Viteritti et al v. Incorporated Village of Bayville

Filing 12

ORDER granting 9 : For the reasons set forth in the attached Memorandum & Order, defendant's motion is granted and the Complaint is dismissed in its entirety. Plaintiffs have not requested leave to amend the Complaint in the event that defend ant's motion was granted. To the extent plaintiffs wish to request such leave, plaintiffs are directed to submit a pre-motion conference letter within thirty days of the date of this Order. Should plaintiffs fail to submit a pre-motion conference letter within thirty days of the date of this Order, their right to do so will be deemed waived, and the case will be marked closed. Ordered by Senior Judge Denis R. Hurley on 11/21/2011. (Monaco, Laura)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------------------------X
JOHN VITERITTI and
MARGUERITE VITERITTI,
Plaintiffs,
-against-

MEMORANDUM & ORDER
10 CV 3283 (DRH) (ARL)

INCORPORATED VILLAGE OF BAYVILLE,
Defendant.
----------------------------------------------------------X
APPEARANCES:
EDWARDS & EDWARDS
Attorneys for Plaintiff
336 South Ocean Avenue
Freeport, New York 11520
By:
Harrison J. Edwards, Esq.
MORRIS DUFFY ALONSO & FALEY
Attorneys for Defendant
Two Rector Street
New York, New York 10006
By:
Drew William Sumner, Esq.
Carl S. Sandel, Esq.
HURLEY, Senior District Judge:
Plaintiffs John and Marguerite Viteritti (“plaintiffs” or “the Viterittis”) commenced this
action alleging that defendant Incorporated Village of Bayville (“defendant” or the “Village”)
seized a portion of their real property without providing them with just compensation in violation
of their Fifth Amendment rights. Plaintiffs also assert a Fourteenth Amendment equal protection
claim as well as state law causes of action for trespass, private nuisance, negligence, and
violations of Section 853 of the New York Real Property Actions and Proceedings Law.
Presently before the Court is defendant’s motion to dismiss the Complaint pursuant to Federal
Rule of Civil Procedure 12(c). For the reasons set forth below, defendant’s motion is granted.

BACKGROUND
The following factual recitation is gleaned from the pleadings and exhibits attached
thereto.
The Property
The Viterittis are a married couple who reside at and own certain real property located at
1 Tides Court, Bayville, New York, which is “more fully described as Section 29, Block 104,
Lots 20 and 27 on a Land and Tax Map duly filed in the Office of the Clerk of the County of
Nassau” (the “Property”).1 (Compl. ¶¶ 1-4.) The Village is a municipal corporation duly
organized and existing under the laws of the State of New York. (Id. ¶ 6.)2
The area surrounding the Property consists of one public road and several private streets.
Godfrey Avenue, one of only three public roads in the entire Village, lies south of the Property
and intersects with Shore Road. (Id. ¶ 18.) Shore Road, in turn, runs in a northeasterly direction
from its intersection with Godfrey Avenue until it dead-ends “at a ‘T’ intersection” with Tides
Court, a private cul-de-sac located “in front of” the Property. (Id. ¶¶ 16, 18, 19.) According to
plaintiffs, Shore Road “is a private road owned by the owners of Tides Court properties,
including plaintiffs herein, and owners of Shore Road properties.” (Id. ¶ 22.) Plaintiffs allege
that between approximately 1973 and April 21, 2009, all vehicular traffic accessed Tides Court
by traveling north on Shore Road from Godfrey Avenue. (Id. ¶ 18.) That portion of Shore Road

1

Defendant has attached a copy of the relevant portion of the Nassau County Tax
Map to their Answer. (Ans., Ex. A.) Reference is made thereto solely for the purpose of
illustrating the layout of the Property and surrounding area in the context of the present motion.
2

Although the Complaint includes the Village Board of Trustees, which is
described as “the governing body” of the Village, under the sub-heading “Defendant” (Compl. ¶
7), the Village Board of Trustees is not listed as a defendant in the caption.
2

