53RD STREET SERVICE STATION and JAMES McPARTLIN, Plaintiffs-Appellants, v. THE CITY OF NEW YORK, RUDOLPH GIULIANI, MAYOR OF THE CITY OF NEW YORK, THE DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT, JERILYN PERINE, COMMISSIONER OF THE DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT, and MATTHEW SHAFIT, Defendants-Appellees.

No. 06-1079-cv.United States Court of Appeals, Second Circuit.
January 25, 2007.

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

Appeal from the United States District Court for the Southern District of New York (Jones, J.).

On consideration whereof, it is hereby ORDERED,ADJUDGED, and DECREED that the order of the district court, dated January 27, 2006, be and it hereby isAFFIRMED.

For Plaintiffs-Appellants: TIMOTHY G. GRIFFIN, Bronxville, N.Y.

For Defendants-Appellees: NORMAN CORENTHAL, Assistant Corporation Counsel (Kristin Helmers, on the brief), for Michael A. Cardozo, Corporation Counsel of the City of New York, New York, N.Y.

Present: HON. ROBERT A. KATZMANN, HON. PETER W. HALL Circuit Judges, HON. DAVID G. TRAGER,[*] District Judge.

[*] The Honorable David G. Trager, of the United States District Court for the Eastern District of New York, sitting by designation.

Plaintiffs-appellants (collectively “McPartlin”) appeal the district court’s decision granting the defendants-appellees’ (collectively “The City”) motion for summary judgment on McPartlin’s four federal claims. The district court also dismissed McPartlin’s state law claim, a ruling that McPartlin has not contested on appeal. We assume the parties’ familiarity with the facts, the proceedings below, and the specification of issues on appeal.

We review de novo a district court’s grant of summary judgment, “construing the record in the light most favorable to the non-moving party.” N.Y. State Law Officers Union v. Andreucci, 433 F.3d 320, 327 (2d Cir. 2006) (citation omitted). Summary judgment is properly granted “when no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law.” Id.

McPartlin has failed to establish that there is a material fact regarding the issue at the heart of all four of his federal claims, namely whether federal funds were used in the acquisition, through eminent domain, of the property at 783 Tenth Avenue (“Tenth Avenue Lot”). The City has presented contemporaneous documents, including the order of condemnation for the property, an approval of acquisition of real property that was attached to the order of condemnation, and the New York City budget for 1969-1970, that demonstrate that the Tenth Avenue Lot was not acquired with federal funds. Read together the documents show that the funds used to acquire the Tenth Avenue Lot came from a budget line designated as “Acquisition, Site Clearance and Development in Urban Renewal Areas Other Than Pursuant to Title I of the Housing Act of 1949, As Amended.” Given the documentary evidence that shows that no federal funds were used in purchasing the lot, the documents McPartlin has submitted do not create a genuine issue of fact. These documents, which include the August 5, 1985 letter from the New York Regional Office of the United States Department of Housing and Urban Development, and the City’s Second Amended Urban Renewal Plan for the Clinton Urban Renewal Project, suggest at most confusion on the part of some government officials regarding the source of the funds used for the acquisition.

Any confusion on the part of those officials is immaterial to the issue of how the Tenth Avenue Lot was acquired and does not create a question of fact that would preclude summary judgment See McClellan v. Smith, 439 F.3d 137, 144 (2d Cir. 2006) (“A genuine factual issue derives from evidence being such that a reasonable jury could return a verdict for the nonmoving party.” (internal quotation marks and alterations omitted)). Because the district court did not err in determining, as a matter of law, that federal funds were not used in acquiring the Tenth Avenue Lot, summary judgment was properly granted on all of McPartlin’s federal claims.

We have considered all of plaintiffs-appellants’ other arguments and find them without merit. Accordingly, for the foregoing reasons, the judgment of the district court is herebyAFFIRMED.

image_pdfimage_print