Libbey et al v. Village of Atlantic Beach et al
Filing
45
MEMORANDUM AND ORDER ADOPTING REPORT AND RECOMMENDATION - For the foregoing reasons, Judge Lindsay's oral R&R is ADOPTED, Plaintiffs' objections are OVERRULED, and Plaintiffs' requests for a PI (Docket Entries 3, 30) are DENIED. In ad dition, the Engineering Defendants' motion to dismiss as against them is DENIED on Rooker-Feldman grounds but otherwise GRANTED as explained above, and the Clerk of the Court is directed to terminate R&W and Williams as defendants in this matter . Finally, the Village Defendants' motion to dismiss is GRANTED IN PART and DENIED IN PART. It is GRANTED in the following respects: (1) Pamela Makaea lacks standing to assert claims relating to the demolition and M.A. Salazar, Victoria Libbey Simao, Pamela Makea, and Atlantic Beach Associates, Inc. lack standing to bring claims regarding the First Amendment and Political Sign Ordinance; (2) Plaintiffs' substantive due process claim is DISMISSED WITH PREJUDICE; (3) Plaintiffs' Eq ual Protection claim based on the demolition is DISMISSED WITHOUT PREJUDICE; (4) Plaintiffs' allegations of First Amendment violations and the equivalent under the New York State Constitution prior to April 15, 2010 are time-barred and therefor e DISMISSED WITH PREJUDICE; (5) Plaintiffs' trespass and tortious interference claims are time-barred and therefore DISMISSED WITH PREJUDICE; and (6) Plaintiffs' malicious prosecution, abuse of process, nuisance, prima facie tort, intention al infliction of emotional distress, reckless infliction of emotional distress, and negligent infliction of emotional distress are DISMISSED WITH PREJUDICE for failure to file a Notice of Claim. Accordingly, the Clerk of the Court is directed to terminate Pamela Makaea as a plaintiff in this action. The Village Defendants' motion to dismiss is otherwise DENIED. So Ordered by Judge Joanna Seybert on 11/4/2013. C/ECF (Valle, Christine)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------X
ALBERTA LIBBEY; VICTORIA LIBBEY
SIMAO; RICHARD LIBBEY; PAMELA
MAKAEA; M.A. SALAZAR, INC; and
ATLANTIC BEACH ASSOCIATES, INC.,
Plaintiffs,
MEMORANDUM & ORDER
13-CV-2717(JS)(ARL)
-againstVILLAGE OF ATLANTIC BEACH; BOARD
OF TRUSTEES OF THE VILLAGE OF
ATLANTIC BEACH; STEPHEN R. MAHLER,
individually and as Mayor of the
Village of Atlantic Beach; STEVEN
CHERSON, individually and as
Building Inspector and
Superintendent of Public Works for
the Village of Atlantic Beach;
R&W/ENGINEERS, P.C., and MICHAEL
L. WILLIAMS,
Defendants.
----------------------------------------X
APPEARANCES
For Plaintiffs:
Frank Scaturro, Esq.
Fisher Broyles, LLP
44 Carole Avenue
New Hyde Park, NY 11040
For Defendants
Village Defendants:
Engineering Defendants:
James R. Finn, Esq.
Maurizio Savoiardo, Esq.
Michael Anthony Miranda, Esq.
Robert E.B. Hewitt, III, Esq.
Miranda Sambursky Slone Sklarin
Verveniotis LLP
240 Mineola Boulevard
Mineola, NY 11501
James C. Clerkin, Esq.
Kral, Clerkin, Redmond, Ryan, Perry &
Girvan
170 Broadway, Suite 500
New York, NY 10038
SEYBERT, District Judge:
Plaintiffs
Alberta
Libbey,
Victoria
Libbey
Simao,
Richard Libbey, Pamela Makaea, M.A. Salazar, Inc., and Atlantic
Beach
Associates,
this
action
on
Inc.
May
(collectively
6,
2013
“Plaintiffs”)
against
Defendants
commenced
Village
of
Atlantic Beach (the “Village”); the Board of Trustees of the
Village of Atlantic Beach; Stephen R. Mahler, individually and
as
Mayor
of
the
individually
and
Village
as
of
Building
Atlantic
Beach;
Inspector
and
Steven
Cherson,
Superintendent
of
Public Works for the Village of Atlantic Beach (collectively,
the
“Village
Michael
L.
Defendants”);
Williams
“Engineering
R&W/Engineers
(“Williams”
Defendants”)
and
alleging
P.C.
together
(“R&W”);
with
constitutional
R&W,
and
the
violations
pursuant to 42 U.S.C. § 1983 (“Section 1983”) and the New York
State
Constitution
as
well
as
several
state
law
claims.
Simultaneous with filing the Complaint, Plaintiffs also sought a
temporary restraining order (“TRO”) and preliminary injunction
(“PI”) seeking to enjoin the Village Defendants from selling
Plaintiffs’ land and from further prosecuting Plaintiff Alberta
Libbey under Atlantic Beach Village Code § 185-3.1.
Br. for TRO/PI, Docket Entry 4.)
Plaintiffs subsequently filed
a formal motion for a preliminary injunction.
Docket
Entry
30.)
The
Court
2
(See Pls.
referred
(See Pls. PI Br.,
both
requests
to
Magistrate
Judge
Arlene
R.
Lindsay
for
a
Report
and
Recommendation (“R&R”).
Currently, the following are pending before the Court:
(1) Plaintiffs’ original request for a PI, their formal motion
for
such,
and
Defendants’
Judge
motion
Lindsay’s
to
oral
dismiss;
Defendants’ motion to dismiss.
R&R;
and
(2)
(3)
the
the
Village
Engineering
For the following reasons, Judge
Lindsay’s oral R&R is ADOPTED and Plaintiffs’ requests for a PI
are DENIED, the Village Defendants’ motion to dismiss is GRANTED
IN PART and DENIED IN PART, and the Engineering Defendants’
motion to dismiss is GRANTED IN PART and DENIED IN PART.
BACKGROUND
I. Factual Background
The Libbey family has a long history in the Village of
Atlantic Beach.
(Compl. ¶ 31.)
Plaintiff Alberta Libbey is a
real estate broker and lifelong resident of the Village who owns
two
real
estate
Associates.
businesses--M.A.
Salazar
(Compl. ¶¶ 2, 17.)
and
Atlantic
Beach
Plaintiffs Victoria Libbey
Simao and Richard Libbey are Alberta Libbey’s children, both of
whom are licensed real estate agents.
Since
Pamela
1996,
Makaea,
have
Defendants
government.
Mahler
and
Richard
been
Libbey
and
outspoken
Cherson
(Compl. ¶ 38.)
(Compl. ¶¶ 3-4, 20-21.)
and
his
wife,
political
their
allies
Plaintiff
critics
in
of
Village
Likewise, Victoria Libbey Simao has
3
been
active
(Compl.
in
Village
¶
41-42.)
retaliated
against
speech.
affairs
According
them
in
to
and
criticized
Plaintiffs,
various
ways
for
(See, e.g., Compl. ¶¶ 40, 48, 52-53.)
Defendants.
Defendants
their
have
political
Specifically,
Plaintiffs allege that the Village has enacted various codes and
regulations
pursuant
to
which
Plaintiffs
have
been
targeted.
For example, on November 17, 2008, the Village enacted Village
Beach Code § 250-80, which terminated the right to maintain
rooftop signs by amortization on June 1, 2010.
(Compl. ¶ 63.)
Plaintiffs allege that between 2008 and 2010, the Libbey family
received twenty-two tickets for violations of Village Beach Code
§ 250-80.
(Compl. ¶ 83.)
Similarly, they allege that on or
about July 7, 2010, Cherson issued two summonses to M.A. Salazar
and Alberta Libbey for maintaining a nuisance and displaying a
prohibited rooftop sign in violation of Atlantic Beach Village
Code § 185-2, which was adopted in 1999.
(Compl. ¶¶ 135, 137.)
On or about January 21, 2011, Cherson issued another summons to
M.A.
Salazar
and
Alberta
Libbey
for
maintaining
an
unsafe
structure (Compl. ¶ 143) and, thereafter issued five additional
summonses over the course of a single month (Compl. ¶ 144).1
It is unclear whether paragraph 223 of the Complaint is
intended as a summary or an additional allegation. In any
event, it states the following: “Between 2008 and 2009, the
Village issued at least fifteen summonses against Alberta Libbey
and/or M.A. Salazar for political signs put up by Richard Libbey
on property where he resided and worked.” (Compl. ¶ 223.)
1
4
In particular, Plaintiffs allege that on November 14,
2011, the Village promulgated a new ordinance, Atlantic Beach
Village
Code
§
185-3.1,
targeting
“Political Sign Ordinance”).
political
(Compl. ¶ 229.)
signs
(the
After adopting
the ordinance, the Village issued nine summonses between May 13,
2012 and August 31, 2012.
(Compl. ¶ 233.)
All of the summonses
were issued against Alberta Libbey, the only person ever to be
summonsed under the Political Sign Ordinance.
(Compl. ¶ 239.)
According
Sign
to
Plaintiffs,
“unconstitutionally
the
singles
Political
out
political
Ordinance
signs”
and
“was
adopted specifically to target the political speech of Richard
Libbey . . . .”
(Compl. ¶¶ 230-31.)
Plaintiffs
further
allege
that,
during
the
same
general time period, Defendants targeted their property at 2035
Park Street in an attempt to force the Libbey Family to sell the
land.
(Compl.
¶
87.)
Originally,
2035
Park
Street
“was
improved and contained a mixed use commercial and residential
building” (the “Building”) (Compl. ¶ 23), which served as M.A.
Salazar and Atlantic Beach Associates’ main office and principal
place
of
business
(Compl. ¶¶ 24-26.)
issued
Alberta
Building.
as
well
as
Richard
Libbey’s
residence.
On or about September 12, 2008, the Village
Libbey
a
(Compl. ¶ 89.)
summons
for
cracked
stucco
to
the
That summons resulted in a bench
warrant when Alberta Libbey failed to appear in Village Court
5
because she was in the hospital undergoing a kidney transplant.
(Compl. ¶ 90.)
Subsequently, on December 10, 2008, the Village
issued Ms. Libbey another summons for cracked stucco to the
Building.
(Compl. ¶ 92.)
Although
Cherson
had
indicated
that
cracked
stucco
could be resolved through a non-structural permit (Compl. ¶ 93),
and the Libbey family obtained such a permit and began repairs
(Compl. ¶¶ 100-02), Cherson issued a “Stop Work” order.
¶ 104.)
(Compl.
Cherson informed the Libbey family that, because the
repairs they had undertaken included removal of cinder block,
they
would
permit.
need
to
obtain
(Compl. ¶ 105.)
a
much
more
expensive
structural
The Libbeys applied for a structural
permit, but the Village rejected their application and required
them to bring the Building to code.
(Compl. ¶¶ 109-11.)
On or about August 16, 2011, M.A. Salazar received a
letter from the Village (the “Demolition Letter”) stating that
M.A. Salazar must demolish the Building within twenty days, or
the Village would do so.
(Compl. ¶ 151.)
The Demolition Letter
was issued pursuant to Chapter 80 of the Atlantic Beach Village
Code, which was enacted in March 2009, allegedly as a further
act of retaliation against the Libbey family.
(Compl. ¶¶ 153-
55.)
Ultimately,
Defendants
demolished
the
Building
November 29 and 30, 2011 at a cost of $41,687.24.
6
on
(Compl.
¶¶ 218,
222.)
Defendants
have
demanded
that
Plaintiffs
reimburse them the cost of the demolition or the property will
be sold.
II. Procedural Background
Three relevant procedural events occurred prior to the
instant
litigation--the
Village
proceedings,
the
state
court
proceedings, and the bankruptcy proceedings.
A. Village Proceedings
In
response
to
the
Demolition
Letter,
M.A.
