Ferreira v. Town of East Hampton et al
Filing
63
ORDER granting in part and denying in part 39 Motion for Summary Judgment; granting in part and denying in part 40 Motion for Summary Judgment; granting 46 Motion for Summary Judgment; granting 47 Motion for Summary Judgment. For the rea sons set forth herein, the Court grants in part and denies in part the defendants motions for summary judgment. Specifically, summary judgment is warranted on plaintiffs bill of attainder, substantive due process, and equal protection claims, but his procedural due process and Fourth Amendment claims survive summary judgment. However, these claims survive only against the Town because defendants Prince, Hammerle, Loewen, McGintee, and Mansir are entitled to absolute legislative immunity from lia bility on these claims, and defendants Narvilas, Jilnicki, Schirrippa, Glogg, and Grenci are entitled to qualified immunity. Accordingly, summary judgment is granted for defendants on all claims with the exception of the procedural due process and Fourth Amendment claims under Section 1983 against the Town. SO ORDERED.Ordered by Judge Joseph F. Bianco on 11/4/2014. (Moe, Alison)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 12-CV-2620 (JFB) (ARL)
_____________________
THOMAS FERREIRA,
Plaintiff,
VERSUS
TOWN OF EAST HAMPTON, DOMINIC SCHIRRIPPA, MADELEINE NARVILAS,
JOHN JILNICKI, KENNETH GLOGG, THOMAS GRENCI, WILLIAM MCGINTEE,
JULIA PRINCE, PETE HAMMERLE, BRAD LOEWEN, AND PAT MANSIR,
IN THEIR OFFICIAL CAPACITIES AND INDIVIDUALLY,
Defendants.
___________________
MEMORANDUM AND ORDER
November 4, 2014
___________________
Kenneth Glogg (“Glogg”), Thomas Grenci
(“Grenci”),
William
McGintee
(“McGintee”), Julia Prince (“Prince”), Pete
Hammerle (“Hammerle”), Brad Loewen
(“Loewen”), and Pat Mansir (“Mansir”), in
their official and individual capacities. He
asserts the following constitutional claims
pursuant to 42 U.S.C. § 1983: (1) the Town
resolutions were unconstitutional bills of
attainder; (2) he was deprived of his
property without due process of law; (3) he
was subjected to unreasonable searches and
seizures, in violation of the Fourth
Amendment; (4) the deprivation of his
property constituted a violation of his
substantive due process rights; and (5) he
was treated differently from others similarly
situated to himself, in violation of the Equal
JOSEPH F. BIANCO, District Judge:
On June 22 and September 14, 2009,
individuals acting at the direction of the
Town of East Hampton (the “Town”)
entered
plaintiff
Thomas
Ferreira’s
(“plaintiff” or “Ferreira”) property located at
63 Navy Road in Montauk, New York (the
“Property”) and removed many unregistered
and inoperative vehicles, tools, and other
items. The Town was acting pursuant to two
resolutions passed by the Town Board
directing the removal of “litter,” as that term
is defined by Chapter 167 of the Town
Code, from the Property.
In response to those events, plaintiff
brings this action against the Town and
individual defendants Dominic Schirrippa
(“Schirrippa”),
Madeleine
Narvilas
(“Narvilas”), John Jilnicki (“Jilnicki”),
1
Protection Clause
Amendment.1
of
the
Fourteenth
removals. However, the Court also
concludes that the reasonableness of the
removals depends in part upon whether they
were conducted in conformity with due
process—a disputed issue at this juncture.
Moreover, there are disputed issues of fact
as to whether plaintiff’s tools and other nonlitter were removed from the Property,
which goes to the reasonableness of the
manner in which the searches and seizures
were conducted. Accordingly, plaintiff’s
Fourth Amendment claim must also proceed
to trial. Fourth, the Court grants summary
judgment for all defendants as to plaintiff’s
substantive due process claim because it is
duplicative of his Fourth Amendment claim.
Fifth, the Court holds that the class-of-one
equal protection claim cannot survive
summary judgment. In brief, plaintiff has
failed to present evidence from which a
reasonable jury could find that he was
similarly situated to other properties that, he
claims, kept vehicles outdoors without the
Town’s interference.
All defendants have moved for summary
judgment pursuant to Federal Rule of Civil
Procedure 56. For the reasons that follow,
the motions are granted in part and denied in
part. First, the Court grants summary
judgment for all defendants as to plaintiff’s
bill of attainder claim because the Town
Board resolutions at issue, which authorized
the removal of litter, did not impose the
necessary “punishment” for the resolutions
to constitute bills of attainder. Authorizing
the removal of litter or the abatement of a
public nuisance is a legitimate, nonpunitive,
regulatory measure. Second, with respect to
plaintiff’s procedural due process claim, the
Court holds that the conceded absence of a
pre-deprivation hearing would constitute a
due process violation unless the defendants
could demonstrate the existence of an
emergency. In the instant case, construing
the evidence most favorably to plaintiff
(including the fact that defendants knew
about the conditions on the Property for
many years), there is sufficient evidence to
create a genuine issue of disputed fact as to
whether defendants, in the absence of an
emergency, abused their discretion by
conducting the removals before giving
plaintiff an opportunity to be heard.
Accordingly, the procedural due process
claim must proceed to trial. Third, the Court
rejects plaintiff’s contention that the Town
needed a warrant in order to execute the
In sum, plaintiff has established triable
issues of fact as to whether his procedural
due process and Fourth Amendment rights
were violated. With respect to the respective
defendants’ liability for those violations,
first, the Town may be held liable because
all relevant actions were authorized by the
Town Board and can thus be considered
municipal policy. Defendants Prince,
Hammerle, Loewen, McGintee, and Mansir
are, however, entitled to absolute legislative
immunity because their sole involvement in
this case stems from their votes as members
of the Town Board. Finally, the Court grants
Schirrippa, Narvilas, Jilnicki, Glogg, and
Grenci’s motion for summary judgment on
the basis of qualified immunity. None of the
rights plaintiff invokes are clearly
established law; in fact, plaintiff has pointed
to other court decisions under similar factual
circumstances, which seem to support the
legality of the defendants’ actions in this
1
In his memorandum in opposition and response to
the Town’s Rule 56.1 Statement of Facts, plaintiff
withdraws the following, additional claims raised in
the amended complaint: (1) a Fifth Amendment
takings claim (see Pl.’s Opp’n, at 24); (2) all Sixth
Amendment claims (see id.); and (3) a state-created
danger claim (see Pl.’s Response to Town’s 56.1
¶¶ 514–39). Accordingly, the Court dismisses these
claims pursuant to Federal Rule of Civil Procedure
41(a)(2).
2
case. Thus, the Court grants summary
judgment for Schirrippa, Narvilas, Jilnicki,
Glogg, and Grenci on qualified immunity
grounds. As a result of this Memorandum
and Order, only plaintiff’s procedural due
process and Fourth Amendment claims
against the Town survive summary
judgment.
The Property at issue sits on just under
one-quarter of an acre facing Fort Pond Bay
in Montauk. (SS 56.1 ¶¶ 2, 18; DSB 56.1
¶¶ 2–3. 3 ) It has been in plaintiff’s family
since 1948, and plaintiff began living there
permanently in 1995. (SS 56.1 ¶¶ 1, 21–36,
38–40, 55; DSB 56.1 ¶¶ 1, 4–8.) The
Property has been zoned “A Residential”
since 1982. (SS 56.1 ¶¶ 2, 54; DSB 56.1
¶ 14.) It contains a “pre-existing nonconforming repair garage as defined by the
East Hampton Town Code.” (SS 56.1 ¶ 67;
see id. ¶¶ 70–76; DSB 56.1 ¶¶ 15–16.) It
does not include a pre-existing, nonconforming recycling and scrap yard. (SS
56.1 ¶¶ 220–21.)
I. BACKGROUND
A. Facts
The following facts are taken from the
parties’ depositions, declarations, exhibits,
and respective Local Rule 56.1 statements of
facts. Upon consideration of a motion for
summary judgment, the Court construes the
facts in the light most favorable to the
nonmoving party. See, e.g., Capobianco v.
City of New York, 422 F.3d 47, 50 n.1 (2d
Cir. 2005). Unless otherwise noted, where a
party’s Rule 56.1 statement is cited, that fact
is undisputed, or the opposing party has not
pointed to any evidence in the record to
contradict it.2
Plaintiff, a self-employed automobile
mechanic, has operated his auto repair
business from the Property since 2001. (SS
56.1 ¶¶ 57–62; DSB 56.1 ¶¶ 18, 23.) He has
also operated a taxi business and a towing
business out of the Property. (SS 56.1 ¶ 91;
DSB 56.1 ¶¶ 11, 24–26.) Plaintiff received a
Town business permit to operate a “light”
repair garage on October 25, 2007, although
local court rules.”) (citations omitted); see also
Capellupo v. Nassau Health Care Corp., No. 06–
CV–4922 (JFB), 2009 WL 1705749, at *1 n. 3
(E.D.N.Y. June 16, 2009) (excusing defendant's
failure to include record citations in Rule 56.1
statement, where appropriate record citations were
included elsewhere in attorney's submissions); cf.
Williams v. R.H. Donnelley, Inc., 199 F.Supp.2d 172,
174 n. 1 (S.D.N.Y.2002) (excusing failure to submit
statement pursuant to Local Civil Rule 56.1 where
the facts were set forth in the party's memorandum of
law).
2
Although the parties’ respective Rule 56.1
statements of facts contain specific citations to the
record, the Court cites to the Rule 56.1 statement
instead of the underlying citation to the record where
possible. The Court notes that plaintiff’s counsel has
failed to comply with Local Rule 56.1 in that he has
not submitted a Rule 56.1 statement of fact that
includes “a correspondingly numbered paragraph
responding to each numbered paragraph in the
statement of the moving party”; instead, plaintiff’s
Rule 56.1 statement responds to only a portion of
defendants’ Rule 56.1 statements.
However,
plaintiff’s submissions make clear which evidence he
is citing to respond to defendants’ 56.1 statement.
Thus, plaintiff’s non-compliance with the local rule
has not prejudiced the defendants, and the Court, in
its discretion, overlooks plaintiff's failure to fully
comply with the local court rules. See Holtz v.
Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001)
(“A district court has broad discretion to determine
whether to overlook a party's failure to comply with
3
“SS 56.1” refers to the Rule 56.1 Statement
submitted by Sokoloff Stern LLP on behalf of the
Town, McGintee, Prince, Hammerle, and Loewen.
“DSB 56.1” refers to the Rule 56.1 Statement
submitted by Devitt Spellman Barrett, LLP on behalf
of Schirrippa, Grenci, Narvilas, Jilnicki, and Glogg.
Mansir “adopts all factual statements provided in the
Rule 56.1 Statement submitted by [Sokoloff Stern
LLP].” (Mansir 56.1 ¶ 1.)
3
56.1 ¶¶ 486, 492; DSB 56.1 ¶ 113.) The
Town Justice Court adjourned the case
numerous times—always at the request of
plaintiff’s counsel—in 2008 and 2009. (See
SS 56.1 ¶¶ 478–502; DSB 56.1 ¶¶ 109–15.)
that permit expired one year later, and he did
not renew the permit until January 23, 2009.
(SS 56.1 ¶¶ 77–79.) He first registered his
repair shop at the Property with the New
York State Department of Motor Vehicles
on April 22, 2009. (Id. ¶ 81.) Plaintiff has
never been licensed to operate a junk,
recycling, or scrap yard on the Property.
(DSB 56.1 ¶¶ 17, 42.)
In the meantime, the state of the
Property was being discussed regularly at
meetings of the Montauk Citizen Advisory
Committee and the Town Litter Committee.
