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Bray v. the City of New York

United States District Court, S.D. New York
Sep 30, 2005
04 Civ. 8255 (WHP) (S.D.N.Y. Sep. 30, 2005)


finding the City violated the due process requirement by failing to provide notice after seizing plaintiffs' bicycles pursuant to Administrative Code § 16-122.

Summary of this case from Mysak v. City of N.Y.


04 Civ. 8255 (WHP).

September 30, 2005

Norman Siegel, Esq., New York, NY, Attorney for Plaintiffs.

Steven J. Hyman, Esq., McLaughlin Stern, LLP, New York, NY, Attorneys for Plaintiffs.

Michael A. Cardozo, Corporation Counsel of the City of New York, Robin Binder and Sheryl Neufeld, Of Counsel, New York, NY, Attorneys for Defendants.


Plaintiffs bring this action pursuant to 42 U.S.C. § 1983 claiming that Defendants (collectively, the "City") seized their bicycles without affording them due process and in violation of the First Amendment. Presently before this Court are the parties' dueling motions for summary judgment on Plaintiffs' due process claims. The City also moves for summary judgment on Plaintiffs' First Amendment claims. For the reasons that follow, this Court grants the City's motion for summary judgment on all Plaintiffs' First Amendment claims and the due process claims of Plaintiffs Dan Fennessey ("Fennessey") and Justin McSimov ("McSimov"). This Court also grants summary judgment to Plaintiffs Rebecca Bray ("Bray"), Allen Regar ("Regar") and Thomas Stephanos ("Stephanos") on their due process claims.


The facts pertinent to these motions are described in this Court's prior decisions. See Bray v. City of New York, 356 F. Supp. 2d 277 (S.D.N.Y. 2004); Bray v. City of New York, 346 F. Supp. 2d 480 (S.D.N.Y. 2004).

Critical Mass bicycle rides have occurred in Manhattan since 1994 on the last Friday of every month. (Declaration of Lt. Daniel Albano, dated Oct. 25, 2004 ("Albano Decl.") ¶ 3; Declaration of Matthew Roth, dated Nov. 29, 2004 ("Roth Decl.") ¶ 5.) By traversing City streets with hundreds of other cyclists, participants seek to promote "the rights of bicyclists and the rights of pedestrians on their own streets" and focus attention on the "deteriorating quality of life . . . that cars create for cities." (Albano Decl. Ex. A: Website for Times-Up!,

Participants concede that they often ride through red traffic signals, occupy the entire road, block intersections and impede other vehicles' right of way. (Transcript of Hearing on Dec. 8-9, 2004 ("Tr.") at 167.) Despite these traffic infractions, the New York City Police Department ("NYPD") tolerated Critical Mass events in Manhattan largely without incident for a decade. (Defendants' Statement Pursuant to Local Rule 56.1, dated Dec. 29, 2004 ("Defs. 56.1 Stmt.") ¶ 3; Plaintiff's Counter-Statement Pursuant to Local Rule 56.1, dated Jan. 7, 2005 ("Pls. 56.1 Counter-Stmt.") ¶ 3.) In fact, rather than prosecute such transgressions, the City ignored and, at times, facilitated them. (Roth Decl. ¶¶ 12-14; Declaration of Asst. Chief Bruce Smolka, dated Oct. 25, 2004 ("Smolka Decl.") ¶ 13; Tr. at 13-15, 166.) However, in the summer of 2004 when New York hosted the Republican National Convention, bicyclists turned out in unprecedented numbers for Critical Mass events and grew increasingly unruly and unpredictable, leading the City to adopt a more aggressive approach to the rides. (Albano Decl. ¶ 5; Roth Decl. ¶¶ 8-9; Smolka Decl. ¶¶ 3-6.)

