Lilakos et al v. New York City et al

Filing 163

ORDER ADOPTING REPORT AND RECOMMENDATIONS: The Court has reviewed and adopts in its entirety Magistrate Judge Lois Bloom's Report & Recommendation ("R&R") 154 , recommending that the Court grant Defendants' motion for summary jud gment 134 . Plaintiff has failed to raise any objection 157 that warrants rejection or modification of the R&R, with which the Court concurs. The Court rejects Plaintiff's objections, adopts in full Judge Bloom's R&R, and grants summary judgment in favor of Defendants, as recommended by Judge Bloom. The Clerk of Court is respectfully directed to enter judgment in Defendants' favor and terminate this action. Ordered by Judge Pamela K. Chen on 11/29/2018. (Nadig, Alok)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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LOUIS LILAKOS,
Plaintiff,

MEMORANDUM & ORDER
14-CV-5288 (PKC) (LB)

- against NEW YORK CITY; VLADIMIR PUGACH, in
his individual capacity; ARTHUR LEVINE, a
police officer assigned to the Office of Special
Enforcement, in his individual and official
capacity; JOSEPH GIGLIO, a police officer
assigned to the Office of Special Enforcement,
in his individual and official capacity; ERVIN
SANTIAGO, a Fire Inspector assigned to the
Office of Special Enforcement, in his individual
and official capacity; KATHLEEN MCGEE,
former director of the Office of Special
Enforcement, in her individual and official
capacity; and DEREK LEE, Commissioner of
the Department of Buildings, in his individual
and official capacity,
Defendants.
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PAMELA K. CHEN, United States District Judge:

Plaintiff Louis Lilakos, appearing pro se, brings this action under 42 U.S.C. § 1983 and
New York law, alleging that Defendants New York City, New York City Department of Buildings
(“DOB”) Inspector Vladimir Pugach, New York City Police Department (“NYPD”) Sergeant
Arthur Levine, NYPD Officer Joseph Giglio, New York City Fire Department Inspector Ervin
Santiago, Former Director of the New York City Mayor’s Office of Special Enforcement Kathleen
McGee, and DOB Commissioner for the Borough of Queens Derek Lee violated his Fourth and
Fourteenth Amendment rights by issuing and enforcing Notices of Violation and a Vacate Order

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against his property. 1 On April 20, 2018, Defendants filed a motion for summary judgment. (Dkt.
134.) The motion was referred to the Honorable Lois Bloom, United States Magistrate Judge, for
a Report and Recommendation (“R&R”) pursuant to 28 U.S.C. § 636(b) and Local Rule 72.1(d).
In the R&R, Judge Bloom recommended that the Court grant Defendants’ motion for summary
judgment and dismiss this matter. (Report & Recommendation (“R&R”), Dkt. 154, at ECF 1118.) 2 On July 25, 2018, Plaintiff filed objections to Judge Bloom’s R&R. (Plaintiff’s Objections
to R&R (“Pl. Objs.”), Dkt. 157.) Finding no merit to Plaintiff’s objections and no error in Judge
Bloom’s decision, the Court adopts the R&R in its entirety, and grants Defendants’ motion for
summary judgment.
I.

Standard of Review
A district court reviewing a magistrate judge’s recommended ruling “may accept, reject,

or modify, in whole or in part, the findings or recommendations made by the magistrate judge.”
28 U.S.C. § 636(b)(1). With respect to a magistrate judge’s recommendation on a dispositive
matter, the Court reviews de novo those determinations as to which a party has specifically
objected. See id. (“A judge of the court shall make a de novo determination of those portions of
the report or specified proposed findings or recommendations to which objection is made.”); Fed.
R. Civ. P. 72(b)(3) (“The district judge must determine de novo any part of the magistrate judge’s
disposition that has been properly objected to.”).

However, “objections that are merely

perfunctory responses argued in an attempt to engage the district court in a rehashing of the same

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The Court previously granted Defendants’ motion to dismiss Plaintiff’s equal protection
class-of-one claim and all claims brought by Christopher Lilakos. See Lilakos v. New York City,
No. 14-CV-5288, 2018 WL 1168577, at *5 (E.D.N.Y. Mar. 5, 2018).
2

