Supreme Court, Monroe County, October 23, 2017

Santiago Burger LLP, Pittsford (Michael A. Burger of counsel), for petitioners/plaintiffs.

Brian Curran, Corporation Counsel, Rochester (Patrick N. Beath of counsel), for respondent/defendant.

Petitioners/plaintiffs commenced this hybrid CPLR article 78 proceeding and declaratory judgment action seeking an order and judgment to (1) preliminarily enjoin and stay enforcement of the July 27, 2016 final determination and order of the Commissioner of Neighborhood and Business Development for the City of Rochester issued by respondent/defendant (defendant or City) closing 299 Conkey Avenue for a year and summarily evicting its occupants without a court order; (2) vacate the final determination and order; (3) declare Rochester City Charter § C-3-15 in violation of the New York State and Federal Constitutions and laws including, without limitation, 42 USC § 1983; and (4) for an award of reasonable attorney's fees and{**58 Misc 3d at 353} costs to plaintiffs as prevailing parties under 42 USC § 1988.^[FN*] A temporary restraining order was issued enjoining defendant from enforcing the final determination and order pending further court order.

Plaintiffs assert that the final determination was issued in excess of jurisdiction, was in violation of lawful procedure, was affected by an error of law, and was arbitrary and capricious or an abuse of discretion. Plaintiffs seek a declaration that section C-3-15 is unconstitutional insofar as it punishes property owners and tenants for the illegal acts of third parties over whom they have no control and specifically prohibits as a defense that the property owner or lessors are innocent, that is, that they lack knowledge of, acquiescence or participation in or responsibility for a public nuisance. Plaintiffs also seek a declaration that section C-3-15 illegally supersedes the Real Property Actions and Proceedings Law, as well as articles of the New York State Penal Law, and federal laws to which section C-3-15 refers.

Defendant's position is that section C-3-15 is constitutional in all respects and does not improperly supersede or conflict with other laws. The City asserts that all procedural requirements for the administrative abatement proceeding were followed and plaintiffs were afforded due process. In this regard, defendant notes that the property owner, tenants, and mortgagee were properly served with the notice of charges and given the opportunity to demand a hearing, but only the property owner requested a hearing. Accordingly, the City argues that the tenants were in default and were not entitled to further notice after service of the notice of charges and lack standing to bring this article 78 proceeding. It is the City's position that the underlying proceeding was not in excess of jurisdiction or affected by an error of law and that the determination was not arbitrary and capricious or an abuse of discretion.

In relevant part, section C-3-15 provides:

"B. Public nuisances defined. For purposes of this section, a public nuisance shall be deemed to exist whenever through violations of any of the following provisions resulting from separate incidents at a{**58 Misc 3d at 354} building, erection or place, or immediately adjacent to the building, erection or place as a result of the operation of the business, 12 or more points are accumulated within a period of six months, or 18 or more points within a period of 12 months, in accordance with the following point system. Where more than one violation occurs during a single incident, the total points for the incident shall be the highest point value assigned to any single violation.

"(1) The following violations shall be assigned a point value of six points:

"(a) Article 220 of the Penal Law—Controlled Substances Offenses.

"(b) Article 221 of the Penal Law—Offenses Involving Marihuana . . .

"(4) For purposes of this section, a conviction for an offense in a court of competent [*2]jurisdiction or an administrative bureau shall not be required. Instead, the City shall prove by a preponderance of the evidence that the violations have occurred . . .

"C. Powers of the Mayor with respect to public nuisances.

"(1) In addition to the enforcement procedures established elsewhere, the Mayor or the Mayor's designee, after notice and opportunity for a hearing with respect to a public nuisance, shall be authorized:

"(a) To order the closing of the building, erection or place to the extent necessary to abate the nuisance; . . .

"(2) Service of notice.

"(a) . . . Such notice shall be served upon an owner pursuant to Article 3 of the Civil Practice Law and Rules or by means of first-class mail with delivery confirmation sent to the owner's last known address, upon a lessee pursuant to § 735 of the Real Property Actions and Proceedings Law, and upon a mortgagee by means of first-class mail . . .

