Frasco et al v. Mastic Beach Property Owners' Association et al
Filing
45
ORDER granting 33 Motion for Summary Judgment. For the reasons set forth herein, the Court grants defendants motion for summary judgment. The Clerk of the Court shall enter judgment accordingly and close the case. SO ORDERED. Ordered by Judge Joseph F. Bianco on 7/29/2014. (Chipev, George)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 12-CV-2756 (JFB)(WDW)
_____________________
FRANK FRASCO ET AL.,
Plaintiffs,
VERSUS
MASTIC BEACH PROPERTY OWNERS’ ASSOCIATION ET AL.,
Defendants.
___________________
MEMORANDUM AND ORDER
July 29, 2014
___________________
JOSEPH F. BIANCO, District Judge:
formation of the Village of Mastic Beach.1
Plaintiffs Frank Frasco (“Frasco”), Frank
Fugarino (“F. Fugarino”), Donna Boble
(“Boble”), Paul Breschard (“Breschard”),
Nicholas Busa (“Busa”), Anthony D’Amico
(“D’Amico”), Clement Dewitt (“Dewitt”),
Jasper Fugarino (“J. Fugarino”), Samuel
Pletenik (“Pletenik”), Glen Svoboda
(“Svoboda”), Maurice Simon (“Simon”),
Ron Snyder (“Snyder”), Theresa Stasky
(“Stasky”), and Victor Zeleny (“Zeleny”)
(collectively, “plaintiffs”) bring this action
against defendants Mastic Beach Property
Owners’ Association (“MBPOA”), Gerald
Ludwig (“Ludwig”), Lynne DeBona
(“DeBona”), John Pastore (“Pastore”),
Kevin Collins (“Collins”) and Maura Spery
(“Spery”)
(collectively,
“defendants”).
Plaintiffs allege that defendants engaged in a
conspiracy, in violation of 42 U.S.C.
§ 1985(3), when they denied plaintiffs
renewed membership in the MBPOA in
2011 in retaliation for their support of the
Defendants move for summary judgment
pursuant to Rule 56 of the Federal Rules of
Civil Procedure on the following grounds:
(1) defendants are legally incapable of
conspiring together, plaintiffs do not qualify
for class-based recognition under the statute,
and plaintiffs have suffered no constitutional
injury actionable under § 1985(3); (2) New
York’s Business Judgment Rule bars
judicial review of the reasonableness of the
MBPOA’s action, because the Board of
Directors acted within its authority and for a
legitimate purpose; (3) Busa never requested
a membership renewal; and (4) the record is
devoid of any evidence that Ludwig and
Spery voted to not renew the MBPOA
1
Plaintiffs withdrew their state law claims against
defendants by letter dated July 12, 2012. In addition,
in their opposition to summary judgment, plaintiffs
withdraw their claims against Robert DeBona, who
passed away on October 14, 2012. (Opp’n, at 1.)
Accordingly, the claims against Robert DeBona are
dismissed with prejudice.
memberships. Plaintiffs oppose, arguing that
defendants acted without authority, plaintiffs
are members of a protected class and
suffered a cognizable injury, and there are
disputed facts with respect to Busa’s
decision not to renew his membership and
Ludwig’s and Spery’s conduct. Plaintiffs
also cross-move for sanctions, seeking an
adverse jury instruction for the first three
elements of the 42 U.S.C. § 1985(3) claim,
as well as punitive damages, stemming from
the existence of differing versions of
relevant MBPOA’s membership lists and
minutes of MBPOA Board meetings.
Defendants oppose, arguing, inter alia, that
plaintiffs have received all of the
information and documentation requested.
For the reasons set forth herein, the Court
grants summary judgment to defendants.
Specifically, the Court holds that plaintiffs
are not members of a protected class and
have not suffered a cognizable constitutional
injury. The Court therefore does not address
the parties’ other arguments, and it denies
plaintiffs’ spoliation motion as moot.
I.
A.
1.
The MBPOA
MBPOA is a private, nonprofit
corporation. (Defs.’ 56.1 ¶ 1.) At the time of
the incidents at issue—2010 through 2011—
the individual defendants were members of
the Board of Directors of the MBPOA. (Id.