Citations refer to the pagination generated by the Court’s CM/ECF docketing system
and not the document’s internal pagination.
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arguments set forth in the original papers will not suffice to invoke de novo review.” Frankel v.
New York City, No. 06-CV-5450, 2009 WL 465645, at *2 (S.D.N.Y. Feb. 25, 2009) (quotation and
brackets omitted). Accordingly, “[g]eneral or conclusory objections, or objections which merely
recite the same arguments presented to the magistrate judge, are reviewed for clear error.” Chime
v. Peak Sec. Plus, Inc., 137 F. Supp. 3d 183, 187 (E.D.N.Y. 2015) (quotation omitted).
At the same time, the Court is mindful that “the submissions of a pro se litigant must be
construed liberally and interpreted to raise the strongest arguments that they suggest.” Triestman
v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (quotation and emphasis omitted).
Nevertheless, “even a pro se party’s objections to a Report & Recommendation must be specific
and clearly aimed at particular findings in the magistrate’s proposal, such that no party be allowed
a ‘second bite at the apple’ by simply relitigating a prior argument.” Pinkney v. Progressive Home
Health Servs., No. 06-CV-5023, 2008 WL 2811816, at *1 (S.D.N.Y. July 21, 2008).
II.

Analysis
The Court has reviewed the Second Amended Complaint (“SAC”), 3 the parties’ respective

submissions relating to Defendants’ motion for summary judgment, and Judge Bloom’s wellreasoned and thorough R&R. Plaintiff raises 29 objections to Judge Bloom’s R&R. In the interest
of efficiency, the Court will address these objections in related groups.
A. Plaintiffs’ Objections to the R&R’s Procedural Due Process Analysis
Objections 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 20, 21, 22, 23, 26, and 27
relate to Plaintiff’s procedural due process claim. (Pl. Objs. at 2-11, 14-16.) Plaintiff argues that

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Plaintiff’s claims against the individual agencies were previously dismissed. See
Lilakos v. New York City, No. 14-CV-5288, 2016 WL 5928674, at *1 (E.D.N.Y. Sept. 30, 2016),
reconsideration denied, 2016 WL 6768943 (E.D.N.Y. Nov. 15, 2016). In addition, Plaintiff
withdrew his excessive force claim against the four John Doe officers. (See Dkt. 81 at 15.)
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Defendants violated his rights when the DOB issued an emergency Vacate Order without affording
him due process. (SAC ¶¶ 276-291.) “[D]ue process requires, at a minimum, that absent a
countervailing state interest of overriding significance, persons forced to settle their claims of right
and duty through the judicial process must be given a meaningful opportunity to be heard.” Boddie
v. Connecticut, 401 U.S. 371, 377 (1971). “[T]he Supreme Court has distinguished between (a)
claims based on established state procedures and (b) claims based on random, unauthorized acts
by state employees.” Hellenic Am. Neighborhood Action Comm. v. City of New York, 101 F.3d
877, 880 (2d Cir. 1996). “When the deprivation occurs in the more structured environment of
established state procedures, rather than random acts,” the availability of post-deprivation
procedures “will not, ipso facto, satisfy due process.” Id. By contrast, claims arising from
deprivation inflicted by random acts will not succeed “when a state employee intentionally
deprives an individual of property or liberty, so long as the State provides” a post-deprivation
remedy that is “meaningful.” Id. Vacate orders fall into this latter category. See Shelter Inc.
Realty v. City of New York, No. 01-CV-7015, 2007 WL 29380, at *10 (E.D.N.Y. Jan. 4, 2007)
(“With respect to a vacate order, only a post-deprivation remedy is constitutionally required when
emergency action is necessary.”).
1. Objections 1, 3, 4, 7, 13, 26, and 27
Objections 1, 3, 4, 7, 13, 26, and 27 all concern the legitimacy of the Vacate Order imposed
on Plaintiff. (Pl. Objs. at 2-6, 8, 14-16.) But as Judge Bloom repeatedly instructed Plaintiff when
presented with these exact arguments in the past (see Dkt. 47 at 16, R&R at 3 n.3), Plaintiff cannot
challenge in this forum the integrity of the process that the DOB and Environmental Control Board
afforded him when those agencies determined that the Vacate Order was legitimate, because the
Office of Administrative Trials and Hearings, New York Supreme Court, and New York Appellate