"(b) The lack of knowledge of, acquiescence or participation in or responsibility for a public nuisance on the part of the owners, lessors, lessees, mortgagees and all those persons in possession or having charge of as agent or otherwise, or having{**58 Misc 3d at 355} any interest in the property, real or personal used in conducting or maintaining the public nuisance, shall not be a defense by such owners, lessors and lessees, mortgagees and such other persons. . . .

"(6) A closing directed by the Mayor or the Mayor's designee pursuant to this section shall not constitute an act of possession, ownership or control by the City of the closed premises, nor will it constitute a closure caused by a government for purposes of nonconformity . . .

"(7) It shall be a misdemeanor for any person to use or occupy or to permit any other person to use or occupy any building, erection or place, or portion thereof, ordered closed by the Mayor or the Mayor's designee."

Section C-3-15 (C) (9) empowers the Mayor or the Mayor's designee to promulgate rules and regulations to carry out and give full effect to the provisions of the ordinance. Rule I provides that the notice of charges shall state that respondents have 10 days from the date of receipt of said notice to demand a hearing and serve an answer on Corporation Counsel. Rules II, VII, and VIII require service of the notice of hearing, hearing officer's report and final determination and order only upon those parties who demand a hearing and serve an answer. Rule VIII states that the order of the Commissioner shall be posted at the building where the public nuisance exists.

Stephen Alcorn acquired 299 Conkey Avenue (house or subject property or premises) in 2009, and transferred ownership of the subject property to Proas Partners, LLC in 2015. Alcorn is a managing member of Proas. The house is a three-family apartment building. At the time the City took action to close the house as a nuisance, plaintiff Karla Luna was a tenant in apartment No. 1 under a one-year renewable lease having moved into the apartment on or about March 1, 2016. Plaintiff Carlos Alverio, Jr., occupied apartment No. 3 under a one-year renewable lease starting on March 1, 2015, and lived there when this [*3]proceeding was commenced, but according to the amended petition, he has temporarily relocated to an undisclosed location allegedly due to the publicity of this lawsuit and threats to his personal safety.

On or about March 4, 2016, the City of Rochester served a notice of charges pursuant to section C-3-15, declaring 299 Conkey Avenue a nuisance, and commenced a nuisance abatement{**58 Misc 3d at 356} proceeding against plaintiffs, Proas, unknown tenants in units Nos. 1, 2 and 3, and the mortgagee. The notice of charges stated the property had over 18 nuisance points assessed against it, reciting various nuisance acts all involving the possession or finding of marijuana on the property in violation of Penal Law article 221 that occurred on six occasions, to wit: July 20, 2015, December 2, 2015, December 17, 2015, January 13, 2016, January 14, 2016, and January 26, 2016. A seventh charge was more general in nature and described the property as being operated between April 8, 2008, and the date of the notice of charges (Mar. 4, 2016), in "such a manner that it has become a focal point of police attention and a source of disruption in the neighborhood." The notice of charges also informed the recipients they were entitled to demand a hearing, and if they failed to demand a hearing or if the charges were sustained after a hearing, the Commissioner may find the property to be a public nuisance and order closing of the building.

Although all defendants were served with the notice of charges, only the owner and landlord, Proas, demanded a hearing. A notice of hearing was served only upon the attorney for Proas. The hearing took place before a hearing officer, an attorney retained and paid by the City, who issued a final report on or about June 6, 2016. The final report concluded that the subject property acquired an excess of nuisance points, and recommended the property be declared a public nuisance pursuant to section C-3-15. Proas disagreed with the final report, and its attorney sent a letter requesting reconsideration upon the argument that an incorrect conclusion had been reached. Proas noted, inter alia, that none of the violations were committed by its tenants or principal, but rather by unknown third parties using the area and premises for drug sales.

Thereafter, on July 27, 2016, the Commissioner sent a final determination to Proas' attorney. The final determination adopted the recommendations of the hearing officer, upheld the findings with regard to the charges made against the property and found that a public nuisance, as defined in section C-3-15, existed at 299 Conkey Avenue. The Commissioner ordered the building closed for a period of 12 months and the order was posted at the property. The subject action was then commenced.

