Dong v. Town of North Hempstead

Filing 11

MEMORANDUM & ORDER re: 7 Motion to Dismiss is GRANTED and Plaintiff's Complaint is DISMISSED WITH PREJUDICE. This case is CLOSED. Ordered by Judge Joanna Seybert on 12/9/2013. (Nohs, Bonnie)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------x
QING DONG,
Plaintiff,
-against-

MEMORANDUM & ORDER
13-CV-0255(JS)(ARL)

TOWN OF NORTH HEMPSTEAD,

Defendant.
----------------------------------------x
APPEARANCES
For Plaintiff:
Ronald S. Ramo, Esq.
135-25 114th Street
South Ozone Park, NY 11420
For Defendant:

Howard Marc Miller, Esq.
Bond, Schoeneck & King
1399 Franklin Avenue, Suite 200
Garden City, NY 11530

SEYBERT, District Judge:
Currently pending before the Court is defendant Town
of North Hempstead’s (“Defendant”) motion to dismiss plaintiff
Qing Dong’s (“Plaintiff”) Complaint pursuant to Federal Rules of
Civil

Procedure

12(b)(1)

and

12(b)(6).

For

the

following

reasons, Defendant’s motion is GRANTED.
BACKGROUND1
On
ordinance

January

that

3,

included

2006,
a

Defendant

prohibition

on

enacted
the

a

zoning

development

of

vacant corner lots that were at least 100 feet wide on each side

The facts provided below are taken from Plaintiff’s Complaint
and are presumed to be true for the purposes of this Memorandum
and Order.
1

adjacent to the street.

(Compl. ¶ 4.)

In September 2008,

Plaintiff purchased an undeveloped parcel of land located in the
Town

of

North

Hempstead

Somerset

Drive

(the

at

the

corner

“Property”).

of

(Compl.

Rutland
¶¶

Property’s dimensions measure 154 feet by 80 feet.
In

October

2008,

Plaintiff

applied

5,

Road
7.)

and
The

(Compl. ¶ 6.)
for,

and

was

denied, a building permit by Defendant’s Department of Buildings
because

the

Property’s

dimensions

did

not

meet

ordinance requirements to allow for development.

the

zoning

(Compl. ¶ 8.)

Plaintiff subsequently sought a variance from the Town of North
Hempstead Board of Zoning Appeals (“BZA”), but such application
was also denied.

(Compl. ¶¶ 9, 11.)

On November 12, 2009, Plaintiff commenced an Article
78 proceeding in the Supreme Court of New York, Nassau County to
review the BZA’s decision on her application for a variance.
(Compl. ¶ 12.)

The Supreme Court sustained the BZA’s decision

denying Plaintiff’s application for a variance.
In

May

2011,

Department

on

likewise

appeal,

the

Appellate

affirmed

denial

of

a

(Compl. ¶ 13.)

Division,
variance.

Second
(Compl.

¶¶ 14, 16.)
Plaintiff commenced this action on January 16, 2013
alleging a Fifth Amendment takings claim under the United States
Constitution and seeking an injunction to require Defendant to
either issue Plaintiff a building permit or a variance.
2

DISCUSSION
Defendant now moves to dismiss the Complaint because
Plaintiff’s claims are not ripe for review and are barred by
collateral
applicable

estoppel.
standards

The
of

Court

review

will

before

first

turning

discuss
to

the

Defendant’s

motion more specifically.
I. Standards of Review
A.

Under Rule 12(b)(1)
“A

case

is

properly

dismissed

for

lack

of

subject

matter jurisdiction under Rule 12(b)(1) when the district court
lacks the statutory or constitutional power to adjudicate it.”
Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000).
resolving

a

motion

jurisdiction,
materials

to

the

Court

beyond

questions.

the

dismiss
may

for

lack

consider

pleadings

to

of

subject

affidavits
resolve

In

matter

and

other

jurisdictional

See Morrison v. Nat’l Australia Bank, Ltd., 547 F.3d

167, 170 (2d Cir. 2008).

The Court must accept as true the

factual allegations contained in the complaint, but it will not
draw

argumentative

inferences

in

favor

of

Plaintiffs

because

subject matter jurisdiction must be shown affirmatively.

See

id.; Atlanta Mut. Ins. Co. v. Balfour Maclaine Int’l Ltd., 968
F.2d 196, 198 (2d Cir. 1992); Shipping Fin. Servs. Corp. v.
Drakos,

140

F.3d

129,

131

(2d

Cir.

1998).

“A

plaintiff

asserting subject matter jurisdiction has the burden of proving

3

by a preponderance of the evidence that it exists.”