¶ 2.) Plaintiffs were members of the
MBPOA in 2010, and many were members
for years prior to 2010. (Pls.’ 56.1 ¶ 12.)
Each and every plaintiff either assisted in
forming, or later joined, the Pattersquash
Creek Civil Association, which lobbied and
fundraised for the (since successful2)
incorporation of the Village of Mastic
Beach. (Id. ¶ 4.)
Article 1, Section 4 of the MBPOA
Constitution
and
By-Laws
limits
membership in the MBPOA to “owners of
real property in Mastic Beach, Postal Zone
11951.” (MBPOA Constitution and ByLaws, Pls.’ Ex. 1, at 2.) To be a “member in
good standing,” an individual “must not be
delinquent in paying annual dues,” and must
abide by the MBPOA’s objectives:
BACKGROUND
The promulgation of acquaintance,
good will, protection of its interest
and to the interest of its members;
To encourage and promote action by
the property owners and residents of
Mastic Beach in the improvement
and general welfare of the
community;
To promote, maintain, foster interest
and participation in the civic affairs
of our community;
To promote and preserve harmony,
cooperation and communication
among all Members; and
Factual Background
The Court takes the following facts from
the parties’ affidavits, depositions, exhibits,
and Rule 56.1 Statements of Fact. The Court
construes the facts in the light most
favorable to the nonmoving parties. See
Capobianco v. City of New York, 422 F.3d
47, 50 n.1 (2d Cir. 2005). The Rule 56.1
statements contain specific citations to the
record, and the Court generally cites to the
statements rather than to the record. Unless
otherwise noted, where a Rule 56.1
statement is cited, that fact is undisputed or
the opposing party has not pointed to any
contradictory evidence in the record.
2
See About Mastic Beach Village, The Village of
Mastic
Beach
New
York,
http://www.masticbeachvillageny.gov/villageinfo/about-us (last visited July 29, 2014) (stating that
Village of Mastic Beach was incorporated in 2010).
2
To promote activities for the social
entertainment and recreation of its
members.
agrees that it will convey or dedicate
without consideration to the said Village,
such part of the within described limits as
may be included within the described
corporate limits of such Village.” (Id.)
(Id. at 1, 18.)
No provision specifically ascribes (or
proscribes) to the Board of Directors
authority to renew or cancel MBPOA
memberships.3 Article II, Section 6
provides, inter alia:
2.
The Underlying Dispute
Plaintiffs contend that they each met the
conditions of eligibility for membership in
the MBPOA in 2011, but were denied
renewal without explanation.4 (Id. ¶ 13; see
Rejected Applications, Pls.’ Ex. 2.)
Specifically, they believe defendants did not
renew the memberships in retaliation for
plaintiffs’ opposition and attempts to stop
allegedly unethical and unauthorized
activities, including the use of MBPOA
funds by the Board to finance a campaign
against the formation of the Village of
Mastic Beach without first conducting open
discussions in general membership meetings
and without reports to the general
membership regarding the use of the funds.5
(See Pls.’ 56.1 ¶¶ 13–14; Opp’n, at 1–2.) For
instance, Fugarino and D’Amico, as
plaintiffs in the Supreme Court of the State
of New York, County of Suffolk, sought to
enjoin the MBPOA from providing financial
support to the opposition of the Mastic
Beach Village incorporation without first
obtaining the approval of MBPOA
members. (See Pls.’ 56.1 ¶ 8.) Busa,
meanwhile, testified that Robert DeBona
told Busa that he and his wife were
“undesirables” and not welcome as MBPOA
members, which led to Busa’s decision not
to renew his membership. (Id. ¶ 10.)
It shall be the duty of the Board of
Directors to protect the property of
the Association. . . . They shall
conduct and transact the business
and financial affairs of the
Association, develop the plan of
work and budget, raise, spend and
account for the Association’s funds
and manage its properties, build
community
understanding
and
support, provide sound democratic
organization, seek advice from
members on matters pertaining to
broad plans, policies and general
direction not conflicting with the
Constitution and By-laws. . . . [T]he
sole
authority
for
making
amendments [to the Constitution and
By-laws]
rest[s]
with
the
membership. . . .