“has never been a public road.” (Id. ¶ 22.)
Between approximately 1973 and April 21, 2009, the southern portion of the Property
that abutted the “‘T’ intersection” of Tides Court and Shore Road consisted of “a manicured
landscaped lawn with miscellaneous decorative boulders located on it.” (Id. ¶ 17.) The northerly
portion of that section of the Property contained a fence and hedge. (Id. ¶ 23.) North of the
Property, “Shore Road resume[d], projecting north and intersect[ing] with three other private
roads – Saltaire Lane, Washington Avenue and Arlington Lane.” (Id. ¶ 24.) In other words, for
thirty-six years prior to April 21, 2009, these three private roads, which lay north of the Property,
merged into Shore Road, ran south toward the Property, and “‘dead ended’ at the northerly end of
the Viteritti property line adjacent to” the fence and hedge. (Id. ¶ 25.)
To partially reiterate, plaintiffs describe the area surrounding the Property as follows:
“For thirty-six years prior to April 21, 2009, the private road known as and by Shore Road
stopped at plaintiff[s’] southerly property line and resumed at plaintiff’s northerly property line at
the Viteritti fence and hedge.” (Id. ¶ 27.) The area of the Property at issue here (the “Disputed
Area”) lays between Shore Road’s T-intersection with Tides Court on the southern edge of the
Property and the location where Shore Road resumed north of the Property. Plaintiffs allege that
the Disputed Area was “used as private property and [was] improved with a manicured
landscaped lawn . . . together with [a] fence and hedge . . . .” (id. ¶ 28), and during that time
“there was no vehicular traffic across” the Property (id. ¶ 29).
The State Court Action
On January 7, 2005, the Village commenced an action against plaintiffs in New York
State Supreme Court, Nassau County (the “State Court Action”) before trial judge Kenneth A.
3

Davis. Judge Davis described the State Court Action as “an action for a permanent injunction
restraining [the Viterittis] from obstructing Shore Road, a paved thoroughfare located in the
Village of Bayville.” (Ans., Ex. C at 1, 4.) More specifically, the Village sought to have the
Disputed Area of the Property (which Judge Davis referred to as “the barricade”) declared a
public nuisance and removed. (Id. at 4.) The Viterittis counterclaimed seeking a declaratory
judgment that the Disputed Area “is part of their private property and not a Village Street.” (Id.
at 4-5.)
On January 29, 2008, Judge Davis rendered a decision on the parties’ motions for
summary judgment in the State Court Action. (Ans., Ex. C.) In that decision, he described the
Disputed Area as follows:
In 1976, John Viteritti erected a barricade across Shore Road at a
point north of its intersection with Tides Court and between lot 20
and lot 27. The barricade is 29 feet long and 4 ½ feet high. It is
presently comprised of “decorative boulders,” a fence, shrubs, grass,
and Belgium blocks. . . . Because of the barricade, Tides Court is not
accessible from streets to the north. The only means of ingress is to
take Godfrey Avenue to Shore Road, approaching from the south.
(Id. at 3.) After reviewing the evidentiary record, Judge Davis concluded that Shore Road was
not a public street (id. at 7-8), but noted that “a public nuisance may also exist on private
property, if the property, health or safety of a considerable number of persons is effected” (id. at
9). He ultimately concluded that the barricade constituted a public nuisance to the residents
living south of the barricade because “it interfered with their rights to fire protection and also
police, ambulance, and other emergency services. The barricade also interfere[d] with public
access to Shore Road . . . .” (Id.) Judge Davis declined to issue a mandatory injunction requiring
the Viterittis to remove the barricade, but ruled that “the Village may remove the obstruction
4