Makarova,

201 F.3d at 113.
B.

Under Rule 12(b)(6)
In

Court

deciding

applies

a

Rule

12(b)(6)

“plausibility

“[t]wo working principles.”

motions

standard,”

to

dismiss,

which

is

guided

the
by

Ashcroft v. Iqbal, 556 U.S. 662,

678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009); accord Harris v.
Mills, 572 F.3d 66, 71-72 (2d Cir. 2009).
Court

must

accept

“inapplicable

all

to

allegations

legal

as

First, although the

true,

conclusions;”

this

thus,

“tenet”

is

“[t]hreadbare

recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.”
accord Harris, 572 F.3d at 72.

Iqbal, 556 U.S. at 678;

Second, only complaints that

state a “plausible claim for relief” can survive a Rule 12(b)(6)
motion to dismiss.

Iqbal, 556 U.S. at 679.

Determining whether

a complaint does so is “a context-specific task that requires
the

reviewing

common sense.”

court

to

draw

on

its

judicial

experience

and

Id.; accord Harris, 572 F.3d at 72.

II. Defendant’s Motion to Dismiss
A. Ripeness
Defendant’s primary argument is that Plaintiff’s Fifth
Amendment takings claim is not ripe for review.

“Ripeness is a

constitutional prerequisite to [the] exercise of jurisdiction by
federal

courts.”

In

re

Old

Carco,

4

LLC,

470

B.R.

688,

698

(S.D.N.Y. 2012) (internal quotation marks and citation omitted).
“In the area of land use, the doctrine of ripeness is intended
to

avoid

premature

adjudication

of

administrative

action.”

Sunrise Dev., Inc. v. Town of Huntington, N.Y., 62 F. Supp. 2d
762, 770 (E.D.N.Y. 1999) (internal quotation marks and citation
omitted).
A two prong test has been established by the United
States

Supreme

Court

to

analyze

the

ripeness

regulatory takings claims of property interests.

of

alleged

See Williamson

Cnty. Regional Planning Comm'n v. Hamilton Bank of Johnson City,
473 U.S. 172, 105 S. Ct. 3108, 87 L. Ed. 2d 126 (1985).

The

first prong asks whether a final decision has been reached by
the “entity charged with implementing the regulations,” and the
second prong is a requirement that the plaintiff exhaust all
“reasonable, certain, and adequate” state procedures to recover
just compensation.
The

Id. at 186, 194, 105 S. Ct. at 3116, 3120.

dispute

in

the

instant

matter

centers

on

the

second prong of the Williamson test--whether the Plaintiff has
exhausted

all

“reasonable,

certain,

and

adequate”

procedures available to recover just compensation.
this

District

Constitution

have

long

provides

a

recognized

that

“reasonable,

the

New

certain,

provision for obtaining just compensation.”

state

Courts in
York

and

State

adequate

See Country View

Estates @ Ridge, LLC v. Town of Brookhaven, 452 F. Supp. 2d.

5

142, 156 (E.D.N.Y. 2006) (internal quotation marks and citation
omitted); RKO Delaware, Inc. v. City of N.Y., No. 00-CV-2592,
2001 WL 1329060, at *5 (E.D.N.Y. Aug. 30, 2001) (discussing the
New York State Constitution); see also N.Y. CONST. art. I, § 7(a)
(“Private property shall not be taken for public use without
just compensation.”).

In New York, a plaintiff may address a

takings or just compensation claim either through an Article 78
proceeding or under New York's Eminent Domain Procedure Law.
See Dreher v. Doherty, --- F. App’x ----, 2013 WL 4437180, at *2
(2d

Cir.

Aug.

21,

2013);

accord

Viteritti

v.

Inc.

Vill.

of

Bayville, 831 F. Supp. 2d 583, 591 (E.D.N.Y. 2011).
Here,

Plaintiff

commenced

an

Article

78

proceeding

following the BZA denial of her variance application.
¶ 12; Miller Aff., Docket Entry 7-1, Ex A.)

(Compl.

However, Plaintiff

did not seek just compensation in that action, but rather sought
a review and annulment of the BZA’s decision.
A.)

Consequently,

Plaintiff

has

not

requirements set forth in Williamson.

(Miller Aff. Ex.

satisfied

the

ripeness

See Island Park, LLC v.

CSX Transp., 559 F.3d 96, 109 (2d Cir. 2009) (“Before a federal
takings claim can be asserted, compensation must first be sought
from the state if it has a reasonable, certain and adequate
provision for obtaining compensation.” (internal quotation marks
and citation omitted)).

Therefore Plaintiff’s takings claim is

not ripe for adjudication by this Court.

6

Plaintiff
compensation

argues

through

state

that
court

any

attempt

procedures

to
would

seek

just

have

been

futile because a pre-ownership regulation does not constitute a
taking under the New York State Constitution and therefore, her
only recourse is a federal action under the Fifth Amendment to
the United States Constitution.
9, at 1-2.)

(Pl.’s Opp. Br., Docket Entry

However, this assertion fails for two reasons.

First, “[a] regulatory taking claim . . . ‘is unripe where a
remedy potentially is available under the state constitution’s
provision.’”