(Id. at 6–7.)
The
MBPOA
possesses
certain
properties, including approximately 6.5
miles of waterfront. (Defs.’ 56.1 ¶ 5.) As
relevant here, pursuant to a deed conveyed
to the MBPOA in 1940: “Upon the
formation of an incorporated village of
Mastic Beach, the grantee Association
Defendants, on the other hand, claim the
nonrenewals were justified because (1) the
4
In fact, on June 30, 2011, MBPOA published and
distributed a “NOTICE” stating that plaintiffs are not
allowed to use MBPOA facilities under any
circumstances. (Pls.’ 56.1 ¶ 15.)
3
According to Article II, Section 4, the Financial
Secretary (also a member of the Board) must collect
all monies due the MBPOA, keep an accurate record
thereof, and keep an accurate list of all members.
(MBPOA Constitution and By-Laws, at 4.)
5
Plaintiffs believe that they “acted in furtherance of
the stated objectives of the MBPOA.” (Opp’n, at 5.)
3
Board must “protect the property of the
Association” (Defs.’ 56.1 ¶ 6), which was
being threatened by the potential
incorporation of the Village of Mastic
Beach; (2) certain individuals were
intoxicated and/or became highly disruptive
at general membership meetings, causing the
police to be called (id. ¶ 7); (3) some of the
plaintiffs obtained a restraining order
preventing individual MBPOA Board
members from spending their own personal
funds to oppose the Village’s formation (id.
¶ 8); and (4) Busa did not submit any
membership
renewal
application
or
accompanying fees by or on behalf of
himself for 2011, and MBPOA thus never
received nor rejected any application from
him (id. ¶ 9). Defendants also contend that
Spery and Ludwig were not present at Board
meetings when the Board voted not to renew
certain individuals’ membership. (Id. ¶ 10.)
B.
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),
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”).
Procedural Background
Plaintiffs commenced this action on June
1, 2012, and filed an amended complaint on
June 13, 2012. Plaintiffs withdrew their state
law claims on July 12, 2012, and defendants
answered the amended complaint on August
3, 2012. Defendants moved for summary
judgment on March 14, 2014. Plaintiffs
opposed summary judgment and filed their
motion for spoliation sanctions on May 25,
2014. Defendants filed their reply in support
of their motion for summary judgment and
their opposition to spoliation sanctions on
June 30, 2014. Plaintiffs filed their reply in
support of spoliation sanctions on July 11,
2014. The Court held oral argument on July
28, 2014. The matter is fully submitted.
II.
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
STANDARD OF REVIEW
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
4
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 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 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).
III.
Section 1985(3) prohibits two or more
persons from conspiring for the purpose of
depriving any person of the equal protection
of the laws or of equal privileges and
immunities under the laws. 42 U.S.C.
§ 1985(3). To establish a claim under
§ 1985(3), a plaintiff must establish (1) a
conspiracy; (2) for the purpose of depriving,
either directly or indirectly, any person or
class of persons of equal protection of the
laws, or of equal privileges and immunities
under the laws; (3) an act in furtherance of
the conspiracy; and (4) an injury to the
plaintiff’s person or property, or a
deprivation of a right or privilege of a
citizen of the United States. Hollman v.
Cnty. of Suffolk, No. 06-CV-3589
(JFB)(ARL), 2011 WL 280927, at *11
(E.D.N.Y. Jan. 27, 2011) (quoting Mian v.