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Division have already decided this issue. See Matter of Lilakos v. Lee, No. 8827/2014 (Sup. Ct.
Queens Cty. N.Y. Oct. 30, 2014); Matter of Lilakos v. Envtl. Control Bd., No. 9640/2014 (Sup. Ct.
Queens Cty. N.Y. Mar. 24, 2015); (Dkt. 47 at 15); Lilakos v. Lee, 49 N.Y.S. 3d 529, 897 (N.Y.
App. Div. 2017); see also In re Hyman, 502 F.3d 61, 65 (2d Cir. 2007) (where legal claims and
issues “necessarily [were] decided in” the post-deprivation proceedings held in state court, plaintiff
had “full and fair opportunity” to litigate his challenges in that forum and issue preclusion applies).
The Court therefore concludes that Judge Bloom did not clearly err when she rejected Plaintiff’s
rehashed and previously rejected arguments and again found that issue preclusion bars his claims
in this court. See Hill v. Coca Cola Bottling Co. of N.Y., 786 F.2d 550, 553 (2d Cir. 1968)
(determining that litigant was precluded from relitigating in federal court issue that he had a full
and fair opportunity to address in an Article 78 proceeding under New York law).
2. Objections 5, 6, 8, 9, 12, and 14
Objections 5, 6, 8, 9, 12, and 14 all dispute the factual bases that the New York City
Mayor’s Office of Special Enforcement relied upon to conclude that an emergency existed
requiring evacuation of Plaintiff’s home. (Pl. Objs. at 5-9.) But again: Plaintiff already made
these arguments in state court, where they were rejected. See, e.g., Matter of Lilakos v. Envtl.
Control Bd., 48 N.Y.S. 3d 775, 777 (N.Y. App. Div. 2017) (“because there was substantial
evidence that the property was primarily being used to house multiple transient occupants
overnight, the [Environmental Control Board’s] determination that the property did not have the
requisite fire alarm system, sprinkler system, and number of means of egress was supported by
substantial evidence”). Because the factual bases of the Vacate Order “necessarily [were] decided
in” the post-deprivation proceedings held in state court and Plaintiff “had a full and fair

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opportunity” to litigate his challenges in that forum, issue preclusion applies and Judge Bloom did
not clearly err. In re Hyman, 502 F.3d at 65.
3. Objections 10, 11, 15, 16, 17, 18, 20, 21, 22, 23
Objections 10, 11, 15, 16, 17, 18, 20, 21, 22, and 23 contend that the R&R misapprehended
facts. (Pl. Objs. at 7, 9-11.) But objections 10, 11, 15, 16, 17, 18, 20, and 22 all dispute facts that
are immaterial (id.), rendering their consideration unnecessary for summary judgment purposes.
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986) (“[T]he mere existence of some
alleged factual dispute between the parties will not defeat an otherwise properly supported motion
for summary judgment; the requirement is that there be no genuine issue of material fact”
(emphases in original)). Furthermore, objections 21 and 23 contend that the R&R misapprehended
facts relating to Plaintiff’s efforts to challenge the Vacate Order. (Pl. Objs. at 11.) By doing so,
these objections effectively rehash factual contentions that have already been rejected in state court
proceedings. See Univ. of Tenn. v. Elliott, 478 U.S. 788, 799 (1986) (“when a state agency acting
in a judicial capacity resolves disputed issues of fact properly before it which the parties have had
an adequate opportunity to litigate, federal courts must give the agency’s factfinding the same
preclusive effect to which it would be entitled in the State’s courts” (quotation, ellipsis, and citation
omitted)). These objections are therefore rejected.
Accordingly, the Court adopts the R&R’s recommendation and grants summary judgment
to Defendants on Plaintiff’s procedural due process claim.
B. Plaintiffs’ Objections to the R&R’s Substantive Due Process Analysis
Objections 2, 19, and 24 relate to Plaintiff’s substantive due process claim. (Pl. Objs. 3-4,
10, 11-13.) Liberally construed, the Second Amended Complaint appears to allege that Plaintiff
was “not given the option to exclude transient occupants from the Property in order to be allowed

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to return to the Property.” (Dkt. 47 at 19.) “In order to establish a violation of a right to substantive
due process, a plaintiff must demonstrate not only government action but also that the government
action was so egregious, so outrageous, that it may fairly be said to shock the contemporary
conscience.” Pena v. DePrisco, 432 F.3d 98, 112 (2d Cir. 2005) (quotation omitted).
Through these objections, Plaintiff contends that the R&R demonstrated inconsistency and
inattention to the evidence with respect to what is conscience-shocking. (Pl. Objs. at 3, 10.)
Plaintiff contends that Defendants were motivated by scorn and contempt in issuing the Vacate
Order, and imposed stringent and outrageous demands on Plaintiff before the Vacate Order could
be lifted. (Id.) Objection 2 also cites Judge Bloom’s observation, made in her earlier Report &
Recommendation on Defendants’ motion to dismiss, that a scenario described by Defendants
“perversely required Mr. Lilakos to conform his Property to a transient use hostel in order to regain
the right to live there, even if he agreed to live there only with his son, daughter, and Mr. Pritzakis.”
(Dkt. 47 at 19.) But, as Judge Bloom notes in the current R&R (relating to the summary judgment
motion), there is now no genuine dispute of material fact that Plaintiff could have simply certified
that he had discontinued the illegal transient occupancy, which would have triggered the
reinspection necessary to lift the Vacate Order (R&R at 15)—a fact which directly belies the
unsupported conclusory statements made in objection 23 (Pl. Obs. at 11). The Court concludes
that the simple requirement that Plaintiff cease illegal transient occupancy in order to reoccupy his
home does not constitute “conduct that is so outrageously arbitrary as to constitute a gross of
governmental authority.” Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494, 505 (2d Cir. 2001)
(quotation omitted).
Accordingly, the Court adopts the R&R’s recommendation to grant summary judgment to
Defendants on Plaintiff’s substantive due process claim.

