Opinion
01 Civ. 10137 (LAK)
October 7, 2003
ORDER
This matter is before the Court on the motion of plaintiff Wantanabe Realty Corporation ("Wantanabe") for certain relief following a verdict generally in its favor on the liability phase of this bifurcated trial. The general outlines of the case are fully set out in Wantanabe Realty Corp. v. City of New York, No. 01 Civ. 10137 (LAK), 2003 WL 21543841 (S.D.N.Y. July 10, 2003), familiarity with which is assumed.
1. Plaintiff first seeks entry of judgment as a matter of law against defendants Hilton and McArdle notwithstanding the jury's finding that both men had acted "out of a reasonable belief that the demolition was necessary to avert an imminent disaster." Both men, however, were aware of the Emergency Declaration issued by Brooklyn Borough Commissioner Zeid, which stated that (a) structural members throughout were "defective, severly [sic] rusted and deteriorating," (b) this and other circumstances were "creating a dangerous condition," and (c) the structure was to be processed "for Emergency Demolition." (PX 3, PX 10) There was no evidence that either knew of the alleged deficiencies in the inspection that led to that declaration. While the jury found also that the defendants had not proved that demolition "was necessary to avert an imminent public disaster," the fact remains that Hilton knew little if anything apart from what he read on the documents. And while McArdle was at the scene when demolition began, this occurred after he had taken the step that led to the demolition commencing, and there was little if any evidence that his training and experience were such as to have given him an independent basis for questioning the judgment apparently reflected in the Emergency Declaration. While plaintiff had, and made, counter arguments, the evidence was not so overwhelmingly in Plaintiff's favor as to these two defendants as to require judgment in its favor as a matter of law or, for that matter, to warrant upsetting the verdict as against the weight of the evidence.
2. Plaintiff next moves for entry of judgment as a matter of law against defendant Mustaciulo with respect to the trespass claim involving demolition of the Kensington Hotel, an essentially abandoned wooden building beneath the roller coaster, which the jury found was unjustified.
The evidence concerning Mustaciulo's involvement with respect to the so-called Hotel was undisputed. Mustaciulo was assistant commissioner for code enforcement of the Department of Housing, Preservation and Development ("HPD"), the agency actually responsible for the demolition. He was at the site at the start of demolition and instructed the demolition contractor, either directly or via defendant McArdle, to take down the wooden building. (Tr. 651-55) He did so because he regarded it as part of the roller coaster and believed that the base of the roller coaster "was actually within the building." ( Id. 656-58) Thus, it is undisputed that Mustaciulo, as the senior HPD official present at the site, made the judgment that demolition of the wooden building was necessary or appropriate to removal of the roller coaster.
To whatever extent such a finding might be deemed necessary, the Court so finds pursuant to Fed.R.Civ.P. 49(a).
Under New York law, a public official is protected by absolute immunity for any action that requires "expert judgment or the exercise of discretion." Arteaga v. State, 72 N.Y.2d 212, 216, 532 N.Y.S.2d 57, 59 (1988). Exercises of discretion that enjoy such immunity are those "of a judicial or quasi-judicial nature." Id. (citing, inter alia, Tango by Tango v. Tulevich, 61 N.Y.2d 34,471 N.Y.S.2d 73 (1983)). Indeed, the reasonableness of the action or any bad faith in which it is taken is immaterial in such circumstances. Arteaga, 72 N.Y.2d at 216-17, 532 N.Y.S.2d at 58. Even where the official is not making an expert judgment or exercising discretion of a judicial or quasi-judicial nature, the official remains protected by qualified immunity, which shields the official from liability for discretionary acts absent bad faith or actions without a reasonable basis. Id.
The standard differentiating discretionary acts which enj oy absolute immunity from those which carry only qualified immunity is "whether the position entails making decisions of a judicial nature — i.e., decisions requiring the application of governing rules to particular facts, an `exercise of reasoned judgment which could typically produce different acceptable results.'" Id. And New York courts have construed the scope of absolute immunity quite broadly, applying it even to the action of a building inspector in refusing to issue a building permit. Id.
As the senior HPD official on the site, it was Mustaciulo's job to decide exactly what should be done to demolish the roller coaster. The Court concludes, as a matter of law and finds a matter of fact, see Fed.R.Civ.P. 49(a), that Mustaciulo's determination to take down the wooden building was an expert judgment and an exercise of discretion of a quasi-judicial nature. It is protected by absolute immunity. In any case, the Court finds that he acted in good faith and that he had a reasonable basis for his decision based on his observation of the situation, which is corroborated out by the photographs and other evidence.
3. Plaintiff next seeks judgment as a matter of law on the trespass claim against defendant McArdle with respect to the Kensington Hotel.
McArdle was the HPD official who let the contract for the demolition of the roller coaster. The sole basis for attempting to link him to the destruction of the wooden structure beneath the roller coaster is that Mustaciulo, who decided that the wooden structure had to be demolished as well, testified that he either told the demolition contractor to do so directly or asked McArdle, his subordinate, to convey the message for him. (Tr. 653-54)
Even assuming that McArdle carried the message, that action would be insufficiently substantial to serve as a basis for imposing liability upon him. RESTATEMENT (SECOND) OF TORTS § 876, cmt. d., Example 9; Tr. 693-95.
Accordingly, the motion is denied.
SO ORDERED.