(SS 56.1 ¶ 254; DSB ¶ 64.) On May 6, 2009,
thirty-nine Montauk residents signed a
petition asking the Town to clean up the
Property. (See Radi Decl. Ex. OOO.)
Over the years, plaintiff stored many
unregistered and inoperative vehicles, some
of which he was storing for customers, on
and near the Property. (See SS 56.1 ¶¶ 116–
217, 225–50.) As a result, numerous charges
of violating the Town Code and New York
State law were filed against him. In 2008
and 2009 alone, the Town issued twelve
informations charging plaintiff with
operating an unauthorized “recycling and
scrap yard.” (Id. ¶¶ 305–67; DSB 56.1
¶ 104.) Plaintiff concedes that he kept more
than three unregistered vehicles on the
Property—the definition of a “recycling and
scrap yard” under Town Code § 255-1-20—
on all relevant dates. (SS 56.1 ¶¶ 308–65;
DSB 56.1 ¶ 105.) During the same time
period, plaintiff was also charged multiple
times with erecting and operating a fortyfoot antenna without a permit or a certificate
of occupancy. (SS 56.1 ¶¶ 314–70; DSB
56.1 ¶ 106.) He pleaded guilty to these
charges. (Id.) Plaintiff was also charged
several times with violations of the New
York State Property Maintenance Code for
having more than two inoperative or
unregistered motor vehicles in a state of
disassembly or disrepair. (SS 56.1 ¶¶ 314–
70; DSB 56.1 ¶ 107.) Plaintiff admits to this.
(Id.)
The next day, Town Chief Fire Marshal
Michael Johnson (“Johnson”) asked
Assistant Chief Fire Marshal James Dunlop
(“Dunlop”) to inspect the Property. (SS 56.1
¶ 372.) Dunlop inspected the thirty-five by
thirty-five feet area “where [plaintiff]
repaired his cars” on May 15, 2009. (Dunlop
Dep. at 106.) He found only one violation of
the Fire Code: a fire extinguisher overdue
for service. (Id. at 179.) According to
Johnson, however, Dunlop reported no
violations, and Narvilas directed Johnson to
re-inspect the Property. (Johnson Aff. ¶¶ 4–
5.) Johnson did so himself on May 26, 2009.
(SS 56.1 ¶ 381.) During Johnson’s
inspection, he observed “numerous old,
rusted, dilapidated automobiles” and rusted
propane gas tanks on the Property. (Id.
¶¶ 382, 284.) He sent a memorandum
documenting his findings to Narvilas on
May 26, 2009. (Id. ¶ 386.) Johnson’s
memorandum included his opinion “that the
existing conditions at [the Property] [were]
not in compliance with various chapters of
the Code of the Town of East Hampton, and
various
sections
of
the
Property
Maintenance Code of New York State.”
(Radi Decl. Ex. 5E.)
Plaintiff contested many of these charges
in the Town Justice Court beginning in
2008. (SS 56.1 ¶ 478; see DSB 56.1 ¶¶ 109–
15.) Both plaintiff’s attorney, Austin
Manghan (“Manghan”), and Narvilas, a
lawyer for the Town, requested a trial. (SS
On June 1, 2009, Glogg, a Town Code
Enforcement Officer, issued a similar report
to the Town Board indicating that he had
4
construction debris, outboard motors, plastic
crates, household items and other litter.”
(Radi Decl. Ex. 5G.) She also advised
plaintiff that “upon your failure, neglect or
refusal to dispose properly of the litter
contained on your properties within ten (10)
days, the Town, its agent, or other
designated agent is authorized and
empowered to enter your property to dispose
of such litter.” (Id.) Plaintiff received the
letter the next day. (SS 56.1 ¶ 426.)
observed
“numerous
abandoned,
dilapidated, unregistered motor vehicles”
during his inspection of the Property in
February 2008, and “15 abandoned,
dilapidated, unregistered motor vehicles, a
travel trailer, two boats, tires, a propane tank
and other assorted car parts and debris”
during his inspection of the Property in
February 2009. (SS 56.1 ¶¶ 395–96; DSB
56.1 ¶¶ 124–25; Radi Decl. Ex. VV.) Glogg
recommended to the Town Board that the
Property “should be cleared immediately
pursuant to East Hampton Town Code
Section 167-12.” (Radi Decl. Ex. VV; see
SS 56.1 ¶ 403; DSB 56.1 ¶ 124.)
Two different letters were then sent to
plaintiff regarding Dunlop’s May 15
inspection. A letter dated June 16, 2009, and
signed by Dunlop memorialized Dunlop’s
finding regarding the fire extinguisher. (See
Radi Decl. Ex. 5B.) A second letter dated
June 17, 2009, and purportedly signed by
Dunlop stated that the inspection revealed
“No Violations of the State and Local
Code.” (Radi Decl. Ex. 5C.) The June 17
letter also contained the following sentence:
“Be advised that this inspection was based
on the Fire Code of New York State and not
the Property Maintenance Code which is
enforced by the Code Enforcement
Department.” (Id.) Johnson inserted this
sentence, at Narvilas’s instruction to “insert
qualifying language,” before giving the
letter to Dunlop to sign. (Johnson Aff.
¶¶ 10–11.) Dunlop testified that he did not
believe the signature on the June 17 letter
was his, although he accepted the possibility
that he had signed the letter without reading
it. (Dunlop Dep. at 167–68, 181, 186–87.)
In a letter dated May 20, 2009, and
mailed to plaintiff and Narvilas, the Town’s
Chief Building Inspector opined that “any
vehicle left on the property more than 60
days is not being repaired diligently and
would therefore be considered refuse
pursuant to Section 167 of the Town Code.”
(Radi Decl. Ex. 5F.) Plaintiff “is uncertain
as to provenance of a May 20, 2009
document in light of the alteration to the Fire
Marshal documents of June 17, 2009 and
suppression of earlier Dunlop letter” (Pl.’s
Response to SS 56.1 ¶ 393), which the Court
discusses infra.
On June 10, 2009, Narvilas informed
plaintiff via registered mail that “the East
Hampton Town Board has decided, pursuant
to Town Code Section 167-12, to effect the
clearing of any items on your property
which have been deemed by the Town to be
dangerous to the public health, safety or
welfare.” (Radi Decl. Ex. 5G; see SS 56.1
¶ 425; DSB 56.1 ¶¶ 136–37.) In fact, as
noted infra, the Town Board had not yet
taken any action concerning the Property.
Narvilas’s letter referenced “seventeen
inoperable, unlicensed, unregistered and
abandoned cars, a wooden carport with
rotting boards, inoperable boats, tires,
engines, a large metal shed overflowing with
Johnson wrote a second memorandum to
Narvilas on June 18, 2009, recommending
that the Town clear the Property pursuant to
Town Code § 167-12 because of the danger
posed by “numerous flammable and
combustible liquids from the abandoned
vehicles on the property.” (SS 56.1 ¶¶ 419–
20.) Johnson’s memorandum also suggested
that “no positive inferences regarding the
above situation should be drawn from the
5
stored them at Lindy’s Taxi in Montauk. (Id.
¶ 434; DSB 56.1 ¶ 154.)
June 17, 2009 report” purportedly signed by
Dunlop because Dunlop’s inspection
concerned only the Property’s “repair area.”
(Id. ¶¶ 423–24; see Radi Decl. Ex. 5H.)
On June 22, 2009, several private
companies entered the Property and
removed numerous unregistered vehicles
and other debris. (SS 56.1 ¶¶ 435, 440.)
Grenci, a sergeant in the Town Police
Department, was at the scene and told
plaintiff, “If you interfere, I will place you
under arrest.” (DSB 56.1 ¶ 169.) Among the
vehicles seized were approximately five
unregistered taxis (id. ¶¶ 187–99; see
Ferreira Dep. at 330), between two and four
vehicles that plaintiff was storing for
customers (DSB 56.1 ¶ 213; see Ferreira
Dep. at 345–47), an unregistered Ford
flatbed tow truck to which plaintiff held
legal title (DSB 56.1 ¶¶ 225–26; see Ferreira
Dep. at 218–19, 258–59), and an
unregistered blue tow truck (DSB 56.1
¶ 241; see Ferreira Dep. at 689–90). Plaintiff
claims that the vehicles were stacked on top
of each other and “crushed” in front of him.
(SS 56.1 ¶ 436; DSB 56.1 ¶ 177.) He also
testified that the Town removed an operable
forklift that he had used for repairing cars,
twenty to thirty tires that were stored outside
in a pile, two-way radios, barbeques, hoses,
rakes, hand tools, and ladders. (Ferreira Dep.
at 397, 694–95.) At least nine vehicles, the
trailer, and boats were not removed on that
day. (SS 56.1 ¶¶ 441–42.)
At a meeting of the Town Board that
was open to the public on June 18, 2009, the
Town Board unanimously passed a
resolution finding that the condition of the
Property violated Chapter 167 of the Town
Code, and that plaintiff had been given
notice of this violation by Narvilas’s June 10
letter. (SS 56.1 ¶ 427; DSB 56.1 ¶¶ 138–
140; Radi Decl. Ex. 5J.) The resolution
authorized the Town to clear the Property of
litter in the event that plaintiff failed to do so
himself within ten days of receiving
Narvilas’s letter. (Radi Decl. Ex. 5J.)
After receiving Narvilas’s letter,
plaintiff’s lawyer, Manghan, sought to
enjoin the Town from proceeding with the
scheduled removal. (SS 56.1 ¶¶ 430–33;
DSB 56.1 ¶ 146.) Manghan informed
Narvilas that he intended to file an order to
show cause in the Supreme Court of the
State of New York on June 17—the
Wednesday before the scheduled removal
date of Monday, June 22. (DSB 56.1 ¶ 149.)
Narvilas asked Manghan to wait to file the
order to show cause so that she could attend
her daughter’s pre-school graduation. (Id.)
Manghan thus waited until Friday, June 19,
to go to court. (Id. ¶ 150; SS 56.1 ¶¶ 430–
33.) When he arrived in court with his
papers on June 19, however, a court clerk
informed him that his paperwork was
deficient. (SS 56.1 ¶¶ 431–32; DSB 56.1
¶ 152.) Narvilas and Jilnicki, the Town
Attorney, denied Manghan’s request to put
off the removal for one additional day so
that he could correct the paperwork. (DSB
¶ 153.)
After the June 22 removal, on July 13,
2009, Schirrippa, the Director of Code
Enforcement, wrote a memorandum to the
Town Board indicating that plaintiff “began
storing additional unregistered motor
vehicles on his property” the day after the
June 22 removal. (SS 56.1 ¶ 455; DSB 56.1
¶ 132; Radi Decl. Ex. 5S.) Schirrippa issued
a second memorandum to the Town on
August 14, 2009, indicating that plaintiff
had brought back the two vehicles stored at
Lindy’s Taxi, and that as of July 13, 2009,
he had “accumulated six (6) unregistered
Sometime before June 22, plaintiff
removed two vehicles from the Property and
6
The second removal took place on
September 14, 2009. (SS 56.1 ¶ 467; DSB
56.1 ¶ 178.) On that day, private companies
removed four to five unregistered vehicles,
two unregistered boat trailers, and an
inflatable raft. (SS 56.1 ¶ 467; DSB 56.1
¶¶ 281–83.) Plaintiff also testified that six
serviceable engines were taken from his
garage, and that power tools, hand tools, and
newly purchased car parts had been inside
one of the removed vehicles. (Ferreira Dep.
at 724.) Four or five vehicles, two boats, and
the trailer were not removed. (SS 56.1
¶¶ 469–71; see Ferreira Dep. at 733.)
motor vehicles and trailers” on the Property.
(SS 56.1 ¶ 457; DSB 56.1 ¶ 132; Radi Decl.
Ex. 5U.) Plaintiff denies that he brought
back the two vehicles from Lindy’s before
the second removal. (Ferreira Dep. at 482–
83.)