Salazar
requested a hearing before the Village Board of Trustees (Compl.
¶
160),
which
ultimately
(Compl. ¶ 170).
took
place
on
September
6,
2011
As part of that hearing, Defendant Williams
testified that he conducted a visual inspection of the Building
from
the
sidewalk
at
the
request
of
determined that the building was unsafe.
Cherson
and
ultimately
(See Engineering Defs.
Br., Docket Entry 16-14, at 2; Clerkin Decl., Docket Entry 16-1,
Ex. D.)
Williams recommended either immediate demolition or a
controlled demolition.
(Clerkin Decl. Ex. D at 87.)
“At the
conclusion of the September 6th hearing, Mahler, supported by a
unanimous vote of the Board of Trustees, condemned the Building
and ordered it to be demolished by October 1, 2011.”
¶ 200.)
7
(Compl.
B. State Court Proceedings
Thereafter, on September 29, 2011, M.A. Salazar filed
a request for an Order to Show Cause in Nassau County Supreme
Court
pursuant
to
Article
78
demolition of the Building.
seeking
a
TRO
prohibiting
(Compl. ¶ 202.)
the
Justice Roy S.
Mahon held a hearing on October 11, 2011, which was continued on
October 13, 2011.
(Engineering Defs. Br. at 3; Miranda Decl.,
Docket Entry 20, Ex. H.)
Justice Mahon heard evidence from both
parties, including testimony from M.A. Salazar’s expert engineer
as well as from Williams.
(Village Defs. Reply Br., Docket
Entry 43, at 4; Miranda Decl. Ex. H.)
found
that
established
“[t]estimony
that
a
and
Ultimately, Justice Mahon
evidence
structure
adduced
located
at
at
2035
the
hearing
Park
Street,
Atlantic Beach, New York, owned by the plaintiff has fallen into
a
state
of
disrepair.”
(Miranda
Decl.
Ex.
H
at
150.)
Accordingly, he denied the TRO.
On December 6, 2011, M.A. Salazar filed an Amended
Article 78 Petition in New York State Supreme Court, Nassau
County
seeking,
inter
alia,
to
annul
the
Village’s
initial
decision that a structural permit was required to repair the
Building and the September 6, 2011 determination by the Village
that the Building was unsafe.
P.)
(Compl. ¶ 221; Miranda Decl. Ex.
M.A. Salazar also sought monetary damages for the pre-
demolition value of the Building as well as a release from the
8
obligation to pay demolition costs.
June
20,
2012,
Justice
Mahon
(Miranda Decl. Ex. P.)
denied
the
Amended
On
Article
78
Petition, citing primarily to his prior hearings and findings on
October 11 and October 13, 2011 and concluding that res judicata
barred M.A. Salazar’s amended petition.
(Miranda Decl. Ex. X
(“In
after
light
of
encompassed
the
this
Court’s
Petitioner’s
decision
first
three
hearing
requests
for
which
relief
which are barred by the doctrine of res judicata . . ., to the
extent
that
the
Respondent
seeks
an
Order
pursuant
to
CPLR
7804(f)[ ] for a pre-answer dismissal of the first three causes
of action in petitioner’s amended petition, is granted.2”).)
C. Bankruptcy Proceedings
During the course of the state court proceedings, on
October 14, 2011, M.A. Salazar filed a Petition for relief under
Chapter
11
Bankruptcy
of
Court
the
for
“Bankruptcy Court”).
Bankruptcy
the
Code
Eastern
in
District
the
of
United
New
States
York
(See Engineering Defs. Br. at 3.)
(the
There,
the Bankruptcy Court granted the Village Defendants’ motion for
relief
from
the
automatic
bankruptcy
Village to proceed with demolition.
stay
and
permitted
(Engineering Defs. Br. at
3-4.)
M.A. Salazar also sought, and Justice Mahon denied, an order
compelling Defendants to issue it building permits to erect a
new structure on the Park Street property. (Miranda Decl. Ex.
X.)
2
9
the
The Village conducted the demolition and M.A. Salazar
moved for sanctions, arguing in part that the Village conducted
the demolition in violation of the automatic stay.
Defs.
Br.,
Docket
Entry
23,
at
1-2.)
The
(Village
Bankruptcy
Court
denied M.A. Salazar’s motion, which M.A. Salazar appealed to
Judge Arthur D. Spatt of the District Court for the Eastern
District of New York.
See M.A. Salazar, Inc. v. Inc. Vill. of
Atlantic Beach, No. 12-CV-3458.
In
Spatt
a
relatively
determined
that
it
recent
was
Memorandum
unclear
and
whether
Order,
the
Judge
Bankruptcy
Court lifted the automatic stay or whether an automatic stay had
ever applied in the first instance.
M.A. Salazar, Inc., No. 12-
CV-3458, Docket Entry 19 (“Spatt Order”).
He therefore directed
the Bankruptcy Court to clarify whether it lifted the stay or
whether the stay never existed.
See id. at 9.
Judge Spatt also
determined that the Village violated an Order issued by the
Bankruptcy
Order.”
Court,
which
See id. at 10.
Judge
Spatt
designated
“the
Fence
“The Fence Order stated that ‘after
5:00 p.m. on October 21, 2011, it will be unlawful for any
person to enter, remain or reside on the [Debtor’s] property.’”
Id.
M.A. Salazar had argued that the Fence Order prohibited the
demolition.
The Village, on the other hand, argued that the
Fence Order was designed solely to keep the property as safe as
possible until a hearing on the automatic stay.
10
See id.
Judge
Spatt found that, contrary to the Bankruptcy Court’s decision,
the Fence Order was sufficiently specific and definite in its
terms and that the Village violated it.
See id.
reversed
to
the
Bankruptcy
Court’s
finding
the
As such, he
contrary
and
remanded the case back to the Bankruptcy Court to determine
whether, pursuant to its inherent authority, the Village acted
in bad faith in violating the Fence Order.
See id. at 10-11.
While the Bankruptcy Court ultimately dismissed M.A.
Salazar’s Petition (see Clerkin Decl. Ex. H), a decision on
remand is still pending.
DISCUSSION
The Complaint, which totals fifty pages, enumerates
the following causes of action: (1) retaliation for the exercise
of First and Fourteenth Amendment rights; (2) “substantive due
process violation: arbitrary application of municipal laws”; (3)
“equal
protection
enforcement”;
violation
of
(4)
the
violation:
arbitrary
procedural
Fifth
due
Amendment
process
Takings
and
selective
violation;
Clause;
(6)
(5)
Fourth
Amendment violation; (7) Atlantic Beach Village Code § 185-3.1
is unconstitutional on its face; (8) Atlantic Beach Village Code
§
185-3.1
is
unconstitutional
as
applied;
(9)
violation
of
Article 1, § 8 of the New York State Constitution: Freedom of
Speech; (10) violation of Article 1, § 7 of the New York State
Constitution: Takings Clause; (11) violation of Article 1, § 12
11
of the New York State Constitution: Search and Seizure Clause;
(12)
malicious
trespass;
(15)
prosecution;
nuisance;
(13)
(16)
abuse
tortious
of
process;
(14)
interference
with
business relations; (17) prima facie tort3;
(18) intentional
infliction of emotional distress; (19) reckless infliction of
emotional distress; and (20) negligent infliction of emotional
distress.4
The Engineering and Village Defendants each move to
dismiss the Complaint in its entirety.
(See Docket Entries 16-
17, 19.)
In addition, simultaneous with commencement of this
action, Plaintiffs filed a proposed Order to Show Cause for a
TRO and PI, which they formalized in a subsequent motion for a
PI.
(See Docket Entries 3, 30.)
The Court will first address
those requests before turning to the Village Defendants’ and
Engineering Defendants’ motions to dismiss.
I.
Preliminary Injunction
The
Court
will
set
forth,
first,
the
procedural
history relevant to Plaintiffs’ requests for a PI before turning
The Complaint contains two causes of action entitled “Count
XVI.” (Compl. ¶¶ 45-46.)
3
The Court notes that the Complaint does not make clear which
defendants against whom they lodge their particular claims or
whether they intend to assert each of the enumerated causes of
action against all Defendants. Accordingly, the Court may, at
times, use “Defendants” generically.
4
12
to the applicable legal standards and Plaintiffs’ requests more
specifically.
A.
Procedural History Relevant to PI Requests
Simultaneous with commencing the Complaint, Plaintiffs
sought a TRO and/or PI.
4.)
(See Pls. First PI Br., Docket Entry
from
This first request sought to enjoin “the Village Defendants
selling
Plaintiffs’
land
to
pay
for
the
Demolition
Assessment and to enjoin further prosecution of Ms. Libbey under
the
unconstitutional
Political
signs posted by her son.”
Sign
Ordinance
for
political
(Pls. First PI Br. at 1-2.)
The
Court held a hearing on May 6, 2013, at which time the status
quo was preserved and the Court adjourned the conference for a
later date.
(See 5/6/13 Minute Entry, Docket Entry 6.)
The
parties requested, and the Court granted, several extensions of
time.
On
July
17,
2013,
the
Village
Defendants
advise the Court of the status of Plaintiffs’ request.
Vill. Ltr., Docket Entry 26.)
wrote
to
(7/7/13
The Village Defendants explained
that the Village was in the process of repealing the Political
Sign Ordinance and that the parties had been attempting to work
out a stipulation.
The letter went on to explain that, as to
any potential sale of the property, a Sheriff’s sale would need
to take place, but that no such action had been commenced by the
Village.
The following day, Plaintiffs’ counsel wrote to the
13
Court indicating that no stipulation had been reached and that
Plaintiffs
continued
to
maintain
their
entitlement
to
a
PI.
(Pls. 7/18/13 Ltr., Docket Entry 27.)
The Court ultimately held another hearing on August
14, 2013.
PI.
That morning, Plaintiffs filed a formal motion for a
They
argued,
inter
alia,
that
voluntary
repeal
of
an
unconstitutional law did not necessarily moot their application.
(Pls. PI Br. at 1.)
Plaintiffs’ counsel argued that “although
the Village dismissed the summonses against Plaintiff Alberta
Libbey
issued
conspicuously
under
did
not
the
Political
dismiss
(Pls. PI Br. at 3.)
the
Sign
summonses
Ordinance,
with
it
prejudice.”
Discussions before the Court were not
particularly fruitful, and the undersigned referred the matter
to Judge Lindsay for an R&R.
On August 20, 2013, Judge Lindsay also held a hearing,
at which time she recommended that Plaintiffs’ requests for a PI
be
denied
(8/20/13
as
moot
Minute
for
Entry,
the
reasons
Docket
Entry
stated
on
record.
Judge
34.)
the
Lindsay
addressed in detail whether Plaintiffs’ counsel and counsel for
the
Village
Defendants
had
indeed
entered
into
binding stipulation governing Plaintiffs’ requests.
Tr.5 at 6.)
a
valid
and
(See, e.g.,
Plaintiffs’ counsel, Mr. Scaturro, maintained that
Cites to “Tr.” refer to the transcript of Judge Lindsay’s
August 20, 2013 conference.
5
14
he had drafted and executed a stipulation on July 16, 2013,
which
he
sent
Defendants.
had
a
to
Mr.
Miranda,
(Tr. at 7, 10.)
phone
conversation
counsel
Mr.
Scaturro,
the
the
Village
Mr. Scaturro and Mr. Miranda then
during
which
particular language in the stipulation.
to
for
disagreement
the
two
disagreed
(Tr. at 7.)
over
on
According
particular
language
ultimately meant that there was no meeting of the minds and the
draft stipulation was a dead letter.
(Tr. at 10.)
After that
phone conversation, however, Mr. Miranda signed the stipulation.
(Tr. at 8.)
As such, the Village Defendants have maintained
that the stipulation is binding.
Judge Lindsay agreed with the
Village Defendants, finding that the “stipulation is a binding
agreement between the parties.”