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C. Plaintiffs’ Objections to the R&R’s Malicious Prosecution Analysis
Objection 25 relates to Plaintiff’s malicious prosecution claim. (Pl. Objs. at 14.) Plaintiff’s
malicious prosecution claim is based on the dismissal of one of the five Notices of Violation issued
by the DOB on June 13, 2013. (SAC ¶¶ 305-309.) In order to prevail on this claim, Plaintiff must
show: “1) the initiation of an action by defendant against him, 2) begun with malice, 3) without
probable cause to believe it can succeed, 4) that ends in failure or, in other words, terminates in
favor of the plaintiff.” Engel v. CBS, Inc., 145 F.3d 499, 502 (2d Cir. 1998) (quotation and brackets
omitted). Additionally, “if the proceeding of which plaintiff complains was a civil action, the
plaintiff must prove special injury—some interference with the plaintiff’s person or property
beyond the ordinary burden of defending a lawsuit.” Id. (quotation, brackets, and ellipsis omitted).
Objection 25 contends that because “the [V]acate [O]rder required the prosecution of
[Notice of Violation] 35007319L and that [Notice of Violation] was dismissed, [D]efendants’
summary judgment request of [Plaintiff’s] malicious prosecution claim should be denied and
[Plaintiff’s] malicious prosecution claim should be allowed.” (Pl. Objs. at 14.) But the dismissal
of one of the Notices of Violation plainly did not render the entire Vacate Order unjustifiable. In
any event, the administrative disputes over the Vacate Order did not end in Plaintiff’s favor,
dooming any otherwise viable malicious prosecution claim. See Liberty Synergistics, Inc. v.
Microflo Ltd., 50 F. Supp. 3d 267, 285 (E.D.N.Y. 2014) (“Under New York law, there are two
ways to establish favorable termination: (1) an adjudication of the merits by the tribunal in the
prior action, or (2) an act of withdrawal or abandonment on the part of the party prosecuting the
prior action.” (quotations omitted)).
To the extent that Plaintiff’s malicious prosecution claim rests on the dismissal of Notice
of Violation 35007319L rather than the Vacate Order, the claim fails, because the Notice of

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Violation did not involve the deprivation of property. A malicious prosecution claim “may be
based upon a civil action instituted against plaintiff provided that there is a showing of some
interference with plaintiff’s person or property, by the use of such provisional remedies as arrest,
attachment, replevin or injunction, or other burden imposed on plaintiff beyond the ordinary
burden of defending a law suit.” O’Brien v. Alexander, 101 F.3d 1479, 1485 (2d Cir. 1996)
(citations omitted). As Judge Bloom noted, the Notice of Violation did not entail a deprivation of
property within this framework. (R&R at 17.)
Accordingly, objection 25 is rejected, and the Court adopts the R&R’s recommendation to
grant summary judgment to Defendants on Plaintiff’s malicious prosecution claim.
D. Remaining Objections
Objections 28 and 29 argue that the R&R is objectionable in its entirety because it
misrepresents facts, misapplies law, and ignores the appropriate standard of review. (Pl. Objs. at
16.) The Court rejects these objections, as they are “[g]eneral” and “conclusory” in nature. Chime,
137 F. Supp. 3d at 187.
E. State Law Claims
Having dismissed all of Plaintiff’s federal claims, the Court declines to exercise
supplemental jurisdiction over Plaintiff’s remaining state claims. See 18 U.S.C. § 1367(c)(3). “In
general, where the federal claims are dismissed before trial, the state claims should be dismissed
as well.” Marcus v. AT&T Corp., 138 F.3d 46, 57 (2d Cir. 1998). 4

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The Court notes that Plaintiff failed to object to the position taken by the R&R with
respect to his state law claims. (See Dkt. 157.)
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CONCLUSION
Plaintiff has failed to raise any objection that warrants rejection or modification of the
R&R, with which the Court concurs. The Court rejects Plaintiff’s objections, adopts in full Judge
Bloom’s R&R, and grants summary judgment in favor of Defendants, as recommended by Judge
Bloom. The Clerk of Court is respectfully directed to enter judgment in Defendants’ favor and
terminate this action.
SO ORDERED.
/s/ Pamela K. Chen
Pamela K. Chen
United States District Judge
Dated: November 29, 2018
Brooklyn, New York

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