Plaintiff’s case in the Town Justice
Court remained pending at this time. On
August 17, 2009, the Town Justice Court
scheduled a pre-trial conference for
September 21, 2009, and set a trial date of
October 27, 2009. (SS 56.1 ¶¶ 499–500;
DSB 56.1 ¶ 115.)
At a meeting of the Town Board that
was open to the public on August 20, 2009,
the Town Board unanimously passed a
second resolution finding that the condition
of the Property violated Chapter 167 of the
Town Code. (SS 56.1 ¶ 459; DSB ¶ 157–58;
Radi Decl. Ex. 5W.) The resolution gave
plaintiff ten days from the date of
notification to clear the Property of all litter
in violation of Town Code 167-12, and it
authorized the Town “to remove the litter
and to otherwise bring the property into
conformance with the standards of Chapter
167 after the expiration of the 10 day
notification.” (Radi Decl. Ex. 5W.) By letter
dated August 21, 2009, and sent to plaintiff
via registered mail, Jilnicki informed
plaintiff of the Town Board’s resolution and
advised him “to dispose properly of the
litter” on the Property within ten days. (SS
56.1 ¶ 462; DSB 56.1 ¶¶ 160–61; Radi Decl.
Ex. 5X.) The Town Clerk also sent plaintiff
a letter dated August 21, 2009, notifying
him that the Town had passed the August
20, 2009 resolution. (SS 56.1 ¶ 466.)
Plaintiff testified that he did not receive
Jilnicki’s August 21 letter until months later,
although he acknowledged that the letter had
been sent to the correct post office box. (See
Ferreira Dep. at 725, 743.)
On October 14, 2009, plaintiff pleaded
guilty to some of the charges against him,
including a violation of Town Code § 16710, in the Town Justice Court. (SS 56.1
¶ 502; DSB 56.1 ¶ 117.)
Each removal cost $9,850, and those
costs were added to plaintiff’s Town
property tax bill. (SS 56.1 ¶ 473; Radi Decl.
Ex. 6A.) Plaintiff did not pay (Ferreira Dep.
at 739), and the Town Board voted to put a
tax lien on the Property (id. at 781–82).
Mansir, a member of the Town Board, voted
against the resolution to put a lien on the
Property, although she had voted in favor of
the resolutions of June 18 and August 20,
2009. (DSB 56.1 ¶ 298.) When plaintiff
spoke to Mansir sometime after the two
removals, she told him that she would not
have voted for those resolutions had she
known that plaintiff’s repair garage was a
pre-existing non-conforming use and that he
had licenses from the Town and the State to
operate a repair garage. (Id. ¶ 299.)
According to plaintiff, Mansir said that she
had been deceived. (Id.)
Plaintiff filed an Article 78 proceeding
in the Supreme Court of the State of New
York, County of Suffolk, claiming that the
June 22 and September 14 removals were
arbitrary and capricious and violated his
7
right to due process. (SS 56.1 ¶ 511.)
Plaintiff voluntarily withdrew his claims
with prejudice on March 27, 2012. (Id.
¶ 512.)
admissions, interrogatory answers, or other
materials; or (B) showing that the materials
cited do not establish the absence or
presence of a genuine dispute, or that an
adverse party cannot produce admissible
evidence to support the fact.” Fed. R. Civ. P.
56(c)(1). The court “‘is not to weigh the
evidence but is instead required to view the
evidence in the light most favorable to the
party opposing summary judgment, to draw
all reasonable inferences in favor of that
party,
and
to
eschew
credibility
assessments.’” Amnesty Am. v. Town of W.
Hartford, 361 F.3d 113, 122 (2d Cir. 2004)
(quoting Weyant v. Okst, 101 F.3d 845, 854
(2d Cir. 1996)); see Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)
(summary judgment is unwarranted if “the
evidence is such that a reasonable jury could
return a verdict for the nonmoving party”).
B. Procedural History
Plaintiff commenced this action on May
23, 2012. He filed an amended complaint on
August 10, 2012. Following discovery by
the parties, all defendants filed motions for
summary judgment on April 18, 21, and 22,
2014. Plaintiff served his opposition to the
motions on June 18, 2014,4 and defendants
filed their replies on July 21, 2014. The
Court heard oral argument on October 6,
2014. This matter is fully submitted, and the
Court has fully considered all submissions
of the parties.
II. STANDARD OF REVIEW
Once the moving party has met its
burden, the opposing party “‘must do more
than simply show that there is some
metaphysical doubt as to the material
facts . . . . [T]he nonmoving party must
come forward with specific facts showing
that there is a genuine issue for trial.’”
Caldarola v. Calabrese, 298 F.3d 156, 160
(2d Cir. 2002) (alteration and emphasis in
original) (quoting Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574,
586–87 (1986)). As the Supreme Court
stated in Anderson, “[i]f the evidence is
merely colorable, or is not significantly
probative, summary judgment may be
granted.” 477 U.S. at 249–50 (citations
omitted). Indeed, “the mere existence of
some alleged factual dispute between the
parties alone will not defeat an otherwise
properly supported motion for summary
judgment.” Id. at 247–48 (emphasis in
original). Thus, the nonmoving party may
not rest upon mere conclusory allegations or
denials but must set forth “‘concrete
particulars’” showing that a trial is needed.
R.G. Grp., Inc. v. Horn & Hardart Co., 751
The standard for summary judgment is
well settled. Pursuant to Federal Rule of
Civil Procedure 56(a), a court may grant a
motion for summary judgment only if “the
movant shows that there is no genuine
dispute as to any material fact and the
movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a); Gonzalez v. City
of Schenectady, 728 F.3d 149, 154 (2d Cir.
2013). The moving party bears the burden of
showing that he is entitled to summary
judgment. See Huminski v. Corsones, 396
F.3d 53, 69 (2d Cir. 2005). “A party
asserting that a fact cannot be or is
genuinely disputed must support the
assertion by: (A) citing to particular parts of
materials in the record, including
depositions,
documents,
electronically
stored
information,
affidavits
or
declarations, stipulations (including those
made for purposes of the motion only),
4
Plaintiff did not file his opposition on ECF until
July 18, 2014.
8
1. Legal Standard
F.2d 69, 77 (2d Cir. 1984) (quoting SEC v.
Research Automation Corp., 585 F.2d 31, 33
(2d Cir. 1978)). Accordingly, it is
insufficient for a party opposing summary
judgment “‘merely to assert a conclusion
without supplying supporting arguments or
facts.’” BellSouth Telecomms., Inc. v. W.R.
Grace & Co., 77 F.3d 603, 615 (2d Cir.
1996) (quoting Research Automation Corp.,
585 F.2d at 33).
Article I, Section 10, Clause 1 of the
United States Constitution states, in relevant
part, “No State shall . . . pass any Bill of
Attainder . . . .” U.S. Const. art. I, § 10, cl. 1.
“A bill of attainder is a legislative act which
inflicts punishment without a judicial trial.”
United States v. Lovett, 328 U.S. 303, 315
(1946) (quoting Cummings v. Missouri, 71
U.S. 277, 323 (1866)). The Supreme Court
has articulated three elements of a bill of
attainder: (1) “specification of the affected
persons,” (2) “punishment,” and (3) “lack of
a judicial trial.” Selective Serv. Sys. v. Minn.
Pub. Interest Research Grp., 468 U.S. 841,
846–47 (1984).
III. DISCUSSION
Plaintiff alleges constitutional claims
under 42 U.S.C. § 1983. “Section 1983 itself
creates no substantive rights; it provides
only a procedure for redress for the
deprivation of rights established elsewhere.”
Sykes v. James, 13 F.3d 515, 519 (2d Cir.
1993). To state a claim under Section 1983,
a plaintiff must allege (1) the deprivation of
any rights, privileges, or immunities secured
by the Constitution and its laws, (2) by a
person acting under the color of state law.
42 U.S.C. § 1983.
“With respect to the existence vel non of
punishment,” the Second Circuit has
identified the following three factors to
consider:
(1) whether the challenged statute
falls within the historical meaning of
legislative punishment (historical test
of punishment); (2) whether the
statute, “viewed in terms of the type
of severity of burdens imposed,
reasonably can be said to further
nonpunitive legislative purposes”
(functional test of punishment); (3)
whether the legislative record
“evinces a [legislative] intent to
punish” (motivational test of
punishment).
The Court first considers the substance
of each of plaintiff’s constitutional claims
under Section 1983. The Court then
considers, as to each of the defendants in the
case, whether there is a basis for liability for
any of the alleged constitutional violations
as to that particular defendant.
A. Bill of Attainder
Plaintiff contends first that the two
resolutions passed by the Town Board on
June 18 and August 20, 2009 were unlawful
bills of attainder. For the following reasons,
this Court disagrees as a matter of law and
grants summary judgment to all defendants
on this claim.
ACORN v. United States, 618 F.3d 125, 136
(2d Cir. 2010) (quoting Selective Serv. Sys.,
468 U.S. at 853). These three factors “are
the evidence that is weighed together in
resolving the bill of attainder claim.’” Id.
(quoting Con Edison Co. of N.Y., Inc. v.
Pataki, 292 F.3d 338, 350 (2d Cir. 2002)).
Moreover, “[h]owever expansive the
prohibition against bills of attainder, it
surely was not intended to serve as a variant
9
Importantly, the confiscation of property is
not necessarily the punitive confiscation of
property. See, e.g., Kadi v. Geithner, No.
CIV.A. 09-0108 JDB, --- F. Supp. 2d ----,
2012 WL 898778, at *35 (D.D.C. Mar. 19,
2012) (distinguishing “punitive confiscation
of property” from blocking of property to
further legitimate purpose of preventing
terrorist activities). Indeed, recognizing the
legitimate goal of abating public nuisances,
at least two courts have held explicitly that
the legislatively authorized abatement of a
nuisance does not amount to an
unconstitutional bill of attainder. See, e.g.,
Moore v. Commonwealth, 168 S.W.2d 342,
342–44 (Ky. 1943) (citing cases); People v.
Casa Co., 169 P. 454, 457 (Cal. Ct. App.
1917). Accordingly, because the resolutions
at issue directed only the removal of litter,
they did not authorize the punitive
confiscation of property and cannot be said
to have imposed a historical form of
punishment for these purposes.
of the equal protection doctrine, invalidating
every Act of Congress or the States that
legislatively burdens some persons or
groups but not all other plausible
individuals.” Nixon v. Adm’r of Gen. Servs.,
433 U.S. 425, 471 (1977). “Forbidden
legislative punishment is not involved
merely
because
the
Act
imposes
burdensome consequences . . . .” Id. at 472–
73.
2. Application
It is undisputed that the Town Board
resolutions at issue specifically named
plaintiff, and that the removals they directed
occurred in the absence of a judicial trial.
Whether the resolutions amounted to
unconstitutional bills of attainder thus
hinges upon whether the removals that they
authorized amounted to “punishment” as
that term has been defined in this context.
“The infamous history of bills of
attainder is a useful starting point in the
inquiry whether [an act] fairly can be
characterized as a form of punishment
leveled against [the plaintiff].” Nixon, 433
U.S. at 473. Examples of historical forms of
punishment include death, imprisonment,
banishment, “the punitive confiscation of
property by the sovereign,” and legislative
enactment barring designated individuals or
groups from participation in certain
employment. Id. at 473–74. The Town
Board resolutions did not impose such
historical form of punishment on plaintiff.
Importantly, even though plaintiff claims
that the defendants confiscated valuable
property in the two removals, the resolutions
themselves authorized the removal of
“litter.” Legislative authorization to remove
litter or any other public nuisance furthers a
legitimate
public
purpose
and
is
fundamentally different from the punitive
confiscation of property that historically
marked a bill of pains and penalties.