Putting
Plaintiffs’
Plaintiffs
aside
requests
“wanted
to
(Tr. at 24.)
that
issue,
Judge
Lindsay
raised
“two
very
specific
prevent
the
Village
noted
that
points”--
[D]efendants
from
prosecuting proceedings that were scheduled to take place on May
22nd before the Village Court for the alleged violations of [the
Political Sign Ordinance]” and that the Village Defendants be
enjoined from selling the property at 2035 Park Street.
4, 13.)
(Tr. at
As to prosecution under the Political Sign Ordinance,
Judge Lindsay recommends that Plaintiffs’ requests for a PI be
denied as moot because the Village had repealed the Political
Sign Ordinance and dismissed the tickets against Ms. Libbey.
15
(Tr. at 4.)
dismissed
Mr. Scatturo asserted that the tickets were not
with
reinstatement.
prejudice,
(Tr.
at
and
4-5.)
therefore
Judge
Lindsay
capable
of
rejected
this
argument, however, stating that “[t]here is no indication at all
that the Village is retrenching in its position that -- and it
has already taken action to repeal the law, you have no basis
for your belief, at least nothing that you can describe, that
would suggest that they’re going to prosecute these offenses or
violations which were the subject of the injunction.”
(Tr. at
13.)
Judge Lindsay further found that “with respect to the
sale of the land, it’s already very clear as I understand it
that no action can take place and in fact -- what was it,
because of the state case there was no judgment entered.”
(Tr.
at
deny
13.)
Accordingly,
she
recommends
that
the
Court
Plaintiffs’ request for a PI as moot in this regard as well.
Mr.
Scaturro
reiterated
his
assertion
that
Plaintiffs
are
entitled to an injunction to enjoin any predicate proceedings
for the sale of the property.
(Tr. at 14.)
Mr. Savoiardo,
however, represented that the Village would not take any action
until the Court rules on the demolition issues in the underlying
case.
(Tr. at 14-15.)
On September 4, 2013, Plaintiffs filed objections to
Judge
Lindsay’s
recommendations,
16
arguing
primarily
that
the
stipulation was not binding, that repeal of the Political Sign
Ordinance does not moot their requests for an injunction as to
the
summonses
Defendants’
issued
promise
thereunder,
that
they
and
will
that
not
the
any
take
Village
actions
regarding sale of the property does not moot their requests in
this regard.
B. Legal Standards
“When evaluating the report and recommendation of a
magistrate judge, the district court may adopt those portions of
the report to which no objections have been made and which are
not facially erroneous.”
Walker v. Vaughan, 216 F. Supp. 2d
290, 291 (S.D.N.Y. 2002) (citation omitted).
A party may serve
and file specific, written objections to a magistrate’s report
and
recommendation
within
fourteen
days
of
receiving
recommended disposition.
See FED. R. CIV. P. 72(b)(2).
receiving
objections
any
recommendation,
timely
the
district
“court
to
may
the
the
Upon
magistrate’s
accept,
reject,
or
modify, in whole or in part, the findings or recommendations
made by the magistrate judge.”
28 U.S.C. § 636(b)(1)(C); see
also FED. R. CIV. P. 72(b).
A party that objects to a report and
recommendation
out
must
point
the
specific
report and recommendation to which they object.
portions
of
the
See Barratt v.
Joie, No. 96-CV-0324, 2002 WL 335014, at *1 (S.D.N.Y. Mar. 4,
2002) (citations omitted).
17
When
a
party
raises
an
objection
to
a
magistrate
judge’s report, the Court must conduct a de novo review of any
contested sections of the report.
See Pizarro v. Bartlett, 776
F. Supp. 815, 817 (S.D.N.Y. 1991).
But if a party “makes only
conclusory
or
original
or
general
arguments,
objections,
the
Court
simply
reviews
Recommendation only for clear error.”
Inc.,
249
F.R.D.
48,
51
(E.D.N.Y.
marks and citation omitted).
reiterates
the
Report
his
and
Pall Corp. v. Entegris,
2008)
(internal
quotation
Furthermore, even in a de novo
review of a party’s specific objections, the Court ordinarily
will
not
consider
“arguments,
case
law
and/or
evidentiary
material which could have been, but [were] not, presented to the
magistrate judge in the first instance.”
Kennedy v. Adamo, No.
02-CV-1776, 2006 WL 3704784, at *1 (E.D.N.Y. Sept. 1, 2006)
(internal quotation marks and citation omitted).
C.
Plaintiffs’ Requests
Preliminarily,
the
Court
notes
that
Plaintiffs’
objections reiterate the exact arguments made to Judge Lindsay.
Accordingly, a clear error standard applies.
However, even if
this Court were to conduct a de novo review, the Court finds
that Plaintiffs’ requests for a PI are moot.
In order to justify a preliminary injunction, a movant
must demonstrate:
18
1)
irreparable
harm
absent
injunctive
relief; 2) either a likelihood of success on
the merits, or a serious question going to
the merits to make them a fair ground for
trial, with a balance of hardships tipping
decidedly in the plaintiff’s favor, and 3)
that the public’s interest weighs in favor
of granting an injunction.
Metro. Taxicab Bd. of Trade v. City of N.Y., 615 F.3d 152, 156
(2d Cir. 2010) (internal quotation marks and citation omitted).
Putting aside the issue of whether Plaintiffs and the
Village Defendants entered into a valid and binding stipulation,6
the Court turns to Plaintiffs’ requests for an injunction to
enjoin prosecution under the Political Sign Ordinance.
parties
have
noted,
“[t]he
voluntary
cessation
of
As both
allegedly
illegal conduct usually will render a case moot if the defendant
can demonstrate that (1) there is no reasonable expectation that
the
alleged
violation
will
recur
and
(2)
interim
relief
or
The Court notes that Plaintiffs and the Village Defendants have
submitted various documents regarding a purported stipulation
and have argued this issue extensively before both the
undersigned and Judge Lindsay. Ultimately, however, whether the
stipulation was binding or not is irrelevant, as Plaintiffs’
requests are moot regardless of any stipulation.
6
Moreover, the Court takes this opportunity to address the
parties’ submissions regarding Plaintiffs’ potential claim for
attorneys’ fees pursuant to 42 U.S.C. § 1988. (See Docket
Entries 41, 44.) The Court cannot--and will not--issue any
advisory opinions regarding the potential validity of a such a
motion nor will the Court “state in its decision” whether any
particular approach by Plaintiffs’ counsel is “keeping with
[his] professional obligations . . . .” (Docket Entry 44.)
Plaintiffs’ counsel is free to file a motion for attorneys’ fees
if and when appropriate, which the Court will consider in due
course.
19
events have completely and irrevocably eradicated the effects of
the alleged violation.”
Lamar Adver. of Penn, LLC v. Town of
Orchard Park, N.Y., 356 F.3d 365, 375 (2d Cir. 2004).
Here,
Political
Sign
the
Village
Ordinance
and
Defendants
dismissed
thereunder against Ms. Libbey.
have
the
repealed
summonses
the
issued
(See Vill. Defs.’ Resp. Br. to
Pls.’ Objections, Docket Entry 41, at 11.)
Thus, Plaintiffs
cannot show irreparable harm absent injunctive relief.
As Judge
Lindsay correctly noted, Plaintiffs have requested injunctive
relief
Defendants
from
prosecuting Ms. Libbey under the Political Sign Ordinance.
(Tr.
at 4.)
specifically
to
prevent
the
Village
After Plaintiffs commenced this action, however, the
Village undertook all of the necessary steps to fully repeal the
ordinance.
Furthermore, counsel for the Village Defendants has
repeatedly represented to the Court that the Village will not
attempt
to
Ordinance.
re-prosecute
Ms.
Libbey
under
the
Political
Sign
(Vill. Defs.’ Resp. Br. to Pls.’ Objections at 7.)
Although representations to the Court do not necessarily equate
to a showing that there is no reasonable expectation that the
alleged violation will recur, see Dean v. Blumenthal, 577 F.3d
60, 65 (2d Cir. 2009), Plaintiffs in this case proffer only
speculation
to
suggest
recurrence.
(See
Tr.
at
31
(Judge
Lindsay: “You have no reason to believe that those tickets are
going to be prosecuted.
You haven’t said anything to indicate
20
that they’re going to be -- that those tickets which were the
subject
of
this
motion
were
going
to
resurrected
for
prosecution.”); Lamar, 356 F.3d at 377 (“We see nothing on this
record that would lead us to believe that Orchard Park intends
to return to the questionable state of affairs that existed
before Lamar filed suit.”); N.Y. State Chapter of Am. Coll. of
Emergency
Physicians,
Inc.
v.
Wing,
987
F.
Supp.
127,
130
(N.D.N.Y. 1997) (“Since § 75 has been repealed out of existence,
there is nothing left to enjoin and the Court thus concurs that
the
action
is
moot.”).
Accordingly,
Judge
Lindsay’s
recommendation as to Plaintiffs’ requests for a PI to enjoin
prosecution
under
the
Political
Sign
Ordinance
is
ADOPTED,
Plaintiffs’ objections are OVERRULED, and Plaintiffs’ requests
are DENIED AS MOOT.7
Although the Court finds that Plaintiffs’ PI requests in this
regard are moot, the Court makes no determination about
Plaintiffs’ underlying claims regarding the Political Sign
Ordinance or the validity thereof. See Dean, 577 F.3d at 66
(holding that, although the plaintiff’s requested injunctive
relief was moot, that his challenge to an allegedly
unconstitutional policy was not moot because the plaintiff sought
damages); Keepers, Inc. v. City of Milford, Conn., --- F. Supp.
2d ----, 2013 WL 1297839, at *5 (D. Conn. Mar. 30, 2013)
(“‘Claims for damages or other monetary relief automatically
avoid mootness, so long as the claim remains viable.’” (quoting
Stokes v. Vill. of Wurtzboro, 818 F.2d 4, 6 (2d Cir. 1987));
Alive v. Hauppauge Sch. Dist., No. 08-CV-1068, 2009 WL 959658,
at *5 (E.D.N.Y. Apr. 6, 2009) (“While the court has determined
that any claims for injunctive and declaratory relief . . . are
moot, the court finds itself compelled to allow these claims to
survive insofar as they seek nominal damages for the violation
of substantive constitutional rights.”).
7
21
Plaintiffs
have
also
requested
a
PI
to
enjoin
the
Village Defendants from selling the property at 2035 Park Street
in
order
to
satisfy
the
Demolition
Assessment.
As
to
this
aspect of Plaintiffs’ requests, Judge Lindsay determined that
that there are multiple, preliminary steps that would need to
occur before any potential sale of the property could take place
and that Plaintiffs had not established that any of these steps
were
underway.
(Tr.
at
36.)
Again,
the
Court
agrees.
Plaintiffs concede that “[t]here’s been no assessment.
There’s
been no litigation to reduce an assessment to judgment.”
at
13-14.)
irreparable
Accordingly,
harm
absent
there
has
injunctive
been
no
relief.
(Tr.
showing
Thus,
of
Judge
Lindsay’s recommendation as to Plaintiffs’ requests for a PI to
enjoin the Village Defendants from selling the property at 2035
Park Street is ADOPTED, Plaintiffs’ objections are OVERRULED,
and Plaintiffs’ requests are DENIED.
II.
Defendants’ Motions to Dismiss
In
addition
to
litigating
the
PI
issues,
both
the
Village Defendants and the Engineering Defendants have moved to
dismiss Plaintiffs’ Complaint.
The
standards.
Court
will
first
address
the
applicable
legal
To the extent that Defendants raise the same or
similar arguments, the Court will provide one, comprehensive,
22
discussion on the matter.
To the extent that their arguments
diverge, the Court will address them independently.
A.
Legal Standard
1.
Standard of Review 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. 1998); Shipping Fin. Servs. Corp. v.
Drakos, 140 F.3d 129, 131 (2d Cir. 1998).
2.