itself, subject to a right of recoupment of expense from the [Viterittis].” (Id. at 10-11.) Thus, an
injunction was issued that prohibited the Viterittis “from interfering with efforts of the Village to
remove the barricade on Shore Road.” (Id. at 11.)
The Village’s Subsequent Alleged Conduct
Plaintiffs allege that on April 21, 2009, the Village took possession of, and forcibly
ejected them from, a 100-foot-by-25-foot portion of the Property without plaintiffs’ consent.
(Compl. ¶ 32.) According to plaintiffs, the Village removed plaintiffs’ lawn, decorative
boulders, fence, and shrubbery irrigation system and, by “connecting Shore Road north of
plaintiffs’ property to Shore Road south of [plaintiffs’] property, [the Village] create[d] a thrustreet across plaintiffs’ property without plaintiffs’ permission, consent or authorization.” (Id. ¶¶
34, 35.)
The Complaint
The Complaint was originally filed in New York Supreme Court, Nassau County on June
30, 2010. Defendant removed the action to this Court on July 19, 2010 based on federal question
jurisdiction. Plaintiffs assert eight causes of action against the Village. With respect to the
federal causes of action, plaintiffs allege that defendant “has taken plaintiffs’ property without
just compensation and/or without due process of law” in violation of the Fifth Amendment (id. ¶
61), and has denied plaintiffs’ their Fourteenth Amendment rights to “the equal protection of
law” (id. ¶ 74.) Plaintiffs also assert a cause of action entitled “Civil Rights,” which alleges that
defendant has “deprived plaintiffs of their civil rights under the United States Constitution, the
New York State Constitution, New York Eminent Domain Procedure Law, and the Real Property
Actions Procedure Law, all in violation of 42 U.S.C. § 1983.” (Id. ¶ 69.)
5

Plaintiffs also assert state law claims for trespass, private nuisance, and a violation of
Section 853 of the New York Real Property Actions and Proceedings Law (“NY RPAPL”) based
on defendant’s alleged forcible ejection of plaintiffs from a portion of the Property. In addition,
plaintiffs allege that the Village “negligently constructed a structure [i.e., a roadway] on
plaintiffs’ property . . . .” (Id. ¶ 63.)
Plaintiffs seek an award of monetary damages, a declaratory judgment that defendant
violated plaintiffs’ constitutional rights, and permanent injunctive relief prohibiting defendant
from interfering with plaintiffs’ rights to the Property.
DISCUSSION
I.

Legal Standard
“‘In deciding a Rule 12(c) motion, [a court] appl[ies] the same standard [regarding the

sufficiency of a pleading] as that applicable to a motion under Rule 12(b)(6), accepting the
allegations contained in the complaint as true and drawing all reasonable inferences in favor of
the nonmoving party.’” Desiano v. Warner-Lambert & Co., 467 F.3d 85, 89 (2d Cir. 2006)
(quoting Burnette v. Carothers, 192 F.3d 52, 56 (2d Cir. 1999)). Federal Rule of Civil Procedure
8(a)(2) provides that a pleading shall contain “a short and plain statement of the claim showing
that the pleader is entitled to relief.” The Supreme Court has recently clarified the pleading
standard applicable in evaluating a motion to dismiss under Rule 12(b)(6).
First, in Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), the Court disavowed the wellknown statement in Conley v. Gibson, 355 U.S. 41, 45-46 (1957) that “a complaint should not be
dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove
no set of facts in support of his claim which would entitle him to relief.” See Twombly, 550 U.S.
6

at 561 (quoting Conley, 355 U.S. at 45-46). Instead, to survive a motion to dismiss under
Twombly, a plaintiff must allege “enough facts to state a claim to relief that is plausible on its
face.” Id. at 570.
While a complaint attacked by a Rule 12(b)(6) motion to
dismiss does not need detailed factual allegations, a plaintiff’s
obligation to provide the grounds of his entitlement to relief
requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.
Factual allegations must be enough to raise a right to relief
above the speculative level, on the assumption that all the
allegations in the complaint are true (even if doubtful in fact).
Id. at 555 (citations and internal quotation marks omitted).
More recently, in Ashcroft v. Iqbal, -- U.S. --, 129 S. Ct. 1937 (2009), the Supreme Court
provided further guidance, setting forth a two-pronged approach for courts deciding a motion to
dismiss. First, a court should “begin by identifying pleadings that, because they are no more than
conclusions, are not entitled to the assumption of truth.” Iqbal, 129 S. Ct. at 1950. “While legal
conclusions can provide the framework of a complaint, they must be supported by factual
assumptions.” Id. Thus, “[t]hreadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.” Id. at 1949 (citing Twombly, 550 U.S. at 555).
Second, “[w]hen there are well-pleaded factual allegations, a court should assume their
veracity and then determine whether they plausibly give rise to an entitlement to relief.” Id. at
1950. The Court defined plausibility as follows:
A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged. The plausibility standard is not akin to a “probability
requirement,” but it asks for more than a sheer possibility that
a defendant has acted unlawfully. Where a complaint pleads
7