Moreover, the Court concludes as a
matter of law that the resolutions imposed
no “grave imbalance or disproportion
between the burden and the purported
nonpunitive purpose,” which would suggest
that they meet the functional test of
punishment. See ACORN, 618 F.3d at 138.
Again, the Court emphasizes that the
abatement of a public nuisance and the
removal of litter are legitimate activities of a
municipality. Cf. Parker v. King, No. 07CV-624-WKW, 2008 WL 901087, at *14
(M.D. Ala. Mar. 31, 2008) (“The
notification provisions of the Act are
codified in the State’s ‘Health, Safety, and
Housing Code,’ § 18, confirming our
conclusion that the statute was intended as a
nonpunitive regulatory measure.”). The
resolutions simply required plaintiff to
remove litter from his Property. Moreover,
as defendants point out correctly, the
resolutions at issue afforded plaintiff the
opportunity to avoid the removals by
10
Amendment.6 As set forth below, construing
the evidence most favorably to plaintiff, the
disputed factual issues in the record preclude
summary judgment on the issue of whether
plaintiff’s due process rights were violated.
removing the “litter,” as the Town Code
defines that term. A burden that could have
been alleviated by the plaintiff himself does
not qualify as punishment under the
functional test of punishment. See, e,g.,
Osuna v. Gov’t Emps. Ins. Co., No. 11-CV3631 (JFB)(AKT), 2012 WL 2888326, at *5
(E.D.N.Y. July 16, 2012).
1. Legal Standard
To assert a violation of procedural due
process rights, a plaintiff must “first identify
a property right, second show that the state
has deprived him of that right, and third
show that the deprivation was effected
without due process.” Local 342, Long
Island Pub. Serv. Emps., UMD, ILA, AFL–
CIO v. Town Bd. of Huntington, 31 F.3d
1191, 1194 (2d Cir. 1994) (citation omitted).
Notice and an opportunity to be heard are
the hallmarks of due process. See, e.g.,
Mullane v. Cent. Hanover Bank & Trust
Co., 339 U.S. 306, 314 (1950) (“An
elementary and fundamental requirement of
due process in any proceeding which is to be
accorded finality is notice reasonably
calculated, under all the circumstances, to
apprise interested parties of the pendency of
the action and afford them an opportunity to
present their objections.”); Brody v. Vill. of
Port Chester, 434 F.3d 121, 131 (2d Cir.
2005) (holding that “if reasonable notice and
opportunity for a hearing are given, due
process will be satisfied”).
Finally, given the record in this case
(even construed most favorably to plaintiff),
there is an insufficient basis to rationally
find that the legislative record evinces an
intent to punish. Plaintiff has simply failed
to come forward with evidence reflecting
“overwhelmingly a clear legislative intent to
punish.” ACORN, 618 F.3d at 141.5 Absent
such evidence, there is no factual basis to
rationally find that the Town Board intended
to punish plaintiff.
In sum, applying the three ACORN
factors, the Court concludes there is no
evidence to support a rational finding that
the Town Board resolutions of June 18 and
August 20, 2009 imposed “punishment” on
plaintiff, as the term punishment has been
narrowly defined in the bill of attainder
context. Accordingly, the Court holds, as a
matter of law, that the Town Board
resolutions are not unlawful bills of
attainder, and grants summary judgment to
all defendants on this claim.
Ordinarily, “‘the Constitution requires
some kind of a hearing before the State
deprives a person of liberty or property.’”
New Windsor Volunteer Ambulance Corps,
Inc. v. Meyers, 442 F.3d 101, 115 (2d Cir.
B. Procedural Due Process
Next, plaintiff maintains that defendants
deprived him of his property without due
process of law, in violation of the Fourteenth
6
Plaintiff also invokes the Fifth Amendment;
however, the Fifth Amendment guarantees due
process by federal actors, and none of the defendants
in the instant case are federal actors. Accordingly,
plaintiff’s due process claim is dismissed to the
extent it relies on the Fifth Amendment. See, e.g.,
Soundview Assocs. v. Town of Riverhead, 725 F.
Supp. 2d 320, 333 (E.D.N.Y. 2010) (citing cases).
5
Although plaintiff asserts one Board member
claimed to have received less than full information
before the vote, and said she had been deceived, that
evidence alone (even if credited) is insufficient to
allow a rational finding that there was a clear
legislative intent to punish.
11
conditions existed on his property. (DSB
Mem., at 9. 7 ) In essence, those defendants
would bar a plaintiff from alleging a
procedural injury any time he later concedes
the correctness of the decision to deprive
him of his property. The Second Circuit
expressly rejected this argument in Brody v.
Village of Port Chester, holding that “[i]n a
procedural due process challenge, the
question before the court is whether the
process affording the plaintiff an
opportunity to participate in governmental
decision-making before being deprived of
his liberty or property was adequate, not
whether the government’s decision to
deprive the plaintiff of such liberty or
property was ultimately correct.” 345 F.3d
103, 112 (2d Cir. 2003). Even if the
government’s decision was ultimately
correct, nominal damages remain available
to a plaintiff who establishes a violation of
his procedural due process rights. Id. at 113;
see also Four K. Grp., Inc. v. NYCTL 2008A Trust, No. 12-CV-2135 (JG), 2013 WL
1562227, at *10 (E.D.N.Y. Apr. 15, 2013).
2006) (quoting Zinermon v. Burch, 494 U.S.
113, 127 (1990)) (emphasis in original); see
also WWBITV, Inc. v. Vill. of Rouses Point,
589 F.3d 46, 50 (2d Cir. 2009) (“Due
process requires that before state actors
deprive a person of her property, they offer
her a meaningful opportunity to be heard.”).
However, “‘due process is flexible and calls
for such procedural protections as the
particular situation demands.’” Brody, 434
F.3d at 134 (quoting Morrissey v. Brewer,
408 U.S. 471, 481 (1972)). The familiar
three-factor test set forth in Mathews v.
Eldridge, 424 U.S. 319 (1976)—balancing
the private interest, risk of erroneous
deprivation, and public interest—“provides
guidance in determining whether to tolerate
an exception to the rule requiring predeprivation notice and hearing.” Nnebe v.
Daus, 644 F.3d 147, 158 (2d Cir. 2011)
(internal quotation marks and citations
omitted). For instance, “[w]hen the state
conduct in question is random and
unauthorized, the state satisfies procedural
due process requirements so long as it
provides
meaningful
post-deprivation
remedy.” Rivera-Powell v. N.Y.C. Bd. of
Elections, 470 F.3d 458, 465 (2d Cir. 2006).
Additionally, “in emergency situations a
state may satisfy the requirements of
procedural due process merely by making
available ‘some meaningful means by which
to assess the propriety of the State’s action
at some time after the initial taking.’”
WWBITV, 589 F.3d at 50 (quoting Parratt v.
Taylor, 451 U.S. 527, 539 (1981), overruled
on other grounds by Daniels v. Williams,
474 U.S. 327 (1986)).
Next, the Town and several individual
defendants contend that plaintiff was not
deprived of any property rights because he
has not shown that he owned the items
seized in the two removals. (SS Mem., at 4.)
To the contrary, plaintiff testified that he
owned at least some of the vehicles seized
during the first removal, such as the Ford
flatbed tow truck. (See Ferreira Dep. at 217–
18.) Plaintiff also testified that two-way
radios, barbeques, hoses, rakes, hand tools,
and ladders that he owned were taken as part
2. Application
7
“DSB Mem.” and “DSB Reply” refer to the
memorandum of law and reply memorandum of law
submitted by Devitt Spellman Barrett, LLP on behalf
of Schirrippa, Grenci, Narvilas, Jilnicki, and Glogg.
“SS Mem.” and “SS Reply” refer to the
memorandum of law and reply memorandum of law
submitted by Sokoloff Stern LLP on behalf of the
Town, McGintee, Prince, Hammerle, and Loewen.
As an initial matter, several individual
defendants maintain that plaintiff has no
standing to challenge the process he
received before the removals because he
pleaded guilty to violating Town Code
§ 167-12, thereby admitting that nuisance
12
would enter his property and do it for him.
Thus, the City gave Rudge notice of the
action it intended to take. More importantly,
the October 2009 notice gave Rudge an
opportunity to appeal that decision. The City
thus gave Rudge an opportunity to be heard.
Therefore, by the time the City filed its
complaint for an ex parte injunction, it had
already granted Rudge adequate notice and
opportunity to be heard.” (emphasis added)).
Such a holding would run afoul of the
general rule requiring a pre-deprivation
hearing.8
of the removals. (See id. at 397, 694–95). At
the very least, there is a disputed issue of
fact as to which seized property plaintiff
owned, and summary judgment for
defendants is not warranted on this basis.
Finally, defendants argue that the
procedures afforded to plaintiff satisfied due
process. In particular, pursuant to Town
Code § 167-12, Town officials gave plaintiff
ten days’ notice before conducting both
removals. It is uncontroverted that the Town
did not provide for any pre-deprivation
hearing, but defendants rely on Castanza v.
Town of Brookhaven to argue that a predeprivation hearing is unnecessary in the
context of nuisance abatement. See 700 F.
Supp. 2d 277, 290 (E.D.N.Y. 2010)
(concluding that removal of debris from
plaintiff’s property before providing plaintiff
with opportunity to be heard did not violate
due process).
The existence of an emergency may,
however, excuse the need to provide a predeprivation hearing. See, e.g., Catanzaro v.
Weiden, 188 F.3d 56, 63–64 (2d Cir. 1999)
(holding that pre-deprivation hearing was
unnecessary before demolition of damaged
building that public official reasonably
believed to be an “immediate danger” to the
public). Indeed, the emergency justification
for withholding a pre-deprivation hearing
has applied to nuisance abatement actions.
See, e.g., Wyss v. City of Hoquiam, 111 F.
App’x 449, 450 (9th Cir. 2004) (“When
immediate action is necessary to protect the
public interest, such as when an unsafe
nuisance is present, a hearing is not
necessary prior to the exercise of police
power as long as adequate post-deprivation
procedural safeguards exist.”); Trobough v.
City of Martinsburg, 120 F.3d 262, 1997
As noted supra, where a plaintiff alleges
a deprivation pursuant to an established state
procedure, as is the case here, the state must
ordinarily provide a pre-deprivation hearing.
Contrary to defendants’ argument and the
Castanza decision, this Court does not
conclude that there is anything inherently
different about nuisance abatement that
would automatically excuse the state from
affording a pre-deprivation hearing in all
cases. See, e.g., Kness v. City of Kenosha,
Wis., 669 F. Supp. 1484, 1494 (E.D. Wis.
1987) (“Section 7.126 of the Code of
General Ordinances, even in conjunction
with Chapter 68, Wis. Stats., does not
provide any opportunity for a hearing prior
to the towing of nuisance vehicles from
private property. Therefore, the ordinance
violates due process.”); cf. Rudge v. City of
Stuart, 489 F. App’x 387, 389 (11th Cir.
2012) (per curiam) (“The City’s October
2009 notice to abate the nuisance warned
Rudge that he had ten days to remedy
violations of specific ordinances, or the City
8
At oral argument, counsel for defendants also relied
upon Livant v. Clifton, 334 F. Supp. 2d 321
(E.D.N.Y. 2004), for the proposition that no predeprivation procedure was necessary in this case.
Livant, which addressed only the adequacy of notice,
see id. at 325–26, is inapposite here. Moreover, the
Court notes that, on appeal, the Second Circuit held
that the plaintiff had actually alleged “a constitutional
violation of his procedural due process right to
receive adequate notice.” See Livant v. Clifton, 272 F.
App’x 113, 116 (2d Cir. 2008) (summary order). The
Court discusses Livant further in connection with
plaintiff’s Fourth Amendment claim.
13
district court addressing a summary
judgment motion.” WWBITV, 589 F.3d at
51.