In
Court
Standard of Review under Rule 12(b)(6)
deciding
applies
a
Rule
12(b)(6)
“plausibility
“[t]wo working principles.”
motions
standard,”
to
which
dismiss,
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.
23
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
court
common sense.”
to
draw
on
its
judicial
experience
and
Id.; accord Harris, 572 F.3d at 72.
Furthermore,
in
deciding
a
motion
to
dismiss,
the
Court is confined to “the allegations contained within the four
corners of [the] complaint.”
Shield,
152
interpreted
Complaint,
Complaint
F.3d
broadly
any
by
67,
to
71
(2d
Cir.
include
statements
reference,
Pani v. Empire Blue Cross Blue
or
any
any
1998).
This
document
attached
to
the
incorporated
in
the
documents
document
on
which
the
has
been
Complaint
heavily relies, and anything of which judicial notice may be
taken.
See Chambers v. Time Warner, Inc., 282 F.3d 147, 152-53
(2d Cir. 2002) (citations omitted); Kramer v. Time Warner, Inc.,
937 F.2d 767, 773 (2d Cir. 1991).
24
B. Rooker-Feldman
The Engineering and Village Defendants maintain that
the instant action centers around the demolition of the Park
Street Building, an issue that has been previously litigated.
(See
Engineering
Accordingly,
regarding
they
money
Building
and
Assessment
Defs.
assert
damages
the
are
Br.
at
that
by
Village
to
the
enforcement
the
Defs.
Plaintiffs’
relating
resulting
barred
4;
doctrine
Br.
instant
demolition
at
4.)
claims
of
the
of
the
Demolition
of
Rooker-Feldman.
Plaintiffs counter that their claims are not barred by RookerFeldman because the Village hearing on September 6th was not a
judicial proceeding and because they do not complain of injuries
caused by the Article 78 proceedings in state court.
Br., Docket Entry 39, at 5-6.)
and
both
the
Village
and
(Pls. Opp.
The Court agrees with Plaintiffs
Engineering
Defendants’
motions
to
dismiss based on Rooker-Feldman are DENIED.
The Rooker-Feldman doctrine “establishes the principle
that federal district courts lack jurisdiction over suits that
are,
in
substance,
appeals
from
state-court
judgments.”
MacPherson v. Town of Southampton, 738 F. Supp. 2d 353, 362
(E.D.N.Y. 2010).
Courts in this Circuit typically apply four
factors to determine whether Rooker-Feldman bars a federal suit,
namely that: (1) plaintiff is a state court loser; (2) plaintiff
complains of injuries caused by the state court judgment; (3)
25
plaintiff seeks review of the state court judgment; and (4) the
state
court
judgment
proceedings began.
was
Id.
rendered
before
district
court
Rooker-Feldman “bars not only claims
that would involve direct review of a state court decision, but
also claims that are ‘inextricably intertwined’ with a state
court decision.”
Fullerton Ave. Land Dev. Ltd. v. Cianciulli,
48 F. App’x 813, 815 (2d Cir. 2002).
Here, Defendants assert that the Complaint primarily
centers
around
Plaintiffs
the
are
demolition
improperly
of
the
attempting
Building
to
and
relitigate
that
previous
findings that the Building was unsafe and that demolition was
required.
(See,
e.g.,
Village
Defs.
Br.
at
4.)
However,
Plaintiffs contend, and the Court agrees, that Defendants have
mischaracterized
the
prior
state
court
proceedings.
As
Plaintiffs assert, “[t]he Nassau Supreme Court never ordered the
Village Defendants to demolish the Building.”
(Pls. Opp. Br. at
6.)
first
Rather,
Petition
in
when
state
M.A.
court,
Salazar
filed
Justice
Mahon
its
held
a
Article
hearing
78
“to
determine whether . . . M.A. Salazar Incorporated should be
grant[ed]
a
temporary
restraining
order
against
the
.
.
.
Village . . . and restraining the defendant from interfering
with plaintiff’s use of the premises until a full hearing and
determination
of
the
instant
application
(Miranda Decl. Ex. X (emphasis added).)
26
could
be
made.”
Ultimately, Justice
Mahon denied M.A. Salazar’s request, finding that “[t]estimony
and evidence adduced at the hearing establishes that a structure
located at 2035 Park Street, Atlantic Beach, New York, owned by
the plaintiff has fallen into a state of disrepair.”
Decl. Ex. X.)
Petition,
When M.A. Salazar filed its amended Article 78
Justice
determinations
(Miranda
Mahon
in
relied
again
upon
denying
his
M.A.
prior
findings
Salazar’s
and
request.
(Miranda Decl. Ex. X.)
While
Rooker-Feldman
may
divest
the
Court
of
jurisdiction over the issue of the Building’s safety, that is
not
what
Plaintiffs
allege.
Plaintiffs
dispute that the Building was unsafe.
do
not
necessarily
Indeed, they contend that
the Village Defendants issued a “stop work” order and began
threatening demolition at a time when particular repairs were
already underway and the Building was most vulnerable.
Compl.
¶
actions
104.)
Rather,
constituted
they
maintain
constitutional
that
the
violations
(See
Defendants’
regardless
of
whether an injunction to annul the September 6, 2011 decision
declaring the Building unsafe was appropriate or whether Justice
Mahon’s
decision
denying
an
injunction
was
correct.
Accordingly, Plaintiffs’ claims regarding the demolition of the
Building and Defendants’ alleged constitutional violations in
connection
therewith
are
not
an
decision.
See Exxon Mobil Corp. v. Saudi Basic Indus. Corp.,
27
appeal
of
the
state
court
544 U.S. 280, 284, 125 S. Ct. 1517, 161 L. Ed. 2d 454 (2005)
(Rooker-Feldman “is confined to cases of the kind from which the
doctrine acquired its name: cases brought by state-court losers
complaining of injuries caused by state-court judgments rendered
before
the
district
court
proceedings
commenced
and
inviting
district court review and rejection of those judgments.”).
Furthermore,
Plaintiffs’
claims
regarding
demolition
relate primarily to the Village Defendants’ actions in blocking
Plaintiffs from making repairs to the Building.
Thus, although
Justice Mahon stated, by way of background, that “[a]ttempts to
repair the structure on September 18, 2009 led to the issuance
of a stop work order when it was discovered that the extent of
the disrepair rendered the project unsafe” (Miranda Decl. Ex.
X), he did not make any determination on this particular issue,
nor
was
there
proceedings.
a
determination
in
any
of
the
other
prior
At its most basic level, Justice Mahon’s decisions
essentially found that the Building was in a state of disrepair
and
that
the
state
court
could
not
necessarily
Village from demolishing an unsafe building.
enjoin
the
His decisions,
however, pertained only to M.A. Salazar’s injunctive relief and
did
not,
as
the
Village
Defendants
suggest,
constitute
a
decision on the merits sanctioning demolition.
In
fact,
the
Bankruptcy
Court
resultant appeal obviate this point.
28
proceedings
and
the
As outlined previously,
the Bankruptcy Court issued the Fence Order, which prohibited
anyone from entering the Park Street property.
See supra p. 9.
On appeal, Judge Spatt determined that the Village had violated
the Fence Order by entering the property and demolishing the
Building.
See supra p. 10.
Accordingly, the Engineering and Village Defendants’
motion
to
dismiss
all
of
Plaintiffs’
claims
regarding
the
demolition based upon the Rooker-Feldman doctrine are DENIED.
C. Res Judicata and Collateral Estoppel
Similar to their Rooker-Feldman argument, the Village
Defendants also maintain that all of Plaintiffs’ claims that
“emanate from the demolition” are barred by the doctrines of
collateral estoppel and res judicata.
(Village Defs. Br. at 9.)
More specifically, they assert that Justice Mahon held a hearing
on October 11 and 13, 2011 and made findings of fact which now
preclude their claims sounding in substantive and procedural due
process,
takings,
retaliation,
Fourth
trespass,
Amendment/State
nuisance,
search
tortious
and
seizure,
interference
with
business relations, prima facie tort, and emotional distress.
(Village Defs. Reply Br. at 5.)
Plaintiffs argue, inter alia,
that “the state court’s prior decisions were decidedly not an
independent
determination
of
any
decisive
issue
of
the
Building’s condition, but a recitation of evidence that provides
background (however incomplete) about facts not materially in
29
dispute in this action . . . .”
(Pls. Opp. Br. at 11.)
The
Court agrees with Plaintiffs.
With respect to preclusion under the doctrine of res
judicata, the Village Defendants seem to cite to the state court
proceedings.
(See Village Defs. Br. at 9; Village Defs. Reply
Br. at 3.)
However, “res judicata does not apply to § 1983
claims brought after Article 78 proceedings.”
See Zbryshi v.
Bd. of Trs. of N.Y. Fire Dep’t Pension Fund, No. 01-CV-4801,
2004 WL 2238503, at *4 (S.D.N.Y. Oct. 4, 2004).
The issue of collateral estoppel, however, requires a
lengthier discussion.
“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); accord Reyes v. Fairfield Props., 661 F. Supp.
2d 249, 275 (E.D.N.Y. 2009) (“Under New York law, collateral
estoppel bars relitigation of an issue when (1) the identical
issue
necessarily
decisive
precluded
of
the
from
was
decided
present
in
action,
relitigating
the
30
the
prior
action
and
(2)
the
issue
had
a
and
party
full
is
to
be
and
fair
opportunity
to
litigate
the
issue
in
the
prior
action.”
(internal quotation marks and citation omitted)).
As
stated
previously,
the
only
issue
“necessarily
decided” in the state court proceedings was that the Building
was in such a state of disrepair at that particular point in
time
that
M.A.
Salazar
injunctive relief.
heard
testimony
was
not
entitled
to
preliminary
In the proceedings before Justice Mahon, he
regarding
the
structural
integrity
of
the
Building, falling masonry block, and the impact of Plaintiffs’
initial
repairs
on
the
continued
stability
(See generally Miranda Decl. Ex. H.)
of
the
Building.
Such evidence does not
pertain to Plaintiffs’ instant claims, nor did the state court
proceedings afford Plaintiffs a full and fair opportunity to
litigate them.
See Reyes, 661 F. Supp. 2d at 276 (finding that,
although
collateral
eviction
claims
due
estoppel
to
a
barred
prior
the
state
plaintiffs’
court
plaintiffs’ additional claims were not barred).
the
instant
action
Plaintiffs
allege
that
unlawful
judgment,
the
For example, in
Defendants
abused
their authority, an issue not necessarily decided in the state
court proceedings.
(Compl. ¶ 269 (alleging that the Village
Defendants in concert with the Engineering Defendants violated
Plaintiffs’
substantive
enforcement
and
Beach
Village
due
process
interpretative
Code
and
New
authority
York
31
rights
State
“by
under
Law
in
abusing
the
a
their
Atlantic
selective,
irrational, and arbitrary manner”); Id. ¶ 288 (alleging that the
Village Defendants violated Plaintiffs’ procedural due process
in part by issuing summonses without notices, injecting bias
into the Village Court, and abusing the Village Code); Id. ¶ 342
(alleging that Defendants are liable for tortious interference
with
business
relations
because
they
“abuse[d]
.
.
.
their
authority . . . for the ulterior purpose of punishing the Libbey
Family for their political views . . .”).)
Accordingly, the Village Defendants’ motion to dismiss
on res judicata and collateral estoppel grounds is DENIED.
D. Prior Action Pending
The
Village
Defendants
additionally
assert
that
Plaintiffs’ claims seeking damages arising from the demolition
must be dismissed pursuant to the prior action pending doctrine.
(Village Defs. Br. at 7.)
“As
part
of
The Court disagrees.
its
general
power
to
administer
its
docket, a district court may stay or dismiss a suit that is
duplicative of another federal court suit.”
N.A., 226 F.3d 133, 138 (2d Cir. 2000).
Curtis v. Citibank,
Such actions are within
the Court’s discretion and essentially depend on the equities of
a particular case, rather than the application of any rigid
test.
