11-4359-cv
G.I. Home Developing Corp. v. Weis

                                UNITED STATES COURT OF APPEALS
                                    FOR THE SECOND CIRCUIT

                                               SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.

      At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the 4th day of October, two thousand twelve.

PRESENT: REENA RAGGI,
         PETER W. HALL,
         DEBRA ANN LIVINGSTON,
                   Circuit Judges.

-------------------------------------------------------------------------------------
G.I. HOME DEVELOPING CORP.,
                    Plaintiff-Appellant,
               v.                                                                       No. 11-4359-cv

JOHN WEIS, Chief Zoning Inspector of the Building
Division of the Town of Brookhaven, ARTHUR
GERHAUSER, Chief Building Inspector, BUILDING
DEPARTMENT, Town of Brookhaven, ZONING
BOARD OF APPEALS, Town of Brookhaven, BRENDA
A. PRUSINOWSKI, Deputy Commissioner of the
Department of Planning, Environment, and Land
Management of the Town of Brookhaven, DAVID
WOODS, Commissioner of the Department of Planning,
Environment & Land Management of the Town of
Brookhaven, DEPARTMENT OF PLANNING,
ENVIRONMENT, & LAND MANAGEMENT, Town of
Brookhaven, TOWN OF BROOKHAVEN,
                                                                                            Defendants-Appellees.
-------------------------------------------------------------------------------------
APPEARING FOR APPELLANT:                   WILLIAM D. WEXLER, Esq., North Babylon,
                                           New York.

APPEARING FOR APPELLEES:                   DAVID H. ARNTSEN (Diane K. Farrell, on the
                                           brief), Devitt Spellman Barrett, LLP, Smithtown,
                                           New York.

       Appeal from a judgment of the United States District Court for the Eastern District

of New York (Denis R. Hurley, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment entered on September 28, 2011, is AFFIRMED.

       Plaintiff G.I. Home Developing Corp. (“G.I.”) appeals from an award of summary

judgment on its procedural due process claims brought under 42 U.S.C. § 1983 relating to

(1) the loss of G.I.’s certificate of zoning compliance (“CZC”) to operate a public garage on

its property in Brookhaven, New York; and (2) criminal citations issued to G.I. on November

5, 2007, for alleged violations of Brookhaven’s zoning laws. We review an award of

summary judgment de novo, viewing the record evidence in the light most favorable to the

non-moving party and drawing all reasonable inferences in its favor. See Ramos v. Baldor

Specialty Foods, Inc., 687 F.3d 554, 558 (2d Cir. 2012). In evaluating plaintiff’s procedural

due process claims, we analyze (1) whether plaintiff possessed a protected liberty or property

interest, and, if so, (2) what process plaintiff was due before it could be deprived of that

interest. See Adams v. Suozzi, 517 F.3d 124, 127 (2d Cir. 2008). Here, the parties do not

dispute that G.I. possessed a property interest in the continued validity of its CZC. Thus, the


                                              2
only question on appeal is whether G.I. raised a triable factual issue as to the adequacy of the

process it was afforded. We assume the parties’ familiarity with the facts and record of prior

proceedings, which we reference only as necessary to explain our decision to affirm for

substantially the reasons stated by the district court in its thorough and well-reasoned

opinion.

1.     Weis’s Unauthorized Action

       In assessing a state or local government’s compliance with procedural due process,

we distinguish between (1) claims based on established governmental procedures, and

(2) claims based on random or unauthorized acts by public employees. See Rivera-Powell

v. N.Y.C. Bd. of Elections, 470 F.3d 458, 465 (2d Cir. 2006). In the former case, the

government may have to provide a pre-deprivation hearing because it can predict when the

deprivation of a liberty or property interest will occur. By contrast, when the deprivation is

the result of random or unauthorized acts, defendants will satisfy procedural due process “so

long as [they] provide[] [a] meaningful post-deprivation remedy.” Id. (citing Hudson v.

Palmer, 468 U.S. 517, 533 (1984)). G.I. contends that a genuine factual dispute remains as

to whether Brookhaven’s Chief Zoning Inspector, John Weis, was authorized to send the

June 20, 2007 letter informing G.I. that it had lost its CZC and that it could reapply to the

Board of Zoning Appeals (“BZA”) for a new CZC. We are not persuaded.

       The record, even when viewed in the light most favorable to G.I., conclusively shows

that Weis was not authorized to revoke the CZC. Weis’s uncontradicted deposition

                                               3
testimony demonstrates that he knew he was not authorized to revoke the CZC, and that he

wrote the letter only because he thought it would assist G.I. in maintaining its CZC after

obtaining approval from the BZA to subdivide its property. Indeed, the June 20, 2007 letter

was the first and only such memorandum Weis had written in nearly 20 years of service as

Chief Zoning Inspector. Ultimately, on October 2, 2007, the Town wrote a new letter to G.I.

indicating that its CZC was still valid and that the Weis memorandum was “of no force and

effect,” J.A. 308, further evincing that Weis was not authorized to revoke G.I.’s CZC.