WL 425688, at *3 (4th Cir. 1997) (Table)
(“In situations where a government must act
to protect its citizens from a nuisance, the
availability of a prompt hearing, subsequent
to the action satisfies the demands of due
process.”); Brancato v. City of New York,
244 F. Supp. 2d 239, 246 (S.D.N.Y. 2003)
(“The existence of a public nuisance is a
grave enough concern that the state need not
necessarily, in all instances, provide a predeprivation notice and hearing before
abating the nuisance itself and assessing the
costs against the property involved.” (citing
Lawton v. Steele, 152 U.S. 133, 136
(1894))). However, an emergency situation
is an exception to the general rule requiring
a pre-deprivation hearing. See, e.g.,
WWBITV, 589 F.3d at 50 (“Where there is
an emergency requiring quick action and
where meaningful pre-deprivation process
would be impractical, the government is
relieved of its usual obligation to provide a
hearing, as long as there is an adequate
procedure in place to assess the propriety of
the deprivation afterwards.” (emphasis
added)).
Synthesizing the authority cited supra,
this Court concludes that the existence of a
public nuisance may excuse the failure to
hold a pre-deprivation hearing if there was
competent evidence allowing an official to
believe reasonably that an emergency did in
fact exist, and the official did not abuse her
discretion in invoking an emergency. Absent
such evidence, however, the failure to afford
a pre-deprivation hearing would constitute a
violation of the constitutional right to
procedural due process in this case. See
Burtnieks v. City of New York, 716 F.2d 982,
987–89 (2d Cir. 1983).
In the instant case, there is a disputed
issue of fact as to whether the defendants
acted arbitrarily in deciding that the
conditions on the Property posed an
immediate danger to the public. Importantly,
it is uncontroverted that the Town and its
officials knew about the conditions on the
Property for years before taking action in the
summer of 2009. The existence of a
significant delay between recognition of a
supposed emergency and the act to remedy
that condition could, inter alia, support a
reasonable finding that the Town officials
acted arbitrarily in declaring the conditions
on the Property to be an immediate danger
to the public. For instance, in Burtnieks, the
Second Circuit held that a three-month delay
between the declaration of an emergency
and the demolition of the offending building
created a genuine issue as to whether an
emergency had existed. 716 F.2d at 988.
Accordingly, the Second Circuit reversed
the district court’s grant of summary
judgment on the plaintiff’s procedural due
process claim. See id. at 989. More recently,
in WWBITV, the Second Circuit reaffirmed
that the delay between declaring an
emergency and remedying that condition
Of course, the mere invocation of an
emergency does not excuse the state from
affording a pre-deprivation hearing to one of
its citizens. Nonetheless, the Second Circuit
gives government officials some degree of
deference in declaring an emergency. In
Catanzaro, the Second Circuit explained
that “where there is competent evidence
allowing the official to reasonably believe
that an emergency does in fact exist, or that
affording predeprivation process would be
otherwise impractical, the discretionary
invocation of an emergency procedure
results in a constitutional violation only
where such invocation is arbitrary or
amounts to an abuse of discretion.” Id. at 63.
“Whether the official abused his discretion
or acted arbitrarily in concluding that a
genuine emergency exists is a factual issue,
subject to the usual considerations for a
14
creates a genuine “dispute concerning the
town officials’ reasonable belief that there
was a need to take emergency action.” 589
F.3d at 51–52 (distinguishing Burtnieks
from Catanzaro on grounds that Burtnieks
involved three month delay before
demolition whereas Catanzaro concerned a
situation with no delay between recognition
of the emergency and demolition). Based
upon the evidence in the record in this case,
there are genuine issues of disputed fact that
preclude summary judgment as to whether
plaintiff was deprived of his property
without due process of law. 9 The Court
examines the defendants’ respective liability
for this alleged constitutional violation
infra.10
there are genuine issues of disputed fact that
preclude summary judgment on the Fourth
Amendment claim under Section 1983.
1. Legal Standard
The Fourth Amendment of the United
States Constitution provides in full:
The right of the people to be secure
in their persons, houses, papers, and
effects,
against
unreasonable
searches and seizures, shall not be
violated, and no Warrants shall issue,
but upon probable cause, supported
by Oath or affirmation, and
particularly describing the place to
be searched, and the persons or
things to be seized.
C. Fourth Amendment
U.S. Const. amend. IV.
Plaintiff also maintains that the
defendants violated his right to be free from
unreasonable searches and seizures in
entering the Property without a warrant and
removing his personal property. For the
reasons that follow, the Court concludes that
“As the text makes clear, ‘the ultimate
touchstone of the Fourth Amendment is
‘reasonableness.’’” Riley v. California, 573
U.S. ---, 134 S. Ct. 2473, 2482 (2014)
(quoting Brigham City v. Stuart, 547 U.S.
398, 403 (2006)); see also Soldal v. Cook
Cnty., Ill., 506 U.S. 56, 71 (1992)
(reaffirming that “reasonableness is still the
ultimate standard under the Fourth
Amendment” (internal citation and quotation
marks omitted)). “Absent more precise
guidance from the founding era, [the
Supreme Court] generally determine[s]
whether to exempt a given type of search
from the warrant requirement ‘by assessing,
on the one hand, the degree to which it
intrudes upon an individual’s privacy and,
on the other, the degree to which it is needed
for
the
promotion
of
legitimate
governmental interests.’” Riley, 134 S. Ct. at
2484 (quoting Wyoming v. Houghton, 526
U.S. 295, 300 (1999)).
9
Plaintiff also appears to advance a procedural due
process claim based upon Narvilas’s request to
plaintiff’s attorney to delay the filing of an order to
show cause just before the first removal. However,
there is no evidence that Narvilas’s request was
disingenuous, and even if it were, plaintiff’s attorney
consented to it. Thus, this claim is meritless.
Similarly, whether or not the Town Board meetings
violated the New York Open Meetings Law, as
plaintiff claims they did, would not support a separate
procedural due process claim. See Lilly v. LewistonPorter Cent. Sch. Dist., 853 F. Supp. 2d 346, 360
(W.D.N.Y. 2011).
10
At oral argument, counsel for the Town suggested
that the Town had afforded plaintiff pre-deprivation
process in the Town Justice Court. The Court
disagrees. Critically, as noted supra, the Town
initiated the two removals before plaintiff’s
scheduled trial date in the Town Justice Court. In
other words, the Town proceeded with the removals
before plaintiff had his day in the Town Justice
Court. These circumstances support, rather than
undermine, plaintiff’s procedural due process claim.
The law is unclear as to whether a
warrant is required to enter private property
15
to the public. These deviations from
the typical police search are thus
clearly within the protection of the
Fourth Amendment.
in order to abate a public nuisance.
Nonetheless, as an initial matter, it is well
settled that government actors are not
exempt from the warrant requirement
merely because they are looking for
violations of a fire or housing code instead
of the fruits or instrumentalities of a crime.
In Camara v. Municipal Court of City and
County of San Francisco, the Supreme
Court recognized that the administrative
search of an apartment by a city inspector
for possible violations of the city housing
code constituted a “significant intrusion[]
upon the interests protected by the Fourth
Amendment,” and thus held “that such
searches when authorized and conducted
without a warrant procedure lack the
traditional safeguards which the Fourth
Amendment guarantees to the individual.”
387 U.S. 523, 534 (1967). In so holding,
Camara overruled Frank v. Maryland, 359
U.S. 360 (1959), which had upheld the
warrantless inspection of private property to
locate and abate a suspected public
nuisance. See Camara, 387 U.S. at 528–29
(describing Frank and overruling that
decision “to the extent that it sanctioned
such warrantless searches”).
Id. at 504–05 (internal citations omitted).
Building on this statement in Tyler, the
Ninth Circuit has concluded that “[e]ntry to
abate a known nuisance falls within the
warrant requirement of the fourth
amendment.” Conner v. City of Santa Ana,
897 F.2d 1487, 1490 (9th Cir. 1990). There,
the Ninth Circuit confronted a situation
similar to the instant case: the Santa Ana
City Council determined that automobiles
on the plaintiffs’ property constituted a
public nuisance and, without a warrant and
without plaintiffs’ permission, removed
those automobiles from the plaintiffs’
property. See id. at 1489. The Ninth Circuit
held that Tyler required a warrant in those
circumstances, determining that Tyler could
not be distinguished “on the ground that it
endorses a warrant requirement only for
abatement of suspected nuisances.” Id. at
1490 (emphasis added). This decision
prompted a strong dissent, which noted that
no case, federal or state, directly supports
the proposition that a judicial warrant is
required whenever government actors enter
private property to abate an established
nuisance. See id. at 1496 (Trott, J.,
dissenting).
In Michigan v. Tyler, the Supreme Court
reaffirmed the principle that “the Fourth
Amendment
extends
beyond
the
paradigmatic entry into a private dwelling
by a law enforcement officer in search of the
fruits or instrumentalities of crime.” See 436
U.S. 499, 504 (1978). In Tyler, the Court
further explained, in relevant part:
All other federal Courts of Appeals to
have considered the issue have held that
government actors need not obtain a warrant
before abating an established public
nuisance. For instance, the Fifth Circuit has
held that “[a] warrant is unnecessary when a
municipality seizes property that has been
declared a nuisance by means of established
police power procedures.” Freeman v. City
of Dallas, 242 F.3d 642, 644–45 (5th Cir.
2001) (en banc). In reaching this conclusion,
the Fifth Circuit distinguished Camara and
The officials may be health, fire, or
building inspectors. Their purpose
may be to locate and abate a
suspected public nuisance, or simply
to perform a routine periodic
inspection. The privacy that is
invaded may be sheltered by the
walls of a warehouse or other
commercial establishment not open
16
municipality need not necessarily obtain a
warrant to enter private property in order to
abate a public nuisance. In particular, this
Court finds persuasive the decisions of the
Fifth, Sixth, Eighth, and Tenth Circuits, and
rejects the Ninth Circuit’s rigid insistence on
a warrant in all cases of nuisance abatement.
Supreme Court precedent does not compel
the use of a warrant to abate a nuisance, and
the Court cannot conclude that a warrant
would be required in these circumstances
given the state’s well-established ability to
abate a public nuisance by summary
proceeding. See Lawton, 152 U.S. at 136.
Tyler, which addressed searches “to gather
evidence of regulatory noncompliance,”
from the seizure of property already
determined to be a nuisance pursuant to
procedures that satisfy due process. See id.
at 650–52. The Sixth, Eighth, and Tenth
Circuits have likewise rejected the Ninth
Circuit’s warrant requirement to abate a
public nuisance. See Santana v. City of
Tulsa, 359 F.3d 1241, 1245 (10th Cir.
2004); Embassy Realty Invs., Inc. v. City of
Cleveland, --- F. App’x ----, No. 13-4300,
2014 WL 3376900, at *5 (6th Cir. July 10,
2014); Samuels v. Meriwether, 94 F.3d
1163, 1168 (8th Cir. 1996).
Although the Court concludes that a
warrant is not required to abate a public
nuisance, the seizure of property considered
to be a public nuisance, as well as the entry
onto private property to accomplish that
seizure, must still be reasonable to comply
with the Fourth Amendment. See, e.g.,
Soldal, 506 U.S. at 71. For this reason, to the
extent the district court decisions in
Castanza and Livant hold that the summary
abatement of a nuisance can never violate
the Fourth Amendment, this Court
disagrees. Instead, the Court finds
persuasive the decisions of the Fifth, Sixth,
Eighth, and Tenth Circuits in balancing the
governmental and private interests involved
in the seizure of nuisance property. In
striking this balance, the Fifth Circuit has
recognized that “[r]egulation of nuisance
properties is at the heart of the municipal
police power,” and that a municipality’s
adherence to standards comporting with due
process “suggests the Fourth Amendment
reasonableness” of the abatement. Freeman,
242 F.3d at 652–53. The Tenth Circuit has
reached a similar conclusion, holding that
“as long as procedural due process standards
are met and no municipal actions are shown,
a nuisance abatement action does not violate
the Fourth Amendment.” Santana v. City of
Tulsa, 359 F.3d 1241, 1245 (10th Cir.
