| Rapps v City of New York |
| 2008 NY Slip Op 07107 [54 AD3d 923] |
| September 23, 2008 |
| Appellate Division, Second Department |
| Jack Rapps et al., Appellants, v City of New York,Respondent. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgow andSuzanne K. Colt of counsel), for respondent.
In an action, inter alia, to recover damages for the wrongful demolition of a building, theplaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court,Richmond County (Aliotta, J.), dated June 1, 2007, as granted that branch of the defendant'smotion which was for summary judgment dismissing the complaint.
Ordered that the order is reversed insofar as appealed from, with costs, and that branch of thedefendant's motion which was for summary judgment dismissing the complaint is denied.
In the exercise of its police powers "[a] municipality may demolish a building withoutproviding notice and an opportunity to be heard if there are exigent circumstances which requireimmediate demolition of the building to protect the public from imminent danger" (Calamusav Town of Brookhaven, 272 AD2d 426, 427 [2000]; see Starik v City of New York,68 AD2d 936 [1979]). Although there was some evidence of imminent internal collapse and theinability to prevent squatters from reentering the plaintiffs' building, the defendant failed to makea prima facie showing of entitlement to judgment as a matter of law by proffering evidence thatimmediate demolition of the building was required by an emergency situation, i.e., the buildingwas in imminent danger of collapse and posed an immediate peril to the public health and safety(see Merino v City of Middletown, 272 AD2d 454, 454-455 [2000]; see also Mariginv City of New York, 215 AD2d 539, 539-540 [1995]; cf. Home Doc Corp. v City of NewYork, 297 AD2d 277, 278 [2002]).[*2]
In support of its motion, the defendant submitted thedeposition testimony of two of its officials, Ron Silver, Supervisor of the Construction Divisionfor the Borough of Richmond, Department of Buildings, and Vito Mustaciuolo, AssistantCommissioner for the Division of Code Enforcement, New York City Department of HousingPreservation and Development. Significantly, neither of those persons testified that they thoughtthe building was in imminent danger of collapse. In fact, when Silver was asked why he made thedecision to demolish the building, he indicated that it was winter and cold and he was afraid thatafter it was vacated and boarded up, vagrants and homeless people would somehow find theirway in.
Additionally, Silver testified that his office was called to the scene by the New York CityFire Department (hereinafter the Fire Department). When he arrived, he was met by both FireDepartment personnel and Office of Emergency Management (hereinafter OEM) personnel.According to him, both indicated only that the building's interior structure was defective and thatthe building should be vacated. There was no indication that anyone from either of those agenciesrecommended immediate demolition.
This was insufficient to show, as a matter of law, that there was imminent danger such that itwas reasonable for the City to exercise its emergency police powers and demolish the buildingwithout resorting to the expedited proceedings provided for by the Administrative Code of theCity of New York (see Administrative Code of City of NY §§26-235—26-243; Merino v City of Middletown, 272 AD2d 454, 454-455 [2000];see also Starik v City of New York, 68 AD2d 936 [1979]). Accordingly, as the Cityfailed to meet its burden of showing its entitlement to judgment as a matter of law (seegenerally Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]), the motion should havebeen denied. In light of this determination, we need not examine the sufficiency of the plaintiffs'opposition papers (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Mooney v Petro, Inc., 51 AD3d746 [2008]). Lifson, J.P., Florio, Eng and Belen, JJ., concur.