Donaldson, Lufkin & Jenrette Sec. Corp., 7
F.3d 1085, 1087 (2d Cir. 1993)); see
Thomas v. Roach, 165 F.3d 137, 146 (2d
Cir. 1999) (citing Traggis v. St. Barbara’s
Greek Orthodox Church, 851 F.2d 584,
586–87 (2d Cir. 1988)).6 Further, in order to
reach a purely private conspiracy under
§ 1985(3), such as the one alleged here, “a
plaintiff must show, inter alia, (1) that some
racial, or perhaps otherwise class-based,
DISCUSSION
Defendants raise several challenges to
the 42 U.S.C. § 1985(3) civil conspiracy
claim. They argue, inter alia, that summary
judgment is warranted because plaintiffs are
not members of a protected class and have
not suffered any cognizable constitutional
injury. Plaintiffs counter that they qualify
for protection because they are part of an
organized group that challenged the Board
in furtherance of the objectives of the
MBPOA and not for their own economic or
commercial interests. They also argue that
they suffered actionable injuries because
defendants
denied
plaintiffs
their
fundamental right to contract and the right to
use and enjoy waterfront property (including
access to waterways), in violation of the
Fourteenth Amendment.
6
A conspiracy “‘need not be shown by proof of an
explicit agreement but can be established by showing
that the parties have a tacit understanding to carry out
the prohibited conduct.’” Roach, 165 F.3d at 146
(quoting LeBlanc–Sternberg v. Fletcher, 67 F.3d 412,
427 (2d Cir. 1995)). It must be motivated by “some
racial or perhaps otherwise class-based, invidious
discriminatory animus behind the conspirators’
action.’” Id. (quoting Mian, 7 F.3d at 1088). And the
plaintiff must show “with at least some degree of
particularity, overt acts which the defendants engaged
in which were reasonable related to the promotion of
the claimed conspiracy,” Simpson ex rel. Simpson v.
Uniondale Union Free Sch. Dist., 702 F. Supp. 2d
122, 133 (E.D.N.Y. 2010) (quoting Thomas, 165 F.3d
at 146), and “some predicate constitutional right
which the alleged conspiracy violates,” Friends of
Falun Gong v. Pac. Cultural Enter., Inc., 288 F.
Supp. 2d 273, 279 (E.D.N.Y. 2003).
5
invidiously discriminatory animus lay
behind the conspirators’ action, and (2) that
the conspiracy aimed at interfering with
rights that are protected against private, as
well as official, encroachment.” Bray v.
Alexandria Women’s Health Clinic, 506
U.S. 263, 268 (1993) (internal quotation
marks and citations omitted); see Poles v.
Brooklyn Cmty. Hous. & Servs., No. 10 Civ.
1733 (BMC)(LB), 2010 WL 1992544, at *2
(E.D.N.Y. May 14, 2010).
defendants’ political and governmental
attitudes and activities do not constitute a
cognizable class under Section 1985,”8
Gleason, 869 F.2d at 695 (internal
alterations, citations, and quotation marks
omitted).
In Gleason, the plaintiff had run
unsuccessfully for mayor, and he claimed
that the defendants conspired to and did
discriminate against him for political
reasons. 869 F.2d at 694. The Second
Circuit declined to reconsider Keating,
because the plaintiff had not claimed
discrimination based on his political party
affiliation; he had “alleged only that he was
discriminated against because he was a
political opponent of the defendants and was
extremely vocal in his opposition to their
management of the Village.” Id. at 695.
Instead, the court adopted the reasoning in
Rodgers v. Tolson, 682 F.2d 315 (4th Cir.
1978), and concluded that the plaintiff had
not shown that he was a “member of a
protected class under § 1985.” Gleason, 869
F.2d at 695; see also Arteta v. Cnty. of
Orange, 141 F. App’x 3, 8 (2d Cir. 2005)
(affirming dismissal of § 1985 conspiracy
claim because “a plaintiff who does not
claim discrimination based on his political
party affiliation but rather contends that he
was discriminated against because he was a
political opponent of the defendants is not a
member of a protected class under § 1985”
(citing Gleason, 869 F.2d at 694–96)). The
court also emphasized that “the intended
victims of discrimination must be victims
not because of any personal malice the
conspirators may have toward them, but
because of their membership in or affiliation
Plaintiffs’ claim fails under both prongs.
First, as a matter of law, plaintiffs are
not members of a protected class. “Although
it is unclear whether under Second Circuit
law a political party is a protected group
satisfying
§1985’s
class-based
7
discrimination requirement,” Fotopolous v.