With regard to notice of the hearing and the conduct of the hearing, the supporting affidavit of plaintiff Luna avers that she had no advance warning of the eviction and that she did not have a day in court or a chance to hear why she was being{**58 Misc 3d at 357} evicted from the apartment for crimes she did not commit and to which she did not consent.

The affidavit of plaintiff Alverio avers that he was a tenant at the premises and called the police to report drug activity on or near the subject property. He claims that as a result, the premises were declared a nuisance and he was forced to move out. He denies giving anyone permission to hide or use drugs around the house. Alverio acknowledges receiving the notice of charges but states that he did not receive a notice of hearing date from the City and only learned of it from his landlord. Alverio also states he never received a copy of the hearing officer's final [*4]report and only learned of the Commissioner's decision when he was advised by a police officer that the house was closed and he had to move immediately. He states that an adjacent property, 300 Conkey Avenue, has been closed and boarded up and trespassing drug dealers arrested, yet drug sales still continue at that address.

While not a party to this lawsuit, Shameka Franklin, a tenant in apartment No. 2 under a one-year renewable lease commencing on or about March 1, 2016, submits an affidavit explaining that the acts upon which the final determination and order are based occurred before she moved into the house. She denies giving anyone permission to store drugs on the premises. Franklin avers that she did not receive the notice of charges or the notice of hearing nor did she receive the hearing officer's final report. She also states that she did not learn of the final determination and order until the order was posted on August 8, 2016. She asserts that the officer told her she had to move out before August 27, 2016, or possibly face jail.

Testimony on behalf of plaintiffs was given at the hearing by Alcorn and Alverio. Alcorn testified that he does not condone the use of the subject property for drug-related activity. He indicated that he had worked with Officer Bryan Kehrig regarding three other properties he owns to evict tenants who were engaged in drug activity. He stated that on one occasion he evicted a tenant at the subject premises when he found out he was dealing drugs from his apartment. Alcorn further testified he has contacted the police and City personnel on several occasions seeking their assistance to eliminate the drug activity by these unknown third parties near and on his property. He testified that he even gave the police a key to the house so they could set up surveillance inside.

Alverio testified he called 911 twice on April 22, 2016, which was four days before the hearing, to report that his nine-year-{**58 Misc 3d at 358}old daughter had found a bag of marijuana in the mailbox. It was his testimony that when he first called, the 911 operator told him they were not going to respond; however, after a second call an officer responded and took possession of the marijuana. He stated that the self-described owner of the marijuana came to his apartment demanding return of his "stash" and threatened him. He testified he has called 911 on numerous occasions but could only recall the two occasions in April 2016.

Plaintiffs include in their supporting papers the Nuisance Abatement Point System Evaluation Final Report dated July 25, 2016, prepared by Strategic Community Intervention LLC, with which the City contracted to conduct a comprehensive review and assessment of the Nuisance Abatement Program authorized by section C-3-15 for the period January 1, 2009 through February 10, 2016.

Defendant's supporting papers include the affirmation of counsel and the affidavit of Scott Peters. Counsel states in her affirmation that Rochester Police Department (RPD) Call for Service Records indicate that Alcorn made one 911 call on January 26, 2016, and Alverio placed two 911 calls on February 22, 2016, to report a bullet hole in his apartment window, and two calls on April 22, 2016.

In his affidavit, Deputy Chief of Operations for RPD, Scott Peters, opines that based on his training and experience, the order to temporarily close the subject property is a reasonable and effective means to abate chronic drug activity and that the penal laws have limited effectiveness in abating street-level drug sales. He further states that RPD has found closure pursuant to section C-3-15 to be a vital tool to abate chronic drug activity by creating "an [*5]environment which is hostile to the business of the illegal drug trade" because the place of business is closed and persons on the property are subject to arrest.