See id.; accord Amusement Indus., Inc. v. Midland Ave.
Assocs., LLC, 820 F. Supp. 2d 510, 525 (S.D.N.Y. 2011).
In
general, “[e]fficiency supports staying or dismissing a claim
32
when
there
claims.”
is
a
pending
suit
raising
the
same
issues
and
Byron v. Genovese Drug Stores, Inc., No. 10-CV-3313,
2011 WL 4962499, at *2 (E.D.N.Y. Oct. 14, 2011).
The Village Defendants maintain that M.A. Salazar’s
appeal from the Bankruptcy Court seeks money damages for the
pre-demolition value of the building, “precisely the demolition
damages being sought at bar.”
(Village Defs. Br. at 8.)
Here,
“[w]hile there is a ‘rough resemblance between the two suits,’
they are not so duplicative that the Court should exercise its
discretion to stay or dismiss this action.”
Amusement Indus.,
Inc., 820 F. Supp. 2d at 525 (quoting Curtis, 226 F.3d at 136).
M.A.
Salazar’s
appeal
from
the
Bankruptcy
Court
pertains
to
whether there was an automatic stay in place and the amount of
sanctions, if any, for the Village’s violation of the Bankruptcy
Court’s Fence Order.
The instant action, in contrast, involves
alleged constitutional violations and therefore different bases
of
liability.8
Furthermore,
the
action
before
this
Court
involves matters regarding not only the demolition, but also the
Political Sign Ordinance and various other issues.
See Quinn v.
Walgreen Co., --- F. Supp. 2d ----, 2013 WL 4007568, at *4
(S.D.N.Y. Aug. 7, 2013) (declining to stay in part because,
While the Bankruptcy Court’s imposition of sanctions, if at
all, might have an impact on Plaintiffs’ trespass claim in the
instant matter, the trespass claim is being dismissed for the
reasons discussed below.
8
33
regardless of disposition of a pending motion in the prior filed
case, additional issues would still require a decision).
Accordingly, the Village Defendants’ motion to dismiss
pursuant to the prior action pending doctrine is DENIED.
E.
Plaintiffs’ Standing
The
Village
Defendants
further
move
because, they argue, Plaintiffs lack standing.
Village
Defendants,
M.A.
Salazar
was
the
to
dismiss
According to the
only
owner
of
the
Building, and therefore is the only proper plaintiff in any of
the claims regarding the demolition.
(Village Defs. Br. at 10.)
In addition, the Village Defendants assert that M.A. Salazar,
Victoria
Libbey
Simao,
Richard
Libbey,
Pamela
Makaea,
and
Atlantic Beach Associates, Inc. lack standing to maintain any of
the
claims
Ordinance.
regarding
the
enforcement
of
(Village Defs. Br. at 11.)
the
Political
Sign
The Court will address
each issue in turn.
Under Article III of the United States Constitution,
federal courts are confined “to adjudicating actual ‘cases’ and
‘controversies.’”
Allen v. Wright, 468 U.S. 737, 750, 104 S.
Ct. 3315, 82 L. Ed. 2d 556 (1984); see also U.S. Const., art.
III,
§
2.
“This
limitation
requirement of standing.”
is
effectuated
through
the
Cooper v. U.S. Postal Serv., 577 F.3d
479, 489 (2d Cir. 2009) (citing Valley Forge Christian Coll. v.
Ams. United for Separation of Church & State, Inc., 454 U.S.
34
464, 471-72, 102 S. Ct. 752, 70 L. Ed. 2d 700 (1982)); see also
United States v. Grundhoefer, 916 F.2d 788, 791 (2d Cir. 1990).
There are three requirements to establish Article III standing:
“(1) the plaintiff must have suffered an injury-in-fact; (2)
there must be a causal connection between the injury and the
conduct
at
issue;
and
(3)
the
injury
redressed by a favorable decision.”
see
also
Allen,
468
U.S.
at
751
must
be
likely
to
be
Cooper, 577 F.3d at 489;
(“A
plaintiff
must
allege
personal injury fairly traceable to the defendant’s allegedly
unlawful conduct and likely to be redressed by the requested
relief.”); Lujan v. Defenders of Wildlife, 504 U.S. 555, 560,
112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992).
As to the demolition claims, the Village Defendants
maintain that, except for M.A. Salazar, Plaintiffs have not--and
cannot--allege
Building.
injury
in
fact
because
they
did
not
own
the
The Court disagrees except as to Plaintiff Pamela
Makaea. “To qualify as a constitutionally sufficient injury-infact, the asserted injury must be ‘concrete and particularized’
as
well
as
‘actual
hypothetical.’”
or
imminent,
not
conjectural
or
Baur v. Veneman, 352 F.3d 625, 632 (2d Cir.
2003) (quoting Lujan, 504 U.S. at 560); cf. Amnesty Int’l U.S.A.
v. Clapper, 667 F.3d 163, 171 (2d Cir. 2011) (“The critical
inquiry
for
standing
is
whether
the
plaintiffs
are
simply
citizens with an abstract claim that some action was unlawful,
35
or whether they, in some particular respect not shared by every
person who dislikes the action, are injured by that action.”).
Injury is “concrete and particularized” if it “affect[s] the
plaintiff in a personal and individual way,” Lujan, 504 U.S. at
560 n.1; accord Baur, 352 F.3d at 632, and injury is “actual or
imminent” if the plaintiff “has sustained or is immediately in
danger of sustaining some direct injury,” City of Los Angeles v.
Lyons, 461 U.S. 95, 102, 103 S. Ct. 1660, 75 L. Ed. 2d 675
(1983) (internal quotation marks and citation omitted).
The Court finds that Plaintiffs’ claims that they were
living in or working out of the Building satisfy the standing
requirement at this stage of the litigation.
See Lujan, 504
U.S. at 561 (“At the pleading stage, general factual allegations
of injury resulting from the defendant’s conduct may suffice,
for
on
a
motion
to
dismiss
we
‘presum[e]
that
general
allegations embrace those specific facts that are necessary to
support the claim.’” (alteration in original) (quoting Lujan v.
Nat’l Wildlife Fed., 497 U.S. 871, 889, 110 S. Ct. 3177, 111 L.
Ed. 2d 695 (1990)); accord Butler v. Suffolk Cnty., 289 F.R.D.
80,
90-91
connection,
(E.D.N.Y.
if
any,
2013).
Pamela
However,
Makaea
it
had
is
to
unclear
the
what
Building.
According to the Complaint, the Building served as a residence
for Richard Libbey, but not necessarily for his wife.
Compl. ¶ 26.)
(See
Accordingly, the Village Defendants’ motion in
36
this regard is GRANTED as to Pamela Makaea but DENIED for the
additional Plaintiffs.
As to Plaintiffs’ claims regarding the First Amendment
and the Political Sign Ordinance, the Village Defendants assert
that only Alberta Libbey has standing.
11.)
(Village Defs. Br. at
Notably, Plaintiffs implicitly concede that M.A. Salazar,
Victoria
Libbey
Associates,
Simao,
Inc.
lack
Pamela
Makaea,
standing.
(See
and
Pls.
Atlantic
Opp.
Beach
Br.
at
17
(arguing only that Richard and Alberta Libbey were “deterred
from
putting
up
additional
signs”).
As
such,
the
Village
Defendants’ motion is GRANTED in this regard.
However,
assertion,
the
contrary
Court
finds
to
the
that
Village
Richard
Defendants’
Libbey
standing to bring the First Amendment claims.
does
have
The Complaint
alleges that Richard Libbey erected political signs, that the
Village Defendants thereafter issued summonses against Alberta
Libbey,
and
that,
decided
not
to
¶¶ 232, 242.)
as
post
a
result,
additional
Richard
signs.
and
Alberta
(See,
e.g.,
Libbey
Compl.
Although the Complaint does not allege that the
Village Defendants retaliated against Richard Libbey directly,
Plaintiffs’ have alleged enough to confer his standing at this
stage.
See Jones v. Bay Shore Union Free Sch. Dist., --- F.
Supp. 2d ----, 2013 WL 2316643(JS)(GRB), at *4-5 (E.D.N.Y. May,
28, 2013).
37
Accordingly, the Village Defendants’ motion to dismiss
based on standing is GRANTED IN PART and DENIED IN PART.
The
Village Defendants’ motion is GRANTED insofar as it asserts that
Pamela Makaea lacks standing to assert claims relating to the
demolition and that M.A. Salazar, Victoria Libbey Simao, Pamela
Makaea, and Atlantic Beach Associates, Inc. lack standing to
bring claims regarding the First Amendment and the Political
Sign
Ordinance.
regard.
Their
motion
is
otherwise
DENIED
in
this
As the Complaint contains few, if any, other relevant
allegations
as
to
Pamela
Makaea,
the
Clerk
of
the
Court
is
directed to TERMINATE her as a Plaintiff in this matter.
F. Plaintiffs’ Due Process Claims
Plaintiffs allege both substantive and procedural due
process violations against Defendants.
process,
Plaintiffs
infringed
enforcement
on
allege
Plaintiffs’
and
that
“[t]he
property
interpretative
As to substantive due
Village
rights
authority
by
under
Defendants
abusing
the
their
Atlantic
Beach Village Code and New York law in a selective, irrational,
and arbitrary manner that was starkly different from similarly
situated residents and property owners in the Village.”
¶
269.)
They
further
assert
that
all
Defendants
(Compl.
“acted
in
concert” with one another, under color of state law, to violate
their substantive due process rights.
procedural due process, Plaintiffs allege
38
(Compl. ¶ 272.)
As to
[t]he Village Defendants repeatedly provided
inadequate process with respect to members
of the Libbey Family when they issued
summonses
without
providing
notice
as
required by the Atlantic Beach Village Code;
when Mr. Mahler injected bias into the
Village Court, inter alia, by indicating
that judicial harshness toward members of
the Libbey family was a factor in appointing
or retaining village justices; and when the
Building Code under the Atlantic Beach
Village Code was abused by Defendants Mahler
and Cherson to force Plaintiffs not to
repair the 2035 Park Street Office and then
to base a demolition order on a professional
opinion procured from Defendant Williams
without allowing him to conduct a full
inspection of the premises essential to an
adequate process.
(Compl. ¶ 288.)
Again, Plaintiffs assert that all Defendants
acted in concert to deprive Plaintiffs of their procedural due
process rights.
(Compl. ¶ 291.)
The Court will address each of
these claims in turn.
1. Substantive Due Process
The
Village
Defendants
move
to
dismiss
Plaintiffs’
substantive due process claims because, they argue, the need for
demolition
had
previously
been
litigated
and
decided
in
the
Village’s favor and, therefore, Plaintiffs cannot now claim that
they had a legitimate claim of entitlement to the Building in
order to maintain a substantive due process claim.
Defs. Br. at 12.)
if
Plaintiffs
did
(Village
The Village Defendants also assert that, even
have
a
protectable
property
interest,
the
Village Defendants’ conduct was not “outrageously arbitrary.”
39
(Village Defs. Br. at 12-13.)
The Court finds that dismissal of
Plaintiffs’ substantive due process claims is appropriate, but
not
for
the
articulated.
reasons
that
the
Village
Defendants
have
See Sula v. City of Watervliet, No. 06-CV-0316,
2006 WL 2990489, at *3 (N.D.N.Y. Oct. 19, 2006) (finding, under
facts similar to those in the instant action, “that plaintiff’s
substantive
due
process
claim
against
defendants
must
be
dismissed, but not for the reasons proffered by defendants.”).
The
protects
Due
persons
property.”
against
Clause
of
the
deprivations
of
a
substantive
valid
liberty
due
or
process,
property
Fourteenth
of
U.S. Const. Amend. XIV, § 1.
violation
identify
Process
“life,
Amendment
liberty,
or
Thus, to establish a
Plaintiffs
must
interest.