This action concerns the September 24, 2004 Critical Mass bicycle ride in New York City (the "September Ride"). Plaintiffs are five of the approximately 1,200 bicyclists who participated in that event. (Defs. 56.1 Stmt. ¶¶ 1, 6; Pls. 56.1 Counter-Stmt. ¶¶ 1, 6.) As bicyclists congregated in Union Square to begin the ride, police officers distributed a flyer that described applicable traffic rules and New York City Administrative Code § 10-110(a) ("Section 10-110(a)"), which prohibits any "parade or procession" without a City permit. (Albano Decl. ¶ 13 Ex. D.) While the NYPD had not previously enforced the permit requirement against Critical Mass participants (Def. 56.1 Stmt. ¶ 3; Pls. 56.1 Counter-Stmt. ¶ 3), the flyer warned that violators would be "subject to arrest and bicycle seizure" (Albano Decl. Ex. D). Just prior to the September Ride, notwithstanding that a parade permit had not been sought, the City and the New York Civil Liberties Union ("NYCLU") agreed to a route which cyclists could follow without risking arrest. (Defs. 56.1 Stmt. ¶ 7; Pls. 56.1 Counter-Stmt. ¶ 7; Smolka Decl. ¶ 8.) Although the NYCLU negotiated the route, it was not representing or otherwise affiliated with Critical Mass, which strives to be leaderless and unorganized. (Albano Decl. ¶ 10; Roth Decl. ¶ 4; Smolka Decl. ¶ 8.)

Plaintiffs were part of a contingent that did not adhere to the approved route. (Affidavit of Rebecca Bray, dated Oct. 18, 2004 ("Bray Aff.") ¶ 3; Affidavit of Dan Fennessey, dated Oct. 18, 2004 ("Fennessey Aff.") ¶¶ 4-5; Affidavit of Justin McSimov, dated Oct. 18, 2004 ("McSimov Aff.") ¶ 4; Affidavit of Allen Regar, dated Oct. 18, 2004 ("Regar Aff.") ¶ 3; Smolka Decl. ¶¶ 9, 11; Affidavit of Thomas Stephanos, dated Oct. 18, 2004 ("Stephanos Aff.") ¶ 4.) When this group of riders turned on to 36th Street between Fifth and Sixth Avenues, police officers were waiting for them on scooters and began making arrests. (Defs. 56.1 Stmt. ¶ 11; Pls. 56.1 Counter-Stmt. ¶ 11; Bray Aff. ¶ 3; Fennessey Aff. ¶ 5; McSimov Aff. ¶ 4; Regar Aff. ¶ 4; Smolka Decl. ¶ 12; Stephanos Aff. ¶ 4.) Plaintiffs were not arrested. Instead, they and others dismounted their bicycles, locked them to public fixtures such as parking meters and street signs, and left the area. (Defs. 56.1 Stmt. ¶ 11; Pls. 56.1 Counter-Stmt. ¶ 11; Bray Aff. ¶ 4; Fennessey Aff. ¶ 6; McSimov Aff. ¶ 4; Regar Aff. ¶ 4; Stephanos Aff. ¶ 4.) Police officers proceeded to saw off locks and chains and confiscate bicycles that had been left on 36th Street. (Defs. 56.1 Stmt. ¶ 12; Pls. 56.1 Counter-Stmt. ¶ 12.) When Plaintiffs returned ten to thirty minutes later, their bicycles had disappeared or were in the process of being removed. (Bray Aff. ¶¶ 5-6; Fennessey Aff. ¶¶ 7-8; McSimov Aff. ¶¶ 6-8; Regar Aff. ¶¶ 5-6; Stephanos Aff. ¶¶ 5-6.) Bray witnessed this from a distance and decided to photograph the incident rather than approach. (Bray Aff. ¶¶ 5-6.) McSimov and Regar tried to interject and volunteered to unlock their bicycles but were rebuffed by police officers. (McSimov Aff. ¶¶ 7-8; Regar Aff. ¶¶ 5-6.) Stephanos grabbed hold of his bicycle before being told it was in police custody. (Stephanos Aff. ¶¶ 5-6.) When Fennessey returned, he found his $110 Kryptonite lock cut in half. (Fennessey Aff. ¶¶ 7-8.)

