
This leaves the claim against Detective Pallachia, which appears in substance to be that Pallachia deprived plaintiff of constitutional rights by making complaints to the Buildings Department that led to the issuance of the order to vacate plaintiff's premises.
There is a reference in the complaint to plaintiff's having been arrested, but no suggestion that Pallachia was involved in the arrest.
It is difficult to see how Detective Pallachia's actions in complaining to the Buildings Department deprived plaintiff of any constitutional rights. It was the Buildings Department that allegedly issued the order to vacate.
In consequence, the motion to dismiss the complaint is granted without prejudice to the filing, on or before March 20, 2000, of an amended complaint (a) setting forth clearly the federal constitutional basis of any claim against Detective Pallachia, and (b) adding the City of New York as a defendant. For the guidance of defendants in the event the complaint is amended to add the City, their contention that this Court lacks subject matter jurisdiction because plaintiff could have sought review of the order to vacate in an Article 78 proceeding in the state courts is frivolous, although the availability of that remedy may have a bearing on the question whether plaintiff was deprived of due process of law.
See, e.g., Smylis v. City of New York, 983 F. Supp. 478, 480-81 (S.D.N.Y. 1997).
See, e.g., Empire Transit Mix, Inc. v. Giuliani, 37 F. Supp.2d 331, 337-38 (S.D.N.Y. 1999).
SO ORDERED.