A review of the hearing transcript indicates that four RPD police officers Enrique Gomez, Michael DeCocq, Kehrig, and Eric Majewicz testified at the hearing on behalf of the City. Gomez testified that he works with the Neighborhood Service Center (NSC), Clinton Section. Gomez described the subject property as having a reputation as a nuisance due to open air drug activity. He testified that during patrol on three occasions, December 17, 2015, and January 13 and 14, 2016, he observed a group of men congregated on the corner near the{**58 Misc 3d at 359} subject premises disperse when they saw his car. He testified that he observed some of the men run onto the subject property to apparently hide items around the exterior of the house. He examined the house exterior on these three occasions and found marijuana stashed under the porch and in a garbage can and basement window well. He testified he did not make any arrests on these occasions. He further testified that he did not know if anyone has been arrested at the subject property. He indicated he would absolutely tell a resident or owner to confront a drug dealer in order to protect his property despite the potential danger in doing so. Gomez also testified that a resident or owner should call 911 to report illicit drug activity, even though it might result in closure of the property pursuant to section C-3-15.

DeCocq testified he also works with the NSC, Clinton Section and identified 299 Conkey Avenue as an address to which officers go on a regular basis due to recurring drug activity. He testified he has never arrested anyone at 299 Conkey Avenue. It was DeCocq's testimony that it is not RPD policy to advise citizens to confront drug dealers and he would not advise a person to confront a dealer due to the risk. He opined that a person should, instead, call 911, even if it could lead to a section C-3-15 closure. DeCocq also testified that while marijuana has been found along the fence line of the property adjoining the subject property, which is owned by the City, no nuisance points have been assessed against that property. In explaining why he did not make an arrest on January 26, 2016, after finding an individual in a car in the driveway of the subject property with indicia of marijuana use, DeCocq testified "I don't need to—you know, I don't need to follow up on that. I find the violation there, that's the six points on the property. If I could have locked the guy up, I would have. But in this case we couldn't" (DeCocq tr at 57).

Another NSC, Clinton Section Officer, Kehrig, testified in support of the seventh charge that on March 3, 2013, he saw via a surveillance camera people congregated at Avenue C and Conkey Avenue who appeared to be hiding objects at the subject property. He stated that he inspected the subject premises and found crack cocaine and three dime bags of marijuana under the porch. Kehrig testified he has not made any drug-related arrests at the property. He confirmed Alcorn's testimony that a key to the house was provided to the police so they could enter the house to monitor the area in an effort to control open air{**58 Misc 3d at 360} drug dealing in the vicinity. He did not know if RPD made use of this enforcement tool.

In support of the seventh charge, Majewicz testified that on March 7, 2016, while serving papers, he smelled marijuana coming from under the door of one of the apartments in the house. He also indicated that the subject property is known for its drug activity. Similar to the other officers, he testified he was not aware of any arrests for drug trafficking at the address, he had no reason to believe that the tenants in the house were dealing drugs on the property, and there were no arrests or prosecutions of any of the tenants. All the officers also testified that Alcorn has [*6]never been arrested or charged with any drug or other offenses. Majewicz testified that while it is not RPD's policy, a property owner should confront drug dealers even if it is dangerous or call 911 despite the fact that this could lead to closure under section C-3-15. None of the officers indicated the quantity of any of the drugs they found on the property.

Section C-3-15 established the City of Rochester Nuisance Abatement Program with the goal of abating negative activities which threaten to undermine public safety, health and welfare, and the quality of life. It is part of an organized effort to improve neighborhoods, particularly blighted neighborhoods, by engaging residents in identifying and resolving problems in their neighborhoods in concert with police and code enforcement personnel (Strategic Community Intervention LLC, Nuisance Abatement Point System Evaluation Final Report at 5 [July 25, 2016]). As an enforcement tool, specific violations are identified as "public nuisances" and assigned a point value. Points are assessed against properties for the enumerated negative activities. The complaints for which points are accumulated and administrative abatement proceedings can be initiated come from 911 calls from tenants or owner/landlords and citizens, or reports by police officers. If 12 points are accumulated within a contiguous six month period, or 18 points within a contiguous 12 months, enforcement action can be taken. The hearing record indicates a significant number of the points in this case came from nuisance points requests made by police officers.