The police officers on 36th Street informed McSimov that his bicycle was seized as "abandoned property" (McSimov Aff. ¶ 8), and told Fennessey that his bicycle had been illegally secured to City property (Fennessey Aff. ¶ 8). Citing New York City Administrative Code § 16-122(b) ("Section 16-122(b)"), the City now contends that the bicycles were seized because it is illegal to leave bicycles "unattended on a public street, whether or not they are chained to traffic signs or parking meters." (Defendants' Memorandum in Opposition to Plaintiffs' Motion for Partial Summary Judgment and in Support of Defendants' Motion for Summary Judgment, dated Dec. 29, 2004 at 5.) The City acknowledges that violations of Section 16-122(b) are rampant and almost always go unpunished. (Transcript of Oral Argument on Oct. 27, 2004 at 32-33.) However, the City maintains that it acted against Plaintiffs to "remov[e] unattended property from the public street and prevent the owners' continued illegal participation in the unauthorized, disruptive and dangerous procession of bicycles throughout mid-town Manhattan streets." (Albano Decl. ¶ 15.) The police seized 40 bicycles on 36th Street that evening. (Defs. 56.1 Stmt. ¶ 14; Pls. 56.1 Counter-Stmt. ¶ 14.) Plaintiffs successfully reclaimed their bicycles within periods ranging from three hours to three weeks. (Defs. 56.1 Stmt. ¶ 16; Pls. 56.1 Counter-Stmt. ¶ 16; Fennessey Aff. ¶ 9; McSimov Aff. ¶ 9; Regar Aff. ¶¶ 8-10; Stephanos Aff. ¶¶ 7-8.)

Plaintiffs filed this action on October 20, 2004 claiming that the City's bicycle seizures violated their constitutional rights to due process in that Plaintiffs were not charged with a crime or violation of law. (Complaint, dated Oct. 19, 2004 ("Compl.") ¶¶ 2, 25, 55.) Plaintiffs also claim that the City seized their bicycles because of their association with Critical Mass, in violation of the First Amendment. (Compl. ¶¶ 2, 28, 59.) At the commencement of this action, Plaintiffs moved for a preliminary injunction preventing the City from seizing bicycles in the same manner in future Critical Mass rides. The City counterclaimed and moved for a preliminary injunction of its own, claiming that Plaintiffs violated Section 10-110(a) by parading without a permit. By Memorandum and Order dated October 28, 2004, this Court denied the City's motion, held that Plaintiffs were likely to succeed on their due process claims and granted Plaintiffs a preliminary injunction with respect to the ride scheduled for October 29, 2004. See Bray, 346 F. Supp. 2d at 489-93. The City added a second counterclaim and again moved for a preliminary injunction. Plaintiffs' moved to dismiss the counterclaims. This Court granted Plaintiffs' motion to dismiss and denied the City's motion. See Bray, 346 F. Supp. 2d at 287.

Plaintiffs now move for summary judgment on their due process claims and the City moves for summary judgment against Plaintiffs on both their due process and First Amendment claims. Significantly, the parties have not supplemented the evidentiary record since December 2004, when the City's second motion for a preliminary injunction was decided.


I. Summary Judgment Standard

Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986);Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The burden of demonstrating the absence of any genuine dispute as to a material fact rests with the moving party. Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970); Grady v. Affiliated Cent., Inc., 130 F.3d 553, 559 (2d Cir. 1997). In determining whether there is a genuine issue as to any material fact, "[t]he evidence of the [non-movants] is to be believed, and all justifiable inferences are to be drawn in [their] favor." Liberty Lobby, 477 U.S. at 255.

II. Plaintiffs' First Amendment Claims

Plaintiffs contend that summary judgment on their First Amendment claims is premature. Indeed, before summary judgment may be granted, "[t]he nonmoving party must have `had the opportunity to discover information that is essential to his opposition' to the motion." Trebor Sportswear Co. v. The Limited Stores, Inc., 865 F.2d 506, 511 (2d Cir. 1989) (quoting Liberty Lobby, 477 U.S. at 250 n. 5).

