PIERCE, Circuit Judge:
Elvira Burtnieks appeals from a decision of the United States District Court for the Southern District of New York, Henry F. Werker, Judge, entered August 30, 1982, granting appellees' motion for summary judgment and dismissing appellant's claim that appellees had deprived her of her property without due process of law in violation of 42 U.S.C. § 1983 (Supp. III 1979)
I. Facts Asserted
As a preliminary matter, we note that under Fed.R.Civ.P. 56, factual allegations
Defendant-appellee The City of New York (the City) is a municipal corporation existing under the laws of the State of New York. Defendant-appellee BC Enterprises, Inc. (BC) is a corporation organized under the laws of the State of New Jersey and apparently performs demolition work. All of the remaining defendants-appellees are employees of the City (City Employees) and specifically of the Housing and Development Administration, Department of Buildings, Borough of Manhattan, New York City.
On or before November 3, 1958, appellant acquired fee ownership of the premises known as 221 East 95th Street, New York, New York, including a 25 X 100 foot lot with a five-story building thereon containing 10 apartments. Appellant's real estate taxes assessed against this property went unpaid for a period of time. On May 25, 1978, the City acquired title to the subject premises as the result of a tax lien foreclosure in rem. However, under Sections D17-12.0 and D17-25.0 of the Administrative Code of the City of New York (Administrative Code), the property interest so acquired by the City was expressly subject to appellant Burtnieks' right to redeem title to the property by complying with applicable Code provisions. Burtnieks applied to have the interest released; the application was processed; and on December 27, 1978, Burtnieks and the Department of General Services, Division of Real Property of the City of New York entered into an agreement whereby Burtnieks was to make certain payments to the City to obtain the release. Upon completion of the payments, the judgment of foreclosure in the in rem proceeding and the deed vesting title to the premises in the City would be vacated. Thus, under the agreement, Burtnieks had a reversionary interest in the premises. This agreement was in effect at all material times, and appellant asserts in her affidavit that she consistently met all of her obligations thereunder. Appellant asserts that title in fact reverted to her on or about August 21, 1981.
On January 8, 1981, Alexander Perciballi and Ronald Silvers, two of the City Employees named as appellees, inspected the subject premises and noticed that a bulge had developed in the upper eastern portion of the front wall of the building, and that there was a crack which they believed to be approximately three inches wide at its widest point between the front wall and the eastern wall of the building. The crack was said to extend from the roof above the fifth floor to a point somewhat above the level of the second floor. On January 13, 1981, the City instituted a proceeding pursuant to Section C26-80.0 or C26-84.0 of the Administrative Code to obtain a declaration that the building was unsafe and was to be demolished. It is undisputed that appellant did not receive formal notice of this proceeding, despite the existence of a notice requirement in Section C26-80.5 of the Administrative Code. In February, 1981 — again without formal notice to appellant — the City entered into a contract with appellee BC Enterprises, Inc. under which BC was to demolish and remove the building.
On or about March 4, 1981, appellant learned from a plumber, who at the time was doing work for her and who lived in the vicinity of the building, about the City's plans to demolish the building. The following day, she visited the building, which was not occupied by tenants at the time, and found that the apartment doors had been removed and that men were removing the fireplace mantelpieces from the building. Immediately thereafter, appellant inquired of various City officials, including appellees Sakona, Cocolicchio, Dennis, Weiner, Juliano, and Minkin, as to their intentions and stated her objections to the proposed demolition. She was told by these City officials that the building would be demolished despite her objections.
Despite appellant's attempts to halt the demolition, the building was demolished by BC during the period from March 23, 1981 through March 27, 1981, which was approximately 3 months after appellees Perciballi and Silvers originally noticed the crack and bulge in the building.