Nat’l Fuel Gas Supply Corp. v. Town of Wales, 904

F. Supp. 2d 324, 334-35 (W.D.N.Y. 2012) (quoting Vandor, Inc. v.
Militello, 301 F.3d 37, 39 (2d Cir. 2002) (emphasis added)).
Thus, that Plaintiff believed her efforts would have been futile
is insufficient.

See TZ Manor, LLC v. Danies, No. 08-CV-3293,

2009 WL 2242436, at *6 n.4 (S.D.N.Y. July 28, 2009) (“If the law
were as Plaintiff suggest[s], a plaintiff alleging a Takings
Clause

violation

in

federal

court

could

always

avoid

Rule

12(b)(1) dismissal on ripeness grounds merely by alleging that
he or she would be unsuccessful in trying to obtain compensation
through applicable State procedures.” (emphasis in original)).
Second,

futility

in

initiating

a

State

proceeding

is

an

exception only to the first prong “final decision” requirement
of the Williamson test, not to the second prong “exhaustion”
requirement at issue here.

See id. at *6.

7

Accordingly, Defendant’s motion to dismiss Plaintiff’s
taking claim is GRANTED.
B. Collateral Estoppel
Defendant
Plaintiff’s
relitigate

further

request
denial

for

of

asserts

that,

injunctive

her

permit

to

relief

and

is

variance

claim is barred by collateral estoppel.
Entry 7-2, at 7-8.)

the

extent

an

that

attempt

requests,

to

such

(Def.’s Br., Docket

The Court agrees.

The doctrine of collateral estoppel or issue
preclusion applies when a litigant in a
prior proceeding asserts an issue of fact or
law in a subsequent proceeding, and the
issue has been necessarily decided in the
prior action, is decisive of the present
action, and the litigant had a full and fair
opportunity in the prior action to contest
the decision.
33 Seminary LLC v. City of Binghamton, 869 F. Supp. 2d 282, 298
(N.D.N.Y. 2012).
Here,

Plaintiff’s

second

cause

of

action

seeks

an

order mandating Defendant to either issue a building permit or
variance

permitting

¶ 30.)

However,

raised

in

her

construction

these

Article

(Miller Aff. Ex. A.)

were
78

the

on

the

very

proceeding

Property.

issues
and

that

(Compl.
Plaintiff

subsequent

appeal.

Furthermore, Plaintiff does not contest

that such proceeding provided anything other than a full and
fair opportunity to litigate the issues.

See Borum v. Vill. of

Hempstead, 590 F. Supp. 2d 376, 381 (E.D.N.Y. 2008) (“As a party

8

to the Article 78 [p]roceeding, Plaintiff had a full and fair
opportunity to litigate those issues in the state court.”).
Therefore,

to

the

extent

that

Plaintiff

intends

to

raise, in addition to her takings claim, a claim for injunctive
relief regarding a building permit for variance, such claim is
barred by collateral estoppel.

According, Defendant’s motion in

this regard is GRANTED and any such claim is DISMISSED WITH
PREJUDICE.
III.

Dismissal With Prejudice
Finally, Defendant argues, and the Court agrees, that

Plaintiff’s taking claim must be dismissed with prejudice.
Although a dismissal without prejudice would typically
be appropriate, Plaintiff’s time to seek just compensation has
passed, and therefore her claims can never be ripe.
denied

Plaintiff’s

(Compl. ¶ 11.)

variance

application

Militello,

301

Plaintiff

would

F.3d

37,

be

39

(2d

entitled

Cir.

to

2009.

18

N.Y.3d

777,

787,

See Vandor, Inc. v.

2002).

a

limitations, which has also passed.
Inc.,

October

However, the statute of limitations to commence

an Article 78 proceeding is four months.

N.Y.,

in

The BZA

And

three-year

at

most,

statute

of

See Corsello v. Verizon

967

N.E.2d

1177,

1183,

944

N.Y.S. 2d 732, 738 (N.Y. 2012) (“The Appellate Division held
that actions in inverse condemnation are governed by a threeyear

statute

of

limitations

that

9

runs

from

the

time

of

the

taking.”); Linzenberg v. Town of Ramapo, 1 A.D. 3d 321, 322, 766
N.Y.S. 2d 217, 218 (N.Y. App. Div. 2d Dep’t 2003) (“Since the
gravamen of the complaint was to recover damages for inverse
condemnation, the three-year statute of limitations set forth in
CPLR 214 (4) applies.”); see also N.Y. E.D.P.L. § 503(A).
Therefore,
WITH PREJUDICE.

Plaintiff’s

takings

claims

are

DISMISSED

See Vandor, 301 F.3d at 39.
CONCLUSION

For

the

foregoing

reasons,

Defendant’s

motion

is

GRANTED and Plaintiff’s Complaint is DISMISSED WITH PREJUDICE.
The Clerk of the Court is directed to mark this matter CLOSED.

SO ORDERED.

/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:

December
9 , 2013
Central Islip, New York

10