The three preliminary injunction motions have amplified the record with documentary evidence, affidavits and hearing testimony. Because both parties have had a full opportunity to conduct discovery, Defendants' motion for summary judgment is ripe. See Trebor Sportswear, 865 F.2d at 511; cf. Meloff v. New York Life Ins. Co., 51 F.3d 372, 375-76 (2d Cir. 1995) (vacating summary judgment because plaintiff had no opportunity to conduct discovery).

Plaintiffs' First Amendment claims rely on a theory of selective enforcement. See Yick Wo v. Hopkins, 118 U.S. 356, 373-74 (1886) ("Though the law itself be fair on its face, and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the constitution.") To prevail on such a claim, a plaintiff must show (1) that he was treated differently than others similarly situated; and (2) "that such selective treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person." Freedom Holdings Inc. v. Spitzer, 357 F.3d 205, 234 (2d Cir. 2004) (internal quotation omitted).

Even assuming that Plaintiffs' participation in Critical Mass is an expressive activity, see Bray, 346 F. Supp. 2d at 488, Plaintiffs have failed to raise a genuine issue of fact that their bicycles were seized because of that expressive activity and in violation of the First Amendment. Rather, the City perceived Critical Mass as an un-permitted parade that violated Section 10-110(a) and posed a threat to motor vehicle traffic. (Albano Decl. ¶ 15; Smolka Decl. ¶¶ 10-12.) On the night of the September Ride, the City became concerned that bicycles left unattended on the sidewalks of 36th Street would obstruct pedestrians. (Albano Decl. ¶ 15; Smolka Decl. ¶ 12.) The only evidence bearing on the City's motivation indicates that from its perspective, "[t]he removal of the bicycles served the dual purpose of removing unattended property from the public street and preventing the owners' continued illegal participation in the unauthorized, disruptive and dangerous procession of bicycles throughout mid-town Manhattan streets." (Albano Decl. ¶ 15.) Plaintiffs contend that Critical Mass is beyond the scope of Section 10-110(a)'s parade permit requirement and that Section 16-122(b) does not apply to bicycles temporarily left on sidewalks — issues not before this Court. See Bray, 356 F. Supp. 2d at 287. However, regardless of whether the City was correct in its assessment that Plaintiffs had violated these ordinances, there is no evidence that the City singled out Plaintiffs because of their expressive activity and not for perceived violations of law.

Accordingly, the City is entitled to summary judgment on Plaintiffs' First Amendment claims.

III. Plaintiffs' Due Process Claims

The parties' reciprocal summary judgment motions reveal that none of the facts material to Plaintiffs' due process claims are in dispute. Rather, the parties differ on the consequences of those facts as a matter of law.

A. Plaintiffs' Property Deprivations and the Process Due

The Due Process clause of the Fourteenth Amendment to the United States Constitution guarantees that states will not deprive a person of life, liberty or property without due process of the law. U.S. Const. amend. XIV, § 1; Weinstein v. Albright, 261 F.3d 127, 133 (2d Cir. 2001). At its core, procedural due process requires that individuals "receive notice and an opportunity to be heard before the Government deprives them of property." United States v. James Daniel Good Real Prop., 510 U.S. 43, 48 (1993); see Mathews v. Eldridge, 424 U.S. 319, 333 (1976); Mullane v. Cent. Hanover Bank Trust Co., 339 U.S. 306, 314 (1950); Krimstock v. Kelly, 306 F.3d 40, 51 (2d Cir. 2000). Thus, in order to prevail on such a claim, a plaintiff must demonstrate (a) a protected property interest and (b) a deprivation of property (c) without adequate notice and an opportunity to be heard. See McMenemy v. City of Rochester, 241 F.3d 279, 285-86 (2d Cir. 2001); Local 342, Long Island Pub. Serv. Employees v. Town Bd. of Huntington, 31 F.3d 1191, 1194 (2d Cir. 1994).