facts that are “merely consistent with” a defendant’s liability,
it “stops short of the line between possibility and plausibility
of ‘entitlement to relief.’”
Id. at 1949 (quoting Twombly, 550 U.S. at 556-57) (internal citations omitted); see also Ortiz v.
City of New York, 755 F. Supp. 2d 399, 401 (E.D.N.Y. 2010) (“[A] complaint must contain
factual allegations to support the legal conclusions and the factual allegations must plausibly give
rise to an entitlement of relief.”) (internal quotation marks omitted).
II.

Documents Attached to the Answer
In moving for dismissal of the Complaint, defendant relies heavily upon documents

attached to its Answer, particularly the Nassau County Land and Tax Map as well as Judge
Davis’s January 29, 2008 decision in the State Court Action. Plaintiffs argue that the Court may
not properly consider exhibits attached to the Answer, but must consider only “facts . . . taken
directly from the complaint.” (Pls.’ Opp’n at 6.) As the Second Circuit has recently reiterated:
“On a 12(c) motion, the court considers ‘the complaint, the answer, any written documents
attached to them, and any matter of which the court can take judicial notice for the factual
background of the case.’” L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 422 (2d Cir. 2011)
(quoting Roberts v. Babkiewicz, 582 F.3d 418, 419 (2d Cir. 2009)). Because there is no dispute
that the documents cited by defendant in support of its motion were actually appended to the
Answer, the Court may properly consider them. See id. (finding that documents attached to an
answer may be considered on a Rule 12(c) motion).
III.

The Parties’ Contentions
Defendant argues that plaintiffs’ Fifth Amendment takings claim is barred by the doctrine

of res judicata. Specifically, defendant asserts that Judge Davis’s “determination that the
8

[Disputed Area] was in fact a roadway that had been barricaded is determinative of every issue
raised by plaintiff[s] in this action, and, moreover, disproves every cause of action raised.”
(Def.’s Mem. at 5.) Defendant also contends that plaintiffs’ equal protection claim is
inadequately pled “under a class of one theory” because “Judge Davis’s reasons for permitting
the Village to remove the barricades were rationally related to a legitimate government interest
. . . [in] the provision of fire and police protection and other emergency services to its citizens.”
(Reply Mem. at 6.) Finally, defendant asserts that plaintiffs’ state law claims should be
dismissed as barred by res judicata and because they fail to state a claim as a matter of law.
(Id. at 6-7.)
Plaintiffs counter that the doctrine of res judicata does not bar their Fifth Amendment
takings claim because “the factual construct alleged in plaintiffs’ complaint is later in time and
different in nature than involved in the earlier State Court action.” (Pls.’ Opp’n at 7.) According
to plaintiffs, while Judge Davis found that the 29 foot long, 4 ½ foot high barricade constituted a
public nuisance on private property, “[t]he State Court did not imbue Bayville with authorization
to build a 25’ x 100’ road across plaintiffs’ front lawn.” (Id. at 4.)
IV.

Plaintiffs’ Section 1983 Claims
A.