One of the enforcement tools is the closure of an offending property for up to a year. The opportunity for a hearing, if{**58 Misc 3d at 361} requested, is afforded to any party affected by a potential closure, including the property owner, tenants and mortgagee. The ordinance specifically provides that lack of knowledge of, acquiescence or participation in or responsibility for the public nuisance are not to be considered in reaching a final determination and order. Further, an arrest or conviction for an enumerated public nuisance offense is not required to impose an enforcement action. To carry its burden of establishing a basis to close a property, the City must show by a preponderance of the evidence that nuisance activity totalling the requisite points has been found at the premises. It is not required to show that actual, or even charged, criminal activity occurred at the site.

While it is well-established that legislative enactments enjoy an " 'exceedingly strong presumption of constitutionality,' " that presumption is rebuttable (Matter of D'Alessandro v Kirkmire, 125 AD3d 1309, 1311 [4th Dept 2015], citing Lighthouse Shores v Town of Islip, 41 NY2d 7, 11 [1976]). It has also been established that a governmental authority may bring an action to abate a public nuisance and that there is legislative authority to enact laws deeming certain activities public nuisances (City of New York v Smokes-Spirits.Com, Inc., 12 NY3d 616, 626-627 [2009]). However,

"a municipal exercise of the police power which interferes with the beneficial use of property must be a reasonable and legitimate response to a situation which it is within the police power to correct . . . 'What is an "unreasonable" exercise of the police power depends upon the relevant converging factors. Hence, the facts of each case must be evaluated in order to determine the private and social balance of convenience before the exercise of the power may be condemned as unreasonable' " (Matter of Charles v Diamond, 41 NY2d 318, 327 [1977], quoting Fred F. French Inv. Co. v City of New York, 39 NY2d 587, 596 [1976]).

In the context of interference with the reasonable use of property, the Court of Appeals has stated that

"[a] police power regulation to be reasonable must be kept within the limits of necessity . . . To justify interference with the beneficial enjoyment of [*7]property the municipality must establish that it has acted in response to a dire necessity, that its action is reasonably calculated to alleviate or prevent the{**58 Misc 3d at 362} crisis condition, and that it is presently taking steps to rectify the problem" (Matter of Charles v Diamond, 41 NY2d 318, 324 [1977] [internal quotation marks and citations omitted]).

The deprivation of a property right does not have to be permanent to be subject to due process requirements (Connecticut v Doehr, 501 US 1, 2 [1991]).

Fourteenth Amendment Analysis

While closure of the subject property is not a compensable "taking" as defined by the Fifth Amendment, it is nevertheless a deprivation and frustration of property rights (Fred F. French Inv. Co. v City of New York, 39 NY2d at 593-594). Closure of the subject property renders the property economically idle for a year, depriving Alcorn of income from rent, yet he remains obligated to pay the mortgage and taxes. Alcorn's potential loss is compounded by section C-3-15 (C) (6) which absolves the City of any responsibility for properties it closes. Alcorn must maintain a non-income producing, vacant house that is subject to a heightened likelihood of vandalism and theft of fixtures. Closure also causes three tenants to lose their homes.

Under such circumstances there is a fundamental right to due process, that is, an opportunity to be heard " 'at a meaningful time and in a meaningful manner' " (Mathews v Eldridge, 424 US 319, 333 [1976]). The subject ordinance provides a right to a hearing prior to imposition of a closure order and passes constitutional muster in this respect. The precise issue presented is whether the ordinance provides a hearing that is meaningful, particularly when the owner and tenants are not involved in, do not condone and have no control over those perpetrating the alleged nuisance conduct and their innocence cannot be asserted as a defense.

[1] Three factors are to be weighed when determining whether due process is satisfied: "(1) the private interest affected; (2) the risk of erroneous deprivation through the procedures used and the probable value of other procedural safeguards; and (3) the government's interest" (County of Nassau v Canavan, 1 NY3d 134, 142 [2003], citing Mathews v Eldridge, 424 US at 335). With regard to the first factor, the private interests that will be affected are Alcorn's receipt of the income from the property and the tenants' interest in keeping their homes. Further Alcorn also has an interest in not having to maintain a vacant, non-income producing property that is subject to diminution in value due to possible vandalism. These{**58 Misc 3d at 363} are long recognized fundamental property rights (see United States v James Daniel Good Real Property, 510 US 43, 53-54 [1993]).