Appellant commenced this Section 1983 action along with asserted pendent state claims on November 20, 1981. Appellees moved to dismiss the complaint pursuant to Rule 12(b)(6), Fed.R.Civ.P., for failure to state a claim upon which relief could be granted. Appellant cross-moved for partial summary judgment pursuant to Fed.R.Civ.P. 56(a), on the issue of appellees' liability under Section 1983. In an opinion filed on August 30, 1982, the district court treated the motions as cross-motions for summary judgment, and granted summary judgment in favor of appellees. The court found that the City did not give notice to Burtnieks of its intent to demolish the building, as required by Section C26-84.0 of the Administrative Code. Nonetheless, the court held that appellant had failed to state a claim under Section 1983 because: (1) under Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), the City's failure to give notice of the demolition was not a deprivation of due process, since "the deprivation did not occur as a result of some established state procedure," id. at 543, 101 S.Ct. at 1917; (2) appellant may pursue a tort remedy pursuant to N.Y.Gen. Mun.Law, Section 50-i (McKinney 1981-82) for wrongful damage to property in state court, under which she would be entitled to a full hearing and may obtain full redress for her alleged property loss, citing Archbishopric of New York v. City of New York, 82 A.D.2d 777, 440 N.Y.S.2d 650 (1st Dept.1981), modified on other grounds sub nom. Little Antigone Theater, Inc. v. City of New York, 56 N.Y.2d 686, 436 N.E.2d 1320, 451 N.Y.S.2d 718 (1982); and (3) emergency demolition without notice is authorized under section 643a-13.0 of the Administrative Code, which is constitutional under Hodel v. Virginia Surface Mining & Reclamation Association, Inc., 452 U.S. 264, 302, 101 S.Ct. 2352, 2373-74, 69 L.Ed.2d 1 (1981).
A. Summary Judgment Motion
Under Fed.R.Civ.P. 56(c), summary judgment shall be granted if the pleadings, affidavits, etc. show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. The moving party has the burden of showing, on the basis of admissible evidence adduced from persons with personal knowledge of the facts, that there is no genuine issue of material fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); Schiess-Froriep Corp. v. S.S. Finnsailor, 574 F.2d 123, 126 (2d Cir.1978); United States v. Pent-R-Books, Inc., 538 F.2d 519, 529 (2d Cir.1976), cert. denied, 430 U.S. 906, 97 S.Ct. 1175, 51 L.Ed.2d 582 (1977). The affidavits and exhibits submitted by the parties "must be viewed in the light most favorable to the party opposing the motion." United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962); see Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 696, 82 S.Ct. 1404, 1409, 8 L.Ed.2d 777 (1962).
The standard applied by a reviewing court to determine whether summary judgment was properly granted is the same as that applied by the district court initially under Rule 56(c). C. Wright, A. Miller & M. Kane, 10 Fed.Prac. & Proc. § 2716 (2d ed.1983). The party who defended against
B. Section 1983
In Adickes, 398 U.S. at 150, 90 S.Ct. at 1604, the Supreme Court set forth the two essential prerequisites to any action under Section 1983: (1) the conduct complained of must have been committed by a person acting under color of state law, and (2) this conduct must have deprived the complainant of rights, privileges, or immunities secured by the Constitution or laws of the United States. Insofar as the City employees are concerned, there is no question that the first prerequisite is met; we note that the acts at issue were performed by city employees in positions of considerable authority, namely, persons with sufficient authority to direct the demolition of real property, acting pursuant to the Administrative Code. Such acts by city officials may indeed constitute state action under Section 1983. See Goldberg v. Kelly, 397 U.S. 254, 256, 262, 90 S.Ct. 1011, 1014, 1017, 25 L.Ed.2d 287 (1970); Monroe v. Pape, 365 U.S. 167, 169, 180, 81 S.Ct. 473, 474, 480, 5 L.Ed.2d 492 (1961); Jennings v. Patterson, 488 F.2d 436, 441 (5th Cir.1974). Moreover, since these officials had "final authority over significant matters involving the exercise of discretion, the choices [they made may] represent government policy." Rookard v. Health and Hospitals Corp., 710 F.2d 41 (2d Cir.1983), at 45. Thus, the first prerequisite would be met insofar as the city itself is concerned as well. Evidence introduced at trial may place BC Enterprises in a position similar to that of the City. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 150-52, 90 S.Ct. 1598, 1604-06, 26 L.Ed.2d 142; United States v. Price, 383 U.S. 787, 794, 86 S.Ct. 1152, 1156-57, 16 L.Ed.2d 267 (1966). Thus, for purposes of this appeal, we must focus on whether Burtnieks was deprived of rights, privileges, or immunities secured by the Constitution or laws of the United States.
Appellant contends that she suffered a deprivation of property without due process of law in violation of the Fourteenth Amendment to the United States Constitution.
1) What Process is Due?