Section 1983

A plaintiff may assert a cause of action pursuant to Section 1983 against any “person
who, under color of any statute, ordinance, regulation, custom, or usage of any State . . . subjects,
or causes to be subjected, any . . . person within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution and laws.” 42 U.S.C. § 1983.
Because “Section 1983 ‘is not itself a source of substantive rights,’ but merely provides ‘a
9

method for vindicating federal rights elsewhere conferred’ . . . [t]he first step in [analyzing] any
such claim is to identify the specific [federal] right allegedly infringed.” Albright v. Oliver, 510
U.S. 266, 271 (1994) (citation omitted) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3
(1979)).
B.

Plaintiffs’ Fifth Amendment Takings Claim is not Ripe for Review

Article III of the Constitution requires that all cases or controversies be ripe for judicial
review. Sunrise Dev., Inc. v. Town of Huntington, 62 F. Supp. 2d 762, 770 (E.D.N.Y. 1999) (“In
the area of land use, the doctrine of ripeness is intended to avoid premature adjudication of
administrative action.”) (internal quotation marks and citation omitted). Because “[r]ipeness is a
jurisdictional inquiry,” the Court must initially consider the ripeness of this matter. Murphy v.
New Milford Zoning Comm’n, 402 F.3d 342, 347 (2d Cir. 2005) (citing Vandor, Inc. v. Militello,
301 F.3d 37, 38 (2d Cir. 2002)). The Court “must presume that [it] cannot entertain the
[plaintiffs’] claims ‘unless the contrary appears affirmatively from the record.’” Id. (quoting
Renne v. Geary, 501 U.S. 312, 316 (1991) (“Concerns of justiciability go to the power of the
federal courts to entertain disputes, and to the wisdom of their doing so.”)).
To determine whether a case is ripe for review, the Court is “generally require[d]” to
“‘evaluate both the fitness of the issue for judicial decision and the hardship to the parties of
withholding court consideration.’” Id. (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 149
(1967)). “Building on the foregoing, the Supreme Court has developed specific ripeness
requirements applicable to land use disputes.” Id. at 347. In Williamson County Regional
Planning Commission v. Hamilton Bank, 473 U.S. 172 (1985), the Supreme Court considered
whether the application of certain zoning laws constituted a taking without just compensation in
10

violation of the Fifth Amendment. The Court established the following two-pronged test that the
plaintiff was required to satisfy in order to maintain its lawsuit. First, the plaintiff had to show
that prior to commencing its suit, it had “obtain[ed] a final, definitive position as to how it could
use the property from the entity charged with implementing the zoning regulations.” Murphy,
402 F.3d at 348 (citing Williamson, 473 U.S. at 186). Second, the plaintiff was required to
demonstrate that it sought “compensation for an alleged taking before proceeding to federal
court.” Id. at 349 (citing Williamson, 473 U.S. at 194). While Williamson dealt with a regulatory
(as opposed to physical) taking, the Second Circuit has explicitly found that the second prong of
the Williamson test applies to both types of takings:
Williamson drew no distinction between physical and regulatory
takings, and the rationale of that case, that a ‘property owner has not
suffered a violation of the Just Compensation Clause until the owner
has unsuccessfully attempted to obtain just compensation through the
procedures provided by the State,’ demonstrates that any such
distinction would be unjustified.
Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 380 (2d Cir. 1995) (internal citation
omitted); see also TZ Manor, LLC v. Daines, 2009 WL 2242436, at *6 n.3 (S.D.N.Y. July 28,
2009) (“The Williamson requirement that a plaintiff seek compensation through available state
procedures has never been limited to cases involving land use regulations; rather, it applies to
physical as well as regulatory takings.”) (internal quotation marks omitted).
Thus, under Williamson, “if a State provides an adequate procedure for seeking just
compensation, the property owner cannot claim a violation of the Just Compensation Clause until
it has used the procedure and been denied just compensation.” Williamson, 473 U.S. 195. “In
New York, there are ‘two such reasonable certain and adequate provision[s]. One is to seek