Next to be considered is the second factor which focuses on the risk of erroneous deprivation of such interest through the procedure used, and the probable value of additional or substitute safeguards. As previously noted, all proceedings leading to closure of a property are administrative with no judicial involvement at any stage of the closure process. The risk of erroneous deprivation is heightened by the lack of an innocent owner/tenant defense (see Krimstock v Kelly, 306 F3d 40, 57 [2d Cir 2002]). As a practical matter, there is little a property owner or tenant can challenge at the hearing. Testimony sufficient to impose closure consists merely of police officers reciting dates they were called to the property to establish that a property has become a "focal point of police attention," or the dates the officers observed purported criminal conduct even though no arrests were made or charges lodged against the individuals claimed to be causing a public nuisance.

Further, the ordinance lacks any notice provisions to the owner in advance of service of the notice of charges to provide an opportunity to work with authorities to try to further the [*8]goals of section C-3-15 (see e.g. Board of Trustees of the Vil. of Groton v Pirro, 152 AD3d 149 [3d Dept 2017]; City of New York v 924 Columbus Assoc., 219 AD2d 19 [1st Dept 1996]). Finally, the only notice required to be served on all affected individuals and entities is the notice of charges. If a hearing is not requested and an answer served, no further notice is given to individuals or entities who did not request a hearing. Besides the notice of charges, the only notice provided to all affected individuals is the posting of the Commissioner's order on the building in furtherance of closure. With regard to tenants, this is problematic because the ordinance and rules and regulations promulgated thereunder are silent as to the time frame between posting of the order and when tenants must vacate the premises. The ordinance and the rules and regulations promulgated thereunder are contrary to the requirements of Real Property Actions and Proceedings Law article 7 because they contain no provision for a time period between posting of the order of the Commissioner and when tenants must move. Further, the ordinance does not address or comply with the enumerated grounds (RPAPL 711 [1], [2], [5]; 713, 715) or procedural requirements (RPAPL 701) for eviction. These{**58 Misc 3d at 364} deficiencies increase the risk of erroneous deprivation. The practical effect of the ordinance when tenants are present is to preempt state law requirements for eviction.

Finally, the third factor to consider is the municipality's interest. The stated purpose of the ordinance is to increase citizen participation and investment in their neighborhoods and to encourage cooperation with police and code enforcement officials to promote public safety, health and welfare, and the quality of life. The accumulation of nuisance points based upon calls to 911 by owners and tenants, however, can undermine this purpose. The only recourse when a property is subject to trespassing drug dealers is to confront the drug dealer who may be physically aggressive or to call 911 and risk the assessment of points against the property which can lead to closure. Thus, the ordinance may actually discourage owners and tenants from reporting illegal activity.

Moreover, the City has not established that closing the property of an innocent owner and dispossessing tenants is a reasonable method to reduce criminal activity and improve a neighborhood. It is the City's contention that if the house is vacant and boarded and a sign posted warning people to stay away or face arrest, this will cause the drug dealers to move someplace else and the neighborhood will be improved. Alverio testified, however, that he continues to observe drug activity at a neighboring property that was closed pursuant to section C-3-15. A vacant property is subject to vandalism and likely to become an eyesore, contrary to the intended goal of the ordinance to improve the quality of neighborhoods.

Rather than prosecute the individuals who are alleged to be violating the law, the City seeks to eradicate the drug problem by closing the house of an innocent property owner who has no control over the people violating the law. Here, Alcorn contacted the police for help eradicating drug dealers hanging out on the corner near his property who used his property without permission, and even gave the police a key to conduct surveillance from the house. It appears that the police did not avail themselves of this enforcement opportunity. Neither could the police witnesses recall making any drug-related arrests of the people who are open air dealing near the property. The practical effect of the ordinance is that it encourages the police to become reactive rather than proactive. There is no incentive for the police to arrest and seek prosecution of the individuals violating the law when they can merely report that they went{**58 Misc 3d at 365} to the property and [*9]found drugs, assess points against the property and then close it with the hope that the dealers move to another location. This very approach was revealed by the testimony of one of the officers: "I don't need to—you know, I don't need to follow up on that. I find the violation there, that's the six points on the property. If I could have locked the guy up, I would have. But in this case we couldn't" (DeCocq tr at 57). This is not a municipality interest or approach that should be condoned or encouraged.