2004). The Sixth and Eighth Circuits have
The Second Circuit has not clearly
weighed in on this issue. However, in
holding that government actors enjoyed
qualified immunity for conducting a
warrantless abatement of a public nuisance,
the Second Circuit has held that Tyler did
not clearly establish a warrant requirement
to abate a nuisance. See Livant, 272 F.
App’x at 115 n.1. Livant thus provides at
least some indication that the Second Circuit
disagrees with the Ninth Circuit’s more
expansive reading of Tyler. In addition,
several district court decisions in this Circuit
have held that a warrant is not required for a
municipality to abate a nuisance. See
Castanza, 700 F. Supp. 2d at 288 (holding
that Town did not need warrant to enter
property and abate nuisance); Livant, 334 F.
Supp. 2d at 324–25 (holding that
municipality may summarily abate a
nuisance, and that Town’s resolution to
abate nuisance was “a constitutionally
adequate substitute for a judicial warrant”);
Brancato, 244 F. Supp. 2d at 246 (noting
that state police power includes ability to
abate whatever may be regarded as public
nuisance by summary proceedings (citing
Lawton, 152 U.S. at 136)).
After considering all sources discussed
supra, this Court concludes that a
17
Finally, disputes over other material
facts preclude this Court from holding as a
matter of law that the search and seizure of
plaintiff’s property complied with the Fourth
Amendment. In particular, as discussed
supra, there is a dispute as to whether the
Town’s agents destroyed plaintiff’s property
or merely confiscated it. Moreover, plaintiff
testified that the Town’s agents removed
items that were clearly not “litter” or a
public nuisance, such as his tools. Thus,
there is a genuine dispute as to material facts
bearing on whether the searches and seizures
were effectuated in an unreasonable manner,
in violation of the Fourth Amendment. See,
e.g., Lauro v. Charles, 219 F.3d 202, 211
(2d Cir. 2000) (noting that “the
reasonableness requirement of the Fourth
Amendment applies not only to prevent
searches and seizures that would be
unreasonable if conducted at all, but also to
ensure reasonableness in the manner and
scope of searches and seizures that are
carried out” (internal citation, quotation
marks, and brackets omitted)). In other
words, if plaintiff’s evidence is credited and
all reasonable inferences are drawn in his
favor, a rational jury could find that
plaintiff’s Fourth Amendment right to be
free from unreasonable searches and
seizures was violated during the two
removals. Accordingly, summary judgment
on the Fourth Amendment claim is
unwarranted.
held similarly, as well. See Embassy Realty
Invs., Inc. v. City of Cleveland, 572 F. App’x
339, 345 (6th Cir. 2014) (“Barnes had been
afforded adequate due process relating to the
condemnation proceedings and, therefore,
the warrantless entrance on the Property to
remediate the established nuisance was
reasonable under the Fourth Amendment.”);
Samuels v. Meriwether, 94 F.3d 1163, 1168
(8th Cir. 1996) (holding that “an abatement
carried out in accordance with procedural
due process is reasonable in the absence of
any factors that outweigh governmental
interests”).
2. Application
At the outset, for the reasons discussed
supra with respect to plaintiff’s procedural
due process claim, the Court rejects the
defendants’ argument that plaintiff lacks
standing to bring a Fourth Amendment
claim because he did not own the items
seized during the two removals.
Moreover, there is a genuine issue of
fact in this case as to whether the Town and
its agents afforded plaintiff due process. See
supra. At this juncture, because the Court
cannot conclude as a matter of law that
defendants accomplished a nuisance
abatement in conformity with due process,
the Court also cannot conclude as a matter
of law that the search and seizure of
plaintiff’s property was reasonable. In other
words, if a jury found that Town officials
abused their discretion by taking plaintiff’s
private property without holding a predeprivation hearing in a non-emergency
situation, those facts could also support a
reasonable conclusion that the Town and its
agents acted unreasonably within the
meaning of the Fourth Amendment. See
Freeman, 242 F.3d at 652–53; Santana, 359
F.3d at 1245; Embassy Realty Invs., 572 F.
App’x at 345; Samuels, 94 F.3d at 1168.
D. Substantive Due Process
Plaintiff also argues that defendants
infringed upon his substantive due process
rights by removing his property, including
his repair tools, during the two removals.
(See Pl.’s Opp’n, at 19–21.) Because this
claim is covered by the Fourth Amendment,
the Court grants summary judgment to all
defendants as to plaintiff’s separate
substantive due process claim. See, e.g.,
Tenenbaum v. Williams, 193 F.3d 581, 600
18
curiam) (“Our cases have recognized
successful equal protection claims brought
by a ‘class of one,’ where the plaintiff
alleges that she has been intentionally
treated differently from others similarly
situated and that there is no rational basis for
the difference in treatment.” (citations
omitted)). In Prestopnik v. Whelan, the
Second Circuit explained the difference
between class-of-one equal protection
claims and more traditional equal protection
claims:
(2d Cir. 1999) (“Substantive due process
analysis is therefore inappropriate in this
case if the claim is covered by the Fourth
Amendment. As discussed below, Sarah’s
removal and her examination constituted a
seizure and search, respectively, under the
Fourth Amendment and the Tenenbaums
have standing to assert a Fourth
Amendment-based claim against the
defendants on Sarah’s behalf. Their claim on
Sarah’s behalf therefore must be analyzed
under the standard appropriate to the Fourth
Amendment, not under the rubric of
substantive due process. We affirm the
dismissal of the substantive due-process
claim brought on Sarah’s behalf on this
ground.” (internal brackets, citations, and
quotation marks omitted)); see also Pabon v.
Wright, 459 F.3d 241, 252–53 (2d Cir.
2006) (“If a particular Amendment provides
an explicit textual source of constitutional
protection against a particular sort of
government behavior, that Amendment, not
the more generalized notion of substantive
due process, must be the guide for analyzing
these claims.” (internal citations and
quotation marks omitted)).
The Equal Protection Clause requires
that the government treat all
similarly situated people alike. While
this clause is most commonly used to
bring claims alleging discrimination
based on membership in a protected
class, it may also be used to bring a
“class of one” equal protection
claim. In a “class of one” case, the
plaintiff uses the existence of
persons in similar circumstances who
received more favorable treatment
than the plaintiff to provide an
inference that the plaintiff was
intentionally singled out for reasons
that so lack any reasonable nexus
with a legitimate governmental
policy that an improper purpose—
whether personal or otherwise—is all
but certain.
E. Equal Protection
Finally, plaintiff asserts a class-of-one
equal protection claim. As set forth below,
even construing the evidence most favorably
to plaintiff, no rational jury could find an
equal protection violation in this case, and
the Court grants summary judgment for all
defendants on this claim.
249 F. App’x 210, 212–13 (2d Cir. 2007)
(summary order) (internal alterations,
citations, and quotation marks omitted). In
particular, as the Court sets forth below, in
order to prevail on a class of one claim, a
plaintiff must demonstrate that (1) he was
treated differently from a similarly situated
individual, and (2) the differential treatment
was arbitrary and irrational.
1. Legal Standard
The Equal Protection Clause of the
Fourteenth Amendment requires the
government to treat all similarly situated
individuals alike. City of Cleburne v.
Cleburne Living Ctr., Inc., 473 U.S. 432,
439 (1985); see also Vill. Of Willowbrook v.
Olech, 528 U.S. 562, 564 (2000) (per
First, in order to succeed on a class-ofone claim, a plaintiffs must demonstrate that
he was “treated differently than someone
19
claim when plaintiffs’ comparators were not
similar to plaintiffs, “let alone so similar that
no rational person could see them as
different”); Neilson, 409 F.3d at 106
(holding that, despite a jury’s verdict in
plaintiff’s favor, no rational jury could have
concluded that plaintiff and the comparators
were similar enough to support a class-ofone claim); Everitt v. DeMarco, 704 F.
Supp. 2d 122, 135 (D. Conn. 2010)
(granting defendants’ motion for summary
judgment where plaintiff admitted that she
was unaware of any other similarly situated
individuals).
who is prima facie identical in all relevant
respects.” Neilson v. D’Angelis, 409 F.3d
100, 104 (2d Cir. 2005) (internal citation
and quotation marks omitted), overruled on
other grounds by Appel v. Spiridon, 531
F.3d 138 (2d Cir. 2008). “This requires a
showing that the level of similarity between
the plaintiff and the person(s) with whom
she compares herself is ‘extremely high’—
so high (1) that ‘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 (2) that ‘the similarity in
circumstances and difference in treatment
are sufficient to exclude the possibility that
the defendant acted on the basis of a
mistake.’” Prestopnik, 249 F. App’x at 213
(quoting Neilson, 409 F.3d at 104–05).
“This showing is more stringent than that
used at the summary judgment stage in the
employment discrimination context . . .
because the existence of persons in similar
circumstances who received more favorable
treatment than the plaintiff in a class-of-one
case is offered to provide an inference that
the plaintiff was intentionally singled out for
reasons that so lack any reasonable nexus
with a legitimate governmental policy that
an improper purpose—whether personal or
otherwise—is all but certain.” Clubside, Inc.
v. Valentin, 468 F.3d 144, 159 (2d Cir.
2006) (internal citation and quotation marks
omitted).
Second, a plaintiff must prove that he
has been “intentionally treated differently
from others similarly situated and that there
is no rational basis for the difference in
treatment.” Analytical Diagnostic Labs, Inc.
v. Kusel, 626 F.3d 135, 140 (2d Cir. 2010)
(quoting Olech, 528 U.S. at 564) (internal
quotation marks omitted). It is not sufficient
that the act itself be intentional; instead, a
plaintiff must demonstrate that “the
decisionmakers were aware that there were
other similarly-situated individuals who
were treated differently.” Id. at 143; see also
Morningside Supermarket Corp. v. N.Y.
State Dep’t of Health, 432 F. Supp. 2d 334,
341 (S.D.N.Y. 2006) (“A plaintiff must . . .
establish . . . that the irrational disparate
treatment was intentional, that is, that the
defendants ‘knew’ they were treating the
plaintiff differently from everyone else.”
(quoting Giordano v. City of New York, 274
F.3d 740, 751 (2d Cir. 2001))).
Although the determination of whether
parties are similarly situated is generally a
“fact-intensive inquiry,” “[a] court may
grant summary judgment in a defendant’s
favor on the basis of lack of similarity of
situation . . . where no reasonable jury could
find that the persons to whom the plaintiff
compares itself are similarly situated.” Id.;
see also Ruston v. Town Bd. for Town of
Skaneateles, 610 F.3d 55, 59–60 (2d Cir.
2010) (affirming dismissal of class-of-one
Courts, including the Second Circuit,
have repeatedly cautioned about the danger
of ordinary disputes between a citizen and a
municipality—whether it be about land use,
licenses, inspections, or some other
regulatory or investigative function of local
governments—being
transformed
into
federal lawsuits by an incorrect, overexpansive theory of class-of-one liability.
20
he seeks. . . . Were the law otherwise, the
federal court would be transmogrified into a
super-charged version of a local zoning
board—a zoning board on steroids, as it
were.”); McDonald v. Vill. of Winnetka, 371
F.3d 992, 1009 (7th Cir. 2004) (“Even if
[plaintiff] was wronged here, we do not
believe that he has shown the wrong to be
discriminatory in nature. Every time an actor
commits a tort, he may be treating the victim
differently than he frequently treats others,
simply because tortious conduct is by nature
a departure from some norm. Nonetheless,
the purpose of entertaining a ‘class on one’
equal protection claim is not to criminalize
all tort law nor to transform every claim for
improper provision of municipal services or
for improper conduct of an investigation in
connection with them into a federal case.”