11

compensation through the procedures detailed in the New York State Eminent Domain Procedure
Law. The other is to bring a state law action under Article I, Section 7 of the New York State
Constitution.’” Livant v. Clifton, 334 F. Supp. 2d 321, 326 (E.D.N.Y. 2004) (quoting Vaizburd v.
United States, 90 F. Supp. 2d 210, 216-17 (E.D.N.Y. 2000)) (alteration in the original), aff’d 272
Fed. Appx. 113 (2d Cir. 2008). Courts within the Second Circuit have uniformly dismissed Fifth
Amendment takings claims at the pleadings stage when plaintiffs fail to sufficiently allege that
they have availed themselves of such state procedures. See, e.g., Vandor, Inc., 310 F.3d at 38-39
(affirming dismissal of takings claim, which was “unripe where a remedy potentially is available
under the state constitution’s provision”) (internal quotation marks omitted); Rahl v. N.Y. Tel.
Co., 2010 WL 3338832, at **4-5 (N.D.N.Y. Aug. 24, 2010) (dismissing takings claim as unripe
when plaintiff failed to allege “that he availed himself of any state procedure” in an attempt “to
gain just compensation”); Livant, 334 F. Supp. 2d at 326 (“Plaintiff’s failure to seek these State
remedies first prohibits his takings claim on the grounds of ripeness.”).
Here, plaintiffs have failed to allege that they availed themselves (or attempted to avail
themselves) of any available state procedures in an effort to obtain just compensation for the
Village’s alleged taking of the Property prior to commencing this action. Accordingly, the
Complaint “does not adequately allege that [plaintiffs’] takings claim is ripe for adjudication in
federal court,” see Rahl, 2010 WL 3338832 at *5, and such claim is dismissed.
C.

Plaintiffs’ Fifth Amendment Due Process Claim is Dismissed

To the extent that the third cause of action can be read as also asserting that defendant
deprived plaintiffs of their due process rights in violation of the Fifth Amendment, such a claim
must be dismissed because “the Fifth Amendment only applies to actions by the Federal
12

Government.” Castanza v. Town of Brookhaven, 700 F. Supp. 2d 277, 288 (E.D.N.Y. 2010); see
also Cassidy v. Scoppetta, 365 F. Supp. 2d 283, 286 (E.D.N.Y. 2005) (dismissing claim for
violation of Fifth Amendment due process rights when the plaintiffs had “not named the United
States government or any agency or employee thereof as a defendant in this matter”). “The Fifth
Amendment ‘governs the conduct of the federal government and federal employees, and does not
regulate the activities of state officials or state actors.’” Cassidy, 365 F. Supp. 2d at 286 (quoting
Dawkins v. City of Utica, 1997 WL 176328, at *4 (N.D.N.Y. Apr. 4, 1997)) (emphases in the
original). Accordingly, to the extent that the third cause of action seeks relief based upon alleged
violations of plaintiffs’ Fifth Amendment due process rights, that claim is dismissed. See
Guadagni v. N.Y. City Transit Auth., 2009 WL 1910953, at *7 (E.D.N.Y. June 30, 2009) (“The
right to due process guaranteed by the Fifth Amendment [ ] applies only with regard to the
federal government . . . .”).3
D.

Plaintiffs’ “Civil Rights” Claim is Dismissed

Plaintiffs’ sixth cause of action is entitled “Civil Rights” and seeks relief based upon
defendant’s alleged deprivations of plaintiffs’ “civil rights under the United States Constitution,
the New York State Constitution, New York Eminent Domain Procedure Law, and the Real
Property Actions Procedure Law, all in violation of 42 U.S.C. § 1983.” (Compl. ¶ 69.) The