See
first
Harlen
Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494, 503 (2d Cir.
2001); Toussie v. Cnty. of Suffolk, 806 F. Supp. 2d 558, 579
(E.D.N.Y. 2011).
Here, although Plaintiffs have identified a protected
property
interest,
cannot stand.
their
claim
for
substantive
due
process
In Albright v. Oliver, 510 U.S. 266, 114 S. Ct.
807, 127 L. Ed. 2d 114 (1994), the Supreme Court held that
“[w]here
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,’
40
must
be
the
guide
for
analyzing these claims.”
Thus, courts in this Circuit have held
that “[w]here, as here, the government demolishes a building, a
‘seizure’ results within the meaning of the Fourth Amendment.”
DeBari v. Town of Middleton, 9 F. Supp. 2d 156, 161 (N.D.N.Y.
1998); see Sula, 2006 WL 2990489, at *3 (dismissing substantive
due process claim because claim based upon demolition grounded
in Fourth Amendment); Smith v. City of Albany, No. 03-CV-1157,
2006 WL 839525, at *9 (N.D.N.Y. Mar. 27, 2006).
Accordingly,
Plaintiffs’ substantive due process claims “fit squarely within
the contours of the Fourth Amendment’s protections,”9 DeBari, 9
F. Supp. 2d at 161, and are therefore DISMISSED.
2. Procedural Due Process
The
procedural
Village
due
Defendants
process
claims
on
move
the
to
dismiss
basis
Plaintiffs’
that
Plaintiffs
received adequate process through an Article 78 proceeding.
The
Court disagrees.
To
prevail
on
a
procedural
due
process
claim,
a
plaintiff must show that he: (1) had a “protected liberty or
property
interest”
and
without due process.”
(2)
was
“deprived
of
that
interest
McMenemy v. City of Rochester, 241 F.3d
279, 286 (2d Cir. 2001).
Here, the Village Defendants argue
that Plaintiffs were afforded adequate process.
The Court will separately address the viability of Plaintiffs’
Fourth Amendment claim.
9
41
Although the Second Circuit has held that an Article
78
proceeding
generally
satisfies
due
process
“if
the
deprivation is caused by random, unauthorized state conduct,”
Kraebel v. N.Y.C. Dep’t of Hous. Pres. & Dev., 959 F.2d 395, 404
(2d Cir. 1992) (citing Parratt v. Taylor, 451 U.S. 527, 543, 101
S. Ct. 1908, 68 L. Ed. 2d 420 (1981); Hudson v. Palmer, 468 U.S.
517, 533, 104 S. Ct. 3194, 82 L. Ed. 2d 393 (1984)), an Article
78 proceeding is not sufficient where “it is the state system
itself
that
destroys
a
complainant’s
property
interest,
by
operation of law,” Logan v. Zimmerman Brush Co., 455 U.S. 422,
436, 102 S. Ct. 1148, 71 L. Ed. 2d 265 (1982); see also Hellenic
Am. Neighborhood Action Comm. v. City of N.Y., 101 F.3d 877, 880
(2d
Cir.
1996)
(“When
the
deprivation
occurs
in
the
more
structured environment of established state procedures, rather
than random acts, the availability of postdeprivation procedures
will not, ipso facto, satisfy due process.”); Van Oss v. New
York, 783 F. Supp. 2d 681, 695 (S.D.N.Y. 2011) (“[W]here the
deprivation is systemic, litigants have a well-established right
to pursue their claims in federal court without resorting to
state judicial remedies.”).
Here, Plaintiffs allege that Defendants followed state
procedures in effectuating a demolition and therefore at least
plausibly allege that the Article 78 proceedings were not an
adequate
remedy
in
this
case.
42
See
Cathedral
Church
of
Intercessor v. Inc. Vill. of Malverne, No. 02-CV-2989, 2006 WL
572855, at *7 (E.D.N.Y. Mar. 6, 2006).
cannot
properly
be
resolved
in
a
Accordingly, this issue
motion
to
dismiss
and
the
Village Defendants’ motion to dismiss Plaintiffs’ procedural due
process claim is DENIED.
See 33 Seminary LLC, 869 F. Supp. 2d
at 301 (“The issue of whether an Article 78 proceeding under New
York law provided adequate remedy is not properly resolved on
motion to dismiss.”).
G.
Plaintiffs’ Fourth Amendment Claim
The
Village
Defendants
also
move
to
dismiss
Plaintiffs’ Fourth Amendment seizure claim--and its equivalent
under the New York State Constitution--because, they argue, “the
Village only proceeded with the demolition after a favorable,
unappealed determination in the state court and village court.”
(Village Defs. Br. at 14.)
“The
Fourth
The Court disagrees.
Amendment
protects
unreasonable searches and seizures.’”
individuals
‘against
Palacios v. Burge, 589
F.3d 556, 562 (2d Cir. 2009) (quoting U.S. Const. Amend. IV.)
“Whether the Fourth Amendment is violated depends upon whether
the seizure was ‘reasonable.’”
DeBari, 9 F. Supp. 2d at 163.
“Reasonableness,” though it does not have a precise definition
“generally
requires
private interests.’”
a
‘careful
balancing
of
government
and
Id. (quoting Soldal v. Cook County, Ill.,
506 U.S. 56, 71, 113 S. Ct. 538, 121 L. Ed. 2d 450 (1992)).
43
Preliminarily, the Court notes that the state court
proceedings
merits.
did
not
affirmatively
decide
demolition
on
the
Moreover, on appeal from the Bankruptcy Court, Judge
Spatt determined that the Village Defendants, in carrying out
the demolition, violated at least one of the Bankruptcy Court’s
explicit orders.
See supra p. 10.
However,
even
given
the
state
court’s
decisions
on
M.A. Salazar’s requests for injunctive relief, Plaintiffs have
sufficiently alleged that Defendants may have acted unreasonably
given
the
particular
facts
of
this
case.
In
DeBari,
for
example, the District Court for the Northern District of New
York
declined
to
enter
summary
judgment
in
the
defendants’
favor, even though defendants demolished the subject property
pursuant to an order by the town supervisor.
DeBari, 9 F. Supp.
2d at 163.
Furthermore,
Plaintiffs
allege
that
their
engineer
determined, after a full inspection, that demolition was not
necessary.
of
(See, e.g., Compl. ¶¶ 165-66.)
Northumberland,
(denying
summary
regarding
building).
985
judgment
reasonableness
Such
F.
See Heidorf v. Town
Supp.
250,
259
because
there
were
of
immediate
allegations,
(N.D.N.Y.
issues
demolition
particularly
in
light
1997)
of
fact
of
the
of
the
bankruptcy proceedings--in which the Bankruptcy Court issued the
Fence Order and prohibited persons from entering the Park Street
44
property but otherwise maintained the status quo--are sufficient
to
overcome
a
motion
to
dismiss.
Accordingly,
the
Village
Defendants’ motion to dismiss Plaintiffs’ Fourth Amendment claim
and its equivalent under the New York State Constitution is
DENIED.
H. Equal Protection
The
Village
Defendants
move
to
dismiss
Plaintiffs’
Equal Protection claim because, they say, Plaintiffs have only
speculatively alleged that they were treated differently from
other Village residents and because they have not sufficiently
alleged others who were “similarly situated.”
Br. at 14.)
(Village Defs.
More specifically, the Village Defendants argue
that, as to the demolition, “[P]laintiffs certainly cannot claim
this was predicated on anything but safety reasons given the
unappealed holdings . . . and it will thus be impossible to
identify
reasons.”
any
property-owner
treated
differently
(Village Defs. Br. at 15.)
for
improper
As to the Political Sign
Ordinance, the Village Defendants argue that some other signs
that Plaintiffs have identified were prior non-conforming uses,
a
sign
at
the
Westbury
Beach
Club
complied
with
code
requirements, and a sign at A.B. Petrey was initially denied a
sign permit but later granted a variance following a hearing.
(Village Defs. Br. at 15.)
The Court will address each of these
arguments in turn.
45
“The
Equal
Protection
Clause
of
the
Fourteenth
Amendment requires the government to treat similarly situated
persons alike.”
Missere v. Gross, 826 F. Supp. 2d 542, 560
(S.D.N.Y. 2011).
Here, Plaintiffs base their Equal Protection
claim
on
a
adequately
must
theory
allege
allege:
similarly
of
a
“(1)
was
selective
[he
situated
treatment
“selective
enforcement
was]
treated
individuals
based
on
enforcement.”
In
claim,
a
differently
and
(2)
impermissible
this
order
to
plaintiff
from
other
differential
considerations
such
as
race, religion, intent to inhibit or punish the exercise of
constitutional
rights,
injure a person.”
or
malicious
or
bad
faith
intent
to
MacPherson v. Town of Southampton, 738 F.
Supp. 2d 353, 370 (E.D.N.Y. 2010) (internal quotation marks and
citations omitted).
Courts
in
this
Circuit
are
split
regarding
the
definition of “similarly situated” in selective enforcement and
class-of-one cases.
Some courts have held that the definitions
are the same in both cases, and the plaintiff must “establish
that (i) no rational person could regard the circumstances of
the plaintiff to differ from those of a comparator to a degree
that would justify the differential treatment on the basis of a
legitimate
government
circumstances
and
policy;
difference
in
and
(ii)
treatment
the
are
similarity
in
sufficient
to
exclude the possibility that the defendants acted on the basis
46
of a mistake.”
Roman Catholic Diocese of Rockville Centre, N.Y.
v. Inc. Vill. of Old Westbury, No. 09-CV-5195, 2012 WL 1392365,
at *12 (E.D.N.Y. Apr. 23, 2012) (internal quotation marks and
citations
applied
omitted)
a
(collecting
somewhat
less
cases).
stringent
Other
standard
courts
in
have
selective
enforcement cases, requiring “plaintiffs to show that plaintiff
and
comparators
were
‘similarly
situated
in
all
material
respects,’ or that ‘a prudent person, looking objectively at the
incidents, would think them roughly equivalent.’”
Missere, 826
F. Supp. 2d at 561 (quoting Vassallo v. Lando, 591 F. Supp. 2d
172, 184 (E.D.N.Y. 2008); Yajure v. DiMarzo, 130 F. Supp. 2d
568, 572 (S.D.N.Y. 2001)).
Regardless
Plaintiffs’
fails.
have
Equal
of
the
Protection
particular
claim
standard,
based
on
the
however,
demolition
As the Village Defendants’ correctly note, Plaintiffs
failed
maintain
to
their
allege
claim
sufficient
as
to
the
comparators
demolition.
in
The
order
to
Complaint
contains only speculative allegations that the Village did not
employ
the
situated.
the
condemnation
process
(Compl. ¶ 156.)
Catalina
Beach
Club
against
others
similarly
Although Plaintiffs do allege that
made
repairs
under
a
non-structural
permit similar to those that Plaintiffs were required to make to
the
Building
Plaintiffs’
under
single,
a
structural
conclusory
47
permit
allegation
(Compl.
is
¶
94),
insufficient.
Accordingly, the Village Defendants’ motion is GRANTED in this
regard
and
Plaintiffs’
Equal
Protection
claim
based
on
the
demolition is DISMISSED WITHOUT PREJUDICE.
In
contrast,
Plaintiffs
sufficiently
allege
comparators insofar as their Equal Protection claim based on the
Political Sign Ordinance is concerned.
allege
that
“the
Village
For example, Plaintiffs
conspicuously
failed
to
cite
other
residents who erected signs that violated the Political Sign
Ordinance
or
who
erected
otherwise
prohibited
by
commercial
the
Atlantic
signs
that
Beach
were
Village
subject to fewer restrictions than political signs.”
¶ 244.)
either
Code
or
(Compl.
Specifically, Plaintiffs point to signs at the Petry
A.B. real estate office, at the Westbury Country Club, and at
1888 Park Street Atlantic Beach.
(Compl. ¶¶ 245-46.)