The City does not dispute that Plaintiffs have a protectable property interest in their bicycles. See Bray, 346 F. Supp. 2d at 489. Nor does the City contest that the seizure of Plaintiffs' bicycles — even for three hours — is a deprivation that triggers due process concerns. See Bray, 346 F. Supp. 2d at 489. Rather, the thrust of the City's argument is that notice and a hearing were not feasible given the exigencies of the September Ride, and that Plaintiffs were afforded the process to which they were entitled under the circumstances.

To determine what constitutes due process in a given situation, courts consider three factors: (1) the private interest affected; (2) "the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards"; and (3) the government's interest, taking into account the function involved and the burden of an alternative procedural requirement.Mathews, 424 U.S. at 335; accord Kapps v. Wing, 404 F.3d 105, 118 (2d Cir. 2005); Barcia v. Sitkin, 367 F.3d 87, 100 (2d Cir. 2004). "As a general rule, due process . . . require[s] notice and an opportunity to be heard prior to the deprivation of a property interest." United States v. Premises Real Prop. at 4492 S. Livonia Rd., Livonia, N.Y., 889 F.2d 1258, 1263 (2d Cir. 1989); accord Gudema v. Nassau County, 163 F.3d 717, 724 (2d Cir. 1998). The failure to provide predeprivation notice and a hearing is constitutional only in "extraordinary situations where some valid governmental interest is at stake that justifies postponing the hearing until after the event." James Daniel Good, 510 U.S. at 53 (internal quotation omitted).

In its prior decision, this Court held that "[t]he circumstances presented by a chaotic Friday evening in midtown Manhattan were not conducive to a meaningful pre-seizure hearing on 36th Street." Bray, 346 F. Supp. 2d at 490; see also Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 679 (1974) (predeprivation notice and hearing impracticable where the property could be easily "removed to another jurisdiction, destroyed, or concealed, if advance warning of confiscation were given"). Moreover, this Court recognized the City's "legitimate governmental interest" in traffic regulation and the safety of its sidewalks. Bray, 346 F. Supp. 2d at 490. The undisputed facts presented on summary judgment confirm those preliminary findings. Thus, this Court reaffirms its earlier holding that the City was not required to provide a hearing before confiscating Plaintiffs' bicycles.

To the extent Plaintiffs challenge the availability of a post-deprivation hearing, that argument is rejected. This Court notes that, since the night of the September Ride, every Plaintiff has recovered his or her bicycle — some in as little as three hours. (Defs. 56.1 Stmt. ¶ 16; Pls. 56.1 Counter-Stmt. ¶ 16.) Further, the constitutionality of New York State's Article 78 proceedings and tort law remedies cannot seriously be gainsaid. See Hellenic Am. Neighborhood Action Comm. v. City of New York, 101 F.3d 877, 881 (2d Cir. 1996) ("[A]n Article 78 proceeding constitutes an adequate postdeprivation procedure under the Due Process Clause."); Dove v. City of New York, No. 99 Civ. 3020 (DC), 2000 WL 342682, at *3 (S.D.N.Y. Mar. 30, 2000) ("Because New York provides an adequate post-deprivation remedy in the form of state law causes of action for negligence, replevin, or conversion, Dove's § 1983 claim for the loss of his property is dismissed.").

Nonetheless, independent of the availability of a hearing, adequate notice must at some point be provided. See Kia P. v. McIntyre, 235 F.3d 749, 760 (2d Cir. 2000) ("[I]n those `extraordinary' situations, where deprivation of a protected interest is permitted without prior process, the constitutional requirements of notice and opportunity to be heard are not eliminated but merely postponed."). "Notice" to the person being deprived of property entails not only notice of the deprivation, which Plaintiffs received, but "notice of the case against him."Mathews, 424 U.S. at 348; accord In re Oliver, 333 U.S. 257, 273 (1948) (due process requires that a person be given "reasonable notice of a charge against him"); Brown v. Ashcroft, 360 F.3d 346, 350-51 (2d Cir. 2004) ("At the `core' of due process is the right to notice of the nature of the charges." (internal quotation omitted)).

