         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
41
CA 10-01442
PRESENT: SCUDDER, P.J., SMITH, LINDLEY, GREEN, AND MARTOCHE, JJ.


WALTER F. REYNOLDS, III, PLAINTIFF-APPELLANT,

                    V                                MEMORANDUM AND ORDER

WILLIAM KREBS, INDIVIDUALLY AND AS MAYOR OF
VILLAGE OF SPRINGVILLE, TIMOTHY L. HORNER,
INDIVIDUALLY AND AS VILLAGE ADMINISTRATOR OF
VILLAGE OF SPRINGVILLE, MICHAEL KALETA,
INDIVIDUALLY AND AS CODE ENFORCEMENT
OFFICER/BUILDING INSPECTOR OF VILLAGE OF
SPRINGVILLE, AND VILLAGE OF SPRINGVILLE,
DEFENDANTS-RESPONDENTS.


DAVID J. SEEGER, BUFFALO, FOR PLAINTIFF-APPELLANT.

HURWITZ & FINE, P.C., BUFFALO (JENNIFER A. KELLEHER OF COUNSEL), FOR
DEFENDANTS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Erie County (Frank A.
Sedita, Jr., J.), entered March 17, 2010. The order granted
defendants’ motion for summary judgment dismissing the complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by denying defendants’ motion in part
and reinstating the second cause of action and as modified the order
is affirmed without costs.

     Memorandum: After fire had damaged a building owned by
plaintiff, defendant William Krebs, acting in his capacity as Mayor of
defendant Village of Springville, ordered the building demolished.
Plaintiff thereafter commenced an action in the United States District
Court for the Western District of New York against defendants,
contending, inter alia, that they denied him procedural due process in
ordering and proceeding with the demolition without affording him
notice and an opportunity to be heard. The District Court granted
defendants’ motion for summary judgment dismissing the complaint and
determined, inter alia, that no reasonable trier of fact could
conclude that defendants violated plaintiff’s right to procedural due
process (Reynolds v Krebs, US Dist Ct, WD NY, Mar. 20, 2008, Skretny,
J.). The United States Court of Appeals for the Second Circuit
affirmed the order of the District Court and held, “substantially for
the reasons stated by the District Court in its thorough decision and
order . . ., that summary judgment for defendants was appropriate”
(Reynolds v Krebs, 336 Fed Appx 27, 29).
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                                                         CA 10-01442

     While the federal action was pending, plaintiff commenced this
action alleging that defendants had violated his right to due process
under the New York Constitution. In addition, plaintiff alleged that
defendants were negligent in ordering the demolition of the building
and in permitting the general public to enter the building, resulting
in the “purloining” of plaintiff’s personal property. Supreme Court
granted defendants’ motion for summary judgment pursuant to CPLR 3211
(a) (5) on the ground that plaintiff should be collaterally estopped
from relitigating issues that were decided in the prior federal
action.

     We note at the outset that plaintiff has abandoned any issues
with respect to that part of the motion for summary judgment
dismissing the first cause of action, alleging that he was denied due
process under the New York Constitution (see Ciesinski v Town of
Aurora, 202 AD2d 984). We conclude, however, that the court erred in
granting that part of the motion with respect to the second cause of
action, alleging that “[p]laintiff’s . . . losses were sustained
solely and wholly as a result of [d]efendants’ acts of negligence.”
We therefore modify the order accordingly.

     We agree with plaintiff that he is not collaterally estopped from
alleging that defendants were negligent. “Two requirements must be
met before collateral estoppel can be invoked. There must be an
identity of issue [that] has necessarily been decided in the prior
action and is decisive of the present action, and there must have been
a full and fair opportunity to contest the decision now said to be
controlling” (Buechel v Bain, 97 NY2d 295, 303-304, cert denied 535 US
1096; see Parker v Blauvelt Volunteer Fire Co., 93 NY2d 343, 349).

     With respect to defendants’ alleged negligence in demolishing the
building, the District Court discussed the process that is due where,
as here, the defendants alleged that the demolition of a building
occurred as a result of an emergency situation. It is well
established that, “although notice and a predeprivation hearing are
generally required, in certain circumstances, the lack of such
predeprivation process will not offend the constitutional guarantee of
due process, provided there is sufficient postdeprivation process”
(Catanzaro v Weiden, 188 F3d 56, 61; see generally Parratt v Taylor,
451 US 527, 538-539, overruled on other grounds by Daniels v Williams,
474 US 327, 330-331). An emergency situation is one such circumstance
justifying denial of a predeprivation hearing (see Hodel v Virginia
Surface Min. & Reclamation Assn., 452 US 264, 299-300). “Protection
of the health and safety of the public is a paramount governmental
interest [that] justifies summary administrative action” (id. at 300).
In determining whether an emergency situation existed, courts are “to
accord the decision to invoke the procedure some deference[] and not
to engage in a hindsight analysis of whether the damage to the
buildings actually created an immediate danger to the public. Under
Hodel, the due process guarantee is offended only when an emergency
procedure is invoked in an abusive and arbitrary manner; therefore,
there is no constitutional violation unless the decision to invoke the
emergency procedure amounts to an abuse of the constitutionally
afforded discretion” (Catanzaro, 188 F3d at 62; see Hodel, 452 US at
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                                                         CA 10-01442

302-303).

     In granting defendants’ motion for summary judgment dismissing
the complaint in the federal action, the District Court determined
that Krebs had not acted arbitrarily or abused his discretion when he
invoked the emergency demolition procedures. The standard in a
negligence case, however, is whether a defendant breached a duty of
reasonable care (see generally Pulka v Edelman, 40 NY2d 781, 782,
rearg denied 41 NY2d 901; Palsgraf v Long Is. R.R. Co., 248 NY 339,
342, rearg denied 249 NY 511). Thus, the issue to be decided with
respect to defendants’ alleged negligence in demolishing the building
was not actually and necessarily decided in the federal action.

     Plaintiff further alleges that defendants were negligent in
permitting the general public to access his property, resulting in the
“purloining” of his personal property. That allegation was not raised
or necessarily decided in the federal action, and thus plaintiff is
not collaterally estopped from raising it in this action (see
generally Buechel, 97 NY2d at 303-304).

     To the extent that defendants contend as an alternative ground
for affirmance that plaintiff should have raised his claims by way of
a CPLR article 78 proceeding, that contention is not properly before
us inasmuch as defendants moved for summary judgment dismissing the
complaint solely on the ground that the action was barred by
collateral estoppel (see generally Parochial Bus Sys. v Board of Educ.
of City of N.Y., 60 NY2d 539, 545-546).




Entered:    February 10, 2011                   Patricia L. Morgan
                                                Clerk of the Court