Taking
these allegations as true, as the Court must on a motion to
dismiss, see supra p. 23,10 Plaintiffs have sufficiently alleged
others who were similarly situated in order to overcome the
Village
Defendants’
motion.
Accordingly,
the
Village
Defendants’ motion to dismiss Plaintiffs’ Equal Protection claim
based on the Political Sign Ordinance is DENIED.
Although the Village Defendants submit evidence to refute
Plaintiffs’ Equal Protection claim based on the Political Sign
Ordinance, the Court cannot consider such evidence at the motion
to dismiss stage and declines to convert the motion to one for
summary judgment.
10
48
I. Plaintiffs’ Takings Claims
The
Village
Defendants
move
to
dismiss
Plaintiffs’
takings claims because the Building was a dangerous structure
and
therefore
public.
the
demolition
was
(Village Defs. Br. at 20.)
performed
to
protect
the
The Court disagrees.
Certainly the Village Defendants are correct that “a
municipal
demolition
of
an
imminently
dangerous
structure
in
order to protect the public is an exercise of the police power
and does not constitute a ‘taking.’”
Wantanabe Realty Corp. v.
City of N.Y., 315 F. Supp. 2d 375 (S.D.N.Y. 2003).
However, it
is not clear that the Building posed an imminent danger.
As
previously stated, the state court determined that the Building
was in a state of disrepair and, accordingly, that M.A. Salazar
was not entitled to a TRO.
not
necessarily
follow
See supra p. 28.
that
the
Building
However, it does
was
imminently
dangerous and the Bankruptcy Court at least arguably believed
that the Fence Order was sufficient to maintain the public’s
safety.
Thus, Plaintiffs’ claims, while barely crossing the
threshold,11 are sufficient to state a claim.
Accordingly, the
Village Defendants’ motion to dismiss Plaintiffs’ takings claims
is DENIED.
The Court does not make any ruling as to the viability of this
claim beyond those arguments that the Village Defendants have
specifically raised.
11
49
J. Plaintiffs’ First Amendment Retaliation Claims
The
Village
Defendants
further
move
to
dismiss
Plaintiffs’ First Amendment retaliation claims as time-barred
and
because
Plaintiffs
have
elements of such a claim.
failed
to
allege
the
essential
The Court agrees with the Village
Defendants that some of Plaintiffs’ bases for a First Amendment
retaliation claim are time-barred.
However, as to Plaintiffs’
timely claims, the Court finds that Plaintiffs have otherwise
sufficiently
alleged
the
elements
of
a
First
Amendment
retaliation claim.
Section
1983
statute of limitations.
claims
are
subject
to
a
three-year
See Ormiston v. Nelson, 117 F.3d 69, 71
(2d Cir. 1997); see also Brown v. State, 250 A.D.2d 314, 318,
681 N.Y.S.2d 170 (3d Dep’t 1998) (noting that the statute of
limitations for state constitutional torts is also three years).
Plaintiffs commenced this action on May 6, 2013, yet allege
First Amendment violations beyond the three-year limit.
The
Village Defendants assert that, even assuming the statute of
limitations was tolled during the period when Plaintiffs were
ready to file the Complaint but agreed to give the Village more
time, any allegations prior to April 15, 2010 are time-barred.
(Village Defs. Br. at 17.)
their
claims
are
not
Plaintiffs, however, maintain that
barred
by
the
three-year
statute
limitations because they have alleged a “continuing violation.”
50
of
“Under
the
continuing
violation
doctrine,
‘if
a
plaintiff has experienced a continuous practice and policy of
discrimination,
.
.
.
the
commencement
of
the
statute
of
limitations period may be delayed until the last discriminatory
act in furtherance of it.’ ” Bermudez v. City of N.Y., 783 F.
Supp.
2d
560,
574
(S.D.N.Y.
2011)
(quoting
Henderson, 251 F.3d 345, 359 (2d Cir. 2001)).
Fitzgerald
v.
To bring a claim
under the continuing violation doctrine, Plaintiffs must allege
a discriminatory policy or practice and a discriminatory act
during the statutory period.
See S. Lyme Prop. Owners Ass’n v.
Town of S. Lyme, 539 F. Supp. 2d 547, 557 (D. Conn. 2008).
“However,
courts
in
this
circuit
consistently
have
looked
unfavorably on continuing violation arguments . . . and have
applied the theory under compelling circumstances.”
Ruane v.
Cnty. of Suffolk, 923 F. Supp. 2d 454, 459 (E.D.N.Y. 2013).
Here,
although
Plaintiffs
have
asserted
violations
that span several years, this is not sufficient.
“‘[D]iscrete
incidents
related
of
discrimination
that
are
not
to
discriminatory policies or mechanisms’ do not give rise to a
continuing violation.”
Young v. Strack, No. 05-CV-9764, 2007 WL
1575256, at *4 (S.D.N.Y. May 29, 2007) (quoting Cornwell v.
Robinson, 23 F.3d 694, 704 (2d Cir. 1994)).
Thus, Plaintiffs’
allegations regarding the Village Defendants’ specific acts do
not
save
their
untimely
claims.
51
Indeed,
where,
as
here,
Plaintiffs
can
identify
particular
periods
of
time
and
circumstances (see, e.g., Compl. ¶ 40 (alleging specific dates
on which retaliatory acts occurred)), they have merely alleged
isolated
acts,
which
actionable at the time.
Plaintiffs
could
have
recognized
as
Cf. Ruane, 923 F. Supp. 2d at 459-60
(“Compelling circumstances have been found where the unlawful
conduct takes place over a period of time, making it difficult
to pinpoint the exact day the violation occurred; where there is
an
express,
openly
espoused
policy
that
is
alleged
to
be
discriminatory; or where there is a pattern of covert conduct
such
that
the
plaintiff
only
belatedly
recognizes
its
unlawfulness.” (internal quotation marks and citation omitted)).
Accordingly, Plaintiffs’ retaliation allegations which
occurred prior to April 15, 2010 are time-barred and therefore
are DISMISSED WITH PREJUDICE.
As
however,
to
they
Plaintiffs’
have
Generally,
a
retaliation
claim
timely
otherwise
private
must
sufficiently
citizen
allege
retaliatory
bringing
that
“(1)
allegations,
stated
a
First
he
has
an
a
claim.
Amendment
interest
protected by the First Amendment; (2) defendants’ actions were
motivated or substantially caused by his exercise of that right;
and (3) defendants’ action effectively chilled the exercise of
his First Amendment right.”
Curley v. Vill. of Suffern, 268
F.3d 65, 73 (2d Cir. 2001).
52
The
failed
to
Village
allege
substantially
that
caused
Amendment rights.
Defendants
assert
Defendants’
by
the
that
actions
exercise
Plaintiffs
were
of
have
motivated
Plaintiffs’
or
First
The Court, however, cannot decide this issue
at the motion to dismiss stage.
“Such matters [as defendants’
motivation] are required only to be ‘averred generally’ in a
complaint, and need not be pled with specificity.”
Puckett v.
City of Glen Cove, 631 F. Supp. 2d 226, 240-41 (E.D.N.Y. 2009).
Indeed, alleging motivation with specificity would be difficult.
See Gagliardi v. Vill. of Pawling, 18 F.3d 188, 195 (2d Cir.
1994).
The
Village
Defendants
further
argue
that,
even
if
Plaintiffs have sufficiently alleged a causal link, they have
not alleged “actual chill.”
Again, the Court disagrees.
“Where
a party can show no change in his behavior, he has quite plainly
shown no chilling of his First Amendment right to free speech.”
Curley, 268 F.3d at 73.
that
signs
Richard
but
and
Alberta
“decided
not
Here, though, Plaintiffs have alleged
Libbey
to
do
wished
so
under
to
display
the
political
weight
of
the
summonses the Village had issued and would continue to issue.”
(Compl. ¶ 242.)
Thus, although the Village Defendants assert
that Plaintiffs continued to display signs even after receiving
summonses under the Political Sign Ordinance (Village Defs. Br.
at 19), Plaintiffs have set forth sufficient allegations to show
53
that, at some point in time, the summonses became too great a
weight to continue posting signs.
Accordingly, the Village Defendants’ motion to dismiss
Plaintiffs’
timely
First
Amendment
retaliation
claims
for
a
failure to sufficiently allege the necessary elements is DENIED.
K.
Plaintiffs’ State Law Claims
In addition to their constitutional claims, Plaintiffs
also assert several state law tort claims, which the Village
Defendants maintain must be dismissed on statute of limitations
grounds and for failure to serve a notice of claim.
General Municipal Law § 50-e requires service of a
notice of claim within 90 days after a claim arises “[i]n any
case founded upon tort where a notice of claim is required by
law as a condition precedent to the commencement of an action or
special proceeding against a public corporation.”
LAW § 50-e(1).
N.Y. GEN. MUN.
General Municipal Law § 50-i provides that “the
action or special proceeding shall be commenced within one year
and ninety days after the happening of the event upon which the
claim is based.”
1.
The
Id. § 50-i(1).
Statute of Limitations
Village
trespass;
nuisance;
relations;
prima
facie
Defendants
tortious
tort;
maintain
that
interference
and
intentional,
with
Plaintiffs’
business
reckless,
and
negligent infliction of emotional distress claims all relate to
54
the demolition, which occurred on November 29, and 30, 2011, and
therefore are time-barred by the one-year-and-ninety-day statute
of limitations.
Plaintiffs do not dispute that such claims are
beyond the applicable statute of limitations, but argue that the
Village Defendants engaged in a continuous course of conduct
which extends the accrual period.
Plaintiffs
are
(Pls. Opp. Br. at 30.)
correct
in
that
the
statute
of
limitations accrues anew each day for continuing wrongs, thus
extending the accrual period.
See Cnty. of Suffolk, N.Y. v.
Travelers, Ins. Co., 267 F. Supp. 2d 288, 296 (E.D.N.Y. 2003);
Bloomingdales, Inc. v. N.Y.C. Transit Auth., 52 A.D.3d 120, 125,
859 N.Y.S.2d 22 (1st Dep’t 2008).
Here, however, Plaintiffs do
not allege the kind of “continuing wrongs” that would save their
untimely
claims.
For
example,
Plaintiffs’
trespass
claims
occurred when the Village Defendants entered the Park Street
property
and
demolished
the
Building.
The
demolition--a
singular, discrete act--occurred over the course of two days in
2011.
Once the demolition was complete, there was no continuing
wrong.
Contra Kennedy v. United States, 643 F. Supp. 1072, 1079
(E.D.N.Y. 1986) (claims that jetties continually blocked normal
replenishment
of
sand
were
not
barred
by
the
statute
of
limitations).
Plaintiffs’ argument that the wrongs continued because
the Village Defendants passed the Political Sign Ordinance after
55
the demolition is unavailing as to their trespass and tortious
interference
with
business
relations
claims.
clearly relate solely to the demolition.
342.)
Such
claims
(See Compl. ¶¶ 334,
Plaintiffs’ nuisance, prima facie tort, and emotional
distress claims, however, arguably relate to the Political Sign
Ordinance as well.
that
Plaintiffs’
demolition
are
As the Village Defendants correctly assert
state
law
untimely,
tort
their
claims
motion
is
pertaining
GRANTED
to
in
the
this
respect, and Plaintiffs’ trespass and tortious interference with
business relations claims are DISMISSED WITH PREJUDICE.
2.
Notice of Claim
The Village Defendants further argue that Plaintiffs
failed to timely serve a Notice of Claim, thus necessitating
dismissal
process,
claims.
of
Plaintiffs’
nuisance,
prima
malicious
facie
tort,
(Village Defs. Br. at 22.)
Plaintiffs
exceptions
to
the
counter,
Notice
of
prosecution,
emotional
of
distress
The Court agrees.
first,
Claim
and
abuse
by
arguing
requirement
that
apply
in
two
the
instant case--this case is one for injunctive relief in which
damages are incidental, and this action has been brought to
vindicate a public interest.