As discussed above, the NYPD distributed a flyer prior to the September Ride warning that bicycles would be subject to seizure if cyclists participated in a parade or procession or violated the City's vehicle and traffic laws. (Albano Decl. Ex. D.) However, when Plaintiffs veered away from Critical Mass and turned on to 36th Street, any semblance of a parade or procession dissolved and there is no evidence that they violated traffic regulations. In fact, the NYPD seized Plaintiffs' bicycles only after they voluntarily dismounted, secured them and departed the area. Because the flyer warned only of potential ramifications for riding their bicycles, it did not adequately notify Plaintiffs that their bicycles could be seized if they disassociated themselves from Critical Mass, parked their bicycles and walked away.

To be sure, as the City contends, the NYPD cannot reasonably be expected to have foreseen Plaintiffs' spontaneous reaction to the police scooters awaiting them on 36th Street. See Brown, 360 F.3d at 351-52 (holding that the government need not provide prior notice of that which "it would be virtually impossible for the government to foresee"). However, that does not relieve the City of its constitutional obligation to provide Plaintiffs with notice of the reason it confiscated their bicycles. To the extent such notice was practicable while Plaintiffs' bicycles were being seized or thereafter, due process required the City to afford Plaintiffs "notice of the nature of the charges" against them.Brown, 360 F.3d at 350.

The City provided that notice to Fennessey and McSimov. When these Plaintiffs later returned to 36th Street, they addressed the officers conducting the bicycle seizures and engaged them in conversation. (Fennessey Aff. ¶¶ 7-8; McSimov Aff. ¶¶ 6-8.) The officers informed Fennessey and McSimov what they believed to be their violations of law. (Fennessey Aff. ¶ 8; McSimov Aff. ¶ 8.) If those two Plaintiffs chose to challenge the alleged violations, adequate post-deprivation remedies were available to them. See Fuentes v. Shevin, 407 U.S. 67, 81-82 (1972) ("At a later hearing, an individual's possessions can be returned to him if they were unfairly or mistakenly taken in the first place."). Thus, although the City ultimately decided not to pursue charges for abandonment or securing bicycles to City property, the notice given to Fennessey and McSimov disarmed any potential constitutional violation as to those two Plaintiffs.

While the overarching circumstances of the September Ride precluded any meaningful hearing, Fennessey's and McSimov's experiences establish that the situation on 36th Street did not inhibit the brief dialogue that adequate notice entails. Like Fennessey and McSimov, Regar and Stephanos also approached and spoke with the police officers while they were seizing their bicycles. (Regar Aff. ¶¶ 5-6; Stephanos Aff. ¶¶ 5-6.) However, although the officers informed Fennessey and McSimov that they had left their bicycles in a manner justifying confiscation, Regar and Stephanos were not provided any explanation. (Regar Aff. ¶¶ 5-6; Stephanos Aff. ¶¶ 5-6.)

Bray placed herself in a markedly different circumstance than the other four Plaintiffs. Rather than approach the officers to intercede, she remained on the fringe and recorded the activity by camera. (Bray Aff. ¶ 6.) Despite making over fifteen phone calls to the NYPD, Bray was unable to recover her bicycle for three weeks. (See Bray Aff. ¶ 7; Defendants' Memorandum in Opposition to Plaintiffs' Motion for a Preliminary Injunction and in Support of Defendants' Motion for a Preliminary Injunction, dated Oct. 25, 2004, at 14 n. 9.) Further, she was never told why her bicycle was seized. (Bray Aff. ¶ 6; Affidavit of Rebecca Bray, dated Oct. 28, 2004 ¶¶ 4, 7.) See Ortiz v. Regan, 749 F. Supp. 1254, 1260 (S.D.N.Y. 1990) (holding that the plaintiff's due process rights were violated because "she got virtually no process, and the process she did get was . . . a run-around"). Nor is there any evidence that the City published a generalized notice after Critical Mass participants left bicycles unclaimed.See S.E.C. v. Tome, 833 F.2d 1086, 1094 (2d Cir. 1987) (publication notice satisfies due process for individuals whose "identities could not have been ascertained with reasonable diligence").