Closing the property for a year does not advance a legitimate governmental interest, particularly when, as here, it is being enforced against an innocent owner and tenants. Stated differently, the municipality's interest does not outweigh the innocent owner's interest in the economic use of his property and the tenants' interest in maintaining their homes.

Defendant argues that the ordinance is constitutional under a line of cases involving the forfeiture of property used during the course of illegal activity, even if a co-owner of the forfeited property is innocent of any offense (see e.g. Bennis v Michigan, 516 US 442 [1996]; People ex rel. Lemon v Elmore, 256 NY 489 [1931]; City of New York v Partnership 91, 277 AD2d 164 [1st Dept 2000]; City of New York v Castro, 160 AD2d 651 [1st Dept 1990]). The common thread in the cases cited by defendant in support of the ordinance is the existence of an underlying pending charge or actual finding of criminal activity against the owner or someone over whom the property owner had control or the innocent party knew of the owner's propensity for the criminal conduct that led to forfeiture (e.g. Bennis v Michigan [car forfeited after co-owner convicted of a criminal offense]; People ex rel. Lemon v Elmore [building closed because judgment was rendered against the property owner for operating a house of prostitution]; City of New York v Partnership 91 [judicial closure of property used for gambling]; City of New York v Castro [judge enjoined use of first floor of building where illegal gambling occurred]). In contrast, Alcorn has no control over the drug dealers at the corner of his property. Even the police are unsure as to the identity of the offenders. This is not a situation where the drugs sales were conducted by tenants such that the owner could be presumed to have knowledge and the opportunity to address the situation by eviction (City of New York v Castro, 143 Misc 2d 766, 768 [Sup Ct, NY County 1989], citing Pennoyer v Neff, 95 US 714 [1878]) or where the owner was involved in the illegal activity.{**58 Misc 3d at 366}

The analysis of the aforementioned three factors in the factual context of this case where the owner and tenants are not involved in the activity sought to be abated and have no control over the offending parties leads to the conclusion that plaintiffs were not afforded due process. Further, because there is no intentional wrongdoing, no departure from a prescribed standard of conduct, and no reckless conduct, closure under these circumstances is so arbitrary and oppressive as to be a taking without due process of law in violation of the Fourteenth Amendment of the United States Constitution and article I, § 6 of the New York State Constitution.

Fourth Amendment Analysis

[2] The ordinance, as applied in this case, also violates the Fourth Amendment of the United States Constitution and article I, § 12 of the New York State Constitution. The Fourth Amendment does not apply just to seizure where criminal conduct is alleged to have occurred. "A 'seizure' of property . . . occurs when 'there is some meaningful interference with an individual's possessory interests in that property' . . . The Fourth 'Amendment's protection applies [*10]in the civil context' " (Santana v City of Tulsa, 359 F3d 1241, 1244 [10th Cir 2004] [citations omitted]). As previously stated, both Alcorn and the tenants are being deprived of their respective interests in the property for a year under the closure. They were not afforded due process. Nor can the lack of process be excused or characterized as reasonable under the exceptions for exigent circumstances, a deprivation incident to an arrest or the plain view doctrine (see United States v Lasanta, 978 F2d 1300, 1305 [2d Cir 1992]). There was no emergency that obviated following judicial process, no arrests have been made at the property and while drugs may have been dealt and hidden in plain view, the property owner and tenants had no part in that activity. Here, a hearing before an attorney contracted and paid by the City supplanted judicial process. A legislative body cannot eliminate the judiciary's role in the task of constitutional construction (see United States v Lasanta, 978 F2d at 1304-1305).