(Pls. Opp. Br. at 31-32.)
Neither
argument is availing.
“[S]ervice of a notice of claim is not required where
the cause of action is in equity and money damages are merely
56
incidental . . . .”
837
N.Y.S.2d
Plaintiffs’
391
Smith v. Town of Long Lake, 40 A.D.3d 1381,
(3d
requests
Dep’t
for
2007).
Here,
injunctive
even
relief
considering
and
their
PI
requests, the core of this case is a Section 1983 action for
damages.
Plaintiffs allege millions of dollars in damages for
state law and constitutional violations.
Such claims are more
than merely incidental to the injunctive relief that Plaintiffs
request.
See Palmieri v. Vill. of Babylon, 26 A.D.3d 423, 423,
809 N.Y.S.2d 566 (2d Dep’t 2006).
Plaintiffs
also
argue
that
the
Notice
of
Claim
requirement does not apply because they have brought suit to
vindicate
a
public
interest.
This,
however,
is
a
private
lawsuit seeking to vindicate the specific alleged constitutional
violations against Plaintiffs.
See Humphrey v. Cnty. of Nassau,
No. 06-CV-3682, 2009 WL 875534, at *20 (E.D.N.Y. Mar. 30, 2009).
In fact, the Complaint explains in great detail how Defendants
have targeted Plaintiffs in particular.
Finally,
Plaintiffs
additionally
assert
that
their
state law claims are not barred because they did file a Notice
of Claim on December 1, 2011.
(See Miranda Decl. Ex. O.)
As
best the Court can discern from the almost entirely illegible
Notice of Claim at issue, it relates entirely to the demolition,
and
provides
no
notice
Political Sign Ordinance.
of
any
allegations
regarding
(See Miranda Decl. Ex. O.)
57
the
Nor did
the
Article
78
proceedings
sufficiently
alert
the
Village
Defendants to many of the claims that Plaintiffs raise in the
instant action.12
718
N.Y.S.2d
4
See Brown v. City of N.Y., 95 N.Y.2d 389, 393,
(2000)
(explaining
that
the
standard
in
determining the sufficiency of a Notice of Claim is “whether
based on the claimant’s description municipal authorities can
locate the place, fix the time and understand the nature of the
accident”).
Accordingly, the Village Defendants’ motion to dismiss
in
this
regard
is
GRANTED,
and
Plaintiffs’
malicious
prosecution, abuse of process, nuisance, prima facie tort, and
emotional distress claims are DISMISSED WITH PREJUDICE.
The Court also notes that Plaintiffs’ failure to serve a
Notice of Claim against the individual Village Defendants
likewise bars the state law tort claims against them. Although,
“the requirements of Sections 50-e and 50-I are not conditions
precedent to the commencement of an action against a county
official or employee ‘unless the county is required to indemnify
such person,’” Poux v. Cnty. of Suffolk, No. 09-CV-3081, 2010 WL
1849279, at *13 (E.D.N.Y. May 4, 2010) (quoting Grasso v.
Schenectady Cnty. Pub. Library, 30 A.D.3d 814, 817, 817 N.Y.S.2d
186 (3d Dep’t 2006)), Plaintiffs’ claims relate to Mahler and
Cherson’s actions in their official capacity, see Sandy Hollow
Assocs. LLC v. Inc. Vill. of Port Washington N., No. 09-CV-2629,
2010 WL 6419570, at *18 (E.D.N.Y. Sept. 6, 2010), adopted by
2011 WL 1260245 (E.D.N.Y. Mar. 30, 2011) (“[A]ll of Plaintiffs’
allegations pertain to conduct by the Individual Defendants
while serving as Mayor, member of the Board or Building
Inspector for the Village and thus, Plaintiffs’ claims against
the Individual Defendants relate solely to their status as
County employees.” (internal quotation marks and citation
omitted)).
12
58
L.
Defendant-Specific Arguments
Finally, the respective motions to dismiss also raise
arguments
specific
Engineering
to
Defendants
those
assert
particular
that
Defendants.
Plaintiffs’
The
constitutional
claims are not applicable to them and that, in any event, they
are
entitled
to
absolute
immunity.
The
Village
Defendants
maintain that they are entitled to legislative and qualified
immunity.
The Court will address the Engineering Defendants’
arguments first.
1.
Constitutional
Engineering Defendants
Claims
as
Applied
to
the
To state a claim under Section 1983, a plaintiff must
“allege
that
(1)
the
challenged
conduct
was
attributable
at
least in part to a person who was acting under color of state
law
and
(2)
the
conduct
deprived
the
plaintiff
of
guaranteed under the Constitution of the United States.”
a
right
Snider
v. Dylag, 188 F.3d 51, 53 (2d Cir. 1999); see also Cornejo v.
Bell,
592
F.3d
121,
127
(2d
Cir.
2010).
Only
in
limited
circumstances will courts recognize that a private individual
may be subject to liability under Section 1983.
Similarly, “the
New York State Constitution only permit[s] suits against state
actors acting under color of state law . . . .”
Hightower v.
United States, 205 F. Supp. 2d 146, 154 n.4 (S.D.N.Y. 2002);
59
accord Algarin v. N.Y.C. Dep’t of Corr., No. 06-CV-0508, 2006 WL
1379605, at *1 (S.D.N.Y. May 19, 2006).
Here, Plaintiffs’ only basis for asserting that the
Engineering Defendants acted under color of state law is that
they allegedly conspired with state actors.
at 38.)
1983
(See Pls. Opp. Br.
“To state a claim against a private entity on a section
conspiracy
theory,
the
complaint
must
allege
facts
demonstrating that the private entity acted in concert with the
state actor to commit an unconstitutional act.”
Ciambriello v.
Cnty. of Nassau, 292 F.3d 307, 324 (2d Cir. 2002) (internal
quotation
marks
Culbertson,
200
and
F.3d
citation
65,
omitted);
72
(2d
see
Cir.
also
1999)
Pangburn
(stating
that
v.
a
Section 1983 conspiracy requires (1) an agreement between state
and
private
actors;
unconstitutional
furtherance
of
“(2)
injury;
that
to
act
and
goal
in
(3)
causing
concert
an
overt
to
act
damages”).
inflict
done
“A
an
in
merely
conclusory allegation that a private entity acted in concert
with a state actor does not suffice to state a § 1983 claim
against the private entity.”
Ciambriello, 292 F.3d at 324; see
also Spear v. Town of West Hartford, 954 F.2d 63, 68 (2d Cir.
1992).
Plaintiffs
would
plausibly
have
suggest
not
a
proffered
“meeting
of
any
the
Goord, 340 F.3d 105, 110 (2d Cir. 2003).
60
allegations
minds.”
that
Webb
v.
Rather, Plaintiffs
simply allege that the Village Defendants hired the Engineering
Defendants, and that the Engineering Defendants provided expert
opinions with which Plaintiffs disagreed.
As
Engineering
Plaintiffs
have
Defendants
not
This is insufficient.
adequately
were
state
alleged
actors
that
for
the
their
constitutional claims, and because Plaintiffs’ state law claims
have
been
dismissed,
the
Engineering
Defendants’
motion
to
dismiss the Complaint against them is GRANTED.
2.
The
Legislative Immunity as to the Village Defendants
Village
Defendants
assert
that
legislative
immunity precludes Plaintiffs’ Section 1983 claims against them.
The Court disagrees.
“Municipal
legislators
are
entitled
to
absolute
legislative immunity for claims brought under § 1983.”
Prop. Owners, 539 F. Supp. 2d at 557.
immunity
applies
specifically
only
to
differentiated
Plaintiffs allege here.
legislative
acts
of
S. Lyme
However, legislative
acts,
and
courts
enforcement,
such
have
as
Id. at 558; see also Altaire Builders,
Inc. v. Vill. of Horseheads, 551 F. Supp. 1066, 1073 (W.D.N.Y.
1982) (“Several courts have recognized a distinction between the
enactment and the enforcement of legislation.”).
Moreover,
“legislative
immunity
bars
suits
against
municipal officials only when those officials are sued in their
personal
capacity;
the
doctrine
61
does
not
apply
to
official-
capacity suits.”
As
Plaintiffs’
primarily--if
S. Lyme Prop. Owners, 539 F. Supp. 2d at 558.
claims
not
against
the
Village
entirely--against
them
in
Defendants
their
are
official
capacity, the Village Defendants are not entitled to legislative
immunity.
Accordingly, the Village Defendants’ motion to dismiss
on the basis of legislative immunity is DENIED.
3.
The
Qualified Immunity as to the Village Defendants
Village
Defendants
entitled to qualified immunity.
also
maintain
that
they
are
The Court disagrees.
Qualified immunity shields government officials from
civil
liability
discretionary
resulting
functions
from
only
the
where
performance
their
conduct
of
their
“does
not
violate clearly established statutory or constitutional rights
of
which
a
reasonable
person
would
have
known.”
Harlow
v.
Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 73 L. Ed. 2d 396
(1982).
However, even if a defendant’s conduct was objectively
reasonable,
where
a
plaintiff
alleges
an
unconstitutional
motivation, he may be denied qualified immunity.
v.
Beerman,
94
F.
3d
823,
828
(2d
Cir.
See Sheppard
1996).
Moreover,
although a qualified immunity defense should be asserted as soon
as
possible,
such
defense
“faces
a
formidable
hurdle
advanced at such an early stage in the proceedings.”
when
Cathedral
Church of the Intercessor v. Inc. Vill. of Malverne, 353 F.
62
Supp. 2d 375, 391 (E.D.N.Y. 2005) (internal quotation marks and
citation
omitted).
Given
Plaintiffs’
allegations
regarding
impermissible motive, and the factual issues surrounding this
inquiry, the Village Defendants’ motion to dismiss on qualified
immunity grounds is DENIED.
CONCLUSION
For the foregoing reasons, Judge Lindsay’s oral R&R is
ADOPTED, Plaintiffs’ objections are OVERRULED, and Plaintiffs’
requests
for
addition,
a
the
PI
(Docket
Engineering
Entries
3,
Defendants’
30)
are
motion
DENIED.
to
dismiss
In
as
against them is DENIED on Rooker-Feldman grounds but otherwise
GRANTED
as
explained
above,
and
the
Clerk
of
the
Court
is
directed to terminate R&W and Williams as defendants in this
matter.
Finally, the Village Defendants’ motion to dismiss is
GRANTED IN PART and DENIED IN PART.
It is GRANTED in the
following respects: (1) Pamela Makaea lacks standing to assert
claims relating to the demolition and M.A. Salazar, Victoria
Libbey Simao, Pamela Makea, and Atlantic Beach Associates, Inc.
lack standing to bring claims regarding the First Amendment and
Political
Sign
Ordinance;
(2)
Plaintiffs’
substantive
due
process claim is DISMISSED WITH PREJUDICE; (3) Plaintiffs’ Equal
Protection claim based on the demolition is DISMISSED WITHOUT
PREJUDICE;
(4)
Plaintiffs’
allegations
63
of
First
Amendment
violations
and
Constitution
the
prior
equivalent
to
April
under
15,
the
2010
New
are
York
State
time-barred
and
therefore DISMISSED WITH PREJUDICE; (5) Plaintiffs’ trespass and
tortious interference claims time-barred and therefore DISMISSED
WITH PREJUDICE; and (6) Plaintiffs’ malicious prosecution, abuse
of process, nuisance, prima facie tort, intentional infliction
of
emotional
distress,
and
distress,
negligent
reckless
infliction
infliction
of
emotional
of
emotional
distress
are
DISMISSED WITH PREJUDICE for failure to file a Notice of Claim.
Accordingly, the Clerk of the Court is directed to terminate
Pamela
Makaea
as
a
plaintiff
in
this
action.
The
Defendants’ motion to dismiss is otherwise DENIED.
SO ORDERED.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated: November
4 , 2013
Central Islip, NY
64
Village
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