Therefore, with respect to Bray, Regar and Stephanos, the City failed to afford them adequate notice of the basis for their deprivation despite clear opportunities to do so. Given the direct contact these three Plaintiffs had with the NYPD prior to recovering their bicycles, the additional burden to the City of disclosing the violations of law they allegedly committed was de minimis when weighed against the property interests at stake.See Mathews, 424 U.S. at 335; Kapps, 404 F.3d at 118.

Accordingly, the City is entitled to summary judgment on the due process claims of Fennessey and McSimov. However, under the unique circumstances of this action, Bray, Regar and Stephanos were denied due process because they never received notice of the reason their bicycles were seized until they commenced this litigation.

B. Defendants' Liability

The question thus becomes which defendants bear liability under 42 U.S.C. § 1983 for the due process violations against Bray, Regar and Stephanos.

1. The City of New York

A municipality may not be held liable under Section 1983 solely on the basis of respondeat superior. See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691 (1978); Ricciuti v. N.Y.C. Transit Auth., 941 F.2d 119, 122 (2d Cir. 1991). Cities may be liable under Section 1983 for monetary, declaratory or injunctive relief only if "the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers." Monell, 436 U.S. at 690; accord City of Canton, Ohio v. Harris, 489 U.S. 378, 385 (1989); Anthony v. City of New York, 339 F.3d 129, 139 (2d Cir. 2003). Nonetheless, "municipal liability may be imposed for a single decision by municipal policymakers under appropriate circumstances." Pembaur v. City of Cincinnati, 475 U.S. 469, 480 (1986). "The individual must `be responsible for establishing final government policy.'" Anthony, 339 F.3d at 139 (quotingPembaur, 475 U.S. at 483). "An official has final authority if his decisions, at the time they are made, for practical or legal reasons constitute the municipality's final decisions." Rookard v. Health Hosps. Corp., 710 F.2d 41, 45 (2d Cir. 1983);accord Anthony, 339 F.3d at 139.

At the time of the September Ride, Assistant Chief Bruce Smolka was the NYPD's Commanding Officer for Patrol Borough Manhattan South with responsibility "for overseeing the operations of all of the precincts in Manhattan south of 59th Street." (Smolka Decl. ¶ 1; Tr. at 3.) That he is not at the top of the NYPD's chain of command is not dispositive. See Rookard, 710 F.2d at 45-46; Lipton v. County of Orange, New York, 315 F. Supp. 2d 434, 454 (S.D.N.Y. 2004); see also Haus v. City of New York, No. 03 Civ. 4915 (RWS) (MHD), 2004 WL 3019762, at *2 (S.D.N.Y. Dec. 29, 2004) (quoting Smolka describing himself as "a decision-maker" for Patrol Borough Manhattan South). Assistant Chief Smolka testified that he was "the chief officer directing how the response was going to be to Critical Mass . . . in the summer of `04" and supervised police officers that managed the September Ride. (Smolka Decl. ¶ 12; Tr. at 11.) In fact, he personally "directed officers to remove any bicycles that were left unattended on" 36th Street. (Smolka Decl. ¶ 12.) Thus, Assistant Chief Smolka had the final decision-making authority with respect to the seizure of unattended bicycles and the City is liable for the due process violations committed by the police officers under his command.

Accordingly, Bray, Regar and Stephanos are entitled to summary judgment on their due process claims against the City of New York.

2. Individual Defendants

To hold an individual liable under Section 1983, a plaintiff must establish the defendant's direct or personal involvement in the alleged constitutional deprivation. Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994); accord Casaburro v. Giuliani, 986 F. Supp. 176, 182 (S.D.N.Y. 1997). Plaintiffs have not pointed to any actions or decisions by Police Commissioner Raymond Kelly that are in any way linked to their constitutional injuries. Accordingly, Commissioner Kelly is not liable and Plaintiffs' claims against him are dismissed.