3

The Court notes that the Complaint does not explicitly state a cause of action
based upon on any alleged denial of plaintiffs’ Fourteenth Amendment due process rights.
Plaintiffs’ opposition papers, however, make a passing reference to a “fourteenth amendment due
process claim as to the construction of a permanent structure on plaintiffs’ property.” (Pls.’
Opp’n at 8.) As set forth below, plaintiffs will be given an opportunity to file a motion for leave
to amend their Complaint. Should plaintiffs wish to assert a Fourteenth Amendment due process
claim, they should so indicate in their pre-motion conference letter.
13

deficiency with this cause of action does not stem merely from semantics; plaintiffs have failed
to identify any particular constitutional provision that defendant has allegedly violated. As noted
above, “Section 1983 does not create any substantive rights, and thus ‘one cannot go into court
and claim a “violation of § 1983” – for § 1983 by itself does not protect anyone against
anything.’” Alberti v. Cnty. of Nassau, 393 F. Supp. 2d 151, 161 (E.D.N.Y. 2005) (quoting
Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 617 (1979)) (emphasis in the original).
Thus, to the extent plaintiffs are purporting to assert a claim based solely upon a violation of
Section 1983, the sixth cause of action must be dismissed.
E.

Plaintiffs’ Fourteenth Amendment Equal Protection Claim is Dismissed

In their seventh cause of action, plaintiffs allege that they were “singled out for disparate
treatment” by the Village in violation of their Fourteenth Amendment equal protection rights.
(See Compl. ¶ 72.) An equal protection claim may be pled in one of two ways. First, an equal
protection claim based upon selective enforcement of the law must set forth allegations that: (1)
plaintiffs were “treated differently from other similarly situated” property owners, and (2) “such
differential treatment was based on impermissible considerations such as race, religion, intent to
inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a
person.” See Cine SK8, Inc. v. Town of Henrietta, 507 F.3d 778, 790 (2d Cir. 2007) (internal
quotation marks omitted).
In the alternative, “failing proof of selective treatment based on impermissible
considerations,” plaintiffs must plead a “class of one” equal protection claim. See Everitt v.
DeMarco, 704 F. Supp. 2d 122, 135 (D.Conn. 2010). “The Supreme Court has ‘recognized
successful equal protection claims brought by a “class of one,” where the plaintiff alleges that she
14

has been intentionally treated differently from others similarly situated and that there is no
rational basis for the difference in treatment.’” Ruston v. Town Bd. for the Town of Skaneateles,
610 F.3d 55, 58 (2d Cir. 2010) (quoting Vill. of Willowbrook v. Olech, 528 U.S. 562, 564
(2000)).
Based on the allegations contained in the Complaint, it appears that plaintiffs are
proceeding under a “class of one” theory. See Pape v. Bd. of Educ. of the Wappingers Cent. Sch.
Dist., 2009 WL 3151200, at *6 (E.D.N.Y. Sept. 29, 2009) (construing equal protection claim as a
“class of one” claim when plaintiffs alleged that they were “unfairly singled out by Defendants in
violation of the Equal Protection Clause”).4 “‘[C]lass-of-one plaintiffs must show an extremely
high degree of similarity between themselves and the persons to whom they compare
themselves.’” Ruston, 610 F.3d at 59 (quoting Clubside, Inc. v. Valentin, 468 F.3d 144, 159 (2d
Cir. 2006)) (alteration in the original). “‘Accordingly, to succeed on a class-of-one claim, a
plaintiff must establish that (i) no rational person could regard the circumstances of the plaintiff
to differ from those of a comparator to a degree that would justify the differential treatment on
the basis of a legitimate government policy; and (ii) the similarity in circumstances and
difference in treatment are sufficient to exclude the possibility that the defendants acted on the
basis of a mistake.’” Id. at 59-60 (quoting Clubside, Inc., 468 F.3d at 159). “[T]he standard for

4

Even if plaintiffs’ equal protection claim was properly classified as a selective
enforcement claim, it would still fail because plaintiffs have not identified similarly situated
comparators, as described infra in the text. See Dones v. City of New York, 2008 WL 2742108,
at *7 (S.D.N.Y. July 9, 2008) (finding “the standard for ‘similarly situated’ when bringing a
selective enforcement claim is the same as in a ‘class of one’ claim”); Kamholtz v. Yates Cnty.,
2008 WL 5114964, at *5 (W.D.N.Y. Dec. 3, 2008) (“The similarly situated standard here [in the
context of a selective enforcement claim] is the same as that for [ ] class-of-one claims.”), aff’d
350 Fed. Appx 589 (2d Cir. 2009).
15

