Albany Prevails In Suit Over Demolition of Building After Fire

The US District Court for the Northern District of New York has concluded that the Albany Fire Department and the City of Albany were within their rights to order the demolition of a vacant rowhouse after it was badly damaged in a 2011 fire.

The lawsuit filed in 2014 by the building’s owners, Nadia Ferran and her son Mark, accused the city of depriving them of their property without due process, conspiracy between local officials and an engineering firm to deprive them of their property without due process, and conversion.

The facts as explained in the decision:

  • The subject property was a rowhouse that directly abutted a similar rowhouse on one side and shared a common wall with a different rowhouse on the other side.
  • At the time of the incidents giving rise to this litigation, the building had been vacant since the 1980s, it did not have any active utilities since the 1990s, and the building had been cited for a number of code violations.
  • On the morning of November 9, 2011, the subject property caught fire.
  • After the fire was extinguished, the property was inspected by City of Albany Fire Department’s Deputy Fire Chief Joseph Toomey and the Chazen Companies’ Joseph Lanaro, an independent civil engineer hired by the City.
  • Toomey observed that the subject property suffered severe damage, that the roof was deformed, and that the property was in imminent danger of collapsing.
  • Lanaro opined that the damage to the subject property left it too unsafe for an attempt at restoring or salvaging it, and recommended that the property be immediately demolished.
  • Chazen provided a written report and photographs to the City to support this recommendation.
  • Based on Lanaro’s opinion, and Toomey’s own observations, Toomey filed an emergency order to demolish the subject property pursuant to the Code of the City of Albany, which was issued on November 9, 2011.
  • Toomey issued a notice to N. Ferran advising her that the property was in imminent danger of collapse and needed to be demolished.
  • Shortly thereafter, the City hired M. Cristo Inc. to perform the demolition.
  • The subject property was demolished from November 9, 2011 to November 11, 2011.

At the center of the suit was whether the city had the legal authority to demolish the building without providing the Ferrans the opportunity to remove their personal possessions and/or have their own contractors evaluate the building’s potential. In dismissing the Ferrans’ due process claims, Judge Gary L. Sharpe reasoned as follows:

  • Here, there appears to be no dispute that N. Ferran had a protected interest in the subject property, and that she did not receive adequate predeprivation process before its demolition.
  • Instead, City defendants rely on the emergency exception and argue that it was entitled to demolish the subject property because the dangerous condition in which the property had remained after the fire posed an emergency threat to the public.
  • Therefore, “the Court’s inquiry is twofold: (1) whether there was an emergency that required immediate action; and (2) whether adequate post-deprivation remedies were available.”
  • As relevant here, a public official’s decision to invoke an emergency demolition procedure without a post-deprivation hearing is afforded “some deference.”
  • In determining whether a public official has abused his constitutionally afforded discretion to invoke the emergency doctrine, the central inquiry is whether “there was competent evidence allowing the official to reasonably believe that an emergency [did] in fact exist, or that affording predeprivation process would be otherwise impractical.”
  • In their complaint, plaintiffs allege-without adequate factual support-that the fire damage was a mere pretext to support the subject property’s demolition, that the subject property did not need to be demolished, and that Lanaro’s report was manufactured and false.
  • [P]laintiffs did not provide the court with any support for these allegations or any other facts to suggest that an emergency did not exist or that it would not have been impractical for predeprivation process.
  • Thus, based on the undisputed facts, there is no genuine issue that an emergency situation existed and that immediate action was warranted, and no jury could find that City defendants abused their discretion or acted arbitrarily with respect to this decision.
  • “[I]t is well-settled that an Article 78 proceeding is an adequate postdeprivation remedy for the emergency demolition of property.”
  • Accordingly, summary judgment is granted as to plaintiffs’ Fourteenth Amendment procedural due process claim, and this claim against City defendants is dismissed.

The remainder of the Ferrans’ claims followed a similar analysis, culminating in an order to the clerk to close the case. Here is a copy of the decision.

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.

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