(citations omitted)).
See Bizzarro v. Miranda, 394 F.3d 82, 88–
89 (2d Cir. 2005) (“Olech does not empower
federal courts to review government actions
for correctness. Rather, an Olech-type equal
protection claim focuses on whether the
official’s conduct was rationally related to
the accomplishment of the work of their
agency.”); see also Geinosky v. City of
Chicago, 675 F.3d 743, 747 (7th Cir. 2012)
(“Courts have understood that if class-ofone claims are not defined appropriately,
they might turn many ordinary and
inevitable mistakes by government officials
into constitutional violations and federal
lawsuits.”); Kan. Penn Gaming, LLC v.
Collins, 656 F.3d 1210, 1216–17 (10th Cir.
2011) (“We have approached class-of-one
claims with caution, wary of turning even
quotidian exercises of government discretion
into constitutional causes. . . . These
concerns are magnified with challenges to
low-level government decision-making,
which often involves a great deal of
discretion. The latitude afforded police
officers, . . . zoning officials, and other
similar government actors necessarily results
in a sizeable amount of random variation in
outcome. If even innocuous inconsistencies
gave rise to equal protection litigation,
government action would be paralyzed.”
(internal citations and quotation marks
omitted)); Rectrix Aerodrome Ctrs., Inc. v.
Barnstable Mun. Airport Comm’n, 610 F.3d
8, 16 (1st Cir. 2010) (“Drawing distinctions
is what legislators and regulators do every
day: without this comparability sieve, every
routine governmental decision at the state
and local level—of which there are millions
every year—could become a class-of-one
case in federal court.”); Cordi-Allen v.
Conlon, 494 F.3d 245, 252 (1st Cir. 2007)
(“The burden that a class of one plaintiff
must carry at the summary judgment stage is
considerably heavier than a mere showing
that others have applied, with more
auspicious results, for the same benefit that
2. Application
Plaintiff’s amended complaint alleged
that his Property was similarly situated to
other registered auto repair shops operating
in the Town, but that none of those shops
were subject to the actions taken against
plaintiff. (See Am. Compl. ¶ 259.) He also
claimed that he was treated differently from
similarly situated individuals facing criminal
charges for violations of the Town Code.
(See id. ¶ 261.) In his opposition papers,
plaintiff has identified the following,
specific properties, which he claims were
similarly situated to his own: the Town
Police’s impound yard; Uihlein Boat Yard;
and T&B Auto, an auto repair shop in
Amagansett. (See Pl.’s Opp’n, at 21–22; see
also Horn Aff.) Essentially, plaintiff asserts
that vehicles are stored outside on these
properties for long periods of time without
interference by the Town. (See Pl.’s Opp’n,
at 21–22.)
Even construing the evidence most
favorably to plaintiff, no rational trier of fact
21
that they cannot be held liable for those
alleged violations, if the jury were to find
such violations occurred. The Court
considers these arguments below.
could conclude on this record that the
properties cited by plaintiff were identical in
all relevant respects to the Property. The
only evidence offered by plaintiff are
pictures purporting to show that the Town
tacitly condones the presence of vehicles
outdoors on these properties for long periods
of time. As defendants point out, however,
there are several crucial differences between
those properties and plaintiff’s. First, T&B
Auto operates a repair shop in the
“Neighborhood Business” zone of the Town,
which allows the use of repair shops.
(Preiato Supp. Aff. ¶ 3.) Uihlein Boat Yard
performs boat repair and storage in the
“Waterfront” commercial district, which
permits such use. (Id. ¶ 4.) The Town
Police’s impound yard falls within the
“Commercial Industrial” zone, which
permits the use of storage garages and
recycling/scrap yards. (Id. ¶ 5.) Crucially,
there is no evidence that T&B Auto, Uihlein
Boat Yard, or the Town Police’s impound
yard have ever been in violation of the Town
Code or New York State law. By contrast,
plaintiff has conceded that the condition of
his Property over the years has been in
repeated violation of the Town Code and
New York State law. Thus, even construing
the evidence most favorably to plaintiff, no
rational jury could find that plaintiff has
provided sufficient evidence of similarly
situated individuals in order to establish a
class-of-one equal protection claim. See,
e.g., Clubside, 468 F.3d at 159 (noting
stringent standard of similarity necessary to
establish class-of-one equal protection
claim).
1. Municipal Liability
First, as noted supra, plaintiff has sued
the Town itself. A municipal entity may be
held liable under Section 1983 only where
the plaintiff demonstrates that the
constitutional violation complained of was
caused by a municipal policy or custom.
Monell v. Dep’t of Soc. Servs. of City of New
York, 436 U.S. 658, 691 (1978) (“Congress
did not intend municipalities to be held
liable unless action pursuant to official
municipal policy of some nature caused a
constitutional tort.”). In other words, a
municipality can be held liable only if the
municipality itself commits a wrong; “a
municipality cannot be held liable under
§ 1983 on a respondeat superior theory.” Id.;
see, e.g., Segal v. City of New York, 459
F.3d 207, 219 (2d Cir. 2006). “The policy or
custom need not be memorialized in a
specific rule or regulation.” Kern v. City of
Rochester, 93 F.3d 38, 44 (2d Cir. 1996)
(citing Sorlucco v. N.Y.C. Police Dep’t, 971
F.2d 864, 870 (2d Cir. 1992)). Instead,
constitutional violations by government
officials that are “persistent and widespread”
can be “so permanent and well settled as to
constitute a custom or usage with the force
of law, and thereby generate municipal
liability.” Sorlucco, 971 F.2d at 870–71
(citing Monell, 436 U.S. at 691) (internal
quotation marks omitted). In addition, a
municipal policy or custom may be inferred
where “‘the municipality so failed to train its
employees as to display a deliberate
indifference to the constitutional rights of
those within its jurisdiction.’” Patterson v.
Cnty. of Oneida, N.Y., 375 F.3d 206, 226 (2d
Cir. 2004) (quoting Kern, 93 F.3d at 44).
F. Liability of Specific Defendants
Although the Court concludes that a
reasonable jury could find violations of
plaintiff’s procedural due process and
Fourth Amendment rights, there are a
number of arguments that have been
asserted by particular defendants as to why
22
In the instant case, the Town argues that
it is entitled to summary judgment because
there is no evidence of a Town policy or
custom
that
caused
the
asserted
constitutional
violations.
The
Court
disagrees. The actions about which plaintiff
complains were taken pursuant to
resolutions passed by the Town Board acting
in accordance with the Town Code. The
direct involvement of the Town Board in
these actions suffices to establish a
municipal policy giving rise to liability
under Monell if plaintiff can establish that
the actions were unconstitutional. See, e.g.,
New Creation Fellowship of Buffalo v. Town
of Cheektowaga, N.Y., No. 99-CV-460A(F),
2004 WL 1498190, at *62 (W.D.N.Y. July
2, 2004) (“Town boards and town
supervisors are considered municipal policy
makers for purposes of imposing § 1983
liability against a town.”), aff’d, 164 F.
App’x 5 (2d Cir. 2005); see also Wiltzius v.
Town of New Milford, 453 F. Supp. 2d 421,
436 (D. Conn. 2006) (noting that “official
policy may be established by legislative
enactments or by municipal boards to whom
government officials have delegated the
requisite authority” (citing Pembaur v. City
of Cincinnati, 475 U.S. 469, 483 (1986)).
Thus, the Court denies the Town’s motion
for summary judgment on this basis.
against the governmental entity itself”);
Davis v. Stratton, 360 F. App’x 182, 183 (2d
Cir. 2010) (“The suit against the mayor and
police chief in their official capacities is
essentially a suit against the City of
Schenectady, because in a suit against a
public entity, naming officials of the public
entity in their official capacities adds
nothing to the suit.” (internal citations and
quotation marks omitted)). Accordingly,
where a plaintiff brings claims against both
a municipality and individuals in their
official capacities as agents of that
municipality, “‘courts have routinely
dismissed corresponding claims against
individuals named in their official capacity
as redundant and an inefficient use of
judicial resources.’” Castanza, 700 F. Supp.
2d at 284 (quoting Escobar v. City of New
York, No. 05-CV-3030-ENV-CLP, 2007
WL 1827414, at *3 (E.D.N.Y. June 25,
2007)).
2. Official Capacity
3. Legislative Immunity
Second, plaintiff brings claims against
the individual defendants in their official
capacities as agents of the Town.
“‘[O]fficial-capacity
suits
generally
represent only another way of pleading an
action against an entity of which an officer
is an agent.’” Castanza v. Town of
Brookhaven, 700 F. Supp. 2d 277, 283–84
(E.D.N.Y. 2010) (quoting Monell, 436 U.S.
at 690 n.55); see also Jackler v. Byrne, 658
F.3d 225, 244 (2d Cir. 2011) (noting that “a
claim asserted against a government official
in his official capacity is essentially a claim
Third, defendants Prince, Hammerle,
Loewen, and Mansir—members of the
Town Board during the relevant time span—
and McGintee—the Town supervisor who
voted for the resolutions—move for
summary judgment on the basis of
legislative immunity. “Legislators are
entitled to absolute immunity from civil
liability for their legislative activities.”
Harhay v. Town of Ellington Bd. of Educ.,
323 F.3d 206, 210 (2d Cir. 2003). In Bogan
v. Scott-Harris, the Supreme Court extended
legislative immunity to local legislators sued
In the instant case, the individual
defendants have moved for summary
judgment as to all claims against them in
their official capacities. Because the Town is
named as a defendant in the instant case, the
Court grants summary judgment as to all
claims for the individual defendants in their
official capacities.
23
Shmueli v. City of New York, 424 F.3d 231,
236 (2d Cir. 2005). “In determining whether
absolute immunity obtains, [the Second
Circuit] appl[ies] a ‘functional approach,’
looking to the function being performed
rather than to the office or identity of the
defendant.” Hill v. City of New York, 45
F.3d 653, 660 (2d Cir. 1995) (quoting
Buckley v. Fitzsimmons, 509 U.S. 259, 269
(1993)). “Prosecutorial immunity from
§ 1983 liability is broadly defined, covering
‘virtually all acts, regardless of motivation,
associated with [the prosecutor’s] function
as an advocate.’” Id. at 661 (quoting Dory v.
Ryan, 25 F.3d 81, 83 (2d Cir. 1994)). For
example, the Second Circuit has held that
absolute immunity extends to a prosecutor’s
“‘knowing use of perjured testimony’ and
the ‘deliberate withholding of exculpatory
information,’” even where the prosecutor
knowingly prosecutes an innocent person.
Shmueli, 424 F.3d at 237–38 (quoting
Imbler, 424 U.S. at 431 n.34). Relevant for
purposes of the instant case, the “[i]nitiation
of a nuisance abatement proceeding is a
quasi-prosecutorial function” that is
protected by absolute immunity. Sherwyn
Toppin Mktg. Consultants, Inc. v. Gluck, No.
11-CV-3951 (MKB), 2012 WL 4364490, at
*4–5 (E.D.N.Y. Sept. 25, 2012) (citing
Pinter v. City of New York, 710 F. Supp. 2d
408, 419–20 (S.D.N.Y. 2010), rev’d on
other grounds, 448 F. App’x 99 (2d. Cir.
2011)); accord Cooper v. Parrish, 203 F.3d
937 (6th Cir. 2000) (holding that absolute
immunity protects prosecutor for initiating
civil public nuisance action).
under § 1983. See 523 U.S. 44, 49 (1998)
(“[W]e now hold that local legislators
are likewise absolutely immune from suit
under § 1983 for their legislative
activities.”). “Whether an act is legislative
turns on the nature of the act, rather than on
the motive or intent of the official
performing it.” Id. at 54.