Bd. of Fire Comm’rs of Hicksville Fire Dist.,
No. 11-CV-5532 (MKB), 2014 WL
1315241, at *17 (E.D.N.Y. Mar. 31, 2014),
the Second Circuit has held that plaintiffs
who claim discrimination because they stand
“in political and philosophical opposition to
the defendants, and who are, in addition,
outspoken in their criticism of the
7
In Keating v. Carey, 706 F.2d 377 (2d Cir. 1983),
the Second Circuit held that political parties are
protected groups under § 1985(3). See id. at 388
(holding that allegations that defendants conspired
against plaintiff because he was Republican satisfied
class-based discriminatory animus requirement of
§ 1985(3)). In a case decided after Keating, the
Supreme Court “suggested that unless the
discrimination was based on racial animus, the scope
of § 1985 might not extend to include discrimination
against political groups.” Fotopolous, 2014 WL
1315241, at *17 n.9 (citing United Bhd. of
Carpenters v. Scott, 463 U.S. 825, 836–37 (1983));
see Gleason v. McBride, 869 F.2d 688, 695 (2d Cir.
1989) (recognizing potential impact of Carpenters on
Keating). Subsequently, other circuits have refused to
recognize political parties as protected classes for
purposes of § 1985(3). See, e.g., Grimes v. Smith, 776
F.2d 1359 (7th Cir. 1985); Harrison v. KVAT Food
Mgmt., Inc., 766 F.2d 155 (4th Cir. 1985). The
Second Circuit, however, has not overruled Keating.
8
Although the Second Circuit in Gleason noted that
the plaintiff only claimed he was discriminated
against as an individual and had not alleged that
others were members of the purported class, see 869
F.2d at 695, this Court does not believe that the
Second Circuit thus limited its reasoning to claims by
individuals rather than by groups.
6
focus on defendants’ allegedly unlawful
activities
thus
misses
the
mark.9
Accordingly, the Court grants summary
judgment to defendants, because the alleged
class does not qualify as a protected class
under § 1985 and Gleason. See, e.g., Arteta,
141 F. App’x at 8 (affirming dismissal of
§ 1985(3) claim where plaintiffs did not
allege that defendants conspired to
discriminate against them because of their
political party affiliation but rather because
they supported one of the defendants’
political opponents in an election);
Fotopolous, 2014 WL 1315241, at *18
(concluding that plaintiff was not part of
protected class for purposes of § 1985
liability where he argued that he was a
member of a protected class because he was
a government employee who refused to
associate with the powerful political group
in the fire district structure); Citizens
Accord, Inc. v. Town of Rochester, No. 98CV-0715, 2000 WL 504132, at *9
(N.D.N.Y. Apr. 18, 2000) (dismissing
§ 1985(3) claim on grounds that entity and
its members were not political organization
within
purview
of
Keating
and,
alternatively, there was no evidence of
actions directed solely at plaintiff entity or
its members on account of their affiliation
with the entity).
with a particular class.” Gleason, 869 F.2d
at 695 (quoting Carpenters, 463 U.S. at 850
(Blackmun, J., dissenting)); see also Bray v.
Alexandria Women’s Health Clinic, 506
U.S. 263, 269 (1993) (“[T]he class ‘cannot
simply be defined as the group of victims of
the tortious action.’” (quoting Carpenters,
463 U.S. at 850 (Blackmun, J., dissenting));
LeBlanc-Sternberg, 67 F.3d at 427
(“Though the mere fact that ‘individuals . . .
share a desire to engage in conduct’ does not
render them a ‘class’ under § 1985(3), proof
that the defendants’ impetus was the
plaintiffs’ religion suffices.” (quoting Bray,
506 U.S. at 269)).
Here, defendants argue that they are
entitled to summary judgment because
plaintiffs allege that they were a “political
group” that was conspired against (see
Amended Complaint ¶ 89) and contend that
defendants failed to renew plaintiffs’
membership in the MBPOA in retaliation for
their efforts to incorporate the Village of
Mastic Beach, bringing the claim under
Gleason’s ambit. (See Defs.’ Mem., at 8). At
oral argument, plaintiffs’ counsel conceded
that the MBPOA is not a “political group.”