Eighth Amendment Analysis

[3] Ostensibly, the intention of the subject ordinance is not to punish property owners or tenants for a crime or for creating or allowing the existence of a public nuisance but rather seeks to abate public nuisances to achieve improved neighborhoods. A close examination of the abatement program in this instance, however, leads to the conclusion that it is a punishment or fine and not merely an incentive (see Matter of D'Alessandro v Kirkmire, 125 AD3d 1309 [4th Dept 2015]).{**58 Misc 3d at 367} Inexplicably, plaintiffs are being deprived of income and their homes and potentially will sustain other losses when they have no control over the public nuisance sought to be eradicated. The closure is, in essence, a punishment or fine that is without regard for the lack of participation by plaintiffs in the public nuisance and wholly disproportionate to the evil sought to be eradicated. Closure can occur, for example, with only two incidents involving a purported violation of article 221, marijuana offense, within a six month period. In this case, the purported violation of article 221 is based upon the acts of individuals who were not charged or arrested for an article 221 violation and over whom petitioners have no control. It is worthy of note that if the offenders had been charged and convicted under article 221, the offense could be only a violation with a fine as low as $100 (Penal Law § 221.05). It is disproportionate for an innocent homeowner to be faced with the loss of significant income and burdened with maintaining a closed property and tenants subjected to the loss of their homes when the wrongdoing individual is not charged and, in any event, might be committing a low-level offense which carries a minimal fine. As such, the application of the ordinance and resultant order of closure for one year in this case is an excessive fine in violation of the Eighth Amendment of the United States Constitution and article I, § 5 of the New York State Constitution (see United States v Bajakajian, 524 US 321, 327-343 [1998]; see also United States v Collado, 348 F3d 323, 328 [2d Cir 2003]).

First Amendment Analysis

[4] Plaintiffs contend that the ordinance has a chilling effect on their freedom of speech, specifically the right to petition the government for redress. They argue that calls to 911 or other outreach to the police and governmental entities seeking help to address illegal activity near or upon the property could result in points being assessed against the property which can lead to closure. This, they argue, is a disincentive to reporting criminal activity and seeking the assistance of the authorities, contrary to the guarantees of the First Amendment. While this could be a result of the ordinance, there is no evidence that plaintiffs were so affected. Indeed, the hearing testimony on behalf of the City focused solely upon activities that the police observed [*11]and the overwhelming source of points accumulated against the property came from police reports with only three 911 calls being attributed to plaintiffs. Accordingly, plaintiffs{**58 Misc 3d at 368} have failed to establish that their First Amendment rights have been abrogated.

42 USC § 1983 Analysis

Plaintiffs also allege constitutional claims under 42 USC § 1983, stating that the ordinance is unlawful. Section 1983 provides a procedural redress for the deprivation of rights established elsewhere, but does not create any substantive rights. To state a section 1983 claim, it must be alleged that there has been a deprivation of rights, privileges or immunities secured by the Constitution and its laws by a person acting under the color of state law (Ferreira v Town of E. Hampton, 56 F Supp 3d 211, 222 [2014]). As discussed, plaintiffs have established that the City enacted an ordinance that, as applied to them, has violated their constitutional rights in several ways (see Brancato v City of New York, 244 F Supp 2d 239 [SD NY 2003]). In its discretion, the court awards plaintiffs reasonable attorney's fees as part of the costs under 42 USC § 1988. The fees will be set upon submission, on notice, of an affirmation or affidavit of services.

In conclusion, section C-3-15 is declared to be unconstitutional as to innocent parties, such as plaintiffs herein, in that it violates due process as guaranteed by the Fourteenth Amendment of the United States Constitution and article I, § 6 of the New York State Constitution, the Fourth Amendment of the United States Constitution and article I, § 12 of the New York State Constitution, and the Eighth Amendment of the United States Constitution and article I, § 5 of the New York State Constitution. These violations also constitute a deprivation of plaintiffs' rights under 42 USC § 1983 and entitles them to an award of attorney's fees under 42 USC § 1988, to be assessed by the court upon affidavit. Further, where tenants reside in property subject to closure, the notice provisions set forth in section C-3-15 and the rules and regulations promulgated thereunder are not consistent with provisions of RPAPL article 7 and impermissibly preempt state law.

Accordingly, the final determination and order are vacated and plaintiffs are entitled to a permanent stay of enforcement of the final determination and order. Plaintiffs are directed to submit an order and judgment hereon and an affidavit setting forth the services rendered in support of attorney's fees which the court will set by separate order.