determining whether another person’s circumstances are similar to the plaintiff’s must be . . .
whether they are prima facie identical.” Kamholtz, 2008 WL 5114964, at *5 (quoting Neilson v.
D’Angelis, 409 F.3d 100, 105 (2d Cir. 2005)) (internal quotation marks omitted, alterations in the
original).
The Court finds that plaintiffs have failed to allege the existence of sufficiently similarly
situated comparators. Here, the only allegations made by plaintiffs in support of their equal
protection claim are: (1) “there are not less than seven private streets in Bayville that have the
same or similar barricades maintained by private property owners as that maintained by plaintiffs
herein,” (2) defendant “has not taken actions against these similarly situated property owners and
has singled out plaintiffs for disparate treatment,” and (3) “[t]here is no rational basis for treating
plaintiffs differently than the rest of the class of property owners similarly situated to plaintiffs
herein.” (Compl. ¶¶ 71–73.) The Court presumes, based upon the allegations contained in the
Complaint, that plaintiffs’ equal protection claim is based upon defendant’s removal of the
hedge, grass, etc. in the Disputed Area.5 Plaintiffs have failed to allege, however, that any of the
“similar” barricades maintained by other private property owners were judicially declared to be a
public nuisance, or that the comparator private property owners had been enjoined by a state
court judge from interfering with Village efforts to remove their barricades. Because plaintiffs
have failed to sufficiently allege the existence of comparators to whom they were “prima facie

5

Because plaintiffs never specifically mention the State Court Action in the
Complaint, the Court assumes that plaintiffs do not base their equal protection claim on an
allegation that the Village initiated the State Court Action against them (and not similarly
situated comparators) in violation of their equal protection rights. The Court further notes that
the State Court Action was commenced on January 7, 2005 (Ans., Ex. C at 4), more than five
years prior to the date the Complaint was originally filed.
16

identical,” see Kamholtz, 2008 WL 5114964 at *5, their equal protection claim must be
dismissed.
F.

The Court Declines to Exercise Supplemental Jurisdiction Over Plaintiffs’
Remaining State Law Claims

Pursuant to 28 U.S.C. § 1367(c)(3), the Court “may decline to exercise supplemental
jurisdiction” over a state law claim when the Court “has dismissed all claims over which it has
original jurisdiction.” The Second Circuit has repeatedly emphasized that when “federal claims
are eliminated in the early stages of litigation, courts should generally decline to exercise pendent
jurisdiction over remaining state law claims.” See Klein & Co. Futures, Inc. v. Bd. of Trade of
the City of New York, 464 F.3d 255, 262 (2d Cir. 2006); see also Kolari v. New YorkPresbyterian Hosp., 455 F.3d 118, 122 (2d Cir. 2006) (“‘[I]n the usual case in which all federallaw claims are eliminated before trial, the balance of factors . . . will point toward declining to
exercise jurisdiction over the remaining state-law claims.’”) (quoting Carnegie-Mellon Univ. v.
Cohill, 484 U.S. 343, 350 n.7 (1988)). As discussed above, each of the plaintiffs’ federal claims
are dismissed and, therefore, the Court declines to exercise supplemental jurisdiction over
plaintiffs’ remaining state law claims.

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CONCLUSION
For the reasons set forth above, defendant’s motion is granted and the Complaint is
dismissed in its entirety. Plaintiffs have not requested leave to amend the Complaint in the event
that defendant’s motion was granted. To the extent plaintiffs wish to request such leave,
plaintiffs are directed to submit a pre-motion conference letter within thirty days of the date of
this Order. Should plaintiffs fail to submit a pre-motion conference letter within thirty days of
the date of this Order, their right to do so will be deemed waived, and the case will be marked
closed.

SO ORDERED.
Dated:

Central Islip, New York
November 21, 2011
/s/
Denis R. Hurley
United States District Judge

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