To determine whether due process was provided, we must first decide what process was due to Burtnieks from the City. It is well established that "[t]he fundamental requisite of due process of law is the opportunity to be heard." Grannis v. Ordean, 234 U.S. 385, 394, 34 S.Ct. 779, 783, 58 L.Ed. 1363 (1914); see Boddie v. Connecticut, 401 U.S. 371, 377, 91 S.Ct. 780, 785, 28 L.Ed.2d 113 (1971). This opportunity must be "granted at a meaningful time and in a meaningful manner," Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965), and the hearing must be "appropriate to the nature of the case." Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950). In the present context, this would require timely and adequate notice and "an effective opportunity to defend by confronting any adverse witnesses and by presenting [appellant's] own arguments and evidence orally." Goldberg, 397 U.S. at 268, 90 S.Ct. at 1020-21; see Mullane, 339 U.S. at 314-15, 70 S.Ct. at 657-58. These rights are particularly important in situations such as that presented here, where appellant asserts that the acts at issue were based on allegedly "incorrect or misleading factual premises," Goldberg, 397 U.S. at 268, 90 S.Ct. at 1020, namely, that the condition of the building presented an immediate danger to the public health and safety.
Upon application of the Logan factors to this case, the district court may well find that Burtnieks was entitled to have the City consider the merits of her claims prior to demolishing her building. Burtnieks possessed an interest in the apartment building which provided her with a potential source of income. Moreover, the deprivation of that interest here is final, since the building has been demolished.
2) Timing of Hearing Relative to Timing of Deprivation
The Supreme Court has recently provided further guidance on the question of timing of a hearing in relation to the timing of a property deprivation. In Parratt, the Court rejected the proposition that a state must, in all circumstances, provide a hearing prior to the initial deprivation of property. Rather, the Court observed that in some situations, a postdeprivation hearing will meet the requisites of procedural due process, while in others, only a predeprivation hearing will suffice. A predeprivation hearing has been required when "the deprivation of property was pursuant to some established state procedure and `process' could be offered before any actual deprivation took place ... to serve as a check on the possibility that a wrongful deprivation would occur." Parratt, 451 U.S. at 537-38, 101 S.Ct. at 1914. For instance, a failure to provide preseizure notice and hearing has been held to violate due process standards when a state statute: allows secured creditors to obtain prejudgment writs of replevin in ex parte proceedings, Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972); provides for the taking of a driver's license and registration of an uninsured motorist involved in an accident, Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971); and allows state and city officials to cut off welfare benefits, Goldberg, 397 U.S. at 254, 90 S.Ct. 1011, 25 L.Ed.2d 287. In each of these instances, the Court found that a wrongful deprivation without notice would result in a grave deprivation to the individual and that the interest of the government to be served by the immediate seizure was less substantial.
451 U.S. at 539, 101 S.Ct. at 1915 (footnote omitted). Thus, in rejecting the proposition that due process always requires a predeprivation hearing, the Court observed that "[t]his rejection is based in part on the impracticability in some cases of providing any preseizure hearing under a state-authorized procedure, and the assumption that at some time a full and meaningful hearing will be available." Id. at 540-41, 101 S.Ct. at 1915-16. For instance, immediate seizure coupled with a postdeprivation hearing has been held to comply with procedural due process requirements when: a federal statute provides that government officials may order immediate cessation of surface mining operations to protect the public health and safety, Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264, 101 S.Ct. 2352, 69 L.Ed.2d 1 (1981); and a municipal ordinance provides for the summary seizure and destruction of unwholesome food, North American Cold Storage Co. v. Chicago, 211 U.S. 306, 315-16, 29 S.Ct. 101, 104, 53 L.Ed. 195 (1908).
The district court herein apparently concluded that a predeprivation hearing was not required because the acts of the city officials were not pursuant to an "established state procedure."
Moreover, the district court erroneously concluded that:
This misinterprets Parratt. Under Parratt, before reaching the question of the adequacy of the state remedies, a court must first find "the necessity of quick action" or "the impracticality of providing any predeprivation process." Id. 451 U.S. at 539, 101 S.Ct. at 1915. Thus, the existence vel non of an emergency herein is a material fact and is vigorously contested by the parties. Consequently, we conclude that summary judgment was improperly granted to the appellees.
We also note that appellees do not claim that it would have been impractical to provide a predeprivation hearing. Clearly, in Parratt, where the deprivation occurred as the result of negligence of a state employee, it was not practical to provide a predeprivation hearing since no one knew or could have known of the deprivation until after it had occurred. In contrast, here, city officials knew for three months prior to the demolition that the deprivation would occur. They also were aware that appellant
Accordingly, we reverse the district court's grant of summary judgment and remand for further proceedings not inconsistent herewith.