Here, the Court concludes as a matter of
law that Prince, Hammerle, Loewen,
McGintee, and Mansir are entitled to
summary judgment on this basis. Voting for
the June 18 and August 20, 2009 resolutions
constituted their only involvement in the
asserted procedural due process and Fourth
Amendment violations. Because their acts of
voting for a resolution directing the removal
of litter were clearly legislative in nature,
they are entitled to legislative immunity
from liability for plaintiff’s claims. Thus, the
Court grants summary judgment for Prince,
Hammerle, Loewen, McGintee, and Mansir
as to plaintiff’s procedural due process and
Fourth Amendment claims.
4. Prosecutorial Immunity
Defendants
Narvilas,
Jilnicki,
Schirrippa, and Glogg assert absolute
prosecutorial
immunity.
The
Court
concludes that they are not entitled to
prosecutorial immunity for plaintiff’s
remaining procedural due process and
Fourth Amendment claims.
It is well settled that individuals enjoy
absolute immunity from liability in suits
seeking monetary damages for acts carried
out in their prosecutorial capacities, i.e.,
those acts “intimately associated with the
judicial phase of the criminal process,” but
not for “those aspects of the prosecutor’s
responsibility that cast him in the role of an
administrator or investigative officer rather
than that of advocate.” Imbler v. Pachtman,
424 U.S. 409, 430–31 (1976); see, e.g.,
Plaintiff argues that absolute immunity
does not shield Narvilas, Jilnicki, Schirrippa,
and Glogg from liability here. In the instant
case, plaintiff complains that the defendants,
including Narvilas, Jilnicki, Schirrippa, and
Glogg, acted outside the judicial process to
orchestrate the removal of his property. In
other words, unlike those cases granting
absolute immunity to individuals for
24
initiating judicial proceedings for nuisance
abatement, plaintiff’s procedural due
process and Fourth Amendment claims do
not concern the judicial proceedings against
him in the Town Justice Court. In contrast,
the defendants contend that they are entitled
to absolute immunity even for actions taken
outside judicial proceedings because they
were exercising their power to enforce the
Town Code. (See DSB Reply, at 3.)
However, the Court need not decide this
issue because (as discussed below), even if
absolutely immunity did not apply, qualified
immunity clearly bars the claims against the
initial defendants.
in light of the specific context of the case,
not as a broad general proposition; and it too
serves to advance understanding of the law
and to allow officers to avoid the burden of
trial if qualified immunity is applicable.”
Saucier v. Katz, 533 U.S. 194, 201 (2001).
Therefore, “the right the official is alleged to
have violated must have been ‘clearly
established’ in a more particularized, and
hence more relevant sense: The contours of
the right must be sufficiently clear that a
reasonable official would understand that
what he is doing violates that right.”
Saucier, 533 U.S. at 202 (quoting Anderson
v. Creighton, 483 U.S. 635, 640 (1987)).
5. Qualified Immunity
Under this standard, Narvilas, Jilnicki,
Schirrippa, Glogg, and Grenci are entitled to
qualified immunity on plaintiff’s procedural
due process claim. Although this Court has
held that plaintiff was entitled to a predeprivation hearing absent an emergency
situation, the law is unsettled as to whether a
pre-deprivation hearing is ever necessary
before abating a public nuisance. 11 First,
Narvilas, Jilnicki, Schirrippa, Glogg, and
Grenci could have justifiably relied upon the
Town Code itself, which requires ten days’
notice but no pre-deprivation hearing before
removing litter from an individual’s
property. Moreover, the Castanza decision
held that a town’s failure to a conduct a
hearing before removing litter from the
plaintiff’s property “did not deprive Plaintiff
of due process of law.” 700 F. Supp. 2d at
290. Castanza, a decision from this judicial
district, relied upon 4M Holding Co. v. Town
Board of Town of Islip, a New York
Appellate Division decision that held that a
Finally, Narvilas, Jilnicki, Schirrippa,
Glogg, and Grenci assert the defense of
qualified immunity. It is well established
that government actors are immune from
suit for civil damages if their “conduct did
not violate plaintiff’s clearly established
rights, or if it would have been objectively
reasonable for the official to believe that his
conduct did not violate plaintiff’s rights.”
Mandell v. Cnty. of Suffolk, 316 F.3d 368,
385 (2d Cir. 2003). “A right is clearly
established if the law (1) was ‘defined with
reasonable clarity,’ (2) has been affirmed by
‘the Supreme Court or the Second Circuit[,]’
and (3) where the conduct at issue would
have been understood by a reasonable
defendant to be unlawful under the existing
law.” Looney v. Black, 702 F.3d 701, 706
(2d Cir. 2012) (quoting Young v. Cnty. of
Fulton, 160 F.3d 899, 903 (2d Cir. 1998));
see also Ashcroft v. al-Kidd, 563 U.S. ----,
131 S. Ct. 2074, 2083 (2011) (“We do not
require a case directly on point, but existing
precedent must have placed the statutory or
constitutional question beyond debate.”).
Thus, the question is not whether a right is
clearly established as a general proposition;
rather, the Supreme Court has emphasized
that “[t]his inquiry . . . must be undertaken
11
Given that the Court concludes that, even accepting
the plaintiff’s version of the facts, the due process
right was not clearly established in the context of this
case, the factual disputes regarding whether or not the
right was violated do not preclude summary
judgment as to the individual defendants. The same is
true for the Fourth Amendment claim.
25
Cir.1996) (“The law of ‘attempt’ is complex
and fraught with intricacies and doctrinal
divergences. Qualified immunity protects
prison officials from liability for their
objectively reasonable efforts to divine
whether a course of conduct amounts to an
‘attempt,’ even should their answer be
arguably wrong.”).
town board’s “failure to notify the petitioner
or to conduct an adversarial hearing prior to
the adoption of the resolution” authorizing
the town to enter the petitioner’s property
and remove debris did not violate procedural
due process. 586 N.Y.S.2d 286, 287 (N.Y.
App. Div. 1992), aff’d, 81 N.Y.2d 1053
(1993). In light of this conflicting authority,
the Court concludes that the due process
rights that Narvilas, Jilnicki, Schirrippa,
Glogg, and Grenci are alleged to have
violated – in connection with the removals
of plaintiff’s property without affording
plaintiff a pre-deprivation hearing – were
not clearly established at the time of their
actions.
In short, given the lack of clarity in the
courts on whether a pre-deprivation hearing
is ever necessary before abatement of a
public nuisance, qualified immunity as to
the individual defendants on the procedural
due process claim is warranted. Based upon
language in the above-referenced cases,
although the right to be free from a violation
of due process was clearly established as a
general proposition, it would not be clear to
a reasonable official that his conduct was
unlawful in the situation confronted in this
particular case involving abatement of a
nuisance. Thus, this Court cannot say that,
in the light of pre-existing law, the
unlawfulness of the conduct was apparent.
See Anderson, 483 U.S. at 640.
Accordingly, the individual defendants are
entitled to summary judgment because they
are immune from suit for the due process
claims against them.
As the Supreme Court has noted, “[i]f
judges thus disagree on a constitutional
question, it is unfair to subject police to
money damages for picking the losing side
of the controversy.” Wilson v. Layne, 526
U.S. 603, 618 (1999); see also Safford
Unified Sch. Dist. v. Redding, 557 U.S. 364,
379 (2009) (“We would not suggest that
entitlement to qualified immunity is the
guaranteed product of disuniform views of
the law in other federal, or state, courts, and
the fact that a single judge, or even a group
of judges, disagree about the contours of a
right does not automatically render the law
unclear if we have been clear. That said,
however, the cases viewing school strip
searches differently from the way we see
them are numerous enough, with wellreasoned majority and dissenting opinions,
to counsel doubt that we were sufficiently
clear in the prior statement of law. We
conclude that qualified immunity is
warranted.”); Zieper v. Metzinger, 474 F.3d
60, 71 (2d Cir. 2007) (“the qualified
immunity standard ‘gives ample room for
mistaken judgments' by protecting ‘all but
the plainly incompetent or those who
knowingly violate the law’”) (internal
quotations and citations omitted)); Moorman
v. Thalacker, 83 F.3d 970, 974 (8th
Moreover, Narvilas, Jilnicki, Schirrippa,
Glogg, and Grenci are entitled to qualified
immunity
from
plaintiff’s
Fourth
Amendment claim. As an initial matter, even
if the Court were incorrect concerning the
requirement of a warrant to abate a public
nuisance, these defendants would enjoy
qualified immunity for their failure to obtain
a warrant authorizing the removals. See
Livant, 272 F. App’x at 115 (“Even if Livant
has alleged a violation of his right to be free
from unreasonable searches and seizures, the
Town Officials Defendants’ actions did not
violate any ‘clearly established’ rights
because there was no authority establishing
a Fourth Amendment requirement for
26
Narvilas, Jilnicki, Schirrippa, Glogg, and
Grenci are entitled to qualified immunity.
Accordingly, summary judgment is granted
for defendants on all claims with the
exception of the procedural due process and
Fourth Amendment claims under Section
1983 against the Town.
municipalities to obtain a warrant to abate a
nuisance.”). In addition, to the extent a
reasonable jury could find the searches and
seizures unreasonable because defendants
did not afford plaintiff procedural due
process, these defendants are entitled to
qualified immunity for the reasons discussed
supra with respect to plaintiff’s procedural
due process claim. Finally, plaintiff also
claims that the manner of the searches and
seizures violated his Fourth Amendment
rights. As noted supra, plaintiff bases this
aspect of his Fourth Amendment claim on
the disputed facts concerning the property
taken and whether it included items, such as
his tools, that were not “litter” within the
meaning of the Town Code or otherwise a
public nuisance. However, there is no
evidence that Narvilas, Jilnicki, Schirrippa,
Glogg, and Grenci had any involvement in
deciding what property was taken, or any
other control over how the removals were
conducted.
SO ORDERED.
_______________________
JOSEPH F. BIANCO
United States District Judge
Dated: November 4, 2014
Central Islip, NY
*
*
*
Plaintiff is represented by Lawrence E.
Kelly, 11 Cedar Bay Court, Bayport, NY
11705. Defendants the Town, McGintee,
Prince, Hammerle, and Loewen are
represented by Brian S. Sokoloff and Mark
A. Radi of Sokoloff Stern LLP, 179
Westbury Avenue, Carle Place, NY 11514.
Defendants Schirrippa, Narvilas, Jilnicki,
Glogg, and Grenci are represented by Anne
C. Leahey, David H. Arntsen, John M.
Shields, and Kelly E Wright of Devitt
Spellman Barrett, LLP, 50 Route 111,
Smithtown, NY 11787. Defendant Mansir is
represented by Keith V. Tola, Rondiene Erin
Novitz, and Scott Ira Gurtman of Cruser
Mitchell & Novitz LLP, 341 Conklin Street,
Second Floor, Farmingdale, NY 11735.
Accordingly, the Court grants summary
judgment for Narvilas, Jilnicki, Schirrippa,
Glogg, and Grenci as to plaintiff’s
procedural due process and Fourth
Amendment claims on the basis of qualified
immunity.
IV. CONCLUSION
For the reasons set forth herein, the
Court grants in part and denies in part the
defendants’ motions for summary judgment.
Specifically,
summary
judgment
is
warranted on plaintiff’s bill of attainder,
substantive due process, and equal
protection claims, but his procedural due
process and Fourth Amendment claims
survive summary judgment. However, these
claims survive only against the Town
because defendants Prince, Hammerle,
Loewen, McGintee, and Mansir are entitled
to absolute legislative immunity from
liability on these claims, and defendants
27
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?