Instead, both in the papers and at oral
argument, counsel contends that plaintiffs
have a cognizable right based upon the
property owners’ questioning of the Board’s
activities and support for incorporation. (See
Opp’n, at 9–10; Pls.’ 56.1 ¶¶ 13–14; Oral
Arg., at 4:50–4:54.) Consequently, plaintiffs
never reckon with the reasoning in Gleason
and are not able to define themselves as a
class beyond “the group of victims of the
tortious action.” Bray, 506 U.S. at 269. For
instance, they point to no evidence in the
record from which a rational jury could
conclude that defendants discriminated
against plaintiffs simply because they were
part of the Pattersquash Creek Civil
Association, rather than because they stood
in opposition to defendants on a political
and economic issue in the community. The
Second, the claim also fails because
9
The evidence supports this conclusion regardless of
whether a rational jury credits defendants’
justification for the nonrenewals (see Defs.’ 56.1
¶¶ 6–8 (attributing nonrenewals to plaintiffs’
behavior and actions in favor of incorporation)) or
plaintiffs’ (see Pls.’ 56.1 ¶¶ 13–14 (stating that no
reason was given for nonrenewals but indicating that
actions in favor of incorporation influenced
decision)). For instance, Frasco feels his membership
was not renewed because he spoke out against the use
of membership fees to oppose incorporation, and his
support for the incorporation of the Village of Mastic
Beach. (Frasco Dep., at 35:6–16.) Thus, Frasco’s
own testimony indicates that his actions, not any
class status, precipitated defendants’ actions.
7
§ 1985(3) does not apply to the alleged
conspiracy. Section 1985(3) does not apply
to “private conspiracies that are aimed at a
right that is by definition a right only against
state interference, but applies only to such
conspiracies that are aimed at interfering
with rights . . . protected against private, as
well as official, encroachment.” Bray, 506
U.S. at 278 (citing Carpenters, 463 U.S. at
833) (internal quotation marks omitted)
(recognizing
only
the
Thirteenth
Amendment rights of interstate travel and
freedom from involuntary servitude); see
Poles, 2010 WL 1992544, at *2 (citing
Bray, 506 U.S. at 278); see also Brown v.
Philip Morris Inc., 250 F.3d 789, 805 (3d
Cir. 2001) (same); Massaccoli v. Merit
Mountainside LLC, Civil Action No. 122168, 2012 WL 6697439, at *6 (D.N.J. Dec.
20, 2012) (same). “‘When the asserted
constitutional deprivation is based upon a
right guaranteed against government
interference—for example, rights secured by
the Fourteenth Amendment—plaintiffs must
demonstrate some state involvement.’”
Poles, 2010 WL 1992544, at *2 (quoting
N.Y. State Nat’l Org. for Women v. Terry,
886 F.2d 1339, 1358 (2d Cir. 1989)); see
also Bray, 506 U.S. at 278 (noting that “the
other elements of [the] more general rights”
of privacy or of Fourteenth Amendment
liberty “are obviously not protected against
private
infringement”
(emphasis
in
original)).
liberally. It is quite obvious that defendants’ conduct
does not implicate the right to be free from
involuntary servitude. Plaintiffs also cite to no
precedent establishing a fundamental right to
contract, much less that it is protected against private
encroachment under § 1985(3). See, e.g., Brown v.
Philip Morris Inc., 250 F.3d 789, 805 (3d Cir. 2001)
(holding alleged deprivation of property and contract
rights cannot be vindicated under § 1985(3)); Home
Quest Mortg. LLC v. Am. Family Mut. Ins. Co., 340
F. Supp. 2d 1177, 1189 (D. Kan. 2004) (“Construing
the allegations in the complaint in the light most
favorable to plaintiffs, as the court must at this
procedural juncture, it appears that plaintiffs are
alleging an unconstitutional deprivation of property
and contract rights. The Supreme Court has never
held that any such rights are protected against private
action and, accordingly, plaintiffs have failed to
allege any set of facts that would entitle them to relief
under § 1985(3).”); cf. Local 342, Long Island Public
Serv. Emps., UMD, ILA, AFL-CIO v. Town Bd. of
Town of Huntington, 31 F.3d 1191, 1196 (2d Cir.