       G.I. nonetheless maintains that the record suggests that Weis was authorized to revoke

G.I.’s CZC. It first observes that the letter effectively terminated its CZC, and it insists that

this could only have been possible if Weis were authorized to carry out the revocation. We

reject this circular argument. If, as G.I. submits, a deprivation of a property interest could

not occur unless authorized, there would exist no such thing as an unauthorized deprivation,

rendering meaningless the basic distinction drawn by the Supreme Court in Parratt v. Taylor,

451 U.S. 527, 541–43 (1981), overruled on other grounds by Daniels v. Williams, 474 U.S.

327 (1986), and Hudson v. Palmer, 468 U.S. at 532–33.

       G.I. next points to Weis’s use of Town of Brookhaven stationery in writing the letter.

But Weis’s use of official letterhead is insufficient by itself to demonstrate that he was

authorized to revoke a CZC. See Hellenic Am. Neighborhood Action Comm. v. City of New

York, 101 F.3d 877, 881 (2d Cir. 1996) (concluding that official letter blacklisting city

contractor was unauthorized because it was written by officer who lacked final authority to

                                               4
do so). G.I. also emphasizes that Weis was authorized to give opinions in response to

inquiries about the application of Brookhaven’s zoning code. This is no help to G.I.,

however, because Weis’s authority to render an opinion is distinguishable from the separate

authority to revoke a CZC—authority which, the record unequivocally shows, was limited

to Brookhaven’s building inspectors.

       G.I. notes that, prior to authoring the June 20, 2007 letter, Weis was informed by other

Planning Department officials that G.I.’s CZC was no longer valid. This fact would not

allow a factfinder to conclude that the revocation by Weis was authorized because, under the

Town of Brookhaven’s law, the Planning Department lacked any authority to revoke a CZC.

Rather, that authority rested with the Building Department. Nor is there any evidence that

the Planning Department was relaying a directive from the Building Department to revoke

G.I.’s CZC.

       Finally, G.I. contends that Brookhaven authorized Weis’s revocation of the CZC ex

post facto when it cited G.I. for violating the Brookhaven zoning code in November 2007.

However, there is no evidence in the record that the investigator who cited G.I. ever saw or

relied upon Weis’s June 20, 2007 letter. Weis’s purported revocation of its CZC was

irrelevant to the Town’s subsequent commencement of criminal proceedings.

       Accordingly, we identify no genuine dispute of material fact as to whether Weis was

unauthorized to revoke G.I.’s CZC in his June 20, 2007 letter.



                                              5
2.     Adequacy of the Article 78 Proceeding

       Because there is no genuine dispute that Weis’s June 20, 2007 letter was

unauthorized, G.I. can prevail on its due process claims only if it can show that the post-

deprivation proceeding—here, an Article 78 proceeding in New York state court—was

inadequate. See Rivera-Powell v. N.Y.C. Bd. of Elections, 470 F.3d at 465. We have

previously held that an Article 78 proceeding is sufficient post-deprivation process for an

unauthorized deprivation of property. See, e.g., Hellenic Am. Neighborhood Action Comm.

v. City of New York, 101 F.3d at 881. Nevertheless, G.I. urges a different conclusion

alleging that, in August or September 2007, the BZA informed G.I. that there would be no

hearing on its variance application relating to its planned subdivision so long as the Article

78 proceeding remained pending. G.I. claims that this statement compelled G.I. to withdraw

its Article 78 petition, thereby rendering the Article 78 proceeding inadequate post-

deprivation process. We reject this argument for lack of admissible evidence to support it.

       At the outset, it is not clear from the record that G.I. had even requested a hearing on

its variance application before the BZA. G.I.’s representative, Michelle Janlewicz, testified

at her deposition that she could not recall whether she had requested a hearing. At best, she

was only “40 percent certain or 50 percent certain” that she sent such a request to the BZA,

App. 169, and defendants dispute ever receiving it. But even assuming, as we must, that a

jury would credit Janlewicz’s testimony that she did request a hearing, G.I. points us to no

admissible evidence supporting the further finding that the BZA compelled G.I. to withdraw

its Article 78 petition.

                                              6
       The only evidence that the BZA conditioned a variance hearing on G.I.’s withdrawal

of its Article 78 petition is inadmissible hearsay. See Fed. R. Evid. 802. Specifically, Frank

Iacobelli, G.I.’s proprietor, maintains that Janlewicz told him (based on what she purportedly

learned from the BZA) that the BZA hearing was dependent on G.I. “solv[ing] the Article

78.” App. 77. There is no evidence from Janlewicz, even though she was deposed, or from

any Brookhaven official to substantiate Iacobelli’s assertion. We agree with defendants (and

the district court) that G.I. cannot sustain its burden in opposing summary judgment by

relying on this kind of inadmissible hearsay evidence. See Fed. R. Civ. P. 56(c)(2), (e)(3);

Patterson v. Cnty. of Oneida, 375 F.3d 206, 219 (2d Cir. 2004). Because G.I. has not

offered, or even suggested the existence of, any admissible evidence showing that the BZA

compelled it to withdraw its Article 78 petition, defendants were entitled to summary

judgment.

3.     Conclusion

       Accordingly, we conclude that defendants were entitled to summary judgment on

plaintiff’s procedural due process claims. The judgment of the district court is AFFIRMED.

                                    FOR THE COURT:
                                    CATHERINE O’HAGAN WOLFE, Clerk of Court




                                              7