Plaintiffs did not include Assistant Chief Smolka or name any other NYPD officer as a defendant in this action. Rather, the remaining defendants are listed in the caption as "unidentified members" of the NYPD. Despite having concluded discovery and moved for summary judgment, Plaintiffs have not identified these unnamed police officers. Accordingly, Plaintiffs' claims against those unnamed individuals are dismissed with prejudice pursuant to Fed.R.Civ.P. 41(b) for failure to prosecute.

C. Necessity of an Injunction

"The standard for obtaining a permanent injunction is essentially the same as for a preliminary injunction with the exception that the plaintiff must actually succeed on the merits of the case, rather than merely demonstrate that success is likely in a future proceeding." Old Republic Ins. Co. v. Hansa World Cargo Serv., Inc., 170 F.R.D. 361, 385 (S.D.N.Y. 1997) (internal quotation omitted). Thus, a party must establish: (1) irreparable harm, and (2) success on the merits. Covino v. Patrissi, 967 F.2d 73, 76-77 (2d Cir. 1992); see New York State Nat'l Org. for Women v. Terry, 886 F.2d 1339, 1362 (2d Cir. 1989). The deprivation of constitutional rights, such as due process, causes irreparable harm. Covino, 967 F.2d at 77; see Mitchell v. Cuomo, 748 F.2d 804, 806 (2d Cir. 1984).

However, the individualized circumstances that gave rise to Bray's, Regar's and Stephanos' due process violations strike this Court as unique and not readily amenable to injunctive relief. "[T]o obtain a permanent injunction, plaintiffs must establish both a prior violation of law and a real and immediate threat that the injury will be continued or repeated." Members for a Better Union v. Bevona, 988 F. Supp. 307, 319 (S.D.N.Y. 1997) (internal quotation omitted). Notwithstanding those Plaintiffs' continued participation in Critical Mass, the circumstances of this action are unlikely to realign and breed future due process violations. For that reason, a permanent injunction is inappropriate. See Town of Huntington v. Marsh, 859 F.2d 1134, 1143 (2d Cir. 1989) ("[A]n injunction should issue only where the intervention of a court of equity is essential in order effectually to protect property rights against injuries otherwise irremediable." (internal quotations omitted)); Nike, Inc. v. Top Brand Co., No. 00 Civ. 8179 (KMW), 2005 WL 1654859, at *9 n. 8 (S.D.N.Y. July 13, 2005) ("The Court need not convert its . . . preliminary injunction into a permanent injunction, because there is no cognizable danger of recurrent violation." (internal quotation omitted)).

IV. Attorneys' Fees

Finally, following this Court's October 28, 2004 Memorandum and Order granting Plaintiffs' motion for a preliminary injunction, Plaintiffs filed a motion for attorneys' fees. Thereafter, the parties agreed to hold Plaintiffs' fee application in abeyance pending resolution of all summary judgment motions. (Memorandum Endorsement, dated Jan. 18, 2005.) Plaintiffs' current motion for attorneys' fees has been eclipsed by subsequent events in this action. Therefore, Plaintiffs' motion is denied without prejudice to their filing a more fulsome application.


For the foregoing reasons, Plaintiffs' and the City's motions for summary judgment are each granted in part and denied in part. Specifically, this Court grants Plaintiffs Rebecca Bray, Allen Regar and Thomas Stephanos summary judgment on their due process claims. In all other respects, Plaintiffs' motion is denied and the City's motion is granted. Plaintiffs' motion for attorneys' fees is denied without prejudice.


Summaries of

Bray v. the City of New York

United States District Court, S.D. New York
Sep 30, 2005
04 Civ. 8255 (WHP) (S.D.N.Y. Sep. 30, 2005)

finding the City violated the due process requirement by failing to provide notice after seizing plaintiffs' bicycles pursuant to Administrative Code § 16-122.

Summary of this case from Mysak v. City of N.Y.
Case details for

Bray v. the City of New York

Case Details


Court:United States District Court, S.D. New York

Date published: Sep 30, 2005


04 Civ. 8255 (WHP) (S.D.N.Y. Sep. 30, 2005)

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