1994) (stating that “simple state-law contractual
rights, without more,” are not protected by the
substantive due process clause).
The Court also cannot conclude that defendants
infringed upon the constitutional right to travel,
which the Second Circuit holds includes the right to
travel freely within a state. See Spencer v. Casavilla,
803 F.2d 171, 174 (2d Cir. 1990) (citing King v. New
Rochelle Mun. Housing Auth., 442 F.2d 646 (2d Cir.
1971)). The denial of the “right to use and enjoy
waterfront property,” in itself, does not implicate the
right to travel. There also is no evidence that
defendants acted “for the purpose of depriving”
plaintiffs of this right. Hollman, 2011 WL 280927, at
*11. Moreover, here, the right to access the property
(and the adjacent waterways) stems from the fact of
membership in the MBPOA. Plaintiffs point to no
evidence supporting a reasonable inference that these
were the only waterways accessible to them, or that
they could not travel throughout New York or to
other states absent access to the property. They also
cite to no authority (and the Court has not found any)
holding that a private entity that chooses to exclude
individuals from access to its property necessarily
violates the constitutional right to travel (or,
relatedly, that such an entity must grant individuals
access to that property). See, e.g., Williams v. Town
of Greenburgh, 535 F.3d 71, 75–76 (2d Cir. 2008)
(“While the parameters of [the right to travel] have
not been sharply defined by our Court, it is clear that
the right protects movement between places and has
no bearing on access to a particular place. . . . [I]t
Here, plaintiffs do not identify any
deprivation of a right protected from private
encroachment.
Instead,
they
claim
defendants violated a purported fundamental
right to contract and the right to use and
enjoy waterfront property, both in violation
of the Fourteenth Amendment. Plaintiffs,
however, have not shown any state action,
which is required for a Fourteenth
Amendment-based § 1985(3) conspiracy.10
10
Plaintiffs’ claim fails even if construed more
8
Accordingly, the Court grants summary
judgment to defendants on this basis, too.11
IV.
***
Plaintiffs are represented by Robert C.
Jacovetti, Law Office of Robert Jacovetti,
P.C., 194 Old Country Road, Mineola, NY
11501. Defendants are represented by
Patrick F. Palladino of Milber, Makris,
Plousadis & Seiden, LLP, 1000 Woodbury
Road, Suite 402, Woodbury, NY 11797.
CONCLUSION
For the foregoing reasons, the Court
grants defendants’ motion for summary
judgment. The Clerk of the Court shall enter
judgment accordingly and close the case.
SO ORDERED.
______________________
JOSEPH F. BIANCO
United States District Judge
Dated: July 29, 2014
Central Islip, NY
would distort the right to free travel beyond
recognition to construe is providing a substantive
right to cross a particular parcel of land, enter a
chosen dwelling, or gain admittance to a specific
government building.” (emphasis in original))
(holding that municipality’s decision to limit access
to its facilities did not interfere with plaintiff’s right
to free movement); cf. Saenz v. Roe, 526 U.S. 489,
500 (1999) (“The ‘right to travel’ . . . embraces at
least three different components. It protects the right
of a citizen of one State to enter and to leave another
State, the right to be treated as a welcome visitor
rather than an unfriendly alien when temporarily
present in the second State, and, for those travelers
who elect to become permanent residents, the right to
be treated like other citizens of that State.”).
11
The Court therefore does not address defendants’
other arguments in favor of summary judgment, and
denies plaintiffs’ spoliation motion as moot. In any
event, to the extent plaintiffs request spoliation
sanctions beyond an adverse jury instruction, such as
“punitive” or monetary damages, there have failed to
demonstrate any basis for such sanctions. For
example, there is no evidence that defendants
produced the various versions of the membership lists
in bad faith, or that plaintiffs were prejudiced as a
result. This especially is true because it is undisputed
that plaintiffs were members of the MBPOA before
2011—the fact plaintiffs sought to establish through
the lists.
9
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